[{"id":1,"orig_master_id":18974,"dup_master_id":19204,"dup_sha256":"9ee1208e70cd2f0a4b0ce9b142c419c70f70024b6fe86b1984d530c4a21c79ef","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2025-08-19","case_number":"10-001","request_numbers":null,"title":"OFFICE OF THE PUBLIC ACCESS COUNSELOR - INDEX OF OPEN MEETINGS ACT BINDING OPINIONS","filename":"OMA Index of Binding Opinions.pdf","rel_path":"PAC\\ocr_searchable\\OMA Index of Binding Opinions.pdf","word_count":1640,"summary":"This is an index of binding Open Meetings Act opinions issued by the Illinois Attorney General through the Office of the Public Access Counselor from 2010 to present, organized by year and opinion number.","plain_summary":"This document is not a legal opinion itself, but rather a reference list (index) provided by the Illinois Attorney General's office to help the public find past binding decisions regarding the Open Meetings Act. It serves as a directory for researchers to locate specific rulings issued between 2010 and 2026.","holding":null,"legal_question":null,"disposition":"closed_no_further_action","primary_statute":["5 ILCS 120"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":null,"requesting_party":null,"pac_outcome":"Index of opinions","pac_law_type":null,"subject_category":"meeting notice","subject_description":"This is a reference index of binding Open Meetings Act opinions issued by the Public Access Counselor.","ocr_status":"ok","ocr_quality":89.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/OMAIndexOfBindingOpinions.pdf","sha256":"4c472f5fe147532343e1b9f7d98834880918b721645e9af664e88f6e23393cb7","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["Open Meetings Act","PAC opinions","legal research","public access"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"ATTORNEY GENERAL OPINIONS ISSUED THROUGH THE OFFICE OF THE PUBLIC ACCESS COUNSELOR INDEX OF OPEN MEETINGS ACT BINDING OPINIONS FROM 2010 TO PRESENT OPINIONS COVERED BY THIS INDEX 2010 - 10-001 through 10-004 2016 - 16-001 through 16-015 2022 - 22-001 through 22-013 2011 - 11-001 through 11-007 2017 - 17-001 through 17-015 2023 - 23-001 through 23-017 2012 - 12-001 through 12-015 2018 - 18-001 through 18-018 2024 - 24-001 through 24-016 2013 - 13-001 through 13-018 2019 - 19-001 through 19-013 2025 - 25-001 through 25-016 2014 - 14-001 through 14-016 2020 - 20-001 through 20-010 2026 - 26-001 through 26-005 2015 - 15-001 through 15-015 2021 - 21-001 through 21-012 This document is a comprehensive index of binding opinions issued by the Attorney General through the Office of the Public Access Counselor from 2010 through the present. Please note that an opinion may have been superseded by statute or case law. You should, therefore, review each opinion upon which you would rely in consultation with an attorney familiar with Illinois law. The opinions cited in this index are available in PDF format on this website. If you do not find an opinion on an issue with which you are concerned, feel free to contact the Public Access Bureau of the Office of the Attorney General (877-299-3642) to inquire regarding the existence of additional records. INDEX TO SUBJECT HEADINGS B)ej ).i Subject Heading AGENDA ATTENDANCE BY MEANS OTHER THAN PHYSICAL PRESENCE CLOSED SESSION DISCUSSION CLOSED SESSION PROCEDURE CONVENIENT AND OPEN MEETING PLACE DEFINITIONS FINAL ACTION ILLINOIS MUNICIPAL RETIREMENT FUND MINUTES NOTICE OF MEETING OPEN MEETINGS PUBLIC COMMENT PUBLIC RECITAL RECORDING OPEN MEETINGS SCHEDULE OF MEETINGS SUBSIDIARY BODIES VERBATIM RECORDINGS OF CLOSED SESSIONS => HH DWWWRB RB RPRn»nnooND ATTORNEY GENERAL OPINIONS Issued Through the OFFICE OF THE PUBLIC ACCESS COUNSELOR INDEX OF BINDING OMA OPINIONS FROM 2010 TO PRESENT current through Opinion No. 26-005 updated June 9, 2026 SUBJECT MATTER OPINION NUMBER (YEAR) AGENDA: Taking Final Action on Matters Not Included in Agenda ................ccccccceesseceeeeceeeeeesssnseeeeeeeeeeeees 13-002 (2013) Amending Agenda During 48-Hour Posting Period. .................ccccsscccccceecceesssseseeeeeeeeeeeeessssseeeeees 14-003 (2014) Taking Final Action on Matter Not on Meeting Agenda...............ccccccccccesssceeeeeeeeeessssssseeeeeeeeeeeees 15-005 (2015) Taking Final Action on Matter Not on Meeting AQenda..............:cccccccccccccssssssseeeeeeeeeeessssstsseeeeees 16-015 (2016) Taking Final Action on Matter Not Sufficiently Identified ON Meeting AGenda ..........cccccccccessssseeeeeeeeeeeeseesssseeeeceeeeeceseessseeeeeeeececeeeessseeeeeeeeeeeeees 19-012 (2019) Taking Final Action on Matter Not on Meeting Agenda................cccccccccccesssssseeeeeeeeeeeessssstaeeeeeeees 22-006 (2022) Taking Final Action on Matter Not Sufficiently Identified ON Meeting AGeOnda ............:ccccccceeeeeeeeeeeeneeeeeeeeeeeeeeeeeeeeeeeeeeeeeeseeeeeeaeeeeeeeeeeeessessneeeeeeeees 22-008 (2022) Requirement to Provide General Subject Matter of Personnel Transactions On Meeting AGenda..............ccccccccccsssssseeeeeeeeeecesseseseeeeeeeeeeeessssseeeeeeeeeeees 23-004 (2023) Taking Final Action on Matter Not on Meeting AQenda..................0::0ceseeeeeeeeeeeseseseeeeeeeeeeeeeeeeeeees 24-007 (2024) Taking Final Action on Matter Not Sufficiently Identified ON Meeting AGenda ...........ccccccccccccessssssseeeeeceececceseseseeeeeeeececceessseeeeeeeeeeeceesestaeeeeeeeeeeees 26-005 (2026) ATTENDANCE BY MEANS OTHER THAN PHYSICAL PRESENCE: Requirement for the Public to Contemporaneously Hear All Discussion, Testimony, and Roll Call Votes in a Meeting Held Remotely Pursuant to a Public Health EMergency ............:cccccccccccessssseeeeeeeeeeesessseseeseeeeeeeeeeseeaaes 20-007 (2020) Proper Remote Meeting During a Public Health Emergency .............cccccccccccccceeeeceeeeceeeeeeeeeeeeeees 21-011 (2021) Improper Remote Meeting During a Public Health EMergency.............ccccccccccccceceeeeeeeeeeeeeeeeeeeees 22-003 (2022) Improper Remote Meetings During a Public Health EMergency.............cccccccccccccceceeeeeeeeeeeeeeeeees 22-007 (2022) Attendance by Means Other Than Physical Presence Because of Employment Purpose ...............cccccccccccceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeseseeeeeeseeeeeeseeeeeess 24-007 (2024) CLOSED SESSION DISCUSSION: Improper Discussion in Closed Session of Budgetary Matters ........e i cccccceecccceeeneeeeeeeeeeeeeeeeeeeeeeeeeeeeeeseeceaaeeeeeeeeeeeesseseteeeeeeeees 12-011 (2012) Improper Discussion of Proposed Ordinance in Closed Session; Requirement to Recite and Record Basis for Finding that Litigation is Probable or Imminent.......... 12-013 (2012) Improper Discussion of Financial Matters and Disposal of Property in a Closed Meeting. ...................ccccceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeees 15-003 (2015) Page 1 SUBJECT MATTER OPINION NUMBER (YEAR) Improper Discussion of Proposed Police Services Contract in Closed SESSION ............::ccccccceeeeeeeeeeeeeeeeeeeeeeeeeneeeeeeeeeeeesesenenneaeeeeeeeeseeeeeeaas 15-005 (2015) Improper Discussion of a Hiring Freeze in a Closed Meeting ...............:::c:cceceeeceeeeeeeeeeeeeeteeeeeees 15-007 (2015) Discussion of Legal Matters Under the Exception for Pending, Probable, or Imminent Litigation..................ccccceeeeeeeeeeeeeeeeeeeeeeeeeeeteeeeeeees 16-007 (2016) Improper Discussion of Salary Increases for City Employees in a Closed Meeting ................:::ccccccceeeeeeeeeeneeeeeeeeeeeeeeeeeaeeeeeeeeeeeeeseennneeeees 16-013 (2016) Discussion of Legal Matters Under the Exception for Pending, Probable, or Imminent Litigation...................ccccceeeeeeeeeeeeeeeeeeeeeeeeeeeeeneeeeees 17-004 (2017)' Discussion of the Conduct of a Public Body Member 1 ©] (0S<\\-1e Ibs) -\\-5(0-)) ee 17-013 (2017) Improper Discussion of Budget and Layoffs 1 ©] (eS<\\-10 Ibs -\\-5(0-)) eee 18-012 (2018) Discussion of the Duties and Salaries of Elected Officials 1 ©] (0S<\\-1e Ibs) -\\-5(0-)) ee 18-015 (2018) Discussion of the Process for Evaluating an Employee 1 ©] (0S<\\-1e Ibs) -\\-5(0-)) ee 20-004 (2020) Improper Discussion of Matters Under the Exception for Pending, Probable, or Imminent Litigation..................ccccceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeees 21-003 (2021) Public Body Violated OMA by Requiring Public Comment to be Provided to Board in Closed Session ...............:::c:cccceeeeeeeeeeeeenceeeeeeeeeeeeeeesenneeeees 21-009 (2021) Discussion of the Appointment, Employment, Compensation, or Performance of Specific Employees in Closed Session .............::::::ccceeeeeeeeeeeeeeeees 22-010 (2022) Improper Discussion of Bids for a Student Transportation Contract in Closed SESSION .............::cccccceeeeeeeeeeeeeeeeeeeeeeeeeenaeeeeeeeeeeseseeeennaeeeeeeeeeeeeeeeaas 22-010 (2022) Improper Closed Session Discussion of New School Under the Exception for Purchasing or Leasing Real Property ...............:::ccccceeeeeeeeeeeeeeeeeeeeneeeeees 22-012 (2022) Improper Closed Session Discussion of Various Topics Under the Exception for Setting the Price For Sale or Lease of Real Property ...............:::::::ee 23-005 (2023) Improper Closed Session Discussion of Removing Book From Curriculum...............2::::000ee 23-016 (2023) Improper Closed Session Discussion of Overdue LOANS................ccccccccceeeeeeeeeeeeeeeeeeeeeeesnteeeeeeees 26-003 (2026) Improper Closed Session Discussion of City Hall Building Under the Exception for Purchasing or Leasing Real Property ................::c:cccceeeeeeeeeeeeeeeeeeseennees 26-004 (2026) CLOSED SESSION PROCEDURE: Improper Discussion of Proposed Ordinance in Closed Session; Requirement to Recite and Record Basis for Finding that Litigation is Probable or Imminent.......... 12-013 (2012) ‘Binding opinion 17-004 was overturned on administrative review on July 15, 2019. On appeal, the Appellate Court, Fourth District, reversed the circuit co [...] eeeeeeeeee 16-015 (2016) Public Recital of the Nature of the Matter Under Consideration Prior to Taking Final ACtion............:ccccceeeeeeeeeeneeeeeeeeeeeeeseeseeeeessesaeeesesesseeeseeeeeeeeseeneaes 19-004 (2019) Taking Final Action on Matter Not on Meeting Agenda................ccccccceececesssseeeeeeeeeeeeseesesaaeeeeeees 22-006 (2022) Taking Final Action in Closed Se@SSION......c.ec.e .ee.ee.e.escnaeeeeeeeeeeeeeseeeeeesaaeaeeeeeeseeeeeeeeeeeeeeaaeaeeeeeees 23-014 (2023) Taking Final Action in Closed SeSSION..............c cc eeeceeeeeeeeeeeeseeeeeeeeeeeeeeeesaeaeeeeeeeeeeeeseeaaeeeeeeeeeeees 24-003 (2024) Obligation to Identify Applicant for Public Office Before Voting on Appointment..................... 25-009 (2025)° ILLINOIS MUNICIPAL RETIREMENT FUND: N/A MINUTES: Summary of Discussion Required in Minutes .0........... cece e cece eee ceeeeeeeeeeeeeeeseeeeaaaaeeeeeeeeeees 13-007 (2013)® Requirement to Record and Enter Into Closed Meeting Minutes Basis for Finding that Litigation is Probable or IMMInent.........t.ee.s .te.nc.e: ee: eceeeeeeeeceeeeesaeeeeeeeseesaeeeeeeseeseeeeeeeeseseseaeeeeeeees 13-008 (2013) Duty to Approve Meeting Minutes Within Time Period Specified by OMA .............:ccccccceceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeaeeeeeeaeeeeeeeeaeeaeeaeaeeeeaeaaas 20-001 (2020) NOTICE OF MEETING: Notice of Remote Meeting During a Public Health Emergency..................cccccccccceeeeeeeeeeeeeeeeeees 22-003 (2022) Notice of Remote Meetings During a Public Health Emergency ..................ccccccceceeeeeeeeeeeeeeeeeees 22-007 (2022) 3Overturned in part by the Supreme Court of Illinois in Board of Education of Springfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343. ‘Overturned by the Supreme Court of Illinois in Board of Education of Springfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343. 5The public body filed for administrative review of this opinion. Village of Sauk Village v. Office of the Illinois Attorney General, No. 2025CH08604 (Cir. Ct. Cook Co., filed August 19, 2025). Overturned in other parts by the Supreme Court of Illinois in Board of Education of Springfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343. Page 4 SUBJECT MATTER OPINION NUMBER (YEAR) Notice of a Change in Regular Meeting Dates................ccccccccccsssssceeeceeeeceesseseseeeeeeeececeesssssseeeees 24-013 (2024) OPEN MEETINGS: Taking Final Action at Closed Session Prohibited ......................::cccseesseseessessesssesssssseeseeeeeeeeeeeees 12-013 (2012) Taking Final Action at Closed Session Prohibited .....................c:0:cssesssssssssssssssssssssssesseesssseeseeees 13-003 (2013) Secret Ballots Prohibited...............eceecccccccceccesssssseeeeeeeceeecessssaaeeeececececeeeeeaseeeeeeeeeeeeestsssaeeeeeeeeeees 13-006 (2013) Taking Final Action at Closed Session Prohibited; Summary of Discussion Required in Minutes ...................cccceesssseeeeeeeceeeesessseeeeeeeeeeeeens 13-007 (2013) Requirement to Publicly Recite Nature of Matter Being Considered and Other Information to Adequately Inform the Public of the Business Being Conducted Before Taking Final Action. ................:cccccccsesssteeeeeeees 13-010 (2013) Improper Private Meeting, ........ ccc cccccccccc cece cece cece cece cece cece cece eee eee EEE EEEEEEEEEEEEEEEEEEEEEEEEEEEeeeeeeeeeeeeeeeeeess 23-003 (2023) Improper Private Meeting. ..............ccccccccssesseecececcceeceseessssecceccceeceuaaensececeeceeeeeeaaaeseeeseeeeeeeeeuannseeess 25-011 (2025) PUBLIC COMMENT: Information Required of Speakers Wishing to Provide Public COMMEN ............cccceececceeeeeeeeeeeeeeeeeeeeeeeaeeeeeseceeeeeesceaeeeseceeseeeeesessaaeeseeesseeeseeseas 14-009 (2014) Rules for Public COMMEN .............:ccceceeeecceeeeeeeceeeeeeeeeeeeeeseeaeeeeeeeeeeeeeesceeseeeeesesaaeeeecssssueeeeessaaees 14-012 (2014) \"Established\" and Recorded Rules for Public CoMMent...................cceceeccceeeeeeeeeseeetteeeeeeeeeeeeeees 19-002 (2019) Right to Address Public Officials at a Public Meeting .....ccc c.eccc.cccee.eee.eeee.eeee.eeee.eeee.eee.eesse.seaa.ees 19-009 (2019) Duty to Provide Opportunity for Public Comment in Open Session ...............:ccccceccesseeeeeessseeeees 21-009 (2021) Restriction on Public Comment is Limited to Established and Recorded Rules Governing Public COMMeNt ................ccccccceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeees 23-013 (2023) Rules for Public Comment; Opportunity to Address Public Officials .................cccccsscccceeeeeeeeeenes 26-001 (2026) PUBLIC RECITAL: Requirement to Publicly Recite Nature of Matter Being Considered and Other Information to Adequately Inform the Public of the Business Being Conducted Before Taking Final Action. ...............:ccccccccceeessseeeeeeees 13-010 (2013) Duty to Inform the Public of the Nature of the Business Under Consideration Prior to Taking Final ACtion ...............cccccccccssssssceeeeceececesssssseeeeeeeeeeeeeeeeas 13-016 (2013) Failure to Sufficiently Inform the Public of the Business Being Conducted before Taking Final Action...............ccccccccccccccssssssseeeceeeeceesesssssseeeeeeeeeeeenenaas 14-001 (2014)’ Public Recital of the Nature of the Matter Under Consideration Prior to Taking Final ACtion...............ccccccccccccccceeeeeeeeeeeeeeeeeeeeeeseeeeeeeeeeseeessseseseeeeeeesseeeeeees 19-004 (2019) 7Overturned by the Supreme Court of Illinois in Board of Education of Springfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343. Page 5 SUBJECT MATTER OPINION NUMBER (YEAR) Obligation to Identify Applicant for Public Office Before Voting on Appointment........................ 25-009 (2025) RECORDING OF OPEN MEETINGS: Right to Record an Open Meeting ..............::ccccceeeeeeeeeeeeeeeeeeeeeeeeeeeceeeeeeeeeeeeeeeeenneeeeeeeeeeseeeeeeaees 12-010 (2012) Right to Record an Open Meeting ..............::ccccceeeeeeeeeeeeeeeeeeeeeeeeeeeceeeeeeeeeeeeeeeeenneeeeeeeeeeseeeeeeaees 16-014 (2016) SCHEDULE OF MEETINGS: Notice of a Change in Regular Meeting Dates.................cccccecceeeeeeeeeeeeeeeeeeeeeeeeenaeeeeeeeeeeeeeeeeenees 24-013 (2024) SUBSIDIARY BODIES: Informal Committee of City is Subsidiary Body ..............ccccccccececeeeceeeeeeeeeeeeeeeeeeeeeeeeeeseessenteeeeeeees 25-007 (2025) VERBATIM RECORDINGS OF CLOSED SESSIONS: Requirement to Record Closed SeSSIONS ...............ccccceeecceeeeeeeeeeeeeneeeeeeeeeeeeeeeneneeeeeeeeeeeeeeeeeeaees 12-013 (2012) Duty to Record Closed Meetings .............:::cccccceeeeeeeeeeeneeeeeeeeeeeeeeeeeceeeeeeeeeeeeeeeeecneeeeeeeeeeeeeeeeeaaes 13-007 (2013) 8The public body filed for administrative review of this opinion. Village of Sauk Village v. Office of the Illinois Attorney General, No. 2025CH08604 (Cir. Ct. Cook Co., filed August 19, 2025). Overturned in other parts by the Supreme Court of Illinois in Board of Education of Springfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343. Page 6","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":null,"full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":2,"orig_master_id":18975,"dup_master_id":19210,"dup_sha256":"3fd8e2be68fb9d4333581586c2095b21b8e8dcbadb6b042bf120ced7633322ca","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2026-06-09","case_number":"10-001","request_numbers":null,"title":"Master index of all PAC FOIA opinions issued since 2010","filename":"FOIA Index of Binding Opinions.pdf","rel_path":"PAC\\ocr_searchable\\FOIA Index of Binding Opinions.pdf","word_count":1598,"summary":"This document is an index of binding Freedom of Information Act opinions issued by the Illinois Attorney General's Office of the Public Access Counselor from 2010 to present, organized by year and opinion number.","plain_summary":"This document is not a legal decision, but rather a master list or index of all binding opinions issued by the Illinois Attorney General's Public Access Counselor since 2010. It is intended to help the public and legal professionals find specific past rulings on Freedom of Information Act (FOIA) issues.","holding":"","legal_question":null,"disposition":"other","primary_statute":[],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(k)","7(1)(g)","7(1)(a)","7(1)(d)","7(1)(v)","7(1)(c)","7(1)(f)"],"public_body":null,"requesting_party":null,"pac_outcome":"Administrative index document","pac_law_type":null,"subject_category":"FOIA index","subject_description":"A comprehensive index of binding Public Access Counselor opinions issued from 2010 to 2026.","ocr_status":"ok","ocr_quality":89.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/FOIAIndexOfBindingOpinions.pdf","sha256":"d4ed2d46df14ade84afad49bb3734eb423fbf87a87201c7b144ff7ca3cb17427","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA","Public Access Counselor","legal research","Attorney General opinions"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"ATTORNEY GENERAL OPINIONS ISSUED THROUGH THE OFFICE OF THE PUBLIC ACCESS COUNSELOR INDEX OF FREEDOM OF INFORMATION ACT BINDING OPINIONS FROM 2010 TO PRESENT OPINIONS COVERED BY THIS INDEX 2010 - 10-001 through 10-004 2016 16-001 through 16-015 2022 22-001 through 22-014 2011 - 11-001 through 11-007 2017 17-001 through 17-015 2023 23-001 through 23-017 2012 - 12-001 through 12-015 2018 18-001 through 18-018 2024 24-001 through 24-016 2013 - 13-001 through 13-018 2019 19-001 through 19-013 2025 25-001 through 25-016 2014 - 14-001 through 14-016 2020 20-001 through 20-010 2026 26-001 through 26-005 2015 - 15-001 through 15-015 2021 21-001 through 21-012 This document is a comprehensive index of binding opinions issued by the Attorney General through the Office of the Public Access Counselor from 2010 through the present. Please note that an opinion may have been superseded by statute or case law. You should, therefore, review each opinion upon which you would rely in consultation with an attorney familiar with Illinois law. The opinions cited in this index are available in PDF format on this website. If you do not find an opinion on an issue with which you are concerned, feel free to contact the Public Access Bureau of the Office of the Attorney General (877-299-3642) to inquire regarding the existence of additional records. INDEX TO SUBJECT HEADINGS si» ).i Subject Heading ADJUDICATORY RECORDS ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE CERTIFIED PAYROLL RECORDS COLLECTIVE NEGOTIATING MATTERS COMMERCIAL PURPOSE COMPLETENESS OF RESPONSE CONFIDENTIALITY PROVISIONS CONSTRUCTION-RELATED TECHNICAL DOCUMENTS COOPERATION WITH THE PUBLIC ACCESS COUNSELOR COURT ORDERS DEFINITIONS DUTY TO RESPOND ELECTRONIC FORMAT SPECIFIED BY THE REQUESTER EXPENDITURE OF PUBLIC FUNDS FEES INFORMATION SPECIFICALLY PROHIBITED FROM DISCLOSURE INSURANCE JAIL AND PRISON RECORDS LAW ENFORCEMENT AND ADMINISTRATIVE ENFORCEMENT RECORDS NONRESPONSIVE INFORMATION PERSONAL INFORMATION |= - - BDNNNWWWWBWAADDNNNOOC PERSONNEL RECORDS 10 POSSESSION OF RESPONSIVE RECORDS 10 PRELIMINARY RECORDS (DELIBERATIVE PROCESS) 11 PRIVATE INFORMATION 12 PROVISION OF RECORDS 12 PUBLIC BODIES SUBJECT TO FOIA 13 PUBLIC RECORDS 13 RECEIPT OF REQUESTS 13 RECURRENT REQUESTERS 13 SCHOOL STUDENT RECORDS 14 SETTLEMENT AGREEMENTS 14 TRADE SECRETS AND COMMERCIAL OR FINANCIAL INFORMATION 14 UNDULY BURDENSOME REQUESTS 15 UNWARRANTED INVASION OF PERSONAL PRIVACY 15 VALUABLE FORMULAE, COMPUTER GEOGRAPHIC SYSTEMS, DESIGNS, ETC. 16 VULNERABILITY ASSESSMENTS, SECURITY MEASURES, & RESPONSE POLICIES/PLANS 16 ATTORNEY GENERAL OPINIONS Issued Through the OFFICE OF THE PUBLIC ACCESS COUNSELOR INDEX OF BINDING FOIA OPINIONS FROM 2010 TO PRESENT current through Opinion No. 26-005 updated June 9, 2026 SUBJECT MATTER OPINION NUMBER (YEAR) ADJUDICATORY RECORDS: Records Relating to a Public Body’s Internal Investigation into an Employee’s Conduct...............ccccccececeeceeeeeeeeeeeeeneeeeeeeeeeeeeeeesenneeees 13-011 (2013) Disclosure of Invoices for Legal ServiCes ................ccccccccceeeeeeeeeeeeeeeeeeeeeeeeeeeeneceeeeeeeeeeseeeesnneeeeees 14-002 (2014) Disclosure of Information in Village President's Resignation Letter Does Not Relate to the Adjudication of an Employee Grievance................:::::ceeeeees 18-001 (2018) Disclosure of Video Footage That Predates and Exists Independently of Any Adjudication......24-005 (2024) Basis for Withholding Letter from Current and Former Employees of One Public Body Asking Oversight Agency to Hold Vote of No Confidence ...................... 24-016 (2024) Evidentiary Records Obtained During Investigation Not Exempt as Records Relating to an AdjUCiCAtION «22... . ee. ccececeeececeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeteteeeess 25-004 (2025) Disclosure of Village Clerk’s Termination Letter .................ccccceeeeeeeeeeeeeeeeeeeeeeeeeeeeneeeeeeeeeeeeeeeeeaes 25-016 (2025) ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE: Disclosure of Invoices for Legal SeErviCes 00.0.0... ...cceeeeeeeeeeeceeeeeeeeeeeeeeneeeeeeeeeeeeeeeeeceeeeeeeeeeeeeeeeaes 12-005 (2012) Disclosure of Invoices for Legal SeErviCes .0............ccceeeceeceeeeeeeeeeeeeeeeeeneeeeeeeeeeeeeeeeeeneeeeeeeeeeeeeeeenees 14-002 (2014) Disclosure of the Governor's Calendab .............::cccccceeceeeeeeceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeneeeeeeeteeeeeee 15-008 (2015) Disclosure of General Information Concerning Outside Counsel Representing State AGencies..................cceeeeececeeeeeeeeeeeeeeeeeeeeeteeeeeeees 15-010 (2015) Disclosure of Information Related to State Employees Designated as Essential....................... 17-006 (2017) Communications Attorney Provides to Client Containing Legal Advice Protected by Attorney-Client Privilege ................cccccceeceeeseeeeeeeeeeeeeeneeees 22-001 (2022) Basis for Withholding Letter from Current and Former Employees of One Public Body Asking Oversight Agency to Hold Vote of No Confidence ...................:- 24-016 (2024) Basis for Withholding Records Related to Settlement Agreement .................:cceeeeeeeeeeeeeeeeeteeees 25-006 (2025) Basis for Withholding Communication from Former Attorney ..............:::::cccceeeeeeeeeeeeeeeeeeeeeeeeeees 25-008 (2025) Basis for Withholding Police Officer Witness Questionnaires ...............:::ccccceeeeeeeeeeeeeeeeeeeeeeeeees 25-015 (2025) CERTIFIED PAYROLL RECORDS: Disclosure of Certified Payroll RECOrdS...............ccccceceeececeeeeeeeeeeeeeceaeeeeeeeeeeeeeeeeeeaeeeeeeeeeeeeeeeeeaaees 15-011 (2015) Disclosure of Contractor's Employees' Names in Certified Payroll Records ..............:::::ceee 17-010 (2017) Page 1 SUBJECT MATTER OPINION NUMBER (YEAR) COLLECTIVE NEGOTIATING MATTERS: Disclosure of Invoices for Legal SErViCeS ou... ccc ccccccccccccccecccceeceeeeeeceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeess14-002 (2014) COMMERCIAL PURPOSE: Improper Treatment of a FOIA Request as Request for Commercial Purpose and Improper Assessment of FeeS ..............:::cceeceeeeeeeeeteteeeeeees23-008 (2023) COMPLETENESS OF RESPONSE: Disclosure of All Non-Exempt Portions Of Requested RECOMS ...........ccccccccccccccccecceesesssecccccceceeseaseeseececeeeeeseaaeueeececeeeseeaaaaneeeees12-009 (2012) Duty to Furnish Non-Exempt Records and to Issue a Written Denial For Any Records Not Provided..................:ccccececeeeeeeeeeeeeeeeeeeeeeeneeeeees13-013 (2013) Duty to Conduct Reasonable Search for Responsive Records; Duty to Disclose Public ReCOrds ...............c.ee. ee.eceeeeceeeceeeceeeeeeeaaeeeeeeeeeeeeeeeeees 14-007 (2014) Duty to Conduct a Reasonable Search for Responsive ReCOMdS.............:cccccccceeeeceeeeeeeeeteeeeeeees14-010 (2014) Disclosure of Records of the State Board of Professional Engineers Related to Licensing Investigations .................ccccccceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeaaeeseeeeeeeeeees15-001 (2015) Home Rule Ordinance Does Not Supersede FOIA..........ccccccccccccccccecceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeess15-002 (2015) A FOIA Response Should Indicate Whether a Search Was Conducted for Responsive Records for All Parts of a FOIA Request ..............ccccccccececeeeceeeeeeeeeeeeees15-004 (2015) Disclosure of General Information Concerning Outside Counsel Representing State AGencies ................cccececeeeeeeeeeeeeeeeneeeeeeeeeeeeeeeeees15-010 (2015) Duty to Conduct Reasonable Search for Responsive Records ............::::cccccecceeeeeeeeeeeeeeeeeeeeeees16-006 (2016) A Public Body Must Provide a Letter or Other Communication Notifying a Requester of a Partial Denial and Explaining the Factual Basis for Any Exemption under which Records Were Redacted .................::::::::ceeeeeeeeeeeeeeeeeeeees17-003 (2017) A Public Body's Response Must Include a Factual Basis Supporting Its Claimed Exemptions.................cceceesseseeeeeeeceseeeeeeeeeeeeeeeeeeeeeeeeaaaeaeeaaaeeeaeaaeeeeeeeeeeeeeaeeaeeas17-006 (2017) Duty to Conduct Reasonable Search for Responsive ReCOmds............:::::cccccceeeee [...] Agreement .............cccccececeeceeceeeeeeeeeeeeeeceaaeeeeeeeeeeeseeeeeaeeeeeeeeeeeseeeeeaaes 14-004 (2014) Disclosure of Settlement Agreement ..............ccccccccccccecceceeeeeeeeeeeeeneeeeeeeeeeeeeeeeeeaaeeeeeeeeeeeteeeeeaaes 15-004 (2015) Disclosure of General Allegations against Public Body Found in a Settlement Agreement .............ccccccceeeeceeececeeeeeeeeeeeeeeeenaeeeeeeeeeeeeseseeneeeeeeeeeeeseeeeeaaes 18-010 (2018) Disclosure of Settlement Agreement ..............cccceceeeceeceeceeeeeeeeeeeeeceneeeeeeeeeeeeseeeeeeeeeeeeeeeeeseeeeeaaes 24-001 (2024) TRADE SECRETS AND COMMERCIAL OR FINANCIAL INFORMATION: Records Documenting Public Funds Paid to Entities Pursuant to Contracts for Performance of a Governmental Function are Subject to Disclosure.................... 14-005 (2014) Disclosure of Terms of Lease Agreements for the Rental of Public Property ..................::008 14-016 (2014) Negotiated Terms of Contracts with Public Bodies Do Not Constitute Trade Secrets ...............ccccccccceceeeeeeeeeeeceeeeeeeeeeeeeeeeeeneeeeeeeeeeeeesesseaaees 15-002 (2015) Financial Terms of Contracts, Billing Invoices, and Budget Documents Related to a Public Body's Use of Public Funds Are Not Exempt under Section 7(1)(g) of FOIA ..02c0. ecceee.eee.ccee.eee.eee.eeee.ees.eee.ees 17-003 (2017) Third Party Cost Records Submitted to a City Related to a City-Funded Redevelopment Project Are Not Exempt from Disclosure under Section 7(1)(g) Of FOIA..............::ccccecceeeeeeeeeeeeeeeeeeeeeeeeeeeeneeeeees 18-004 (2018) Financial Terms Related to a Public Body's Use of Public Funds Are Not Exempt under Section 7(1)(g) Of FOIA ..............:ccccccceeeeeeeeeeeeeeeeeeeeeeeeesetseeeeees 18-008 (2018) Reports of Manganese Throughputs Submitted to a City Public Health Department Are Not Exempt From Disclosure under Section 7(1)(g) Of FOIA ..............:::eeeeeeeeees 19-007 (2019) Public Body Failed to Prove Records of Third Party Contractor Providing Medical Care to Inmates Were Trade Secrets or Commercial or Financial Information Exempt from Disclosure under Section 7(1)(Q) OF FOIA. 2... eeeeeeeeeeeeeeeeeeeeeeeeeeeeeceeeeeeeeaeeeeeceeeeeeaeeeeeeceeeeeeeeeseeeceeeeseeeseeeseceeeeeeeeess 20-006 (2020) Non-Disclosure Agreement Concerning Planned Commercial Development Project That Has Been Publicly Announced Is Not Exempt under Section 7(1)(g) Of FOIA..............cccccccccceeeeeeeeeeeeeeeeeeeeeeeeeseenseeeeeees 23-015 (2023) Page 14 SUBJECT MATTER OPINION NUMBER (YEAR) UNDULY BURDENSOME REQUESTS: A Subsequent FOIA Request Cannot be Deemed \"Unduly Burdensome\" Unless the Public Body has Either Previously Disclosed the Requested Records or Properly Denied the Request..............::::cccccscccccssssstteeeeeees 11-003 (2011) Disclosure of Student Test Scores under the Illinois School Student Records Act.............cccecccccccssseeeeeeesseeeeeeseeeeeeeesssueeeeessnaeees 12-014 (2012) A Public Body That Fails to Respond Within the Requisite Period May Not Treat Request as Unduly Burdensome ..............:::cccccccceeeeeeeeteeeeeeeeeeeessssesaees 14-007 (2014) Repeat Requests Under Section 3(Q)........ccccccccccccccccccceceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeseeeeeeeeeeeeeeeeeeess 14-010 (2014) Disclosure of Terms of Lease Agreements for the Rental of Public Property ................:cccceeeeee 14-016 (2014) Failure to Timely Respond to FOIA Request Precludes Denial as Unduly BurdensSome .................cccccccccccceeeeeeeeeeeeeeeeeeeeeeeeeseeseeeseeeeeeeeeaseeeeeeeeess 15-011 (2015) Improper Denial of a Request for Records as Unduly Burdensome ...............::ccccccccceseeesssseeeeees 16-008 (2016)! Public Body's Burden when Denying a Request as an Unduly Burdensome Repeated Request ..................::::cseseseesessssseesesseseeseeseeeesseeeeees 18-007 (2018) Improper Denial of a Request for Records as an Unduly Burdensome Repeated Request ..............ccccccccccccceeeeeeeeeeeeeeeeeeseeseeeseeeeeeeeeseseeseseeeeeeeess 18-008 (2018) Improper Denial of a Request for Records as Unduly Burdensome ..............::ccccccseseeeeeesteeeeees 18-013 (2018) Duty to Confer Before Denying Request as Unduly Burdensome................:ccccccccessssseeeeeessseeees 21-001 (2021) Improper Denial of a Request as Unduly BUrdensoOmMe.................cccccccccceeeceeeessssceeeeeeeeeeeeessssnees 23-007 (2023) UNWARRANTED INVASION OF PERSONAL PRIVACY: Autopsy Reports .0...........c cece ee eeeeeeeeeeeeeeeeeeeeeeeeeeeeesessseseteeeeeseseeeeeeeeeeeeeeeeeeeeeeseeeeeeeeeeeseeseseeeeeeeeeeeees 10-003 (2010) Section 2.15 of FOIA Requires Disclosure of Arrest Reports...............cccccccceccssseeeeeesseeeeeesseees 11-001 (2011) Disclosure of Certain Information in a Criminal Complaint Filed by a Public Official ............cccccceeeeeeceeeeeeeeeeeeeeeeeeeeeeeeseeeeeeeeseeeeeeessaseeeeessaeeeeeeeeas 16-009 (2016) Disclosure of Public Employees’ Compensation .................cccccccccccccccccececeeeeceeeeceeececeeeeeeeeeeeeeeeness 18-005 (2018) Disclosure of Property Index NUMDEPS ..............cccccceeeesseeeeeeeeececcessaeeeeeeeeeeeeseeessaueeeeeeceeceeetensaaes 18-009 (2018) Disclosure of General Allegations against Public Body Found in a Settlement Agreement....... 18-010 (2018) E-mail from Police Chief to Staff Concerning Policies, Procedure, and Employee Conduct Is Not Exempt Under Section 7(1)(C)...........:cccccccccceeseceessseeeeeessseeeeeessseeeeees 22-004 (2022) Disclosure of Complaints Alleging Public Employee MisConduCt..............::ccccccessceeeessseeeeeeesneees 22-005 (2022) Police Reports Concerning Public Employee Arrested and Charged with Crimes Against a Minor are Not Exempt from Disclosure in their Entireties under the Personal Privacy Exemption..................ccccccccsssccssceeeeeeeees 23-009 (2023) 'The Illinois Appellate Court discusses binding opinion 16-008 in Balzer v. Northeast Illinois Regional Commuter Railroad Corporation, 2026 IL App (1st) 232227, I] 79-82 (2021). Page 15 SUBJECT MATTER OPINION NUMBER (YEAR) Basis for Withholding Letter from Current and Former Employees of One Public Body Asking Oversight Agency to Hold Vote of No Confidence ...................:- 24-016 (2024) VALUABLE FORMULAE, COMPUTER GEOGRAPHIC SYSTEMS, DESIGNS, ETC:: Disclosure of Terms of Lease Agreements for the Rental of Public Property ................:::::005 14-016 (2014) VULNERABILITY ASSESSMENTS, SECURITY MEASURES, & RESPONSE POLICIES/PLANS: Disclosure of Number of Police Officers Assigned to Districts ................cceceeceeeseeeeeeeeeeeeeeeetnees 11-002 (2011) Basic Attendance Records of Police Officers Are Not Exempt Under Either Section 7(1)(d)(vi) or Section 7(1)(v) Of FOIA. ..........cccccceeeeceeeeeeceeeeeeeeeeeeeeeesennees 21-005 (2021) Disclosure of 911 Response TIMES .............:cccccceeeeeeeeeeneeeeeeeeeeeeeeeceneeeeeeeeeeeseeeeccneeeeeeeeeeeeeeeeeaees 21-012 (2021) Meaning of “Security Measures” in Section 7(1)(v) of FOIA; Redaction of Addresses............... 24-008 (2024) Page 16","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":null,"full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":3,"orig_master_id":18976,"dup_master_id":19203,"dup_sha256":"2aa7b06075470cddeed3add275ee14ef06e8abf1e6ea87dd9906b93e46d9e6c2","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2012,"date_issued":"2012-01-11","case_number":"2011 PAC 16946","request_numbers":null,"title":"Under Section 3(d) of FOIA, Public Bodies Must Respond to a Request for Records Within Five Business Days After Receipt of the Request","filename":"PUBLIC ACCESS OPINION 12-002 (Request for Review - 2011 PAC 16946).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 12-002 (Request for Review - 2011 PAC 16946).pdf","word_count":2190,"summary":"A staff reporter for The Chicago Reporter, Megan Cottrell, a staff reporter, submitted a FOIA request via e-mail to the Chicago Public Schools Law Department (CPS) seeking the following information: number of suspensions for each school, total student population, total . student population enrolled in special education, number of behavioral incidents as indicated on incident report, . number of violent incidents indicated on . incident report .","plain_summary":"The requester, a journalist, sought several years of school-level statistics on student discipline and police involvement from a school district, which acknowledged the request but never issued a proper written response within the required five business days, instead only partially replying weeks later after the requester escalated to the Public Access Counselor. The Attorney General held that the school district's delay amounted to a denial by operation of law, and that because it failed to properly extend the response time or assert an undue-burden objection, it could not later charge fees or treat the request as unduly burdensome. The school district was directed to fully comply with the original request.","holding":"The Chicago Public Schools violated FOIA by failing to respond to the requester's FOIA request within the five-business-day deadline mandated by Section 3(d).","legal_question":"Whether a public body violates FOIA by failing to provide a timely response to a request for public records as required by Section 3(d).","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(b), 5 ILCS 140/3(c), 5 ILCS 140/3(a), 5 ILCS 140/1, 5 ILCS 140/3(d), 5 ILCS 140/3(e), 5 ILCS 140/3(g), 5 ILCS 140/3, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Shayne Assistant General Counsel Chicago Board of Education","requesting_party":"Cottrell and Ms. Shayne","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"FOIA response timeline","subject_description":"The request sought statistical data regarding student suspensions, enrollment, and behavioral incidents at Chicago public elementary schools.","ocr_status":"ok","ocr_quality":89.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2012-Binding-PAC-Opinions/12-002.pdf","sha256":"6ee15e08e8abbe174cf3239eee9def68940591c533f456ffaf3e268fc203eb7b","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA response","student records","timeliness","public schools"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"‘OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL January 11, 2012 PUBLIC ACCESS OPINION 12-002 (Request for Review 2011 PAC 16946) FREEDOM OF INFORMATION ACT: Under Section 3(d) of FOIA, Public Bodies Must Respond to a Request for Records Within Five Business Days After Receipt of the Request Via electronic mail Ms. Megan Cottrell The Chicago Reporter 332 South Michigan Avenue Chicago, Illinois 60604-4394 megan.m.cottrell@gmail.com Ms. Lara D. Shayne Assistant General Counsel Chicago Board of Education 125 South Clark Street, 7th Floor Chicago, Illinois 60603-4044 Dear Ms. Cottrell and Ms. Shayne: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2010), as amended by as amended by Public Act 97-579, effective August 26, 2011). BACKGROUND On September 13, 2011, Ms. Megan Cottrell, a staff reporter for The Chicago Reporter, submitted a FOIA request via e-mail to the Chicago Public Schools Law Department (CPS) seeking the following information: $00 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 * TTY: (217) 785 -2771 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, lilinois, 60601 + (312) 814-3000 * TTY: (312) 814-3374 + Fax: (312) 814-3806 1001 East Main, Carbondale, Illinois 62901 « (618) 529-6400 « TTY: (618) 529-6403 + Fax: (618) 529-6416 Ms. Megan Cottrell Ms. Lara D. Shayne January 11, 2012 Page 2 [R]ecords for several different indicators for each and every Chicago public elementary school by name each year for the years 2003, 2004, 2005 and 2006: number of suspensions for each school, total student population, total student population enrolled in special education, number of behavioral incidents as indicated on incident report, number of violent incidents indicated on incident report, number of times the Chicago Police Department was called in {to] investigate or intervene in a school-related incident. To be clear, I request each statistic for each school for each year indicated.’ On September 15, 2011, CPS notified Ms. Cottrell by e-mail of its receipt of her FOIA request. In this correspondence CPS advised Ms. Cottrell that CPS would respond to requests for non-commercial purposes within five business days and to requests for commercial purposes within 21 days. The notification also advised that if an extension of time were required the requester would receive written notice within five business days providing the reason for the extension and the date by which the records would be available, and noted the policy of CPS for copying charges. A response from CPS was due on or before September 22, 2011.7 However, Ms. Cottrell did not receive further communication from CPS. On September 29, 2011, Ms. Cottrell submitted a Request for Review to the Public Access Counselor alleging that CPS failed to provide a proper response to her FOIA request.’ This office initiated further review of this matter on October 4, 2011.4 CPS did not respond to the Public Access Bureau's October 4, 2011, letter requesting an explanation of its receipt and handling of Ms. Cottrell's FOIA request within the seven business days required by FOIA. See SILCS 140/9.5(c) (West 2010), as amended by Public Act 97-579, effective August 26, 2011. A representative of this office telephoned Ms. 'Ms. Cottrell has indicted that this was her second attempt at submitting her FOIA request to the Chicago Public Schools. Initially, she attempted to submit her FOIA request to CPS on August 29, 2011, via the fax number provided on its website but was later informed by Ms, Cassandra Daniels that CPS did not receive the faxed FOIA request. Email from Megan Cottrell, The Chicago Reporter, to the Public Access Counselor, Office of the Attorney General (September 29, 2011). ?E-mail from Cassandra Daniels, FOIA Officer, CPS, to Megan Cottrell, The Chicago Reporter (September 15, 2011). 3B-mail from Megan Cottrell, The Chicago Reporter, to the Public Access Counselor, Office of the Attorney General (September 29, 2011). “Letter from Tola Sobitan, Assistant Attorney General, Public Access Bureau, to Cassandra Daniels, FOIA Officer, CPS (October 4, 2011). Ms. Megan Cottrell _ Ms. Lara D. Shayne January 11, 2012 Page 3 Cassandra Daniels, FOIA Officer for CPS, on October 26, 2011. Ms. Daniels stated that CPS had not responded to Ms. Cottrell's request because CPS was still in the process of retrieving and compiling the data responsive to the request. Ms. Daniels further asserted that complying with Ms. Cottrell's request was taking a longer time because the responsive records are stored in an outdated computer system and thus, a technician was called in to assist in retrieving the records, On November 3, 2011, CPS sent an e-mail to the Public Access Bureau with a copy to the ahpaet? \"in response to a request for review, which was received from Ms. Cottrell.\" .The email: (1) advised that CPS does not maintain information on the number of times the Chicago Police Department was called to investigate a school related incidenti n an accessible database, because the information is housed at all 600 CPS schools, and that CPD maintains that information; (2) forwarded an excel spreadsheet containing the total student population of CPS for the years 2001 through 2011; and (3) stated that the CPS technology Department was working to provide the remaining information responsive to the FOTA request. To date, this office has not received any information indicating that CPS has fully complied with the September 13, 2011, FOIA request. ANALYSIS The Freedom of Information Act states that \"each public body shall promptly provide, to any person who submits a request, a copy of any public record required to be disclosed\" by the Act (5 ILCS 140/3(b) (West 2010)). All requests for public records received by a public body are required to \"immediately be forwarded to its Freedom of Information Officer or designee.\" 5 ILCS 140/3(c) (West 2010). Section 3(a) of FOIA provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act.\" 5 ILCS 140/3(a) (West 201U). Under section 1.2 of FOIA, all public records in the possession of a public body are \"presumed to be open to inspection or copying.\" 5 ILCS 140/1.2 (West 2010). Section 3(d) of FOIA requires that \"[a] public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended” under the provisions of the Act. 5 ILCS 140/3(d) (West 2010). This section further states that \"[fJailure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be °E-mail from Cassandra Daniels, FOIA Officer, CPS, to Tola Sobitan, Assistant Attorney General, Public Access Bureau (November 3, 2011). . Ms. Megan Cottrell Ms. Lara D. Shayne January 11, 2012 . Page 4 considered a denial of the request.\" 5 ILCS 140/3(d) (West 2010). Although a public body may extend its time for response by up to an additional five business days in certain circumstances, ‘including in situations where responding within five business days would unduly burden the operations of the public body, the public body must do so in writing and within the initial five business day timeline. (Emphasis added.) See 5 ILCS 140/3(e) (West 2010). Section 3(do)f FOIA also provides that: A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). ' Here, the evidence shows that CPS failed to properly respond to Ms. Cottrell's FOIA request within five business days after September 15, 2011, the date of its receipt of the request. CPS acknowledged receipt of the FOIA request on September 15, 2011, and indicated that.it would respond appropriately within five business days, or by September 22, 2011. CPS could have either provided the requested information, or indicated that it required an extension of time and provided the reason for the extension and the date the records would be available. CPS could also have asserted that responding to the request would constitute an undue burden® and asked Ms. Cottrell to narrow the scope of that request, especially given its assertion that an outside computer consultant had to be called in to retrieve the records from an outdated computer system. Additionally, CPS could have contacted the requester, explained the difficulty and special circumstances involved, and sought to reach an agreement for additional time to retrieve the requested records. However, CPS did not pursue any of these options. Other than its initial acknowledgment of receipt of the FOIA request, CPS did not provide any response until after the requester filed a Requefsotr Review. CPS did partially respond to Ms. Cottrell's FOIA request when it responded to the Public Access Counselor on November 4, 2011. Although CPS has provided some of the requested information and has indicated that it is still searching for additional responsive records, CPS has nonetheless violated FOIA by failing to provide a proper written response to the requester within the statutory time frame. Further, CPS has violated FOIA by failing to respond to the Public Access Counselor's inquiry within seven business days. We “In order to deny a request as unduly burdensome, a public body is required to specify \"the reasons why it would be unduly burdensome and the extent to which compliance will so burden the operations of the public body” (5 ILCS 140/3(g) (West 2010)). Ms. Megan Cottrell Ms. Lara D. Shayne January 11, 2012 Page 5 note that because CPS did not follow the statutory requirements for responding to Ms. Cottrell's request, CPS is now precluded from treating Ms. Cottrell's request as unduly burdensome or imposing any fee for copies of any-additional records it may furnish to her. FINDINGS AND CONCLUSIONS | After full review and giving due consideration to the arguments of the parties, the Public Access Counselor's findings, and the applicable law, the Attorney General finds that: 1) On September 13, 2011, Ms. Megan Cottrell submitted a Freedom of Information Act request to CPS. 2) On September 15, 2011, CPS acknowledged receipt of Ms. Cottrell’s FOIA request. 3) Ms. Cottrell's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). Therefore, the Attorney General may properly issue a binding opinion with respect to the disclosure of the requested records. 4) On October 4, 2011, the Public Access Bureau determined that further action was warranted and issued a letter to CPS requesting an explanation of its receipt and handling of Ms. Cottrell's September 13, 2011, FOIA request. 5) CPS failed to furnish a response to the Public Access Bureau's October 4, 2011, letter within the seven business days response period set forthi n section 9.5(c) of FOIA (5 ILCS 140/9.5(c) (West 2010)). 6) CPS, as a matter of law, denied Ms. Cottrell's FOIA request by failing to furnisha — copy of the requested records within five business days as required by section 3(d) of FOIA, or. to properly extend the time for response as specified i|n section 3(e) of FOIA © ILCS 140/3(e). (West 2010)). 7) The records sought by Ms. Cottrell are public records that CPS is required to produce to Ms. Cottrell for inspection and copying under section 3 of FOIA (5 ILCS 140/3 (West 2010)). 8) In accordance with section 3(d) of FOIA, CPS is precluded from imposing a fee for production of any additional documents responsive to Ms. Cottrell's FOIA request. Ms. Megan Cottrell Ms. Lara D, Shayne January 11, 2012 Page 6 Therefore, it is the opinion of the Attorney General that CPS has, in violation of sections 3 and 9.5(c) of FOIA, improperly denied Ms. Cottrell's September 13, 2011, request for records. Accordingly, CPS is directed to take immediate and appropriate action to comply with this opinion by furnishing the requested records to Ms. Cottrell pursuant to her September 13, 2011, request. In the future, CPS must comply with FOIA's procedures for responding to FOIA requests by either providing requested records in a timely fashion, following the proper procedures to extend the time within which to respond, or, when appropriate, asking the requester to narrow the request, to avoid further violations of the requirements of FOIA. This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Megan Cottrell as defendants. See 5 ILCS 140/11.5 (West 2010). Very truly yours, “LISA MADIGAN ATTORNEY GENERAL Lovtheg. By: Michael J. Luke . Counsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested student suspension data from Chicago Public Schools. The district acknowledged receipt but failed to respond within the statutory five business days. The Attorney General found that CPS violated FOIA by missing the deadline and also by failing to respond to the Public Access Bureau's inquiry. The opinion noted that CPS cannot impose fees for any future copies it may provide.","card_headline":"Statistical data on student suspensions and enrollment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":"September 13, 2011","year_pre_fix":"2012","site_dup_of":null},{"id":4,"orig_master_id":18977,"dup_master_id":19205,"dup_sha256":"81cd2385ce45b7f1889348a19cda18aa9dea307a2394c3f958301a6917c2a6a3","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2012,"date_issued":"2012-01-09","case_number":"2011 PAC 16877","request_numbers":null,"title":"Classification as a \"Recurrent Requester\" under Section 2(g) of FOIA","filename":"PUBLIC ACCESS OPINION 12-001 (Request for Review - 2011 PAC 16877).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 12-001 (Request for Review - 2011 PAC 16877).pdf","word_count":2485,"summary":"Lisa Madigan: The Village of Smithfield (Village) improperly classified Ms. Kathy Ford and her husband, Mr. Vernon Ford, as \"recurrent requesters\" under sections 2(g) and 3.2 of FOIA . The Village responded to Ms. Ford's FOIA request on October 12, 2011, furnishing her with certain records, and denying other portions of the request because the Village did not have records, or because the request asked a question .","plain_summary":"A village government classified the requester and her spouse as \"recurrent requesters\" under FOIA's newly enacted volume-based thresholds, based on the combined number of records requests the two had submitted, and responded on a 21-business-day timeline instead of the standard five days. The Public Access Counselor held that the village improperly aggregated the requester's and her spouse's separate requests into a single count, that neither individually nor combined did their submissions meet any of the statutory recurrent-requester thresholds, and that the village further violated FOIA's notice requirements by failing to explain its reasoning within the required timeframe. The village government was directed to stop treating the requester's future submissions as recurrent-requester requests absent a proper statutory basis.","holding":"The Village of Smithfield violated FOIA by improperly classifying the requesters as recurrent requesters and by failing to respond in accordance with the requirements of FOIA.","legal_question":"Whether the Village of Smithfield properly classified the requesters as \"recurrent requesters\" pursuant to sections 2(g) and 3.2 of FOIA.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/2(g), 5 ILCS 140/3, 5 ILCS 140/2(b), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Smithfield P","requesting_party":"Ford and Mr. Orwig","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"recurrent requester","subject_description":"The improper classification of a citizen as a recurrent requester to delay or restrict access to public records.","ocr_status":"ok","ocr_quality":90.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2012-Binding-PAC-Opinions/12-001.pdf","sha256":"572cf3fee8ba532f3aa62d7d29bd93752c5e3df7433f72f913c628206bb423d4","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["recurrent requester","FOIA request","public records","Village of Smithfield"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL January 9, 2012 Public Access Opinion 12-001 (Request for Review — 2011 PAC 16877) FREEDOM OF INFORMATION ACT; Classification as a \"Recurrent Requester\" under Section 2(g) of FOIA Via Electronic mail and U.S. mail Ms. Kathy Ford 1004 E. Walnut Canton, Illinois 61520 Kathy lindsey2001(@yahoo.com Mr. Tim Orwig Freedom of Information Officer Village of Smithfield P.O. Box 25 Smithfield, Illinois 61477 Cremy22(@hotmail.com Dear Ms. Ford and Mr. Orwig: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9,5(f) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). The central issue presented for review is whether the Village of Smithfield (Village) properly classified Ms. Kathy Ford and her husband, Mr. Vernon Ford, as \"recurrent requesters\" under sections 2(g) and 3.2 of FOIA (5 ILCS 140/2(g), 3.2 (West 2010), as amended by Public Act 97-579, effective August 26, 2011). For the reasons set forth below, we conclude that the Village has violated FOIA by improperly classifying the requester and her husband as recurrent requesters, and by failing to respond in accordance with the requirements of FOIA. 500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 »* TTY: (217) 785-2771 » Fax: (217) 782-7046 100 West Randolph Street, Chicago, Hlinois, 60601 * (312) 814-3000 * TTY: (312) 814-3374 + Fax: (312) 814-3806 1001 East Main, Carbondale, Illinois 62901 « (618) 529-6400 * TTY: (618) 529-6403 + Fax: (618) 529-6416 Ms. Kathy Ford Mr. Tim Orwig January 9, 2012 Page 2 BACKGROUND Facts On September 14, 2011, Ms. Ford submitted a ten-part FOIA request to the Village seeking copies of minutes, agendas, and other information concerning several different meetings, copies of certain laws and other documents, access to view financial records and checks, and suggestions for more timely acknowledgment of FOIA requests by the Village.’ The Village responded to Ms. Ford's request on September 21, 2011, in a letter which stated, in its entirety: You and your husband, Vernon Ford, have been classified as \"Recurrent Requesters” under Subsection G, Section 2 of HB1716. Therefore, as stated in Section 3.2 of HB 1716, we will respond to your request within 21 business days of receipt.” On September 23, 2011, the Public Access Bureau received Ms. Ford's Request for Review challenging the Village's classification of her and her husband as recurrent requesters.” We forwarded a copy of Ms. Ford’s Request for Review to the Village on October 11, 2011, and asked for a detailed explanation of its basis for classifying Ms. Ford as a recurrent requester.’ The Village responded to Ms. Ford's FOIA request on October 12, 2011, furnishing her with certain records, and denying other portions of the request because the Village did not have records, or because the request asked a question.” 'Letter from Kathy Ford to Village of Smithfield FOLA Officer (September 14, 2011). *Letter from Tim Orwig, FOIA Officer, Village of Smithfield, to Kathy Ford (September 21, 2011). *Letter from Kathy Ford to the Attorney General, State of Illinois (September 23, 2011). ‘Letter from Matthew C. Rogina, Assistant Attorney General, Public Access Bureau, to Tim Orwig, FOIA Officer, Village of Smithfield (October 11, 2011). > Letter from Tim Orwig, FOIA Officer, Village of Smithfield, to Kathy Ford (October 12, 2011). Ms. Kathy Ford Mr. Tim Orwig January 9, 2012 Page 3 On November 15, 2011, this office extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA.° On November 16, 2011, the Village responded to our request for an explanation, asserting that Vernon and Kathy Ford had sent numerous FOJA requests over the past year, and enclosing copies of 14 FOIA requests.’ As further justification for its position, the Village asserted that: 1) the requests are usually in the same envelope and the responses mailed to the same address; and 2) because Vernon and Kathy Ford had submitted \"an excess of Requests for Review\" to the Attorney General's Office, mostly sent in by Ms. Ford, Mr. and Ms. Ford should be \"classified as a single entity” and should \"remain classified as Recurrent Requesters.\" We forwarded a copy of the Village's response letter to Ms. Ford on November 28, 2011.5 On December 4, 2011, Ms. Ford responded to the Village's answer and asserted that she and her husband should not be bundled as a single entity, nor had she submitted the number of requests statutorily required to be treated as a recurrent requester under section 2(g) of FOIA.’ Further, Ms. Ford had obtained copies of all of the FOIA requests that she and her husband had submitted to the Village in order to determine why they were being classified as recurrent requesters, and included those copies with her response. '0 Our review of those requests reveals that Kathy Ford alone sent 10 FOIA requests to the Village between October 12, 2010, and September 14, 2011, including the September 14, 2011, request.'' Kathy and Vernon Ford sent one joint request on January 12, 2011. Vernon Ford alone sent 3 FOIA requests, dated September 8, 2010, October 14, 2010, and August 10, 2011, to the Village. ‘Letter from Matthew C. Rogina, Assistant Attorney General, to Tim Orwig, FOIA Officer, Village of Smithfield, and Kathy Ford (November 15, 2011). “TLetter from Tim Orwig, FOIA Officer, Village of Smithfield, to Matthew C. Rogina, Assistant Attorney General, Public Access Bureau (November 16, 2011). *Letter from Matthew C. Rogina, Assistant Attorney General, Public Access Bureau to Kathy Ford and Tim Orwig (November 28, 2011). \"Letter from Kathy Ford to Matthew Rogina, Assistant Attorney General, Public Access Bureau (December 4, 2011). ‘We note that the 14 FOIA requests that Ms. Ford sent us are identical to those that the Village had furnished to us. Thus, the parties do not dispute who sent each request or the dates on which the requests were submitted. The dates of Ms. Ford's FOIA requests are October 12, 2010; November 10, 2010; January 20, 2011; February 9, 2011; February 23, 2011; July 7, 2011; July 13, 2011; August 10, 2011; August 10, 2011; and September 14, 2011. Ms. Kathy Ford Mr. Tim Orwig January 9, 2012 Page 4 Relevant Provisions of FOIA The amendments to FOIA contained in Public Act 97-579 adding the \"recurrent requester\" provisions became effective on August 26, 2011. Section 2(g) of FOIA defines a \"recurrent requester\" as a person who, \"in the 12 months immediately preceding the request, has submitted to the same public body (i) a minimum of 50 requests for records, (ii) a minimum of 15 requests for records within a 30-day period, or (iii) a minimum of 7 requests for records within a 7-day period.\" The statute also specifically defines a \"request\" as \"a written document (or oral request, of the public body chooses to honor oral requests) that is submitted to a public body via personal delivery, mail, telefax, electronic mail, or other means available to the public body and that identifies the particular public records the requester seeks and provides that \"[o]ne request may identify multiple records to be inspected or copied.\" 5 ILCS 140/2(g) (West 2010), as amended by Public Act 97-579, effective August 26, 2011. Section 3.2 of FOIA sets out the procedures that a public body must follow if it intends to treat an individual as a recurrent requester. First, a public body must, within five days after receiving a FOJA request, notify the requester: (i) that the public body is treating the request as a request under subsection (g) of Section 2, (ii) of the reasons why the public body is treating the request as a request under subsection (g) of Section 2, and (iii) that the public body will send an initial response within 21 business days after receipt in accordance with subsection (a) of this Section. The public body shall als [...] he Village included three FOIA requests submitted by Mr. Ford and one joint request by Mr. and Ms. Ford when calculating Ms. Ford's total number of FOIA requests. Although we agree that the joint request may be included, the requests by Mr. Ford cannot be counted. The Village reasoned that requests from each individual came in one envelope and its responses were sent to the same address. The Village also asserted that the Fords had submitted \"excessive\" Requesftosr Review to the Public Access Counselor and most were sent by Ms. Ford. These facts, assuming they are accurate, are not sufficient to conclude that the requests are attributable to one person. Section 2(g) of FOIA defines a recurrent requester as a \"person.\" \"Person\" is defined, for purposes of FOIA, as \"any individual, corporation, partnership, firm, organization or association, acting individually or as a group.\" 5 ILCS 140/2(b) (West 2010), as amended by Public Act 97-579, effective August 26, 2011. Ms. Ford asserts that her requests and that of her husband are separate, unless they submit the request jointly. Nothing in the statute permits the Village to aggregate the separate requests of two individuals for purposes of section 2(g) simply because the individuals are married or live at the same address. The Village did not act in accordance with the requirements of FOIA when it considered requests made by Mr. Ford in determining whether Ms. Ford was a recurrent requester. Even if Ms. Ford had submitted the number of requests required to be considered a recurrent requester, the Village would still have acted improperly by labeling Mr. Ford as a recurrent requester based on his wife's requests. Additionally, although the Village notes that Ms. Ford has submitted Requests for Review to the Public Access Counselor, nothing in the statute allows the Village to consider Requests for Review filed with the Public Access Counselor when calculating the number of FOJA requests under section 2(g). Number of FOIA Requests Submitted and Requirements of Section 2(g) With respect to the number of FOIA requests actually submitted by Ms. Ford and whether those fit into any of the categories in section 2(g), the parties agree on the dates of the requests, and the first request submitted by Ms. Ford after the recurrent requester amendment became effective was September 14, 2011. Ms. Ford's 11 requests in the year prior to her September 14, 2011, request does not even approach section 2(g)'s minimum requirement of 50 FOIA requests in one year to be treated as a recurrent requester. Even erroneously aggregating all requests from the Fords that the Village had received within one year, 14 requests clearly does not equal the statutory thresholds of 50 requests within a year, 15 requests in 30 days, or 7 Ms. Kathy Ford Mr. Tim Orwig January 9, 2012 Page 7 requests in 7 days. The Village had no legitimate basis on which to declare Ms. Ford, Mr. Ford, or Ms. and Mr. Ford jointly as recurrent requesters. Public Body's Response We also note that, in addition to improperly determining that Ms. Ford and Mr. Ford were recurrent requesters, the Village failed to follow the statutory procedure for notifying Ms. Ford of its determination. Although the Village did advise Ms. Ford within 5 days that she was being treated as a recurrent requester, that letter did not explain why she was being treated as such, nor did the Village explain the possible responses that it would provide within 21 days. The statute requires a public body to include in the notification the reasons why it is treating the request as recurrent under subsection 2(g), as well as to explain the potential responses it may provide. The Village did respond to Ms. Ford's FOIA request within 21 business days. However, because Ms. Ford was improperly treated as a recurrent requester, the Village should have responded within 5 days. FINDINGS AND CONCLUSIONS After full review and giving due consideration to the arguments of the parties, the Public Access Counselor's findings, and the applicable law, the Attorney General finds that: 1) On September 14, 2011, Ms. Kathy Ford submitted a FOIA request to the Village requesting, among other things, records relating to Village meetings and financial records. 2) On September 21, 2011, the Village notified Ms. Ford that it was treating her as a recurrent requester, and advised that they would respond to her FOIA request within 21 business days. 3) On September 23, 2011, Ms. Ford submitted to the Public Access Counselor a Request for Review of the Village's September 21, 2011, determination that she was a recurrent requester. Ms. Ford's Request for Review was timely filed and otherwise complies with section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). Therefore, the Attorney General may issue a binding opinion with respect to the Village's decision to treat Ms. Ford as a recurrent requester. Ms. Kathy Ford Mr. Tim Orwig January 9, 2012 Page 8 4) The Attorney General properly extended the time to issue a binding opinion by 30 business days, pursuant to section 9.5(f) (5 ILCS 140/9.5(f) (West 2010), as amended by Public Act 97-579, effective August 26, 2011), until January 9, 2012. 5) The Village, as a matter of law, violated FOIA by treating Ms. Ford and her husband as one person for purposes of section 2(g). 6) The Village, as a matter of law, violated FOIA because the 11 FOIA requests that Ms. Ford made in the year prior to her September 14, 2011, request do not meet the statutory thresholds of 50 requests within a year, 15 requests within 30 days, or 7 requests within 7 days. 7) The Village, as a matter of law, violated section 3.2(b) of FOIA by failing to notify Ms. Ford of the reasons why she was being treated as a recurrent requester. For the reasons addressed above, it is the opinion of the Attorney General that the Village has, in violation of the requirements of the Freedom of Information Act, improperly classified Ms. Ford and Mr. Ford as recurrent requesters. Although the Village has responded to the FOIA request underlying this review, we direct the Village to refrain from treating further FOIA requests from Ms. Ford and Mr. Ford as requests under section 2(g) unless and until any request properly qualifies as a request from a recurrent requester under FOIA. This opinion shall be considered a final decision of an administrative agency for purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 e¢ seq. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of INinois and Ms. Kathy Ford as defendants. See 5 ILCS 140/11.5 (West 2010). Very truly yours, LISA MADIGAN ATTORNEY GENERAL & By: Citectamat fy torte Michael J. Luke Counsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Village of Smithfield classified Kathy Ford and her husband as 'recurrent requesters' under FOIA, which would have required the Village to respond within 21 business days. The Illinois Attorney General's office ruled that the Village violated FOIA by improperly classifying the requesters as recurrent requesters and by failing to follow the required notification procedures. The opinion concluded that the Village had no legitimate basis for the classification.","card_headline":"A village's classification of a requester as recurrent","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":"September 14, 2011","year_pre_fix":"2012","site_dup_of":null},{"id":5,"orig_master_id":18978,"dup_master_id":19206,"dup_sha256":"4c499cad27d82f76cacbb15254c649d04d91283e9bda4c592ddd17099691125a","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2012,"date_issued":"2012-03-12","case_number":"2012 PAC 18205","request_numbers":null,"title":"Disclosure of Invoices for Legal Services","filename":"PUBLIC ACCESS OPINION 12-005 (Request for Review - 2012 PAC 18205).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 12-005 (Request for Review - 2012 PAC 18205).pdf","word_count":1998,"summary":"State of Illinois Attorney General Lisa Madigan issues binding opinion on request for legal invoices from Central School District No. 104 . O'Fallon Progress Editor Daniel Kelley sought records of District's legal expenses for the following .","plain_summary":"The requester sought copies of legal invoices reflecting a school district's expenses in several lawsuits, and the school district withheld the invoices in full, asserting attorney-client privilege. The Public Access Counselor held that while some invoice descriptions could reveal privileged communications and could be redacted, generic descriptions of the work performed, attorneys' initials, time spent, and billed amounts are not privileged and must be disclosed. The school district was directed to release the non-exempt portions of the invoices, since withholding the records in their entirety violated FOIA's requirement to redact only the exempt information and produce the rest.","holding":"The District violated FOIA by withholding legal invoices in their entirety, as the records contained non-exempt information such as billing rates, time spent, and general descriptions of services that must be disclosed.","legal_question":"Whether a public body may withhold legal invoices in their entirety under the attorney-client privilege exemption of FOIA.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(1), 5 ILCS 140/2, 5 ILCS 140/11, 735 ILCS 5/2","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(m)","public_body":"Jane Hamm FOIA Officer Central School District","requesting_party":"Kelley and Ms. Hamm","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"attorney-client privilege","subject_description":"The dispute concerned a newspaper editor's request for the school district's legal invoices detailing attorney billing for legal services.","ocr_status":"ok","ocr_quality":90.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2012-Binding-PAC-Opinions/12-005.pdf","sha256":"db5787956400d7879837bbf6d5cf44f9a73307780de11306e1e6d1568cdf0459","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["legal invoices","attorney-client privilege","billing records","school district records","FOIA redaction"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL March 12, 2012 PUBLIC ACCESS OPINION 12-005 (Request for Review 2012 PAC 18205) FREEDOM OF INFORMATION ACT: Disclosure of Invoices for Legal Services Mr. Daniel Kelley O'Fallon Progress 120 South Illinois Street Belleville, Illinois 62222 Ms. Jane Hamm FOIA Officer Central School District No. 104 309 Hartman Lane O'Fallon, Illinois 62269 Dear Mr. Kelley and Ms. Hamm: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). For the reasons discussed below, we find that Central School District No. 104 improperly withheld legal invoices in their entirety in response to a FOIA request from Mr. Daniel Kelley. Although some of the information contained in the responsive records may be exempt from disclosure, other information contained in the invoices, such as a general description of the nature of the services the billing attorney performed, the attorneys’ initials, the time spent on the tasks described, and the rate and dollar amounts charged, cannot be withheld. 500 South Second Street, Springfield, Illinois 62706 © (217) 782-1090 ¢ TTY: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © TTY: (800) 964-3013 © Fax: (312) 814-3806 1001 East Main, Carbondale, [Illinois 62901 © (618) 529-6400 © T’T'Y: (877) 675-9339 © Fax: (618) 529-6416 Letter from Steve Silverman, Assistant Attorney General, Public Access Bureau, to Jane Hamm, FOIA Officer, Central School District No.104 (January 23, 2012). Mr. Daniel Kelley Ms. Jane Hamm March 12, 2012 Page 3 office received the District's response dated February 2, 2012, which included a sample of the legal invoices at issue.’ We forwarded the non-confidential portion of the District's answer to Mr. Kelley on February 15, 2012.° This office received Mr. Kelley's reply on March 2, 2012.° ANALYSIS Section 7(1)(m) of FOIA exempts from disclosure communications between a public body and an attorney which would not be subject to discovery in litigation, including: communications covered by the attorney-client privilege. The attorney-client privilege applies to communications: (1) where legal advice of any kind is sought, (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are permanently protected, (7) from disclosure by himself or the legal advisor, (8) except the protection be waived. J/linois Education Association v. Illinois State Board of Education, 204 Ill. 2d 456 (2003). The privilege extends both to communications from a client to an attorney and from an attorney to aclient. Midwesco-Paschen Joint Venture for Viking Projects v. Imo Industries, Inc., 265 Il. App. 3d 654 (1994). \"It is well-recognized that information regarding a client's fees generally is not a ‘confidential communication’ between an attorney and client, and thus is not protected by the attorney-client privilege. [Citations.] The payment of fees is merely incidental to the attorney- client relationship and typically does not involve the disclosure of confidential communications arising from the relationship.\" People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 203-4 (1997). In Ulrich, however, the court acknowledged that \"[c]ertain types of billing records may contain explanations for legal fees and may indicate the type of work done or matters discussed between the attorney and client. As such, they could reveal the substance of confidential attorney-client discussions and be subject to valid claims of attorney-client privilege or exemption under [FOIA].\" Ulrich, 294 Ill. App. 3d at 201. ‘Letter from Garrett P. Hoerner, Becker Paulson, Hoerner & Thompson, P.C., to Steve Silverman, Assistant Attorney General, Office of the Attorney General (February 2, 2012). ‘Letter from Steve Silverman, Assistant Attorney General, Public Access Bureau, to Daniel Kelly, O'Fallon Progress Newspaper (February 15, 2012). °Letter from Daniel Kelley, Editor, O'Fallon Progress, to Steve Silverman, Assistant Attorney General, Public Access Bureau (February 27, 2012). Mr. Daniel Kelley Ms. Jane Hamm March 12, 2012 Page 4 The District cites Ulrich for the proposition that because the legal invoices could reveal the substance of confidential attorney-client discussions, they are therefore exempt from disclosure in their entirety. Ulrich does not stand for that proposition, however. To the contrary, the court in Ulrich drewa distinction between descriptions of work that could reveal privileged information and fee information which is not privileged, and concluded that the latter must be produced. The invoices at issue here include dates on which work was performed, the initials of attorneys, descriptions of the work performed, the numbers of hours billed and the dollar amounts for each item. Some of the descriptions may contain attorney-client communications; others would not. Even in those work descriptions which could arguably reveal privileged information, however, other parts of the descriptions could be released without revealing the content of any substantive communication between the District and its attorneys. For example, to the extent they may appear in these invoices, generic descriptions of the tasks an attorney performed (such as \"read e-mail,\" \"telephone conference,\" \"court appearance,\" etc.) could be disclosed without revealing any privileged matter. Similarly, the attorneys’ initials, the time spent on the tasks described, and the dollar amounts charged would not disclose any privileged matters. Therefore, although some parts of these invoices containing detailed descriptions of the work performed may be subject to redaction under 7(1)(m), if disclosure could reveal privileged information, other parts of the invoices are clearly not exempt from FOIA's disclosure requirement. Section 7(1) of FOIA (5 ILCS 140/7(1) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 2011; 97-452, effective August 18, 2011) provides: When a request is made to inspect or copy a public record that contains information that is exempt from disclosure under this Section, but also contains information that is not exempt from disclosure, the public body may elect to redact the information that is exempt. The public body shall make the remaining information ‘available for inspection and copying. ) This section requires the District to disclose the non-exempt information contained in these invoices. Further, section 2.5 of FOIA (5 ILCS 140/2.5 (West 2010)) provides that \"[a]ll records relating to the obligation, receipt, and use of public funds of the State, units of local government, and school districts are public records subject to inspection and copying by the public.\" The amounts billed to a public body by a law firm as well as the generic descriptions of Mr. Daniel Kelley Ms. Jane Hamm March 12, 2012 Page 5 the work performed and the time spent on that work are subject to disclosure pursuant to this section. FINDINGS AND CONCLUSIONS After full review and giving due consideration to the arguments of the parties, the Public Access Counselor's findings, and the applicable law, the Attorney General finds that: 1) On December 21, 2011, Mr. Daniel Kelley, Editor of the O'Fallon Progress, submitted a Freedom of Information Act request to Central School District No. 104 seeking records of the District's legal expenses for three specified matters. 2) On January 9, 2012, Central School District No. 104 denied Mr. Daniel Kelley's FOIA request, asserting that legal invoices containing the information Mr. Kelley seeks are exempt from disclosure pursuant to section 7(1)(m) of FOIA, which exempts from disclosure \"[c]ommunications between a public body and an attorney * * * representing the public body that would not be subject to discovery in litigation[.]\" 3) On January 20, 2012, the Public Access Counselor received Mr. Kelley's Request for Review of the District's response. Mr. Kelley's Request for Review was timely filed and otherwise complies with section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). Therefore, the Attorney General may properly issue a binding opinion with respect to the District's denial of Mr. Kelley's request. 4) Based upon a review of the samples of the legal invoices in question, some of the information contained in the responsive records may be subject to redaction under section 7(1)(m) of FOIA. The disclosure of information contained in the invoices, such as a general description of the nature of the services the billing attorney performed, the attorneys' initials, the time spent on the tasks described, and the rate and dollar amounts charged, however, would not disclose privileged information and may not properly be withheld under section 7(1)(m) of FOIA. Therefore, it is the opinion of the Attorney General that Central School District No. 104 violated section 7(1) of FOIA by withholding the legal invoices in their entirety, and by failing to release the non-exempt information in those invoices to Mr. Kelley. Accordingly, the District is directed to immediately furnish copies of the invoices to Mr. Kelley, subject only to the redaction of information that would reveal the substance of any confidential attorney-client communications. Mr. Daniel Kelley Ms. Jane Hamm March 12, 2012 Page 6 Under section 9.5(f) of FOIA, the District must either immediately comply with this bindirig opinion or initiate administrative review under section 11.5 of FOIA (5 ILCS 140/11.5(f) (West 2010)). This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/2-101 et seq. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Daniel Kelley as defendants. See 5 ILCS 140/11.5 (West 2010). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: Mecteny Lotte Michael J. Luke Counsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"FOIA allows withholding only the specific portions of a record that fall within an exemption, not entire documents merely because some exempt material is present. Attorney-client privilege, invoked here as a FOIA exemption, protects only the substance of confidential communications between attorney and client -- it does not shield administrative billing details like attorney initials, hourly rates, time spent, and general task descriptions, which do not reveal privileged legal advice or communications. Because the District withheld the invoices wholesale rather than redacting only the privileged content, it violated FOIA's requirement to disclose all non-exempt portions of a responsive record.","card_headline":"Legal invoices for attorney billing from a school district","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":6,"orig_master_id":19207,"dup_master_id":18979,"dup_sha256":"0556b449f8e8399d6fa82a08cee0d17a608241a6a96c291ecf621d0cfacec7c0","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2012,"date_issued":"2012-03-16","case_number":"2011 PAC 18379","request_numbers":null,"title":"Disclosure of Records Pertaining to Arrests and Police Reports","filename":"PUBLIC ACCESS OPINION 12-006 (Request for Review - 2011 PAC 18379).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 12-006 (Request for Review - 2011 PAC 18379).pdf","word_count":3476,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request for police reports related to an arrest of a public official.","plain_summary":"The requester, a journalist, sought police incident reports and related records concerning an arrest of a local public official, which a police department withheld entirely, citing a personal-privacy exemption and denying that an arrest had actually occurred. The Public Access Counselor's own review of the records showed that an arrest had in fact taken place, triggering FOIA's specific arrest-disclosure provisions, and found that the subject's privacy interest was outweighed by the strong public interest in arrest information generally and in how law enforcement handled the incident. The police department was directed to release the records, subject only to redaction of statutorily defined private information, since it failed to prove the withheld material was otherwise exempt.","holding":"The Village of Hillside violated section 3 of FOIA by withholding police reports.","legal_question":"Did the Village of Hillside violate the Freedom of Information Act by withholding police reports?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)"],"public_body":"Village of Hillside","requesting_party":"Mr. Bill Dwyer, Sun-Times Media/Pioneer Press","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought police incident reports and 911 call records related to the arrest of a public official.","ocr_status":"ok","ocr_quality":90.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2012-Binding-PAC-Opinions/12-006.pdf","sha256":"97ca706fda9386a2bf341ffa5715c677bf2c2c69f6d80a74f7249109e55eab7c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","public official","FOIA request","arrest records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nMarch 16, 2012\nPUBLIC ACCESS OPINION 12-006\n(Request for Review 2011 PAC 18379)\nFREEDOM OF INFORMATION ACT:\nDisclosure of Records Pertaining to\nArrests and Police Reports\nMr. Bill Dwyer, Staff Writer\nSun-Times Media/Pioneer Press\n[street address redacted for site publication -- see original PDF]\nMs. Darlene Pugh\nFreedom of Information Officer\nHillside Police Department\n425 Hillside Avenue\nHillside, Illinois 60162-1215\nDear Mr. Dwyer and Ms. Pugh:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 120/9.5(f) (West 2010), as amended by Public Act 97-579,\neffective August 26, 2011). For the reasons discussed below, we conclude that the Village of\nHillside (Village) violated section 3 of FOIA (5 ILCS 140/3 (West 2010)) by withholding police\nreports concerning an incident in which a public official was arrested.\nBACKGROUND\nOn January 18, 2012, Mr. Bill Dwyer, a reporter for the Sun-Times Media/\nPioneer Press submitted a FOIA request to the Village seeking \"all police incident reports related\nto Emanuel 'Chris' Welch between November 1, 2001, and March 30, 2002[,] \"records of\"[a]ll\n911 calls received between November 1, 2001 and March 30, 2002 related to reported batteries\n500 South Second Street, Springfield, Hlinois 62706 © (217) 782-1090 © T’VY: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 ¢ TTY: (800) 964-3013 ¢ Fax: (312) 814-3806\n1001 East Main, Carbondale, Hlinois 62901 © (618) 529-6400 © TTY: (877) 675-9339 © Fax: (618) 529-6416 -\nMs. Jacqueline Lee\nMr. James Rauckman\nMr. John Openlander\nJuly 11, 2012\nPage 2\namended by Public Acts 97-333, effective August 12, 201 1; 97-452, effective August 19, 2011;\n97-318, effective January 1, 2012), by discussing budgetary matters in a meeting closed to the\npublic pursuant to section 2(cK1} of OMA (5 ILCS 120/2(c)(1) (West 2010), as amended by’\nPublic Acts 97-333, effective August 12, 2011; 97-452, effective August 19, 2011; 97-318,\neffective January 1, 2012). -\nBACKGROUND\nIn a Request for Review filed with this office on April 12, 2012, Ms. Jacqueline\nLee of the Belleville News-Democrat alleged that two committees of the Board of Trustees of the\nVillage of Swansea had improperly discussed the Village's budget in closed session.\nSpecifically, she alleged that during the Board's personnel committee meetings on February 21,\nMarch 5, and March 19, 2012, and during the Board's finance committee meetings on March 19\nand April 2, 2012, the respective committees closed portions of their meetings pursuant to\nsection 2(c)(1) of OMA, which permits a public body to meet in closed session to discuss \"[t]he\nappointment, employment, compensation, discipline, performance, or dismissal of specific\nemployees of the public body[.]\" Ms. Lee alleged that in addition to discussing individual\nemployees, the committees also discussed budget cuts, a topic not authorized by any exception.\nOn April 23, 2012, this office forwarded the Request for Review to the Village\nand asked the Village for copies of the minutes and the verbatim recordings of the closed\nsessions for the dates in question? We received the Village's response dated May 3, 2012, which\nincluded the minutes of the five closed sessions in question and the cassette tape recordings of\nthe February 21 and March 5, 2012, personnel committee meetings.* This office had already\nreceived the cassette tape recordings of the March 19, 2012, personnel committee meeting and\nthe March 19, 2012, finance committee meeting in connection with a separate Request for\nReview.’ The Village informed us that it had inadvertently failed to record the closed session of\nthe finance committee's April 2, 2012, meeting.\n‘E-mail from Jacqueline Lee, Reporter, Belleville News-Democrat, to Sarah Pratt, Acting Public\nAccess Counselor, Office of the Attorney General (April 12, 2012, 10:55 a.m.).\n?Letter from Sarah Kaplan, Assistant Attorney General, Public Access Bureau, to Lauren O'Neill,\nVillage Clerk, Village of Swansea (April 23, 2012).\n‘Letter from John J. Kurowski, Village Attorney, Village of Swansea, to Sarah Kaplan, Assistant\nAttorney General, Public Access Bureau (May 3, 2012).\n“See Request for Review 2012 PAC 19238.\nMs. Jacqueline Lee\nMr. James Rauckman\nMr. John Openiander\nJuly 11, 2012\nPage 3\nThis office is required to keep the minutes and recordings of the closed sessions\nconfidential under section 3.5(g) of OMA (5 ILCS 120/3.5(g) (West 2010)). We forwarded the\nnon-confidential portions of the Village's response to Ms. Lee on May 9, 2012. Ms. Lee\ninformed us that because she had no way to evaluate the content of the closed session\ndiscussions, she chose not to reply.>\nANALYSIS\nSection 2(a) of OMA provides that \"[a]ll meetings of public bodies shall be open\nto the public unless excepted in subsection (c) and closed in accordance with Section 2a.\"\nSection 2(c) (5 ILCS 120/2(c) (West 2010), as amended by Public Acts 97-333, effective August\n12, 2011; 97-452, effective August 19, 2011; 97-318, effective January 1, 2012) lists several\ntopics that public bodies may discuss in closed session. On the dates in question, the personnel\nand finance committees relied on the exception in section 2(c)(1) of OMA, which allows public\nbodies to discuss in closed session \"[t]he appointment, employment, compensation, discipline,\nperformance, or dismissal of specific employees of the public body[.]\"\nThe use of the phrase \"specific employees of the public body” significantly limits\nthe scope of this exception. Based on this language, the exception is intended to permit public\nbodies to candidly discuss the relative merits of individual employees, or the conduct of\nindividual employees. The exception is not intended to allow private discussions of fiscal\nmatters, notwithstanding that they may directly or indirectly impact the employees of the public\nbody. Decisions to reduce funding to certain departments of a governmental entity, or to\ndispense with discretionary programs, for example, may ultimately result in a public body having\nto determine which specific employees to retain or which to layoff or terminate. To the extent\nthat a public body is required to discuss the relative merits of individual employees as a result of\nits fiscal decisions, such discussions may properly be closed to the public under section 2(c)(1)\nof OMA. The underlying budgetary discussions leading to those decisions, however, may not be\nclosed to the public.\nBased on our review of the minutes of the closed sessions in question and the\navailable recordings, we find that although the Board did discuss details of the employment of\nspecific employees of the public body, significant portions of their discussions centered on\nbroader budgetary concerns, such as staffing needs, how staff reductions would affect the\nservices provided by the Village, and which services were most valuable to Village residents. In\n‘Telephone conversation between Jacqueline Lee, Reporter, Belleville News-Democrat, and Sarah\nKaplan, Assistant Attorney General, Public Access Bureau (approx. May 2, 2012).\nMs. Jacqueline Lee\nMr. James Rauckman\nMr. John Openlander\nJuly 11, 2012\nPage 4\nparticular, the number of paid staff required by the Village was the focus of several minutes of\ndiscussion at each closed session. Also, on March 19, 2012, the finance committee discussed\nstrategies for balancing the Village's budget. These aspects of the committees’ discussions were\noutside the scope of section 2(c)(1), and therefore were improperly closed to the public.\nWe note that during the March 5 and March 19, 2012, personnel committee\nmeetings the Board also entered closed session under section 2(c)(1) to discuss the discipline of a\nspecific employee, and entered closed session pursuant to section 2(c)(2) to discuss collective\nnegotiating matters. Ms. Lee has not alleged that improper discussion occurred during those\nsessions, nor did our review of the closed session recordings reveal improper discussion during\nthose closed sessions. :\nThe Village asserts that although the employees were discussed in the context of\nthe following year's budget, the content of the discussions remained within the exception in\nsection 2(c)(1). The Village also states that a Trustee's question about the failure to include a\nstaff reduction in the budget “could only be answered and discussed in the context of specific\nemployees.” ,\nWe disagree. Because government budgets are generally heavily personal-\nservices weighted, discussions of budgetary matters will often impact staffing levels. Section\n2(c)(1) is not intended to allow a public body to discuss general fiscal issues in closed session\nsimply because its budgetary decisions may impact the public body's employees and, thus,\nultimately may lead to properly closed discussions of the employment of specific employees. For\nexample, section 2(c)(1} does not authorize the discussion in closed session of issues that clearly\nimpact the public body's budget, such as whether to fill a vacant position, the number of staff\nneeded to provide an acceptable level of service, or which of a public body's functions are\nSLetter from John Kurowski, Village Attorney, Village of Swansea, to Sarah Kaplan, Assistant\nAttorney General, Public Access Bureau (May 3, 2012).\nMs. Jacqueline Lee\nMr. James Rauckman\nMr. John Opentander\nJuly 11, 2012\nPage 5\nmost important to residents, although those issues may directly affect the employment of\nspecific employees.’\nWith respect to the Village's failure to provide this office with the verbatim\nrecording of the finance committee's April 2, 2012, meeting, the Village has provided us with\nevidence that its failure to record the meeting was accidental. The Village Clerk had prepared a\ncassette tape for that meeting and placed it in the recorder. When she attempted to turn the\nrecording off at the end of the meeting, she discovered that she had failed to start the recording.\nThe Village also states that it is not aware of any other closed sessions that were not recorded.\nThus, while we remind the Village to ensure that all future closed sessions are recorded, we note\nthat the failure to record this particular meeting appears simply to have been an inadvertent\nmistake. :\nFINDINGS AND CONCLUSIONS\nAfter full review and giving due consideration to the arguments of the parties, the\nPublic Access Counselor's findings, and the applicable law, the Attorney General finds that:\n1) Ms. Jacqueline Lee of the Belleville News-Democrat submitted a Request for\nReview to the Public Access Counselor dated April 12, 2012, which this office received the same\nday. In her Request for Review, Ms. Lee alleged that the Village of Swansea's personnel\ncommittee improperly discussed the Village's budget in closed sessions during its meetings on\nFebruary 21, March 5, and March 19, 2012, and that the Village of Swansea's finance committee\nimproperly discussed the Village's budget in closed sessions during its meetings on March 19\nand April 2, 2012. As the basis for closing these meetings to the public, the personnel and\nfinance committees cited section 2(c)(1) of OMA, which allows public bodies to discuss in\nclosed session \"[t]he appointment, employment, compensation, discipline, performance, or\ndismissal of specific employees of the public body(.]\"\n7We would note that in Gosnell v. Hogan, 179 IIL App. 3d 161, 534 N.E.2d 434 (1989), the\nIllinois Appellate Court interpreted the exception now contained in section 2(c)(1) of OMA as authorizing the\ndiscussion of topics that did not fall clearly within the scope of the exception but which were generally related\nthereto. Specifically, the court held that the discussion of related topics was permissible because the public body\nneeded to consider the related matters simultaneously with the authorized topic in order for the discussion to be\neffective. However, Gosnell was decided prior to the enactment of Public Act 88-621, effective January 1, 1995,\nwhich added section 2(b} to OMA, Section 2(b) provides that the exceptions in the Act \"are in derogation of the\nrequirement that public bodies meet in the open, and therefore, the exceptions are to be strictly construed, extending\nonly to subjects clearly within their scope.” (Emphasis added.) The amendatory language was intended, in part, to\naddress the court's interpretation in Gosnell. See Remarks of Rep. Wennlund, April 20, 1993, House Debate on\nHouse Bill No. 1332, at 59 (“all exceptions are intended to be strictly construed under the amendatory language\").\nMs. Jacqueline Lee\nMr. James Rauckman\nMr. John Openlander\nJuly 11, 2012\nPage 6\n2) Ms. Lee's Request for Review was timely filed and otherwise complies with\nthe requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2010).\n3) The Attorney General properly extended the time to issue a binding opinion\nby 21 business days pursuant to section 3.5(e} of OMA. Therefore, the Attorney General may\nproperly issue a binding opinion with respect to Ms. Lee's Request for Review.\n4) The Village of Swansea's personnel committee held closed sessions on\nFebruary 21, March 5, and March 19, 2012. In each of these closed sessions, the committee\ndiscussed budgetary matters outside the scope of the exception in section 2(¢)(1).\n5) The Village of Swansea's finance committee held closed sessions on March 19\nand April 2, 2012. In each of these closed sessions, the committee discussed budgetary matters\noutside the scope of the exception in section 2(c)(1).\n6) By discussing general budgetary matters in meetings closed to the public\npursuant to section 2(c)(1) of OMA, the personnel and finance committees violated section 2(a)\nof OMA, which requires that all meetings of public bodies be open to the public unless excepted”\nin section 2(c).\nIn accordance with these findings of fact and conclusions of law, the Village is\ndirected to release to Ms. Lee those portions of the closed session meeting minutes that detail\ndiscussions that were outside the scope of section 2(c)(1). Specifically, those minutes should\ninclude the discussions of budget and staffing issues that took place in closed sessions during the\nBoard's personnel committee meetings on February 21, March 5, and March 19, 2012, and\nduring the Board's finance committee meetings on March 19 and April 2, 2012. When releasing\nthe minutes of the closed sessions, the Village may redact the portions of the minutes that\ndirectly relate to (a) the discussions that were properly conducted during closed session pursuant\nto sections 2(c)(1) and 2(c)(2)}; and (b) the discussions of one or more specific employees. The\nVillage must make the redacted version of these minutes® available to members of the public\nupon request.\n®This office also would ordinarily direct the Village to release those portions of the closed session\nrecordings relating to topics that were outside the scope of section 2(¢)(1). In this instance, however, the permissible\nand impermissible discussions are so intertwined that it is not practicable to separate them. This highlights a\nfundamental problem with improper closed session discussions — although the public will be able to review the\nminutes summarizing the committees’ discussions, it will not have the opportunity to hear the actual commentary of\nthe individual members concerning a significant issue that should only have been discussed in an open meeting.\nMs, Jacqueline Lee\nMr. James Rauckman\nMr. John Openiander\nJuly 11, 2012\nPage 7\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law (735 ILCS 5/3-101\net seq. (West 2010)). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and\nMs. Jacqueline Lee as defendants. See 5 ILCS 120/7.5 (West 2010).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\n.\n. Michael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter challenged the Village of Swansea for holding private meetings to discuss budget issues. The Attorney General ruled that the Village broke the law because budget discussions must be held in public, not behind closed doors. This means the Village failed to provide the transparency required by the Open Meetings Act.","card_headline":"Closed-session discussion of municipal budgetary matters","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":11,"orig_master_id":19212,"dup_master_id":18984,"dup_sha256":"77a20045bc174162d5d268506c6257c4af65f8aaa129f2e0f607ef88472689bf","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2012,"date_issued":"2012-06-05","case_number":"2012 PAC 18763","request_numbers":null,"title":"Right to Record an Open Meeting","filename":"PUBLIC ACCESS OPINION 12-010 (Request for Review - 2012 PAC 18763).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 12-010 (Request for Review - 2012 PAC 18763).pdf","word_count":4707,"summary":"This document is a binding public access opinion regarding a violation of the Open Meetings Act by the Lake County Board of Review, which refused to allow Mr. Michael W. Shields to record an open meeting due to a lack of advance notice.","plain_summary":"The requester was denied permission to audio-record his own hearing before a county board because he had not given advance notice to the board's clerk, as a board rule required. The Public Access Counselor found the county board had not shown its advance-notice requirement was necessary to protect the integrity or safety of its meetings, particularly since the requester had already coordinated with security to bring in his equipment, and held that the rule was unreasonable and violated the Open Meetings Act's right to record open meetings. The county board was directed to bring future meetings into compliance, train its members on the Act, and revise its recording rules.","holding":"The Lake County Board of Review violated section 2.05 of the Open Meetings Act by refusing to permit Mr. Shields to record the meeting.","legal_question":"Did the Lake County Board of Review violate the Open Meetings Act by denying Mr. Shields the right to record an open meeting?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.05"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Lake County Board of Review","requesting_party":"Mr. Michael W. Shields","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting recording","subject_description":"Property tax hearing before the Lake County Board of Review where the requester was denied permission to audio record the meeting.","ocr_status":"ok","ocr_quality":90.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2012-Binding-PAC-Opinions/12-010.pdf","sha256":"ebb4f2fb6f3e1101dfbeda9f4f771b5770f4436db90c7840b2a5aa036074d2c5","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["recording meetings","advance notice","Open Meetings Act","reasonable rules"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nJune 5, 2012\nPUBLIC ACCESS OPINION 12-010\n(Request for Review 2612 PAC 18763)\nOPEN MEETINGS ACT:\nRight to Record an Open Meeting\nMr. Michael W. Shields\n[street address redacted for site publication -- see original PDF]\nMr. Martin P. Paulson\nChief County Assessment Officer\nClerk of the Lake County Board of Review\n18 N. County Street, 7th Floor\nWaukegan, Illinois 60085-4335\nDear Mr. Shields and Mr. Paulson:\nThis binding opinion is issued pursuant to section 3.5(c) of the Open Meetings\nAct (OMA) (5 ILCS 120/3.5(c) (West 2010)). For the reasons set out below, we conclude that\non January 4, 2012, the Lake County Board of Review (Board) violated section 2.05 of OMA (5\nILCS 120/2.05 (West 2010)) by refusing to permit Mr. Michael W. Shields to audio record an\nopen meeting of the Board because he failed to provide advance notice of his intention to do so.\nFurther, we conclude that the provision of the Board's rules that requires a person who wishes to\nrecord an open meeting of the Board to provide advance notice to the Board Clerk is invalid.\n500 South Second Street, Springfield, Hlinois 62706 + (217) 782-1090 + TTY: (217) 785-2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Hlinois, 60601 + (312) 814-3000 <« TTY: (312) 814-3374 « Fax: (312} 814-3806\n1001 East Main, Carbondale, Illinois 62901 » (618) 329-6400 + TTY: (618) 529-6403 + Fax: (618) 529-6416\nMr. Michael W. Shields\nMr. Martin P. Paulson\nJune 5, 2012\nPage 2\nBACKGROUND\nMr. Shields’ Request for Review provides the following facts in support of his\nallegations.' Mr. Shields was scheduled to appear at a property tax hearing before the Board on\nJanuary 4, 2012. Based on a previous occasion when the Board had refused to allow him to\naudio record a public meeting, ? Mr. Shields contacted the Board seeking permission to record\nthe meeting well before his scheduled hearing date. An employee of the Board reportedly\nadvised Mr. Shields that the Sheriff, rather than the Board, was responsible for regulating the\nrecording of its meetings. Accordingly, on December 22, 2011, Mr. Shields contacted the\nSheriff's Office's FOIA officer and was referred to Lieutenant Lucas. Lieutenant Lucas stated\nthat he had not previously received a request to record a meeting from a member of the public,\nand indicated that he would consult with the Board. The following day, Lieutenant Lucas\ninformed Mr. Shields that he would be allowed to record the meeting, and that court security had\nbeen notified so that upon his arrival he would be escorted to the location of the meeting.\nOn January 4, 2012, Mr. Shields arrived at the meeting with his audio recording\ndevice but was informed by Mr. Pete Fleming, a member of the Board, that he could not record\nthe meeting because he had not obtained prior permission from the Board Clerk, Martin Paulson.\nMr. Shields asked to speak with Mr. Paulson but was told that Mr. Paulson's whereabouts were\nunknown. As a result, Mr. Shields did not record the proceedings.\nOn March 5, 2012, this office received Mr. Shields’ Request for Review alleging\nthat he was prohibited from recording an open meeting of the Board in violation of OMA. This\noffice forwarded a copy of Mr. Shields’ Request for Review to Mr. Paulson on March 14, 2012,\nand asked for a written response to the allegations therein?\nBy letter dated March 27, 2012, Mr. Paulson responded to our request, noting that\nin 2011, the Board adopted and subsequently implemented rules that allow appellants before the\nBoard or their representatives to record a hearing, but require that any person who wishes to\nrecord the proceedings must contact the Board Clerk in advance. 4 Mr. Paulson explained that\n‘Correspondence from Michael W. Shields to Public Access Bureau (March 5, 2012).\n2At the September 16, 2011, hearing, Mr. Shields was reportedly informed by Lake County\ndeputies that he needed a court order to record the meeting.\n3Correspondence from Lindsay LaVine, Assistant Attorney General, Public Access Bureau, to\nMartin Paulson, Chief County Assessment Officer, Clerk of the Lake County Board of Review (March 14, 2012).\n“Correspondence from Martin P. Paulson, Chief County Assessment Officer, Clerk of the\nLake County Board of Review to Lindsay LaVine, Assistant Attorney General, Public Access Bureau (March 27,\n2012).\nMr. Michael W. Shields\nMr. Martin P. Paulson\nJune 5, 2012\nPage 3\n\"the reason for the desire to have the Clerk directly involved is so that [he] can ensure that the\nindividual can get their equipment though [sic] the security checkpoint and that [he] can make\nthe Board members aware of the circumstance in advance, so as not to disrupt our process.\" He\nstated that if Mr. Shields “had actually spoken with me on his desire to audio tape his hearing I\ncertainly would have made sure that he was able to do so.\" Instead, at the time of the January 4,\n2012, meeting, Mr. Fleming \"took a literal view of the Board rules regarding the request to audio\ntape the meeting\" and because Mr. Shields had not contacted the Board Clerk in advance, Mr.\nFleming denied the request. Mr. Paulson also noted that going forward, he would ask Board\nmembers to review the rules and understand that they \"should be flexible in dealing with these\nrequests, even if the party involved has not made direct contact with the Clerk of the Board.\"\nOn March 30, 2012, this office forwarded a copy of the Board's response to Mr.\nShields.* In a letter dated April 11, 2012, Mr. Shields asserted, among other things,® that: (1)\nMr. Paulson is not identified as the Clerk on the Board’s website; and (2) Mr. Paulson was not\npresent at the hearing.’\nOn May 24, 2012, we reviewed the 2011 Rules of the Lake County Board of\nReview (Lake County Rules), as posted on the Board's website.\" The Lake County Rules clearly\nidentify Mr. Paulson as the Clerk of the Board and provide the Board's telephone number.\nSection 1.G(1) of the Lake County Rules provides:\nG. Open Meetings Act. Hearings held by the Board are open to\nthe public, subject to the exceptions cited by the Open Meetings\nAct (5 ILCS 120/1.02).\n1. Audio or video recording is permitted by any person.\nHowever, recording cannot disrupt a hearing nor are\npersons required to identify themselves to facilitate a\n5Correspondence from Lindsay LaVine, Assistant Attorney General, Public Access Bureau, to\nMichael W. Shields (March 30, 2012).\n‘Mr. Shields’ April 11, 2012, letter also refers to requirements of the Illinois Property Tax Code\n(35 ILCS 200/3-30 (West 2010)). Pursuant to section 7(c)(3) of the Attomey General Act (15 ILCS 205/7(c)(@3)\n(West 2010)), the Public Access Counselor's authority to resolve disputes is limited to alleged violations of OMA\nand the Freedom of Information Act (5 ILCS 140/1 ef seg. (West 2010)). Accordingly, the Public Access Bureau\ncannot review allegations relating to the Property Tax Code or the Illinois Department of Revenue's rules.\n‘Correspondence from Mr. Michael W. Shields to Lindsay LaVine, Assistant Attorney General,\nPublic Access Bureau (April 11, 2012).\n5 Lake County Board of Review Rules, available at htup./Aeww.lakecountyil.gov/Assessor/\nBoardofReview/Documents /‘BoardRulesOct27.pdf (last visited June $, 2012).\nMr. Michael W. Shields\nMr. Martin P. Paulson\nJune 5, 2012\nPage 4\nrecording. The Clerk of the Board must be informed in\nadvance that an audio or video recording of a hearing\nwill be made. (Emphasis added.)\nANALYSIS\nSection 2.05 of OMA provides:\n[A]ny person may record the proceedings at meetings required to\nbe open by this Act by tape, film or other means, The authority\nholding the meeting shall prescribe reasonable rules to govern the\nright to make such recordings.\nThus, under this section, members of the public are entitled to record public\nmeetings, subject only to the public body's authority to implement reasonable rules governing the\nright to record. OMA does not define \"reasonable,\" nor have we found any reported Illinois\ncourt decisions reviewing a public body's rules under this section of OMA to determine whether\nthey are reasonable. Undefined statutory terms must be given their plain and ordinary meaning.\nExelon Corp. y. Dept. of Revenue, 234 lll. 2d 266, 275 (2009) (finding that where a statute fails\nto specifically define a word, a court may use a dictionary to determine the word's plain and\nordinary meaning). \"Reasonable\" ordinarily means that which is fair, proper, or moderate under\nthe circumstances. Black's Law Dictionary 1379 (9 ed. 2009). Accordingly, a reasonable rule\ngoverning the right to record must be fair and appropriate to OMA's express intention to allow\nthe recording of meetings.\nThe Office of the Attorney General has previously considered the meaning of the\nphrase \"reasonable rules” under section 2.05, and advised that \"reasonable rules\" for recording\nmeetings may include “rules or guidelines which protect the integrity of a public meeting and\nthose participating in it or the safety of those attending a public meeting.” Ill. Att'y Gen. Inf. Op.\nNo. I-00-015, issued April 5, 2000, at 3 (a copy of which is attached hereto for reference). The\nopinion further states that \"[rJules which hinder or thwart the ability of a person to exercise the\nright to record a public meeting, without an obvious concomitant benefit to the public body,\nwould not appear to be 'reasonable’.\" Thus, a public body may limit the right of the public to\nrecord open meetings only pursuant to prescribed rules, and then only to the extent that those\nrules are designed to prevent disruptions or avoid safety hazards and do not unduly interfere with\nthe right to record.\nThe requirement that a person who would like to record an open meeting must\nnotify the Clerk in advance of the meeting clearly places a burden on people who want to\nexercise this right under OMA and results in restricting the ability to record open meetings. The\nMr. Michael W. Shields\nMr. Martin P. Paulson\nJune 5, 2012\nPage 5\nBoard has failed to demonstrate how this requirement is necessary to prevent interference with\nthe proceedings or protect the safety of those in attendance. The Clerk has stated that the reason\nfor doing so is \"so that [he] can ensure that the individual can get their equipment though [sic]\nthe security checkpoint and that [he] can make the Board members aware of the circumstance in\nadvance, so as not to disrupt our process.” In this case, however, Mr. Shields was escorted to the\nlocation of the public meeting by Sheriff's personnel pursuant to the guidance that he received\nfrom the Board. Moreover, although it may be necessary for the Board to have a procedure in\nplace to allow people with recording devices to pass through the security checkpoint, the Board's\ncurrent advance notice requirement does not appear to be the least restrictive approach to this\nissue. Further, Mr. Shields announced to those present that he would be recording the .\nproceedings. In what way the lack of advance notice of Mr. Shields’ intention to record the\nhearing would have disrupted the proceeding has not been addressed by the Clerk, and none is\napparent.\nUnder OMA, it is the burden of the public body to show that rules restraining the\nrights of the public are reasonable. The Board has not provided any evidence that enforcement\nof this rule is necessary to protect the integrity of the Board’s proceedings. To the contrary, in\nthis case the application of the rule precluded Mr. Shields from exercising a right that is\nprotected by the provisions of OMA, despite his good faith attempts to comply with all\nrequirements imposed by the Board and without any basis to believe that his doing so would\ndisrupt the proceedings or raise safety concerns for the meeting attendees. In explaining the\npolicy, the Board did not reference any circumstances in which allowing a member of the public\nto record the Board's proceedings has been disruptive or has interfered with the Board's conduct\nof its business. Absent some evidence to justify this regulation, the rule is clearly not\n\"reasonable\" in that it can result in thwarting, and, in Mr. Shields’ case has thwarted, the right of\na member of the public to record an open meeting of the Board.\nMoreover, as a practical matter, any rule requiring advance notice of recording a\nmeeting would be difficult or impossible to enforce, given that many members of the public\nroutinely carry cellular phones or other electronic devices capable of recording. More\nimportantly, because OMA specifically provides that meetings may be recorded, any public body\nthat prescribes a rule requiring advance notice of recording a meeting would have a steep burden\nto overcome in order to demonstrate that such a rule is reasonable.\nTherefore, we conclude that enforcement of that part of section 1.G(1) of the Lake\nCounty Rules requiring advance notice to the Clerk in Mr. Shields’ case violated section 2.05 of\nOMA. Further, because the rule has not been shown to be necessary to protect the integrity of a\npublic meeting or the safety of those attending it, the rule is unreasonable on its face and its\nfuture application likewise would be violative of section 2.05 of OMA.\nMr. Michael W. Shields\nMr. Martin P. Paulson\nJune 5, 2012\nPage 6\nFINDINGS AND CONCLUSIONS\nAfter full review and giving due consideration to the arguments of the parties, the\nPublic Access Counselor's findings and the applicable law, the Attorney General finds that:\n1) On January 4, 2012, the Lake County Board of Review refused to allow Mr.\nMichael Shields to audio record an open meeting of the Board because he did not notify the\nClerk in advance of his intention to do so in accordance with section I.G(1) of the 2011 Rules of\nthe Lake County Board of Review.\n2) Based on a prior experience in which the Board refused to allow Mr. Shields\nto record a meeting, Mr. Shields had sought permission from the Board to record the meeting\nwell in advance of the scheduled date. An employee of the Board had directed Mr. Shields to the\nSheriff, where he was referred to Lieutenant Lucas. Lieutenant Lucas had informed Mr. Shields\nthat he could record the meeting and had notified court security to escort him to the meeting\nlocation on January 4, 2012. On the day of the hearing, Mr. Shields was denied permission to\nrecord the meeting.\n3) On March 5, 2012, the Public Access Bureau received Mr. Shields' Request\nfor Review alleging that the Board violated the Open Meetings Act by preventing him from\nrecording its January 4, 2012, meeting. Mr. Shields’ Request for Review was timely filed and\notherwise complies with the requirements of section 3.5(a) of OMA (3 ILCS 120/3.5(a) (West\n2010)).\n4) The Attorney General properly extended the time to issue a binding opinion\nby 21 business days pursuant to section 3.5(e) of OMA (5 ILCS 120/3.5(e) (West 2010)).\nTherefore, the Attorney General may properly issue a binding opinion with respect to Mr.\nShields’ Request for Review.\n5) Section 2.05 of OMA provides that \"any person may record the proceedings\nat meetings required to be open by this Act by tape, film or other means. The authority holding\nthe meeting shall prescribe reasonable rules to govern the right to make such recordings.\"\n6) Although the Board is authorized under section 2.05 of OMA to prescribe\nreasonable rules to govern the right to record its open meetings, the Board has failed to provide\nany evidence or justification that the advance notification requirement of section 1.G(1) of the\n2011 Rules of the Lake County Board of Review is reasonably necessary to protect the integrity\nof its meetings or the safety of those in attendance. Accordingly, we find that the rule is clearly\nnot \"reasonable\" because it can be and has been applied to preclude the statutory right of a\nMr. Michael W. Shields\nMr. Martin P. Paulson\nJune 5, 2012\nPage 7\nmember of the public to record an open meeting of the Board without a clear justification for\nthis restriction.\n7) The Attorney General concludes that, as a matter of law, the Board violated\nsection 2.05 of OMA when it refused to allow Mr. Shields to record its January 4, 2012, open\nmeeting because he did not notify the Clerk in advance of his intention to do so. Further,\nbecause the notification requirement has not been shown to be reasonably necessary to protect\nthe integrity of a public meeting or the safety of those attending it, that provision of section\n1.G(1) of the 2011 Rules of the Lake County Board of Review Rule is not a “reasonable rule[ }\"\ngoverning the right to record an open meeting as contemplated by section 2.05 of OMA, and\ntherefore its future application would also be violative of section 2.05.\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to take appropriate action to comply with this opinion by conducting its future meetings\nin full compliance with OMA. The Board is also directed to ensure that all Board members\ncomplete the Public Access Counselor's electronic OMA training in accordance with section 1.05\nof OMA (5 ILCS 120/1.05 (West 2010), as amended by Public Act 97-504, effective January I,\n2012); assure that security personnel are cognizant of the provisions of section 2.05 of OMA\nproviding that persons attending open meetings of the Board have a right to record its\nproceedings, including the right to enter the premises with recording equipment; and revise its\nrules consistently with this opinion.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative reviewin the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Mr.\nMichael W. Shields as defendants. See 5 ILCS 120/7.5 (West 2010).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\n.\nBy: Chteetene cl tobe\nMichael J. Luke\nCounsel to the Attorney General\nOFFIcE OF THE ATTORNEY GENERAL\nState or ILLINots\nJim Ryan April 5, 2000\nATTORNEY GENERAL\nI - 00-015\nMEETINGS:\nRules Regarding Use of Recording\nDevices at Public Meetings\nThe Honorable Stewart J. Umholtz\nState's Attorney, Tazewell County\n342 Court Street, Suite 6\nPekin, Illinois 61554-3298\nDear Mr. Umholtz:\nI have your letter wherein you inquire whether, pursu-\nant to the provisions of the Open Meetings Act (5 ILCS 120/1 et\nSeg. (West 1998)}, a non-home-rule municipality may properly\nadopt and enforce a resolution setting forth the guidelines\ndescribed herein governing the use of \"recording devices\" at a\npublic meeting. Because of the nature of your inquiry, I do not\nbelieve that the issuance of an official opinion is necessary.\nI will, however, comment informally upon the question you have\nraised.\nYou have stated that the village of North Pekin re-\ncently adopted a resolution which provides, in pertinent part:\nbd * oe\n1. ‘Recording Device’ shall be defined\nas any and all cameras, recorders, tape re-\ncorders, video cameras, electronic equipment,\nand related equipment used for the purpose of\npreparing video and/or sound recordings.\n500 South Second Street, Springfield, Minois 62706 (217) 782.1090 - TTY: (AUF) 785-2771 + FAX: (217) 782-7046\n100 West Randolph Stecet, Chicagu, Winois 60601 (312) 814.3000 - TTY: (319) 8148974 - FAN: (312) 814-3806 1.\n1001 East Main, Carbondale, Hincis 62907 (818) 590.6400 . TTY: (618) 529-6403 - FAX: (G18) 529.6416\nThe Honorable Stewart J. Umholtz - 2.\n2. All recording devices must be on a\nsolid surface or appropriate mounting or\ntripod so that the device is in a fixed loca-\ntion,\n3. Any recording device must be set up\nprior to the start of the Village meeting and\nthe focus of- said recording device must be in\na fixed location with a fixed focus. The\ncamera, or other recording device, may not be\nswiveled or focused on different objects\nduring the meeting, but must remain in a\nfixed location with a fixed position and\nfocus.\n4. No cameras or other types of record-\ning devices may block any aisle, entrance or\nexit to the Village Hall.\nS. Any recording devices must be turned\non prior to the start of the Village Meeting\nand may not be turned off and on during the\nmeeting, but rather, once said unit is turned\non, then it must remain on until it is turned\noff at the end of the meeting and removed\nfrom said meeting.\n6. Failure to follow any or all of the\nabove rules and guidelines shall result in\nimmediate removal of said recording equipment\nor device immediately from the Village meet-\ning.\nWith reference to the foregoing resolution, you have inguired\nwhether the restrictions prescribed therein are unreasonably\nrestrictive.\nIt is well established that non-home-rule municipali-\nties possess only those powers which are expressly granted to\nthem by statute, together with those powers necessarily implied\ntherefrom to effectuate the powers which have been granted, and\nthose powers which are considered indispensable to the accom-\nplishment of the purposes of the municipal corporation. (Scadron\nThe Honorable Stewart J. Umholtz - 2.\nvy. City of Des Plaines (1992), 153 Tll. #@d 164, 174.) In this\nregard, section 2.95 of the Open Meetings Act (5 ILCS 120/2.05\n(West 1998}} provides, in pertinent part:\n\"Subject to the provisions of ‘An Act in\nrelation to the rights of witnesses at pro-\nceedings conducted by a court, commission,\nadministrative agency or other tribunal in\nthis State which are televised or broadcast\nor at which motion pictures are taken', ap-\nproved July 14, 1953, as amended, any person\nMay record the proceedings at meetings re-\nquired to be open by this Act by tape, film\nor other means. The authority holding the\nmeeting shall prescribe reasonable rules to\ngovern the right to make such recordings.\nx ke Oe ad\n(Emphasis added.)\nUnder section 2.05 of the Open Meetings Act, it is\nclear that members of the public are entitled to record the\nproceedings at public meetings of public bodies as a matter of\nright, subject, however, to the authority of the public body to\nregulate that right by the prescription of reasonable rules\nrelated thereto. The issue, therefore, is whether the restric-\ntions adopted by the village of North Pekin are “reasonable\".\nIt is well established that a statutory term which is\nnot defined by statute, such as \"reasonable rules\", must be given\nits ordinary and popularly-understood meaning. (Gem Electronics\nv. Department of Revenue (1998), 183 Ill. 2d 470, 477-78.} The\nterm \"reasonable\" ordinarily refers to that which is fair, proper\nox suitable under the circumstances. (Black's Law Dictionary\n1265 (6th ed. 1990).}) The use of the phrase “reasonable rules\"\nin section 2.05 of the Open Meetings Act was obviously intended\nto encompass rules or procedural guidelines which protect the\nintegrity of a public meeting and those participating in it, or\nthe safety of those attending a public meeting. In short, the\nterm \"reasonable rules\" contemplates guidelines that prevent\ninterference with the overall decorum and proceedings of a\nmeeting. In light of this purpose, several of the rules adopted\nby the village of North Pekin appear to be unreasonably restric-—\ntive.\nThe Honorable Stewart J. Umholtz - 4.\nThe phrase “recording device\", as used in the ordi-\nnance, refers to equipment that is commonly used for audio or\nvideo recording. The second section of the resolution requires\nthat all recording devices be placed in a fixed location, \"* * *\non a solid surface or appropriate mounting or tripod * * **. The\nintent of this provision is presumably to minimize the number of\ndistractions which may occur during a public meeting by taking\nsteps to prevent recording devices from falling over or being\ndropped, for example. Because the definition of “recording\ndevice\" is relatively broad, however, it is foreseeable that\npersons taking photographs with small hand held cameras may be\nunable to comply with the resolution's provisions or may have to\nincur the expense of investing in additional equipment to satisfy\nthe resolution's provisions. Thus, at least in some instances,\nit appears that section 2 of the resolution may place an unrea-\nsonable burden upon persons who desire to record a public meet-\ning.\nSection 3 of the resolution requires that all recording\ndevices be set up prior to the start of a village meeting, and\nthat recording devices be focused prior to the meeting and locked\ninto position for the duration of the meeting. Initially,.n.oIt.e\nthat the provisions of section 3 appear to be intended to address\nissues primarily related to videotaping or photographing a public\nmeeting. Because the definition of “recording device\" also\nincludes an audio or sound recording component, however, the\nsection poses significant questions regarding compliance by\nsomeone who is engaged only in audio recording.\nMoreover, with regard to video recording, additional\npotential problems are apparent. Arguably, the intent of section\n3 is to prevent the disruption of a meeting that could result\nfrom the setting up of and operation of a video camera, such as\ncarrying in and erecting the necessary equipment, laying any\ncables and hooking the equipment up to electrical sources, as\nwell as moving the camera around the room to record the comments\nof particular speakers, whether public officers or members of the\npublic. For a meeting which includes a scheduled recess or other\nformal break on the agenda, it would be equally reasonable for\npeople to be permitted to set up or remove their equipment during\nthe recess period. Moreover, although it is possible that a\nperson videotaping a meeting could block the view of others when\noperating the camera and swiveling it around during a meeting,\ntotally prohibiting the movement of a camera during a meeting\ndoes not appear to be the least restrictive method of addressing\nThe Honorable Stewart J. Umholtz - 5.\nthis problem. To the contrary, it appears that this problem\ncould be resolved simply by designating a part of the room for\nthe use of those engaged in videotaping.\nThe fourth section of the resolution prohibits cameras\nor other types of recording devices from blocking the aisles,\nentrances and exits to the village hall. Such a provision\nobviously protects public safety and is not patently unreason-\nable.\nSection 5 of the resolution requires that all recording\ndevices be turned on prior to the call to order of a meeting and\nprohibits turning the devices off until the meeting has ad-\njourned. A policy requiring that recording devices, especially\nthose which contain an audio recording component, remain running\nuntil after the adjournment of a meeting including during recess\nperiods or official breaks, places the operator of the device in\nthe position of potentially violating the prohibition against\neavesdropping by recording conversations that may not occur\nduring a public meeting (see 1975 Ill. Att'y Gen. Op. 107).\nMoreover, particularly where a meeting lasts for several hours,\nit would appear to be unreasonable to prohibit persons from .\nturning their equipment off to reload film or batteries, removing\nit during recess periods or other formal breaks or simply turning\nthe device on and off to record selected parts of the meeting.\nRules which hinder or thwart the ability of a person to\nexercise the right to record a public meeting, without an obvious\nconcomitant benefit to the public body, would not appear to be\n\"reasonable\". [It is difficult to perceive of how a policy which\nprohibits a person who desires to record a meeting from swiveling\nor re-focusing a camera or turning a recording device on or off\nwould materially protect the integrity of the meeting or maintain\ndecorum. To the extent noted above, it appears that the guide-\nlines in question do not constitute “reasonable rules\" concerning\nthe recording of the proceedings at public meetings, and there-\nfore impermissibly limit the statutory right of persons to record\nproceedings of public bodies.\nThe Honorable Stewart J. Umholtz - 6.\nThis is not an official opinion of the Attorney Gen-\neral. If we may be of further assistance, please advise.\nSincerely,\nMICHAEL J. LUKE\nSenior Assistant Attorney General\nChief, Opinions Bureau\nMIL:LP:c¥","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Open Meetings Act (OMA) grants any person the right to record an open meeting, and a public body may only adopt reasonable rules governing that right. A rule requiring advance notice of intent to record is not reasonable because it hinders or thwarts the ability to exercise the statutory right without providing any obvious benefit to the public body. Here, the Board's rule requiring advance notice was invalid, and the Board's refusal to allow recording based on that rule constituted a violation of OMA.","card_headline":"Denial of permission to record a property tax hearing","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":12,"orig_master_id":19213,"dup_master_id":18985,"dup_sha256":"f2ee2c24f4d10aec655dad2969d95dc07269fbeb8e18395c8e2c873a45f26172","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2012,"date_issued":"2012-08-14","case_number":"2012 PAC 19602","request_numbers":null,"title":"Disclosure of Records Relating to the Death of a Minor","filename":"PUBLIC ACCESS OPINION 12-012 (Request for Review - 2012 PAC 19602).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 12-012 (Request for Review - 2012 PAC 19602).pdf","word_count":4127,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request for records related to the shooting death of a minor. It concludes that the Illinois State Police improperly withheld these records.","plain_summary":"The requester, a journalist, sought investigative records concerning the police shooting of a minor, which a state agency withheld in full, primarily citing juvenile-confidentiality provisions of the Juvenile Court Act. The Public Access Counselor held that those provisions apply only to arrested or court-involved juveniles, not to a minor who died during the encounter and was never taken into custody, and found the agency's broader privacy objections unsupported, though it allowed redaction of unique identifiers, identifying information about surviving family members, and post-mortem photographs. The state agency was directed to release the remaining records, including the substantive investigative, autopsy, and toxicology materials, since the public interest in a full accounting of the shooting outweighed the narrower privacy interests actually established.","holding":"The Illinois State Police violated FOIA by improperly withholding investigatory records.","legal_question":"Did the Illinois State Police properly withhold records under FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Illinois State Police","requesting_party":"Ms. Becky Schlikerman, Chicago Tribune","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"Investigatory records held by the Illinois State Police concerning the shooting death of a minor in Calumet City.","ocr_status":"ok","ocr_quality":90.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2012-Binding-PAC-Opinions/12-012.pdf","sha256":"02bb6c2731c22b8d425dd9f42a7bf0182ab41a9374f0d4b2e4aec165bdb78ef2","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","juvenile records","investigatory file","shooting death","FOIA exemption 7(1)(a)"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nAugust 14, 2012\nPUBLIC ACCESS OPINION 12-012\n(Request for Review — 2012 PAC 19602)\nFREEDOM OF INFORMATION ACT:\nDisclosure of Records Relating\nto the Death of a Minor\nMs. Becky Schlikerman\nChicago Tribune\n[street address redacted for site publication -- see original PDF]\nbschlikerman@tribune.com\nLieutenant Steve Lyddon\nFreedom of Information Act Officer\nIllinois State Police\n801 South Seventh Street\nSpringfield, Illinois 62794\nSteve _Lyddon@isp.state.ilus\nDear Ms. Schlikerman and Lt. Lyddon:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOTIA) (5 ILCS 140/9.5(f) (West 2011 Supp.)). For the reasons that follow, we\nconclude that the Illinois State Police (ISP) has violated FOIA by improperly withholding\ninvestigatory records relating to the shooting death of a minor.\n500 South Second Street, Springfield, Hlinois 62706 + (217) 782-1090 » TTY: (217) 785-2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Hinois, 60601 + (312) 814-3000 + TTY: (312) 814-3374 « Fax: (312) 814-3806\n1001 East Main, Carbondale, illinois 62901 + (618) 529-6400 « TTY. (618) $29-6403 « Fax: (618) 529-6416\nMs, Becky Schlikerman\nLieutenant Steve Lyddon\nAugust 14, 2012\nPage 2 ,\nBACKGROUND\nFOIA Request and Denial\nOn April 17, 2012, Ms. Becky Schlikerman, Staff Reporter, Chicago Tribune,\nsubmitted a FOIA request to ISP seeking \"[a]ny and all reports and documents regarding the\nFebruary 1, 2012, shooting of [a named minor]! at 541 Forsythe Avenue in Calumet City.\"”\nOn April 30, 2012, ISP denied the request in full pursuant to section 7(1)(a) of FOIA? (5 ILCS\n140/7(1)(a) (West 2011 Supp.)), which permits a public body to withhold “[iJnformation\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.” In its denial, ISP asserted that the records are exempt from\ndisclosure under section 7(1 a) of FOIA (5 ILCS 140/7(1)(a) (West 2011 Supp.}) because\ncertain provisions of the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seg. (West 2010))\n(JCA) and section 3 of the Privacy of Child Victims of Criminal Sexual Offenses Act (725 ILCS\n190/3 (West 2010)) prohibit the release of the investigatory records. Specifically, ISP cited\nsection 1-7(C) of the JCA (705 ILCS 405/1-7(C) (West 2010)) and section 1-8(A) of the JCA\n(705 ILCS 405/1-8(A} (West 2010)) as the applicable provisions. ISP also asserted that certain\nprivate and personal information could be redacted pursuant to sections 7(1}(b) and 7(1)(c) of\nFOIA.(5 ILCS 140/7(1)(b), (Dc) (West 2011 Supp.)).\nRequest for Review and ISP's Response\nOn May 3, 2012, Ms. Schlikerman submitted to the Office of the Public Access\nCounselor a Request for Review of ISP's denial,4 On May 7, 2012, this office forwarded a copy\nof the Request for Review to ISP and asked it to provide an explanation of the applicability of\n‘Because this binding opinion may be subject to judicial review, we have elected to withhold the\nminor's name.\n2E-mail from Becky Schlikerman, Chicago Tribune, to foia_officer@isp.stateilus (April 17,\n2012).\n3Letter from Lieutenant Steve Lyddon, FOIA Officer, Illinois State Police, to Becky Schlikerman,\nChicago Tribune (April 30, 2012).\n‘E-mail Becky Schlikerman, Chicago Tribune, to paccess(s@tatea itl.ugs (May 3, 2012).\nMs. Becky Schlikerman\nLieutenant Steve Lyddon\nAugust 14, 2012\nPage 3\nthe JCA.> On June 6, 2012, ISP responded, asserting that the responsive records are exempt\nfrom disclosure under the JCA because the records detail the death of a juvenile.® ISP\nacknowledged in its June 6, 2012, response letter to this office that section 3 of the Privacy of\nChild Victims of Criminal Sexual Offenses Act is not applicable to this specific situation. ISP\ndid, however, assert the applicability of two additional provisions of the JCA, section 1-7(E)\n(705 ILCS 405/1-7(E) (West 2010)) and section 5-905(5) (705 ILCS 405/5-905(5) (West 2010))\nin support of withholding the records.\nThis office forwarded to Ms. Schlikerman a copy of ISP's response letter on June\n8, 2012.’ To date, Ms. Schlikerman has not responded to the letter. On June 25, 2012, this\noffice extended the time to issue a binding opinion by 30 business days pursuant to section 9.5(f)\nof FOIA.\nANALYSIS\nThis Request for Review relates to the denial of investigatory records concerning\nthe shooting death of a 15-year-old minor at a private residence... Prior to the shooting, the\njuvenile was not arrested or taken into custody. The issue for review is whether the cited\nprovisions of the JCA prohibit the disclosure of ISP's investigatory records relating to the\nshooting.\nAs a preliminary matter, we note that all public records in the possession or\ncustody of a public body are presumed to be open to inspection and copying. 5 ILCS 140/1.2\n(West 2010). Section 3 of FOIA (5 ILCS 140/3 (West 2010)) provides, in pertinent part:\nSLetter from Matthew C. Rogina, Assistant Attorney General, Public Access Bureau, to Lieutenant\nSteve Lyddon, Freedom of Information Officer, ISP (May 7, 2012).\n‘Letter from Bruce Bialorucki, Legal Counsel, ISP, to Matthew C. Rogina, Assistant Public\nAccess Counselor, Office of the Attorney General (June 6, 2012).\n\"Letter from Matthew C. Rogina, Assistant Attorney General, Public Access Bureau, to Betty[sic]\nSchlikerman, Chicago Tribune Gune 8, 2012).\n‘Letter from Matthew C. Rogina, Assistant Attorney General, Public Access Bureau, to Lieutenant\nSteve Lyddon, Freedom of Information Officer, ISP and Ms. Becky Schlikermnan, Chicago Tribune (June 25,\n2012).\nMs. Becky Schlikerman\nLieutenant Steve Lyddon\nAugust 14, 2012\nPage 4\n(a) Each public body shall make available to any person for\ninspection or copying all public records, except as otherwise\nprovided in Section 7 of this Act. * * *\n(b) Subject to the fee provisions of Section 6 of this Act,\neach public body shall promptly provide, to any person who\nsubmits a request, a copy of any public record required to be\ndisclosed by subsection (a) of this Section and shall certify such\ncopy if so requested.\nA public body \"has the burden of proving by clear and convincing evidence\" that a public record\nis exempt from disclosure. 5 ILCS 140/1.2 (West 2010). The exemptions from disclosure are to\nbe narrowly construed. Lieber v. Beard of Trustees of Southern illinois Univ., 176 Ul. 2d 401,\n408 (1997).\nThe primary purpose of statutory construction is to ascertain and give effect to\nthe intent of the General Assembly. I/inois Dep’t of Healthcare & Family Servs. v. Warner, 227\nIll. 2d 223, 229 (2008). Legislative intent is best evidenced by the language used in the statute,\nand if the statutory language is clear and unambiguous, it must be given effect as written. Blum\nv. Koster, 235 lil. 2d. 21, 29 (2009). \"[A] statute should be evaluated as a whole; each provision\nshould be construed in connection with every other section.” Eden Retirement Ctr., Inc. vy. Dep’t\nof Revenue, 213 Hl. 2d 273, 291 (2004).\nJuvenile Court Act\nSeveral provisions of the JCA address the confidentiality of law enforcement and\ncourt records that involve juveniles. Although these provisions overlap to some extent, they are\ngenerally applicable to investigatory records pertaining to a minor who has been arrested or\ntaken into custody, and cases in which a juvenile court proceeding has been or may be initiated?\nWe note that section 5-905(2) provides that \"/i]nformation identifying victims of alleged sex\noffenses shall not be disclosed or open to public inspection under any circumstances. Nothing in this Section shall\nprohibit the victim or alleged victim of any sex offense from voluntarily disclosing his or her identity.” (Emphasis\nadded.) 705 ILCS 405/S-905(2) (West 2010). This provision, however, would not justify withholding the\ninvestigatory records in their entirety; rather it would allow redaction of information that would identify the victim.\nMs. Becky Schlikerman\nLieutenant Steve Lyddon\nAugust 14, 2012\nPage 5\nSection 1-7(A) of the JCA (705 ILCS 405/1-7(A) (West 2010)) provides that the\n\"[iJnspection and copying of law enforcement records maintained by law enforcement agencies\nthat relate to a minor who has been arrested or taken into custody before his or her 17th birthday\nshall be restricted to” specified persons and agencies who have a bona fide need for access in\norder to perform their duties.\" (Emphasis added.) Similarly, section 1-7(B) (705 ILCS 405/I-\n7(B) (West 2010)) prohibits any law enforcement officer from disclosing a “fingerprint or\nphotograph relating to a minor who has been arrested or taken into custody before his or her\n17th birthday[.]\" (Emphasis added.)\nSection 1-7(C}, which was cited by ISP in its denial, provides:\nThe records of law enforcement officers, or of an\nindependent agency created by ordinance and charged by a unit of\nlocal government with the duty of investigating the conduct of law\n- enforcement officers, concerning all minors under 17 years of age,\nmust be maintained separate from the records of arrests and may\nnot be open to public inspection or their contents disclosed to the\npublic except by order of the court presiding over matters pursuant\nto this Act or when the institution of criminal proceedings has been\npermitted or required under Section 5-805 or such a person has\nbeen convicted of a crime and is the subject ofp re-sentence\ninvestigation or proceedings on an application for probation or\nwhen provided by law. For purposes of obtaining documents\npursuant to this Section, a civil subpoena is not an order of the\ncourt. (Emphasis added.) 705 ILCS 405/1-7(C) (West 2010).\nSection 1-7(E) states \"[]]Jaw enforcement officers, and personnel of an independent agency\ncreated by ordinance and charged by a unit of local government with the duty of investigating the\nconduct of law enforcement officers, may not disclose the identity of any minor in releasing\ninformation to the general public as to the arrest, investigation or-disposition of any case\ninvolving a minor.\" (Emphasis added.) Finally, section 1-8(A) of the JCA limits the inspection\nand copying of court records relating to a minor who is the subject of a proceeding under the\nJCA to certain categories of persons and agencies who have a bona fide need for access.\nThis would include local, state and federal law enforcement agencies, prosecutors, probation\nofficers and social workers, military personnel, mental health professionals, school officials, Adult and Juvenile\nPrisoner Review Boards, and the Department of Children and Family Services. 705 ILCS 405/1-7(A}(1} through\n(A)(9) (West 2010).\nMs. Becky Schiikerman\nLieutenant Steve Lyddon\nAugust 14, 2012\nPage 6\nArticle 5 of the JCA (705 ILCS 405/5-101 et seg. (West 2010)), which pertains to\ndelinquent minors, also contains provisions addressing the confidentiality of law enforcement\nand court records relating to juvenile offenders. Section 5-101(A) (705 ILCS 405/5-101(A)\n(West 2010)) outlines the policy and purpose of the JCA:\nIt is the intent of the General Assembly to promote a\njuvenile justice system capable of dealing with the problem of\njuvenile delinquency, a system that will protect the community,\nimpose accountability for violations of law and equip juvenile\noffenders with competencies to live responsibly and productively.\nTo fulfill this intent, section 5-101 identifies four purposes of the JCA: (1) to protect citizens\nfrom juvenile crime; (2) to hold the juvenile accountable for his or her actions; (3) to provide an\nassessment for each alleged and adjudicated delinquent juvenile to prevent further delinquent\nbehavior; and (4) to provide due process for the juvenile. 705 ILCS 405/5-101(A), (B), (C}, (D)\n(West 2010).\nPart 9 of Article V of the JCA pertains to the confidentiality of records and\nexpungement of records. Section 5-905(1) (705 ILCS 405/5-905(1) (West 2010)), which is\nsimilar in scope to section 1-7(A), provides that the \"[i]nspection and copying of law\nenforcement records maintained by law enforcement agencies that relate to a minor who has\nbeen arrested or taken into custody before his or her 17th birthday shall be restricted to the\n[specified persons and agencies] and when necessary for the discharge of their official duties[.]\"\nSection 5-905(5), which is similar to section 1-7(C), states that \"[t]he records of law enforcement\nofficers, or of an independent agency created by ordinance and charged by a unit of local\ngovernment with the duty of investigating the conduct of law enforcement officers, concerning\nall minors under 17 years of age must be maintained separate from the records of adults and\nmay not be open to public inspection or their contents disclosed to the public except by order of\nthe court or when the institution of criminal proceedings has been permitted under Section 5-130 .\nor 5-805 or required under Section 5-130 or 5-805 or such a person has been convicted of a\ncrime and is the subject of pre-sentence investigation or when provided by law.\" (Emphasis\nadded.) Finally, section 5-905(6) (705 ILCS 405/5-905(6) (West 2010)), like section 1-7(E),\nprohibits law enforcement officers from disclosing \"the identity of any minor in releasing\ninformation to the general public as to the arrest, investigation or disposition of any case\ninvolving a minor.\"\nMs. Becky Schlikerman\nLieutenant Steve Lyddon\nAugust 14, 2012\nPage 7\nThe justification for keeping juvenile criminal records confidential is both\ntheoretical and practical. Gregory W. O'Reilly, [inois Lifis the Veil on Juvenile Conviction\nRecords, 83 Ill.B.J. 402, 403 (1995). At the theoretical level, publicizing juvenile criminal\nrecords has been viewed as punishment and thus inconsistent with the theory behind juvenile\ncourt, which is to rehabilitate, not to punish. O'Reilly, {/inois Lifts the Veil on Juvenile\nConviction Records, 83 H.B.J. at 403. At the practical level, by keeping juvenile criminal\nrecords confidential, the courts could shield youthful mistakes and prevent children from being\nstigmatized, suffering harm to their employment prospects, or gaining the attention they may\nhave sought. O'Reilly, /nois Lifts the Veil on Juvenile Conviction Records, $3 U1.B.J. at 403.\nSimilarly, the United States Supreme Court has stated that “the prohibition of\npublication of a juvenile's name is designed to protect the young person from the stigma of his\nmisconduct and is rooted in the principle that a court concerned with juvenile affairs serves as a\nrehabilitative and protective agency of the State.” Smith v. Daily Mail Publ’g Co., 443 U.S. 97,\n107 (1979) (Rehnquist, J., concurring, citing National Advisory Committee on Criminal Justice\nStandards and Goals, Juvenile Justice and Delinquency Prevention, Standard 5.13, pp. 224-225\n(1976)). In a juvenile case under the JCA, the juvenile’s welfare and best interests must be\nconsidered. in re B.K., 358 Ill. App. 3d 1166, 1172 (Sth Dist. 2005).\nISP asserts that the JCA applies to the underlying records because the \"felonious\nconduct of a minor” resulted in that minor's death. ISP further explains that \"had the minor\nsurvived the police encounter, he would have been the subject of criminal charges.\"!! ISP\ndiscounts that the plain language of the JCA demonstrates an intent to safeguard the privacy ofa\njuvenile who has been arrested and is the subject of a juvenile court proceeding and ultimately,\nto rehabilitate that juvenile. In this instance, the minor was not arrested or taken into custody.\nThere is no basis in the language of the statutes cited that would apply the confidentiality\nprovisions of the JCA to records concerning the death of a minor who was neither taken into\ncustody nor the subject of a juvenile court proceeding.\nEven if we were to accept ISP's contention that the minor \"would.have been the\nsubject of criminal charges” had he survived, the investigatory records at issue do not focus upon\nthe alleged criminal conduct of the minor. ISP's investigation served a function different from\nassessing the criminal wrongdoing of the juvenile. In its response to this office, ISP stated that\n\"this case was investigated by the Public Integrity Task Force at the request of the Police Chief\n\"Letter from Bruce Bialorucki, Legal Counsel, ISP, to Matthew C. Rogina, Assistant Public\nAccess Counselor, Office of the Attorney General (June 6, 2012).\nMs. Becky Schlikerman\nLieutenant Steve Lyddon\nAugust 14, 2012\nPage 8\nof Calumet City, Edward Gilmore.\"? The Civil Administrative Code of Illinois (20 ILCS\n2605/2605-35 (West 2010)) gives ISP the jurisdiction to investigate police shootings. Although\nthe investigatory records do reference the alleged criminal conduct of the juvenile as background\ninformation, the purpose of ISP’s investigation was to determine if the shooting of the minor by\nmembers of the Calumet City Police Department was justified. Consequently, the provisions of\nthe JCA are inapplicable to ISP's investigatory records.\nSections 7(1)(b) and 7(1)(c) of FOIA\nISP has also asserted that other information in the records, particularly unique\nidentifiers and dates of birth, are exempt under sections 7(1)(b) and (1)(c) of FOIA (5 ILCS\n140/7(1)(b), (1)(c) (West 2011 Supp.)). Section 7(1)(b) exempts from inspection and copying\n“private information\" as defined by FOIA.” Section 7(1\\(c) exempts from inspection and\ncopying \"[p]ersonal information contained within public records, the disclosure of which would\nconstitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented\nto in writing by the individual subjects of the information.\" The exemption defines \"unwarranted\ninvasion of personal privacy\" as \"the disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject's right to privacy outweighs any\nlegitimate public interest in obtaining the information.”\nISP may redact unique identifiers pursuant to section 7(1)(b), and the dates of\nbirth and the names of any family members of the juvenile that appear in the investigatory\nrecords pursuant to section 7(1)(c) of FOIA. Disclosure of the names of the relatives of the\ndeceased minor would be highly personal and objectionable to the reasonable person.\nAdditionally, the relatives provided information to ISP and the Calumet City Police. As a result,\ntheir identifies would be exempt from disclosure under section 7(1)(d)(iv) of FOIA (5 ILCS\n140/7(1 (div) (West 2611 Supp.}, as amended by Public Acts 97-783, effective July 13, 2012;\n97-813, effective July 13, 2012) which exempts from inspection and copying information that\n2 |etter from Bruce Bialorucki, Legal Counsel, ISP, to Matthew C. Rogina, Assistant Public\nAccess Counselor, Office of the Attorney General (June 6, 2012). °\n8 Section 2(c-5) defines “private information\" to include unique identifiers such as “a person's\nsocial security number, driver's license number, employee identification number, biometric identifiers, personal\nfinancial information, passwords or other access codes, medical records, home or personal telephone numbers, and\npersonal email addresses. Private information also includes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of attribution to any person.\" (Emphasis added.) 5\nILCS 140/2(c-5) (West 2011 Sdpp.).\nMs. Becky Schlikerman\nLieutenant Steve Lyddon\nAugust 14, 2012\nPage 9\nwould \"unavoidably disclose the identity of a confidential source, confidential information\nfurnished only by the confidential source, or persons who file complaints with or provide\ninformation to administrative, investigative, law enforcement, or penal agencies; except that the\nidentities of witnesses to traffic accidents, traffic accident reports, and rescue reports shall be\nprovided by agencies of local government, except when disclosure would interfere with an active\ncriminal investigation conducted by the agency that is the recipient of the request[.]\"\nISP also seeks to withhold post-mortem photographs of the minor, as well as\nmedical, toxicology, and autopsy reports. To the extent that post-mortem photographs of the\nminor's body are responsive to the request, the Public Access Counselor has previously\nconcluded that decedents’ family members have a personal privacy interest with respect to the\nrelease of post-mortem photographs. See Ill Att'y Gen. Pub. Acc. Op. No. 10-003, issued\nOctober 22, 2010, at 5. In that binding opinion, the Public Access Bureau reviewed the Cook\nCounty Medical Examiner's denial of two FOIA requests seeking records relating to two\nprominent individuals. This office concluded that post-mortem photographs depicting the bodies\nof the deceased are highly personal and are exempt from disclosure under section 7(1)(c) of\nFOIA, as surviving family members have a legally-recognized privacy right in the depiction of\ntheir family members' remains. See Ill Att'y Gen. Pub. Acc. Op. No. 10-003 at 1. However, we\nconcluded that the remaining autopsy records were not exempt under section 7(1){c), as the\npublic interest outweighed the privacy rights of the family members with regard to the non-post\nmortem photographs. See lll Att'y Gen. Pub. Acc. Op. No. 10-003 at 7. Similarly, in this\ninstance we conclude that the public interest in a complete and full investigation of the shooting\noutweighs the privacy concerns of any surviving relatives with respect to the autopsy,\ntoxicology, and medical records that are responsive to this request.\n; Additionally, other than a general assertion that a person's privacy right survives\nafter his or her death, ISP has provided no factual basis for this office to conclude that any\nrecords other than the post-mortem photographs of the victim, such as the autopsy records,\ntoxicology records, and medical records are exempt from disclosure under section 7(1)(c).'4\nContrary to ISP’s position, this office has previously concluded that the personal privacy interest\nof the victim in the disclosure of his or her identity ceases to exist upon death. See Ill. Att'y Gen.\n“ISP refers to a previous nonbinding opinion issued by this office, Ill Att'y Gen. PAC Req. Rev.\nLtr. 13231, issued January 4, 2012, that ISP asserts supports its contention that a person’s privacy right survives after\ndeath. In that matter, however, this office made no specific finding as to the issue of whether an individual's privacy\nright continues to survive after death. Instead, this office informed an inmate that pursuant to Keryon v. Garrels,\n184 Ill. App. 3d 29, 32 (4 Dist. 1989), FOIA does not require a public body to answer questions posed by a\nrequester. See Ill. Att'y Gen. PAC Req. Rev. Ltr, 13231 at 2.\nMs. Becky Schlikerman\nLieutenant Steve Lyddon\nAugust 14, 2012\nPage 10\nPAC Pre-Auth, 416137, issued August 24, 2010, at 2. Thus, ISP has not presented specific legal\nor factual arguments to support a conclusion that an individual's privacy right exists after death\nand, in this case, requires withholding of specific records under section 7(1)(c). ISP has also\nfailed to provide specific factual or legal arguments to support a conclusion that the release of\ncertain, pertinent parts of the records would result in an invasion of privacy for the surviving\nrelatives of the deceased victim. Therefore, we conclude that ISP has not met its burden of\nestablishing that section 7(1}(c) applies and requires ISP to refuse to release certain records\ndespite the public interest in disclosure of these records. :\nFINDINGS AND CONCLUSIONS\nAfter full review and giving due consideration to the arguments of the parties, the\nPublic Access Counselor's findings, and the applicable law, the Attorney General finds that:\n1} On April 17, 2012, Ms. Becky Schlikerman submitted a FOIA request to the\nIllinois State Police requesting, \"[a]ny and all reports and documents regarding the February 1,\n2012, shooting of [a named minor] at $41 Forsythe Avenue in Calumet City.\"\n2) On April 30, 2012, ISP denied the request in full pursuant to section 7(1)}(a) of\nFOIA and the cited provisions of the Juvenile Court Act.\n3) On May 3, 2012, Ms. Schlikerman submitted to the Office of the Public\nAccess Counselor a Request for Review of ISP's denial of her request. Ms. Schlikerman's\nRequest for Review was timely filed and otherwise complies with section 9.5(a) of FOIA (5\nILCS 140/9.5(a) (West 2011 Supp.)).\n4) On June 25, 2012, the Attorney General extended the time frame to issue a\nbinding opinion by 30 business days pursuant to section 9.5(f) of FOIA. Therefore, the Attorney\nGeneral may issue a binding opinion with respect to the disclosure of the records at issue.\n5) ISP, as a matter of law, improperly withheld records that were not prohibited\nfrom release under the JCA, and therefore were not exempt from disclosure under section 7(1)(a)\nof FOIA.\nTherefore, for the reasons addressed above, it is the opinion of the Attorney\nGeneral that ISP has, in violation of the requirements of the Freedom of Information Act,\nimproperly denied Ms. Schlikerman's request. Accordingly, ISP is directed to take immediate\nMs. Becky Schlikerman\nLieutenant Steve Lyddon\nAugust 14, 2012\nPage 11\nand appropriate action to comply with this opinion by responding to Ms. Schlikerman's request\nand providing her with the responsive records, subject only to the permissible redactions set out\nabove.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seg. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois, Ms. Becky\nSchlikerman, and the Chicago Tribune as defendants. See 5 ILCS 140/11.5 (West 2010).\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\nMichael J. Luke\nCounsel to the Attorney General\nce: Mr. Brendan Healey, Senior Counsel\nChicago Tribune\n435 North Michigan Avenue\nChicago, Hlinois 60611\nBhealey@tribune.com\nMaster Sergeant Bruce Bialorucki\nLegal Counsel\nIllinois State Police\n801 South Seventh Street\nSpringfield, INinois 62794\nBruce_Bialorucki@isp.state.il.us","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under FOIA, a public body that denies a request based on a claimed statutory prohibition on disclosure bears the burden of proving that the specific law it cites actually bars release of the specific records withheld -- a blanket assertion that some information is confidential is not enough to justify withholding an entire investigative file. Here, the Illinois State Police invoked section 7(1)(a), which exempts information specifically prohibited from disclosure by other law, but failed to show that the cited confidentiality provisions covered all of the requested records rather than only discrete portions (such as identifying details about a juvenile). Because the agency could not justify a total denial, it was required to disclose the records subject only to narrow, specifically justified redactions rather than refuse disclosure outright.","card_headline":"Investigatory records on a minor's shooting death","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":13,"orig_master_id":18986,"dup_master_id":19220,"dup_sha256":"a63917d5d61a235b8d8cf43e29105baee1a6a387ff33f10989482626038b8115","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2012,"date_issued":"2012-06-25","case_number":"2012 PAC 20863","request_numbers":null,"title":"Improper Discussion of Proposed Ordinance in Closed Session; Requirement to Recite and Record Basis for Finding that Litigation is Probable or Imminent; Requirement to Record Closed Sessions; Taking Final Action at Closed Session Prohibited.","filename":"PUBLIC ACCESS OPINION 12-013 (Request for Review - 2012 PAC 20863).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 12-013 (Request for Review - 2012 PAC 20863).pdf","word_count":2432,"summary":"A binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) The Finance Committee of the Washington County Board (Finance Committee) violated the requirements of OMA by improperly discussing an ordinance authorizing a coal company to build and operate a landfill in a meeting that was closed to the public . Taking Final Action at Closed Session Prohibited .","plain_summary":"The requester challenged a county board's finance committee for discussing a proposed landfill ordinance in a closed session under the Open Meetings Act's litigation exception. The Public Access Counselor held that the committee's closed-session discussion went beyond genuine probable-or-imminent litigation, that it failed to publicly state and record its factual basis for finding litigation likely, failed to make a required recording of the closed session, and appears to have reached a final decision on the ordinance in closed session rather than voting in open session as required. The county board was directed to release the improperly closed portions of its minutes, record all future closed sessions, and bring its meetings into full compliance with the Act.","holding":"The Finance Committee violated the Open Meetings Act by improperly discussing a landfill ordinance in closed session, failing to publicly recite and record its basis for finding litigation probable or imminent, failing to create a verbatim recording of the closed session, and apparently taking final action (recommending approval) during the closed session.","legal_question":"Whether a public body may discuss a proposed ordinance in a closed session under the litigation exception of the Open Meetings Act without establishing that litigation is probable or imminent, and whether the body must record such sessions.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2(c), 5 ILCS 120/2(a), 5 ILCS 120/2, 5 ILCS 120/2(b), 5 ILCS 120/2(e), 5 ILCS 120/7, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(11)"],"public_body":"Finance Committee of the Washington County Board","requesting_party":"Wojtkowski and Mr. Meyer","pac_outcome":"UNCLEAR","pac_law_type":"OMA","subject_category":"closed session","subject_description":"The improper discussion of a landfill ordinance in a closed session and failure to record the meeting.","ocr_status":"ok","ocr_quality":91.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2012-Binding-PAC-Opinions/12-013.pdf","sha256":"fd89a42292f07c873632867cbbf57c18302c5a8abfe7575b8c8a580c562992e5","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","litigation exception","meeting minutes","audio recording","landfill"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL November 5, 2012 PUBLIC ACCESS OPINION 12-013 (Request for Review 2012 PAC 20863) OPEN MEETINGS ACT: Improper Discussion of Proposed Ordinance in Closed Session; Requirement to Recite and Record Basis for Finding that Litigation is Probable or Imminent; Requirement to Record Closed Sessions; Taking Final Action at Closed Session Prohibited. Mr. Dale Wojtkowski 13932 County Highway 12 Venedy, Illinois 62214 The Honorable David Meyer Chairman, Washington County Board 101 East St. Louis Street Nashville, Illinois 62263 Dear Mr. Wojtkowski and Mr. Meyer: This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2010)). For the reasons that follow, this office concludes that on June 25, 2012, the Finance Committee of the Washington County Board (Finance Committee) violated the requirements of OMA by improperly discussing an ordinance authorizing a coal company to build and operate a landfill in a meeting that was closed to the public pursuant to section 2(c)(11) of OMA (5 ILCS 120/2(c)(11) (West 2011 Supp.)). On that date, the Finance Committee also violated the provisions of OMA by failing to publicly recite and record in the closed session minutes its basis for determining that litigation was probable or 500 South Second Street, Springfield, Illinois 62706 » (217) 782-1090 * TTY: (217) 785-2771 + Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois, 60601 * (312) 814-3000 * TTY: (312) 814-3374 + Fax: (312) 814-3806 1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 * Fax: (618) 529-6416 Mr. Dale Wojtkowski Mr. David Meyer November 5, 2012 Page 2 imminent and by failing to create and maintain a verbatim recording of the closed session discussion. The Finance Committee also appears to have taken a final action during the closed session, which is not allowed under OMA. BACKGROUND On August 7, 2012, the Public Access Bureau received a Request for Review in which Mr. Dale Wojtkowski alleged that on June 25, 2012,' the Finance Committee improperly discussed plans for a landfill for the disposal of coal ash in a meeting that was closed to the public pursuant to section 2(c)(11) of OMA, which permits a public body to hold a closed meeting to discuss \"probable or imminent” litigation affecting the public body. On August 16, 2012, the Public Access Bureau forwarded a copy of the Request for Review to the Chairman of the County Board and requested: [A] written response to the allegation that the Board held a discussion pursuant to the section 2(c)(11) exception which is not within the scope of that exception. In your response, please clarify whether the matters discussed in closed session concern pending litigation, or litigation which the Board found to be probable or imminent; if the Board found litigation to be probable or imminent, please provide a detailed factual basis to support that finding. In addition, please provide a copy of the June 25, 2012, agenda and closed session minutes together with a copy of the verbatim recording of the closed session discussion. On August 29, 2012, the Washington County State's Attorney responded on behalf of the Finance Committee by providing copies of the agenda, as well as minutes of both the open and closed sessions of the June 25, 2012, meeting. In addition, the State's Attorney furnished for this office's review a copy of a letter from Prairie State Generating Company, LLC (PSGC) in which PSGC expressed its concerns about the legality of an amendment to the Washington County Sanitary Landfill ordinance and requested an opportunity to meet with the County Board in closed session. This letter further stated that \"[i]f we are unable to resolve this 'The Request for Review also alleged that the Finance Committee improperly discussed plans for a coal ash landfill in closed session on June 7, 2012. However, the Public Access Bureau is unable to review that allegation because we received Mr. Wojtkowski's Request for Review more than 60 days after that alleged violation. 5 ILCS 120/3.5(a) (West 2010) (\"A person who believes that a violation of this Act by a public body has occurred may file a request for review with the Public Access Counselor established in the Office of the Attorney General not later than 60 days after the alleged violation”). *Letter from Steve Silverman, Assistant Attorney General, Public Access Bureau, to David Meyer, Board Chairman, Washington County Board (August 16, 2012). Mr. Dale Wojtkowski Mr. David Meyer November 5, 2012 Page 3 matter, PSGC will proceed to file an appropriate legal action against Washington County seeking judicial review of this matter.\"* The State's Attorney's response to the allegationsi n the Request for Review asserted that the Finance Committee found litigation to be probable or imminent “based upon the probable litigation specifically referred to in the letter from PSGC dated March 28, 2012. The discussion concerned PSGC's proposal for resolving the matter prior to filing suit.\"* In her response, the State's Attorney also noted that, \"[w]hen I requested the verbatim recording of the closed session, it was brought to my attention that committee meetings are not being recorded. Therei s no recording to provide.\"° On September 12, 2012, this office forwarded a copy of the County's response to Mr. Wojtkowski.° He repliedi n a letter dated September 19, 2012. On October 4, 2012, this office properly extended the time to issue a binding opinion pursuant to section 3.5(e) of OMA. ANALYSIS Section 2(c)(11) of OMA Section 2(a) of OMA (5 ILCS 120/2(a) (West 2011 Supp.), as amended by Public Acts 97-813, effective July 13, 2012; 97-876, effective August 1, 2012) provides that all meetings of public bodies \"shall be open to the public\" unless the subject of the meeting falls within one of the exceptions set out in subsection 2(c) of OMA (5 ILCS 120/2(c) (West 2011 Supp.), as amended by Public Act 97-813, effective July 13, 2012; 97-876, effective August 1, 2012) and the meeting is closed in accordance with the provisions of section 2a of OMA (5 ILCS 120/2a (West 2010)). Pursuant to section 2(b) of OMA (5 ILCS 120/2(b) (West 2011 Supp.) as amended by Public Acts 97-813, effective July 13, 2012; 97-876, effective August 1, 2012), \"the [statutory] exceptions are to be strictly construed, extending only to subjects clearly within their scope.” Section 2(c)(11) of OMA permits a public body to discuss in closed session: ‘Letter from Peter DeQuattro, President and Chief Executive Officer, Prairie State Generating Company, to David Meyer, Washington County Board Chairman (March 28, 2012). “Letter from Julie Kozuszek, Washington County State's Attorney, to Steve Silverman, Assistant Attorney General, Public Access Bureau (August 29, 2012). *Letter from Julie Kozuszek, Washington County State's Attorney, to Steve Silverman, Assistant Attorney General, Public Access Bureau (August 29, 2012). *Letter from Steve Silverman, Assistant Attomey General, Public Access Bureau, to Dale Wojtkowski (September 12, 2012). Mr. Dale Wojtkowski Mr. David Meyer November 5, 2012 Page 4 Litigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting. (Emphasis added.) In Henry v. Anderson 356 Il. App. 3d 952, 957 (4th Dist. 2005), the Appellate Court held that before closing a meeting under section 2(c)(11) to discuss probable or imminent litigation, a public body must publicly announce on the record \"(1) a finding that litigation was probable or imminent and (2) a basis for such a finding.\" The requirement that a public body must disclose the requisite finding and reco [...] cided to recommend approval of the ordinance and hosting agreement to \"The Finance Committee also cited section 2(c)(6) of OMA (5 ILCS 120/2(c)\\(6) (West 2011 Supp.)), which allows discussion of the setting of a price for sale or lease of property owned by the public body in closed session. The Finance Committee discussed a separate issue in closed session pursuant to section 2(c)(6), the propriety of which Mr. Wojtkowski did not dispute in his Request for Review. Therefore, this binding opinion does not address that portion of the closed session discussion. Mr. Dale Wojtkowski Mr. David Meyer November 5, 2012 Page 7 the full County Board. After reviewing those minutes, this office requested from the State's Attorney clarification as to \"whether the Finance Committee recommended that the County Board approve the proposed ordinance and hosting agreement and whether a vote on whether to do so was taken in open session[.]\"!° On October 12, 2012, the State's Attorney responded on behalf of the Finance Committee by stating, in pertinent part: It does not appear that any formal recommendation was acted upon by the Finance Committee or made to the full County Board * * *. Washington County Board Committees often proceed in this manner, however, coming to a general implied consensus without objection rather than taking formal action. It is not uncommon that a recommendation would be inferred and not overtly stated. It is my understanding that the Finance Committee anticipated a decision by the entire Board, but that the committee had no reason to object to the approval of the ordinance and the hosting agreement. In this case, no action was taken by the Finance Committee in either open or closed session to make a recommendation to the full Board.\" Based on this explanation and the closed session minutes, it appears that the Finance Committee informally agreed during the closed session either to recommend passage of the proposed ordinance and hosting agreement, or at least not to oppose the proposed ordinance and hosting agreement. By doing so, the Finance Committee implicitly recommended that the full County Board approve the agreement, which it subsequently did at its June 26, 2012, special meeting. The open session meeting minutes indicate that the Finance Committee, after returning to open session on June 25, 2012, voted to adjourn the meeting without publicly deliberating on these matters or taking any action. Accordingly, this office notes that when such a consensus is reached in a closed session, even if it is reached informally, as a practical matter, that consensus constitutes a final action. Because no final action may be taken in closed session, in order to comply with the requirements of OMA, the Finance Committee must discuss and vote on such an agreement in an open meeting. Letter from Steve Silverman, Assistant Attorney General, Public Access Bureau, to Julie Kozuszek, State's Attorney, Washington County (October 4, 2012). ‘Letter from Julie Kozuszek, Washington County State's Attorney, to Steve Silverman, Assistant Attorney General (October 12, 2012). Mr. Dale Wojtkowski Mr. David Meyer November 5, 2012 Page 8 FINDINGS AND CONCLUSIONS After full review and giving due consideration to the arguments of the parties, the Public Access Counselor's findings and the applicable law, the Attorney General finds that: 1) On June 25, 2012, the Finance Committee of the Washington County Board discussed in a closed session a proposed ordinance and hosting agreement relating to a landfill for the disposal of coal ash. The Finance Committee cited section 2(c)(11) of OMA as its basis for holding a closed meeting. Section 2(c)(11) of OMA permits a public body to discuss in closed session \"[l]itigation, * * * when the public body finds that an action [against, affecting or on behalf of the particular public body] is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting.\" 2) On August 7, 2012, the Public Access Bureau received Mr. Dale Wojtkowski's' Request for Review alleging that the Finance Committee violated the Open Meetings Act by discussing that matter in a closed session. Mr. Wojtkowski's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA. 3) Pursuant to section 3.5(e) of OMA, the Attorney General extended the time to issue a binding opinion by 21 business days, until November 6, 2012. Therefore, the Attorney General may properly issue a binding opinion with respect to Mr. Wojtkowski's Request for Review. 4) By discussing in closed session a proposed ordinance and hosting agreement that did not concern or probable or imminent litigation within the scope of section 2(c)(11), the Finance Committee violated section 2(a) of OMA, which requires all meetings to be open to the public unless excepted in section 2(c). 5) By failing to disclose and record in the closed session minutes its basis for finding that litigation was probable or imminent, the Finance Committee violated section 2(c)(11) of OMA. 6) By failing to make an audio or video recording of the June 25, 2012, closed session discussion, the Finance Committee violated section 2.06(a) of OMA, which provides that \"[a]ll public bodies shall keep * * * a verbatim record of all their closed meetings in the form of an audio or video recording.\" Mr. Dale Wojtkowski Mr. David Meyer November 5, 2012 Page 9 7) Reaching an agreement in closed session not to oppose the proposed ordinance and hosting agreement is a final action which a public body must discuss and vote on in an open meeting after informing the public of the nature of the action being taken. In accordance with these findings of fact and conclusions of law, the Finance Committee is directed to: 1) release to Mr. Wojtkowski and make available for inspection and copying the portions of the June 25, 2012, closed session minutes which pertain to the proposed ordinance; 2) record all future closed session discussions; and 3) conduct its future meetings in full compliance with OMA. As required by section 3.5(e) of OMA, the Finance Committee shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA (5 ILCS 120/7.5 (West 2010)). This opinion shail be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Dale Wojtkowski as defendants. See 5 ILCS 120/7.5 (West 2010). Very truly yours, LISA MADIGAN ATTORNEY GENERAL Lue tha — By: Michael J. Luke Counsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Washington County Board's Finance Committee violated the Open Meetings Act by discussing a proposed landfill ordinance in a private meeting on June 25, 2012, when the discussion went beyond what the litigation exception allows. The committee also failed to publicly state and record in the closed-session minutes why it believed litigation was likely, and it did not create a required verbatim recording of the closed discussion. Additionally, the committee appears to have reached an informal consensus (recommending approval) during that closed session, which is prohibited.","card_headline":"Unrecorded closed-session landfill ordinance discussion","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":14,"orig_master_id":18987,"dup_master_id":19215,"dup_sha256":"063e84a24b46c26d1d9aaeb1769491ae94d8e0a794b3404c3fe32a8c4ef5b393","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2012,"date_issued":"2012-08-11","case_number":"2011 PAC 21348","request_numbers":null,"title":"Judicial Inquiry Board is Not a \"Public Body\" to which FOIA is Applicable","filename":"PUBLIC ACCESS OPINION 12-015 (Request for Review - 2012 PAC 21348).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 12-015 (Request for Review - 2012 PAC 21348).pdf","word_count":2188,"summary":"The Judicial Inquiry Board of the State of Illinois (Board) is not subject to the requirements of FOIA . Therefore, the Board is not required to furnish records in response to a FOIA request . This binding opinion is issued pursuant to section 9.5(1) of the Freedom of Information Act .","plain_summary":"The requester sought records from a state judicial oversight board concerning the circumstances of a former judge's removal from the bench, and the board declined to respond, asserting it was not subject to FOIA at all because it operates as part of the judicial branch. The Public Access Counselor agreed, holding that FOIA's definition of \"public body\" covers only legislative, executive, and administrative bodies and specifically excludes the judiciary, and that the board's investigatory role in judicial discipline places it squarely within the judicial branch. Because the board is not subject to FOIA in the first place, no violation occurred and the request for review was denied.","holding":"The Judicial Inquiry Board is an entity of the judicial branch and therefore does not meet the definition of a 'public body' subject to the Freedom of Information Act.","legal_question":"Is the Judicial Inquiry Board of the State of Illinois a 'public body' subject to the requirements of the Freedom of Information Act?","disposition":"no_violation","primary_statute":"5 ILCS 120/9, 5 ILCS 140/2(a), 5 ILCS 140/7(1), 5 ILCS 140/3(d), 5 ILCS 146/2(a), 5 ILCS 140/1, 5 ILCS 120/1, 6 ILCS 120/1, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":"7(1)(a)","public_body":"Judicial Inquiry Board of the State of Illinois","requesting_party":"Merced and Ms. Twine","pac_outcome":"NO_VIOLATION","pac_law_type":"FOIA","subject_category":"public body definition","subject_description":"The requester sought records regarding the removal of a judge and complaints filed against that judge.","ocr_status":"ok","ocr_quality":91,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2012-Binding-PAC-Opinions/12-015.pdf","sha256":"1f0386494ce953498777e8f2e89dc9d995324061f0acb3985fb2451061afdb97","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["Judicial Inquiry Board","public body","judicial branch","FOIA applicability"],"truncated_suspect":0,"site_category":"Public Body Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL December 21, 2012 PUBLIC ACCESS OPINION 12-015 (Request for Review 2011 PAC 21348) FREEDOM OF INFORMATION ACT: Judicial Inquiry Board is Not a \"Public Body\" to which FOIA is Applicable Mr. David Merced, Reg. No. K-84030 Menard Correctional Center Post Office Box 1000 Menard, Illinois 62259 Ms. Kathy D. Twine Executive Director & General Counsel Judicial Inquiry Board, State of Illinois 100 West Randoiph Street, Suite 14-500 Chicago, Illinois 60601-3233 Dear Mr. Merced and Ms. Twine: This binding opinion is issued pursuant to section 9.5(1) of the Freedom of Information Act (FOIA) (5 ILCS 120/9.5(f) (West 2011 Supp.)). For the reasons discussed below, we conclude that the Judicial Inquiry Board of the State of Illinois (Board) is not subject to the requirements of FOIA. Therefore, the Board is not required to furnish records in response to a FOIA request. BACKGROUND On August 11, 2012, Mr. David Merced submitted a FOIA request to the Board seeking \"[d]ocumentation or information stating [the] reason why“ a former judge \"was removed as a Judge from the Cook County Circuit Court[,]\" and the \"number and nature of any and all 500 South Second Street, Springfieid, Illinois 62706 + (217) 782-1090 + TTY: (217) 785-2771 + Fax: (217) 782-7046 100 West Randolph Street, Chicago, Minois, 60601 + (312) 814-3000 + TTY: (12) 814-3374 + Fax: {312} 814-3806 1001 East Main, Carbondale, Wlinois 62901 + (618) 529-6400 - TTY: (618) 529-6403 + Fax: (618) 529-6416 Mr. David Merced Ms. Kathy D. Twine December 21, 2012 Page 2 complaints against\" the judge during his tenure on the bench.’ (Underscore in original.) On August 20, 2012, Ms. Kathy D. Twine, Executive Director and General Counsel of the Judicial Inquiry Board, responded to Mr. Merced, stating, in pertinent part: Kindly note that the Board, an independent entity established under the judicial branch of government, is unable to process your request in that the Board is not governed by the [Freedom of Information] Act, which generally applies to legislative and executive bodies of the State (5 ILCS 140/2(a)) Alternatively, the Board denied Mr. Merced's request in its entirety under section 7(1)(a) of FOIA (5 ILCS 140/7(1)(a) of FOIA (West 2011 Supp.), as amended by Public Acts 97-783, effective July 13, 2012; 97-813, effective July 13, 2012), which exempts “[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" The Board asserted that the disclosure of the records in question is specifically prohibited by Rule 5(a) of the Board's Rules of Procedures (Judicial Inquiry Board R. 5(a)), adopted pursuant to article VI, section 15(d) of the Illinois Constitution of 1970. On September 12, 2012, the Public Access Counselor received from Mr. Merced copies of the FOIA request he submitted to the Board, the Board's written response, and unsigned correspondence in which Mr. Merced concedes that copies of the complaints investigated by the Board are exempt from disclosure, but contends that he is entitled to the specific information he requested concerning the complaints? On October 16, 2012, Mr. Merced completed a timely submission pursuant to section 9.5(a) of FOIA (G ILCS 140/9.5(a) (West 2011 Supp.))‘ by providing the Public Access Counselor with a signed Request for Review.° 'FOIA request submitted by David Merced to Judicial Inquiry Board (August 11, 2012) (Request for Review 2012 PAC 21348). \"Letter from Kathy D. Twine, Executive Director and General Counsel, Judicial Inquiry Board, to David Merced (August 20, 2012). *Freedom of Information Appeal form from David Merced to Illinois Attomey General (undated). “Section 9.5(a) of FOIA provides that a \"person whose request to inspect or copy a public record is denied by a public body, except the General Assembly and committees, commissions, and agencies thereof, may file a request for review with the Public Access Counselor established in the Office of the Attomey General not later than 60 days after the date of the final denial. The request for review must be in writing, signed by the requester, and include (i) a copy of the request for access to records and (ii) any responses from the public body.” ‘Freedom of Information Appeal form from David Merced to Illinois Attorney General (undated). Mr. David Merced Ms. Kathy D. Twine December 21, 2012 Page 3 On October 24, 2012, the Public Access Bureau forwarded a copy of the Request for Review to the Board for its response.® On November 5, 2012, counsel for the Board reiterated its position that the Board is an “independent entity that is part of the judicial branch of government{ }\" and is therefore not a public body which is subject to FOIA.” On November 9, 2012, this office properly extended the time to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOTA. ANALYSIS Section 3(d) of FOIA (5 ILCS 140/3(d) (West 2010)) provides that \"[e]Jach public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section.” (Emphasis added.) Section 2(a) of FOIA (5 ILCS 146/2(a) (West 2011 Supp.)) defines “public body\" to include “all legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, [and] any subsidiary bodies of any of the foregoing[.]\" (Emphasis added.) Conspicuously absent from this definition is any reference to the judicial branch of State government or its officers or agencies. The maxim of statutory construction known as inclusio unius est exclusio alterius is applicable to the definition of “public body” in section 2(a) of FOIA. Under that principle, where a statute lists the thing or things to which it refers, the inference is that all omissions are exclusions, even in the absence of limiting language. City ofS t. Charlies v. [linois Labor Relations Ba., 395 lll. App. 3d 507, 509-10 (2009). In Copley Press, Inc. v. Administrative Office of Courts, 271 Ill. App.3d 548 (2nd Dist. 1995), the Appellate Court emphasized the exclusion of the judiciary from the statutory definition of \"public body” in holding that components of the judicial branch are not “public bodies\" subject to the requirements of FOIA: Here, [in the definition of “public body\" found in section 2(a)], the legislature specifically listed the legislative and executive SLetter from Steve Silverman, Assistant Attorney General, Public Access Bureau, to Kathy D. Twine, Executive Director and General Counsel, Judicial Inquiry Board (October 24, 2012). \"Letter from Mr. John N. Gallo, Sidley Austin, LLP, to Steve Silverman, Assistant Attorney - General, Public Access Bureau (November 5, 2012). Mr. David Merced Ms. Kathy D. Twine December 21, 2012 Page 4 branches of government without listing the judicial branch. The lack of any reference to the courts or judiciary must be taken as an intent to exclude the judiciary from the disclosure requirements of the Act.\" Copley Press, Inc.,271 UL App. 3d at 553. Thus, the provisions of FOIA do not apply to the Board if it is an entity within the judicial branch of government. Article VI, section 15(b), of the Iinois Constitution of 1970 provides that the Board shall be comprised of two judges selected by the Supreme Court and three lawyers and four non-lawyers selected by the Governor. Article VI, section 15(c), of the Illinois Constitution of 1970 vests the Board with the \"authority to conduct investigations, receive or initiate complaints concerning a Judge or Associate Judge, and file complaints with the Courts Commission.\"* The Board \"is an integral part of Illinois’ system of judicial discipline.\" People ex rel. Illinois Judicial Inquiry Bd. v. Hartel, 72 VW. 2d 225, 229 (1978). In Opinion No, 99-005, issued March 15, 1999, Attorney General Ryan concluded that the Illinois Courts Commission, a body created to hear complaints filed by the Board (see Ill. Const. 1970, art. VI, §15(e)), was not subject to either FOIA (5 ILCS 140/1-1 et seg. (West 1996)) or the Open Meetings Act (5 ILCS 120/1 et seg. (West 1996)), which also defines \"public body\" to exclude the judiciary.” Citing Copley Press, Inc., the Attorney General stated: [T]he Hlinois Courts Commission is an adjudicatory body of the judicial branch of government. Consequently, based upon the court's reasoning in Copley Press, Inc. v. Administrative Office of ‘the Courts, it is my opinion that the Illinois Courts Commission is not subject to the provisions of the Freedom of Information Act. Ill. Att'y Gen. Op. No. 99-005, issued March 5, 1999, at 10. Attorney General Ryan's conclusion is equally applicable to the Board. As the investigatory arm of the bipartite judicial disciplinary system established under the judicial article of the State Constitution, the Board is a part of the judicial branch of State government. \"The \"investigative, charging and prosecuting functions are lodged in the Inquiry Board, but the adjudicatory function is separately vested in the Courts Commission.\" People ex rel. Judicial Inquiry Bd. v. Courts Commission, 91 tll. 2d 130, 135 (1982), quoting 6 Record of Proceedings, Sixth [linois Constitutional Convention 866-67. Consistent with FOIA, the definition of a \"public body” in section 1.02 of OMA (6 ILCS 120/1.02 (West 2010)) is limited to \"legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregeing[_]\" Mr. David Merced Ms. Kathy D. Twine December 21, 2012 Page 5 Because the definition of “public body\" in section 2(a) of FOIA does not include agencies of the judicial branch, the Board is not subject to the requirements of FOIA. Moreover, to conclude that the Board is an executive or legislative body, and therefore, is subject to FOIA could infringe upon the Illinois Supreme Court's exclusive authority to regulate judicial conduct (see People ex rel. Harrod v. Hlinois Courts Commission, 69 Ill. 2d 445, 465 (1977)) and violate the principle of separation of powers. See Ill. Const. 1970, art. I, §2 (\"The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.\"). Accordingly, we conclude that the Board is not obligated to comply with Mr. Merced's FOIA request. FINDINGS AND CONCLUSIONS 1) On August 11, 2012, Mr. David Merced submitted a FOIA request to the Judicial Inquiry Board seeking information concerning complaints against a former circuit court judge. 2) On August 20, 2012, the Board responded, in part, by asserting that it is not a \"public body\" as defined in FOIA, and thus is not subject to the requirements of that Act. 3) On September 12, 2012, the Public Access Counselor received a copy of the underlying FOIA request, the Board's response, and Mr. Merced’s unsigned Request for Review. On October 16, 2012, the Public Access Counselor received Mr. Merced’s signed Request for Review. Mr. Merced's Request for Review was timely filed and otherwise complies with section 9.5(a) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to the applicability of FOLA to the Board. 4) On October 24, 2012, the Public Access Bureau determined that further inquiry was warranted and issued a letter to the Board requesting that it provide a written explanation for its assertion that the Board is not a \"public body\" under the definition of that term in section 2(a) of FOIA. On November 9, 2012, the Board responded by reasserting that it is an entity within the judicial branch of State government and, therefore, is not a “public body\" as that term is defined in FOIA. 5) Based on the reasoning of Copley Press, Inc. v. Administrative Office of Courts, we conclude that because the Board was created under the judicial article of the State Constitution as the investigatory arm of a disciplinary system solely involving State judges, it is an entity of the judicial branch. As an entity of the judicial branch of State government, the provisions of FOIA are not applicable to the Board. Mr. David Merced Ms. Kathy D. Twine December 21, 2012 Page 6 Therefore, it is the opinion of the Attorney General that because the Board is not subject to the provisions of FOIA, it was not required to comply with Mr. Merced's August 11, 2012, FOIA request. Accordingly, because no violation of FOIA occurred, no remedial action is necessary. Mr. Merced's Request for Review is denied. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seg. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and the Judicial Inquiry Board as defendants. See 5 ILCS 140/11.5 (West 2010). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: Michael J. Luke Counsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A prisoner requested records from the Illinois Judicial Inquiry Board regarding the removal of a judge. The Attorney General determined that because the Board is part of the judicial branch of government, it is not a 'public body' under the Freedom of Information Act. Consequently, the Board is not required to respond to FOIA requests.","card_headline":"Records regarding a judge's removal and complaints","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":15,"orig_master_id":18988,"dup_master_id":19216,"dup_sha256":"fafca86bb486a3682a0c7d5e75c756344d4f7e2054ae444e0cca9d935a5014c9","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2013,"date_issued":"2013-02-21","case_number":"2012 PAC 22708","request_numbers":null,"title":"‘ Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 13-001 (Request for Review - 2012 PAC 22708).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 13-001 (Request for Review - 2012 PAC 22708).pdf","word_count":1711,"summary":"Attorney General Lisa Madigan: CPS failed to respond within five business days after receiving a FOIA request from Dr. John Kugler . Request for Review alleges CPS has not responded to the request . CPS official in three news media reports: As a result of the recent murders of school children in Newtown, CT we are requesting a list or records identifying all . documents .","plain_summary":"The requester, a journalist, sought a school district's emergency management plans and related records, and the school district never responded at all, either to comply, deny, or extend the deadline within the required five business days. The Public Access Counselor held that the school district's total failure to respond constituted a denial under FOIA, violating both the response-deadline and written-denial-notice requirements. The school district was directed to produce the responsive records, subject only to permissible redactions, and to issue timely responses to future requests.","holding":"Chicago Public Schools violated sections 3(d) and 9(a) of FOIA by failing to provide a timely response to the requester.","legal_question":"Did the Chicago Public Schools violate the Freedom of Information Act by failing to respond to a FOIA request within the five-business-day period mandated by section 3(d)?","disposition":"violation_found","primary_statute":"5 ILCS 120/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 130/3(b), 6 ILCS 140/3(e), 5 ILCS 140/9, 5 ILCS 140/7, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":[],"public_body":"Chicago Public Schools","requesting_party":"Kugler and Ms. Daniels","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"duty to respond","subject_description":"The request sought access to emergency management plans referenced in news media reports.","ocr_status":"ok","ocr_quality":87.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2013-Binding-PAC-Opinions/13-001.pdf","sha256":"8a4c4aa8f5c7dd02080cfcc2dcbf6fbad6935b21c9b52804a07b622434d8f613","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA deadline","duty to respond","emergency management plans","CPS","timely response"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL February 21, 2013 PUBLIC ACCESS OPINION 13-001 (Request for Review 2012 PAC 22708) FREEDOM OF INFORMATION ACT: ‘ Duty to Respond to FOIA Requests : Dr. John Kugler, Reporter Substance News 3701 South Winchester Avenue Chicago, Illinois 60609 Ms. Cassandra Daniels FOIA Officer Chicago Public Schools Law Department 125 South Clark Street, 7\" Floor Chicago, Illinois 60603-4044 Dear Dr. Kugler and Ms. Daniels: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA} (5 ILCS 120/9.5(f) (West 2011 Supp.)). For the reasons discussed below, this office concludes that the Chicago Public Schools (CPS) violated sections 3(d} and 9(a) of FOIA (5 ILCS 140/3(d), 9(a) (West 2010)), by failing to respond within five business days after receiving a FOIA request from Dr. John Kugler. BACKGROUND On December 19, 2012, Dr. Kugler submitted a FOIA request to CPS's FOIA Officer seeking \"access to and copies of the Emergency Management Plans\" referenced by a CPS official in three news media reports, (Emphasis in original.) The request further stated: As a result of the recent murders of school children in Newtown, CT we are requesting a list or records identifying all ‘E-mail from John Kugler, Reporter, Substance News, to Cassandra Daniels (December 19, 2012). 500 South Second Street, Springfield, Minois 62706 * (217) 782-1090 « TTY: (877) 844-5461 * Pax: (217) 782-7046 100 West Randolph Street, Chicago, Hiinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 + Fax. G12) 814-3806 1001 East Main, Carbondale, Hincis 62901 * (618) 529-6400 « TTY: (877) 675-9339 * Fax: (618) 529-6416

\nThe minutes of the March 13, 2013, County Board meeting reflect that Adonna\nBennett was, in fact, appointed to fill the vacancy on the Advisory Board. ‘6\n\"2 Edgar County Airport Advisory Board, Meeting, February 12, 2013, Compact Disc at 13:41-\n14:07 (on file with the Public Access Bureau).\n“Edgar County Airport Advisory Board, Meeting, February 12, 2013, Compact Disc at 14:07-\n15:58 (on file with the Public Access Bureau).\n\\4Edgar County Airport Advisory Board, Meeting, February 12, 2013, Compact Disc at 16:40-\n16: 50 (on file with the Public Access Bureau).\n“Edgar County Airport Committee, Meeting, February 12, 2013, Minutes {.\n‘SEdgar County Board, Meeting, March 13, 2013, Minutes 1.\nMr. John Kraft\nMr. Blake Stiff\nMs. Adonna Bennett\nMay 13, 2013\nPage 5\nANALYSIS\nThe General Assembly enacted OMA \"to protect the citizen's right to know[.]\" 5\nILCS 120/1 (West 2010). Accordingly, section 1 of the Act (5 ILCS 120/1 (West 2010))\nprovides:\nIt is the public policy of this State that public bodies exist to aid in\nthe conduct of the people's business and that the people have a\nright to be informed as to the conduct of their business. In order\nthat the people shall be informed, the General Assembly finds and\ndeclares that it is the intent of this Act to ensure that the actions of\npublic bodies be taken openly and that their deliberations be\nconducted apenly, Emphasis added.\nCounty boards are \"public bodies\" and are therefore subject to the provisions of\nOMA. 5ILCS 120/1.02 (West 2010), as amended by Public Act 97-1129, effective August 28,\n2012). Moreover, advisory and other subsidiary bodies of a public body, including “committees\nand subcommittees thereof,\"!7 are also considered \"public bodies\" under OMA and are,\ntherefore, also subject to its requirements. Section 2(e) of OMA (5 ILCS 120/2(e) (West 2011\nSupp.), as amended by Public Acts 97-813, effective July 13, 2012; 97-876, effective August I,\n2012) provides that \"[fJinal action [by a public body] shall be preceded by a public recital of the\nnature of the matter being considered and other information that will inform the public of the\nbusiness being conducted.” See aise People ex rel. Hopf v. Barger, 30 Il. App. 3d 525, 536 (2nd\nDist. 1975) (\"The clear intention of the legislature expressed in the Act favors, of course, open\ndeliberation, as well as open action\").\nBy characterizing the balloting as a \"straw vote,\" the Advisory Board apparently\nis suggesting that it did not take final action to recommend a candidate, because the County\nBoard was free to accept or reject the Advisory Board's recommendation. Black's Law\nDictionary defines a straw poll as a “nonbinding vote, taken as a way of informally gauging\nsupport or opposition but usu. without a formal motion or debate.\" Black's Law Dictionary\n1557 (9th ed. 2009). Although the vote to select a candidate was not binding on the County\nBoard, the recommendation of a candidate to fill the vacancy on the Advisory Board was clearly\na final action by the Advisory Board, and not a preliminary, informal procedure for gauging\nsupport or opposition for the specific candidates. Therefore, the vote was subject to the\nrequirements of OMA.\n'\"5 ILCS 120/1.02 (West 2011 Supp.), as amended by 97-1129, effective August 28, 2012.\nMr. John Kraft\nMr. Blake Stiff\nMs. Adonna Bennett\nMay 13, 2013\nPage 6\nThe use of secret ballots by public bodies undermines the public's right to know.\nAttorney General Kerner addressed the problem of secret ballots in 1933 when he stated:\nOf what avail is an open door to the public if the proceedings are\nsecret. The eye can see, the ear can hear, but secrecy conceals all.\nIt is no advantage to the citizen to see a member write a name\nsecretly on a ballot unless he is privileged to read what is thereon\nwritten. If the vote were taken by whispering in tones so low the\n_ attending citizen could not hear, how would he know what was\nbeing done. If no record is made of how the individual members\nvote, of what avail is the statute providing for a meeting with open\ndoors. 1933 Ill. Att'y Gen. Op. 334, 335.\nIn WSDR, Ine. v. Ogle County, 100 Ill. App. 3d 1008, 1011 (2nd Dist. 1981), the\nAppellate Court held that the use of secret ballots to elect a board chairman violated the public\npolicy of the State and OMA. The court reasoned that electing the chairman by secret ballot was\n\"the antithesis of an open meeting even though the vote was conducted in the presence of the\npublic.\" WSDR, Inc., 100 Ill. App. 3d at 1009-1010. The court referred to an Attorney General\nopinion in which the rationale for prohibiting secret ballots was explained as follows:\n[Slecret balloting serves to protect public officials from criticism.\n* * * However, public officials are subject to criticism for action\nthey take in fulfilling their duties as public officials and anyone\nwho undertakes a public office or membership on a public body\nshould be aware that his actions will be subject to criticism.\nAnyone who is unwilling to subject himself to such criticism by\nthe public should not accept public office or membership of a\npublic board. The public has a right to know how their public\nofficials and representatives vote on issues, not only so they may\ntry to persuade them to change their position or congratulate them\non actions they have taken, but also that they may have the\nnecessary information to decide whether they want to retain that\nperson in public office. Secret voting by members of public\nbodies, can only contribute to further deterioration of public\nconfidence in government and undermine the very bases of\nrepresentative democracy. 1975 Ill. Att'y Gen. Op. 136, 138-139.\nMr. John Kraft\nMr. Blake Stiff\nMs. Adonna Bennett\nMay 13, 2013\nPage 7\nIn this case the Advisory Board read the names of four candidates out loud, had\nmembers circle their choices on a paper ballot, and announced the results of the vote. Based on\nthis vote, the Advisory Board took final action to recommend to the County Board that the\nperson selected be appointed to fill the vacancy on the Advisory Board. The Advisory Board\nmembers did not reveal their choices to the public, and the Advisory Board did not make a\nrecord of how each member voted. Such secrecy contravenes the General Assembly's intent in\nenacting OMA and public policy. Accordingly, this office concludes that the Advisory Board\nviolated section 2(e) of OMA by taking final action to recommend to the County Board a\ncandidate to fill a vacancy using secret ballots.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments of the\nparties, the Public Access Counselor's review, and the applicable law, the Attorney General finds\nthat:\n1) On February 12, 2013, the Edgar County Airport Advisory Board conducted a\nvote by secret ballot to select a candidate.to recommend to the County Board to fill a vacancy on\nthe Advisory Board. The members of the Advisory Board did not disclose how they individually\nvoted.\n2) On February 13, 2013, and February 14, 2013, respectively, the Public Access\nBureau received Requests for Review of the Advisory Board’s use of a secret ballot from Mr.\nKraft and Mr. Stiff. The Requests for Review were timely filed and otherwise comply with the\nrequirements of section 3.5(a) of OMA (5 ILCS 120/3.5(@) (West 2010)). The Public Access\nCounselor extended the time for issuance of a binding opinion by 21 business days pursuant to\nsection 3.5(e) of OMA. Therefore, ihe Attorney General may properly issue a binding opinion\nwith respect to this matter.\n3) By using secret ballots to select a candidate to recommend to the County\nBoard to fill a vacant seat on the Advisory Board, the Advisory Board violated section 2(e) of\nOMA.\nIn accordance with these findings of fact and conclusions of law, the Advisory\nBoard is directed to conduct its future meetings in full compliance with OMA. At all such\nmeetings, and before taking final action on any matter which has been properly listed on its\nagenda, the Advisory Board shall conduct an open vote that informs the public of each Advisory\nBoard member's vote.\nMr. John Kraft\nMr. Blake Stiff\nMs. Adonna Bennett\nMay 13, 2013\n~ Page 8\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois, Mr. John Kraft, and Mr.\nBlake Stiff as defendants. See 5 ILCS 120/7.5 (West 2010).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nee\nBy:\nMichael J. Luke\nCounsel to the Attorney General\nce: The Honorable Chris Patrick, Chairman\nEdgar County Board\n115 West Court Street\nParis, Illinois 61944","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Edgar County Airport Advisory Board used a secret ballot to choose a candidate for a vacant board seat, which prevents the public from knowing how their elected or appointed officials voted. The Illinois Attorney General ruled that this practice is illegal under the Open Meetings Act, which requires all final actions and votes by public bodies to be conducted openly. The Board was ordered to ensure all future votes are taken in public view.","card_headline":"Secret-ballot vote for a candidate recommendation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":22,"orig_master_id":19223,"dup_master_id":18995,"dup_sha256":"d5b123d003fab96b6980f7b7bdcd1d42a7643bf509d407946b2cc756f99365bb","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2013,"date_issued":"2013-05-28","case_number":"2013 PAC 23545","request_numbers":null,"title":"Requirement to Record and Enter Into Closed Meeting Minutes Basis for Finding that Litigation is Probable or Imminent.","filename":"PUBLIC ACCESS OPINION 13-008 (Request for Review - 2013 PAC 23545).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 13-008 (Request for Review - 2013 PAC 23545).pdf","word_count":2596,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a request for review concerning the New Lenox Public Library District Board's closed meeting practices under the Open Meetings Act.","plain_summary":"The requester challenged a library board for closing part of a meeting to discuss a payment dispute with an employee benefit plan, arguing no litigation was actually threatened. The Public Access Counselor found the library board had a reasonable basis to believe litigation was probable, since it had received letters from the other party's attorney explicitly threatening suit, and that the closed-session discussion properly stayed within permissible litigation-strategy topics, but held that the board still violated the Open Meetings Act by failing to record and document that litigation-probable finding in its closed-session minutes as the Act requires. The library board was directed to amend its minutes to include that explanation and to record the required finding in all future closed sessions relying on the same exception.","holding":"The Board properly discussed probable or imminent litigation in closed session but violated OMA by failing to record the basis for closing the meeting.","legal_question":"Did the Board violate the Open Meetings Act by failing to record the basis for closing the meeting?","disposition":"partial_violation","primary_statute":["5 ILCS 120/2(c)(11)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(11)"],"public_body":"New Lenox Public Library District Board of Trustees","requesting_party":"Sheree Kozel-La Ha","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board held a closed session to discuss probable or imminent litigation without properly recording the basis for the closure in the minutes.","ocr_status":"ok","ocr_quality":89.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2013-Binding-PAC-Opinions/13-008.pdf","sha256":"b0605825fd588bc1c59070730472628a04331497f77862601cd8b5d46746a572","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","meeting minutes","litigation","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF TLLINOIS\nLisa Madigan\nNPTORNEY GENERAL\nMay 28, 2013\nPUBLIC ACCESS OPINION 13-008\n(Request for Review 2013 PAC 23545)\nOPEN MEETINGS ACT:\nRequirement to Record and Enter\nInto Closed Meeting Minutes\nBasis for Finding that Litigation\nis Probable or Imminent.\nMs. Sheree Kozel-La Ha\nExecutive Director\nHomer Township Public Library District\n[street address redacted for site publication -- see original PDF]\nMs. Kate Hall\nLibrary Director\nNew Lenox Public Library District\n120 Veterans Parkway\nNew Lenox, Illinois 60451\nDear Ms. Kozel-La Ha and Ms. Hall:\nThis binding opinion is issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) (5 ILCS 126/3.5(e) (West 2010)). For the reasons discussed below, this office\nconcludes that at its January 21, 2013, regular meeting, the New Lenox Public Library District\nBoard of Trustees (Board) properly discussed probable or imminent litigation in closed session,\nbut violated OMA by failing to record and enter into the closed meeting minutes its basis for\nasserting that a portion of the meeting could properly be closed to the public pursuant to section\n500 Sourh Second Street, Springfield, Hlinvis 62706 » (217) 782-1090 © “TTY (877) 844-S401 + Fax: (217) 782-7646\n100 West Randolph Street, Chicage. WRnois 60601 » (412) 814-3000 * “PP: (800) 964-3013 © Fax: (312) 814-3806\n1001 East Main, Carbondale, Hinois 62901 © (G18) 520-6400 * ‘PTY: (877) 675-9339 © Fax: (018) 529-0416 ap\nMs. Sheree Kozel-La Ha\nMs. Kate Hall\nMay 28, 2013\nPage 2\n2(c)(11) of OMA (5 ILCS 120/2(c)(1 1) (West 2011 Supp.), as amended by Public Acts 97-813,\neffective July 13, 20612; 97-876, effective August 1, 2012).\nBACKGROUND\nOn February 27, 2013, the Public Access Bureau received a Request for Review\nin which Ms. Sheree Kozel-La Ha alleged that on January 21, 2013, the Board improperly closed\na meeting to the public pursuant to section 2(c)(11} of OMA. Section 2(c)(11) permits a public\nbody to discuss in closed session:\nLitigation, when an action against, affecting or on behaolff the\nparticular public body has been filed and is pending before a court\nor administrative tribunal, er when the public body finds that an\naction is probable or imminent, in which case the basis for the\nfinding shall be recorded and entered into the minutes of the\nclosed meeting. (Emphasis added.)\nMs. Kozel-La Ha contends that there was no threat of probable or imminent litigation sufficient\nto justify the Board's decision to discuss a payment dispute between the New Lenox Public\nLibrary District and the I}Hnois Library Employee Benefit Plan ILEBP) in a meeting that was\nclosed to the public.' Ms. Kozel-La Ha also serves as Board President of the ILEBP.?\nOn March 8, 2013, the Public Access Bureau forwarded a copy of the Request for\nReview to the President of the Board and asked the Board to provide a written response to the\nallegation in the Request for Review, together with copies of the January 21, 2013, meeting\nagenda, the closed session minutes, and the verbatim recording of the closed session discussion?\nOn March 18, 2013, Ms. Kate Hall, Library Director of the New Lenox Public\nLibrary, responded on behalf of the Board by providing the requested information along with a\nmemorandum explaining that the meeting was closed to discuss “thrice threatened litigation,” by\nthe ILEBP in connection with the ILEBP’s payments for claims by New Lenox Library\n'OMA Request for Review By Public Access Counselor (PAC) form filed by Sheree Kozel-La Ha\n(February 27, 2013).\n*Letter from Sheree Kozel-La Ha, Library Director and ILEBP Board President, to Shari L. West\n(March 26, 2013).\n‘Letter from Shari L. West, Assistant Attorney General, Public Access Bureau, to Louis J.\nBroccolo, President, New Lenox Public Library District Board of Trustees (March 8, 2013).\nMs. Sheree Kozel-La Ha\nMs. Kate Hall\nMay 28, 2013\nPage 3\nemployees.’ Ms. Hall provided this office with copies of three letters that ILEBP sent to the\nBoard stating that it would file a lawsuit or pursue legal action unless the Board reimbursed the\nILEBP for certain claims payments. One letter, dated December 3, 2012, was from Ms. Kozel-\nLa Ha in her capacity as ILEBP President.” The two remaining letters, dated October 2, 2012,°\nand December 17, 2012,’ were sent by the ILEBP’s attorney. On March 22, 2013, this office\nforwarded a copy of the Board's response to Ms. Kozel-La Ha.* She replied in a letter dated\nMarch 26, 2013, which was e-mailed to this office on March 28, 2013.” On April 26, 2013, this\noffice properly extended the time within which to issue a binding opinion by 21 business days\npursuant to section 3.5(e} of OMA. 8\nANALYSIS\nSection 2(a} of OMA (5 ILCS 120/2(a) (West 2011 Supp.), as amended by Public\nActs 97-813, effective July 13, 2012; 97-876, effective August 1, 2012) provides that all\nmeetings of public bodies \"shall be open to the public\" unless the subject of the meeting falls\nwithin one of the exceptions set out in subsection 2(c) of OMA (3 ILCS 120/2(c) (West 2011\nSupp.), as amended by Public Act 97-813, effective July 13, 2012; 97-876, effective August 1,\n2012) and the meeting is closed in accordance with the provisions of section 2a of OMA (5 ILCS\n120/2a (West 2010)). Pursuant to section 2(b) of OMA (6 ILCS 120/2(b) (West 2011 Supp.) as\namended by Public Acts 97-813, effective July 13, 2012; 97-876, effective August 1, 2012), \"the\n[statutory] exceptions are to be strictly construed, extending only to subjects clearly within their\nscope.\"\n‘Memorandum from Kate Hall, Library Director, New Lenox Public Library District, to Shari L.\nWest (March 18, 2012).\n*Letter from Ms. Sheree Kozel-La Ha, President, illinois Library Employee Benefit Plan, to\nKate Hall, Director, New Lenox Public Library (December 3, 2012).\n“Letter from Phillip B. Lenzini, Kavanagh, Scully, Sudow, White & Frederick, P.C., to Kate Hall,\nDirector, New Lenox Public Library (October 2, 2012).\n‘Letter from Phillip B. Lenzini, Kavanagh, Scully, Sudow, White & Frederick, P.C., to Board of\nLibrary Trustees and Kate Hall, Director, New Lenox Public Library (December 17, 2012).\n‘Letter from Shari L. West, Assistant Attormey General, Public Access Bureau, to Sheree Kozel-\nLa Ha (March 22, 2013}.\n*Letter from Sheree Kozel-La Ha, Library Director and ILEBP Board President, to Shari L. West,\n(March 26, 2013).\n'°Le tter from Shari L. West, Assistant Attorney General, Public Access Bureau, to Sheree Kozel-\nLa Ha and Kate Hall, Library Director (April 26, 2013).\nMs. Sheree Kozel-La Ha\nMs. Kate Halt\nMay 28, 2013\nPage 4\n- In order to close a portion of a meeting under section 2(¢)(11) of OMA, \"there\nmust be reasonable grounds to believe that a lawsuit is more likely than not to be instituted or\nthat such an occurtence is close at hand.\" 1983 I. Att'y Gen. Op. 82, 88. Such determinations\n\"must be made by examining the surrounding circumstances in light of logic, experience, and\nreason.\" 1983 IIL. Att'y Gen. Op. at 88. Further, \"the only matters which may lawfully be\ndiscussed at the closed meeting are the strategies, posture, theories, and consequences of the\nlitigation itself.\" 1983 IIL Att'y Gen. Op. at 89. Section 2(c)(L1) may not be “utilized to conduct\ndeliberations on the merits of a matter under consideration regardless of how sensitive or\ncontroversial the subject matter may be.” 1983 Hl. Ati'y Gen. Op. at 88. Thus, it is not\npermissible for a public body to discuss taking an action or to make a decision in a closed session\nsimply because of the possibility that such a decision could ultimately provoke litigation;\nvirtually any discretionary action that a public body contemplates carries such a risk.\nAlthough Ms. Kozel-La Ha asserted that the meeting was improperly closed\nbecause litigation between ILEBP and the District was neither pending nor imminent, under the\nplain language of section 2(¢11) of OMA the Board was required to find only that litigation\nwas probable or imminent in order to properly enter closed session. Prior to its closed session\ndiscussion, the Board had received three letters from ILEBP, two of which were sent by the\nILEBP's attorney and expressly referenced the filing of a lawsuit. In his October 2, 2012, letter,\nthe attorney stated: \"I will make clear that if the Benefit Plan is left with no other choice or\noption, they [sic] will bring suit against the New Lenox Public Library District and you directly\nin the event the New Lenox Library does not promptly submit payment.\" His December 17,\n2012, letter similarly stated:\nDue to your prior delays in making reimbursement\npayments requested for claims paid for your covered employees\nand retirees, I will make clear here that if the Benefit Plan is left\nwith no other choice or option, they [sic] will bring suit against the\nNew Lenox Public Library District and you directly in the event\nthe New Lenox Library does not promptly submit payment. * * *\n[I]f * * * [the Board] does not honor their obligations, then that\nwill be our next step.!?\n\"Letter from Phillip B. Lenzini, Kavanagh, Scully, Sudow, White & Frederick, P.C., to Kate Hall,\nDirector, New Lenox Public Library (October 2, 2012).\nLetter from Phillip B. Lenzini, Kavanagh, Scully, Sudow, White & Frederick, P.C., to Board of\nTrustees and Kate Hall, Director, New Lenox Public Library (December 17, 2012).\nMs. Sheree Kozel-La Ha\nMs. Kate Hall\nMay 28, 2013\nPage 5\nThis office finds that the Board's receipt of letters sent over the signature of\nILEBP's attorney, which specifically threatened litigation, provided a reasonable basis for the\nBoard to conclude that the filing of a lawsuit affecting the District was probable or imminent.\nAccordingly, the Board’s decision to close a portion of its January 21, 2013, regular meeting\npursuant to section 2(¢)(1 1) of OMA was not improper. Moreover, the verbatim recording of the\nclosed session reflects that the Board's discussion concerned strategies, postures, theories and\npossible consequences of the potential litigation, all of which are matters that may be lawfully\ndiscussed in closed session.\nIn order to satisfy the requirements of section 2(c)(1 1) of OMA, however, the\nBoard was required to record and enter into the closed session minutes an explanation of its basis\nfor finding litigation to be probable or imminent. \"This requirement is mandatory and exists to\nensure that there is a reasonable and justifiable basis to act in derogation of the clearly\nenunciated public policy of this State.\" 1983 Il. Att'y Gen. Op. at 86. The Board's closed\nsession minutes do not contain an explanation of its basis for finding that litigation was probable.\nAlthough these minutes include a reference to one of the ILEBP’s letters, this reference was\ninsufficient. As the court determined in Henry v. Anderson, 356 Ill. App. 3d 952 (4th Dist.\n2005):\n[T]he litigation exception is a forked path. If the litigation\nhas been filed and is pending, the public body need only announce\nthat in the proposed closed meeting, it will discuss litigation that\nhas been filed and is pending. If the litigation has not yet been\nfiled, the public body must (1) find that the litigation is probable or\nimminent and (2) record and enter into the minutes the basis for\nthat finding. Henry, 356 Il. App. 3d at 956-957.\nAccordingly, we find that although the Board did have a reasonable basis\nsupporting its conclusion that litigation was probable or imminent, the Board violated section\n2(c)(11) of OMA by failing to record and enter into the closed session minutes an adequate\nexplanation of that basis.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments of the\nparties, the Public Access Counselor's review, and the applicable law, the Attorney General finds\nthat:\n1) During a regular meeting on January 21, 2013, the Board entered closed\nsession to discuss threatened litigation by ILEBP against the Board to recoup ILEBP's payments\nfor claims submitted by New Lenox Library District employees. The Board closed the meeting\nMs. Sheree Kozel-La Ha\nMs. Kate Hall\nMay 28, 2013\nPage 6\nunder section 2(c)(1 1) of OMA, which permits a public body to discuss in closed session\n\"(Iitigation, * * * when the public body finds that an action [against, affecting or on behalf of\nthe particular public body} is probable or imminent, in which case the basis for the finding shall\nbe recorded and entered into the minutes of the closed meeting.”\n2) On February 27, 2013, the Public Access Bureau received Ms. Kozel-La Ha's\nRequest for Review alleging that the Board violated OMA by entering closed session when\nlitigation was not pending or imminent. Ms. Kozel-La Ha's Request for Review was timely filed\nand otherwise complies with the requirements of section 3.5(a) of OMA. The Public Access\nCounselor extended the time to issue a binding opinion by 21 business days. Therefore, the\nAttorney General may properly issue a binding opinion with respect to Ms. Kozel-La Ha's\nRequest for Review.\n3) On March 18, 2013, the Board responded to Ms. Kozel-La Ha's Request for\nReview, asserting that it believed litigation was probable or imminent based on a letter from Ms.\nKozel-La Ha and two letters from ILEBP's attorney threatening litigation.\n4) Based on the Board's receipt of letters from ILEBP's attorney declaring that\nILEBP would bring suit if the Board did not promptly submit the requested payment, the Board's\ndetermination that litigation was probable or imminent was reasonable. Therefore, the decision\nto close a portion of the January 21, 2013, meeting pursuant to 2(c)(11) was proper.\n5) During the closed session, the Board discussed strategies, postures, theories,\nand consequences of the threatened litigation. Those topics were properly discussed in closed\nsession under section 2(c)(i1} of OMA.\n6) Although the Board had a reasonable basis for finding that a lawsuit was\nprobable or imminent and, thus, for closing a portion of the meeting to discuss the threatened\nlitigation, the Board violated section 2(c)(11) of OMA by failing to record and enter an adequate\nexplanation of the basis for that finding into the closed session minutes of the January 21, 2013,\nmeeting.\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to conduct its future meetings in full compliance with OMA. In particular, when closing\na portion of a meeting to discuss probable or imminent litigation, the Board is directed to record\nand enter into the closed session minutes an explanation of the reasons for finding that litigation\nis probable or imminent, as specifically required by section 2(c)(11) of OMA. With respect to\nthe January 21, 2013, closed session, the Board is directed to amend its closed session minutes to\ninclude an adequate explanation of its reasons for such closure. As required by section 3.5(e) of\nOMA, the Board shall either take necessary action as soon as practical to comply with the\nMs. Sheree Kozel-La Ha\nMs. Kate Hall\nMay 28, 2013\nPage 7\ndirectives of this opinion or shall initiate administrative review under section 7.5 of OMA (5\nILCS 120/7.5 (West 2010).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Ms.\nSheree Kozel-La Ha as defendants. See 5 ILCS 120/7.5 (West 2010).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nBy: Ceteomene arta\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The New Lenox Public Library District Board held a closed meeting to discuss potential legal issues. While the Attorney General agreed that the topic was appropriate for a closed session, the Board broke the law by failing to write down the specific reasons for closing the meeting in their official minutes. The Board has been ordered to update their meeting minutes to include these required details.","card_headline":"Closed-session discussion of litigation without recording basis","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":23,"orig_master_id":19226,"dup_master_id":18996,"dup_sha256":"0b9921c01d24abd7833c0dc0d11286ccb3e07d98afa77a12b0ba00647336daa9","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2013,"date_issued":"2013-05-21","case_number":"2013 PAC 23488","request_numbers":null,"title":"Taking Final Action at Closed Session Prohibited; Duty to Record Closed Meetings; Summary of Discussion Required in Minutes","filename":"PUBLIC ACCESS OPINION 13-007 (Request for Review - 2013 PAC 23488).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 13-007 (Request for Review - 2013 PAC 23488).pdf","word_count":4398,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a violation of the Open Meetings Act by the Springfield Public School District No. 186 Board of Education for taking final action in a closed session.","plain_summary":"The requester, a journalist, challenged a school district for having most of its board members sign a superintendent's separation agreement during a closed session before later ratifying it with a vote in open session. The Public Access Counselor held that while discussing the superintendent's employment in closed session was proper, signing the agreement behind closed doors was itself an improper final action, and that the subsequent open-session vote did not cure the violation because the board never informed the public of the agreement's actual terms, including a substantial lump-sum payment, before voting; the board also violated separate requirements to record its closed sessions and summarize their content in the minutes. The school district was directed to release a summary of the closed-session discussion, properly record and summarize future closed sessions, and bring its meetings into compliance.","holding":"The Springfield Public School District No. 186 Board of Education violated section 2(e) of the Open Meetings Act by taking final action on an employment separation agreement in closed session.","legal_question":"Did the Springfield Public School District No. 186 Board violate the Open Meetings Act by taking final action in a closed session?","disposition":"violation_found","primary_statute":["5 ILCS 120/2(e)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)"],"public_body":"Springfield Public School District No. 186 Board of Education","requesting_party":"Ms. Molly Beck, The State Journal-Register","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board took final action on an employment separation agreement for the former Superintendent during a closed session.","ocr_status":"ok","ocr_quality":90.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2013-Binding-PAC-Opinions/13-007.pdf","sha256":"07bffbdf600ba965e96cce839208c04d44e009fb114495f44806e0a237c55b75","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","final action","school board","Open Meetings Act","employment agreement"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nMay 21, 2013\nPUBLIC ACCESS OPINION 13-007\n(Request for Review 2013 PAC 23488)\nOPEN MEETINGS ACT:\nTaking Final Action at Closed Session Prohibited;\nDuty to Record Closed Meetings; Summary of\nDiscussion Required in Minutes\nMs. Molly Beck, Education Reporter\nThe State Journal-Register\n[street address redacted for site publication -- see original PDF]\nMr. Chuck Flamini\nPresident, Board of Education\nSpringfield Public School District No. 186\n1900 West Monroe Street\nSpringfield, Illinois 62704\nDear Ms. Beck and Mr. Flamini:\nThis is a binding opinion issued by the Attorney General pursuant to section\n3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2010). For the reasons\ndiscussed below, this office concludes that the Springfield Public School District No. 186 Board\nof Education (Board) violated section 2(e) of OMA (5 ILCS 120/2(e) (West 2011 Supp.), as\namended by Public Acts 97-813, effective July 13, 2012; 97-876, effective August 1, 2012) by\ntaking final action on an employment separation agreement in closed session.\nBACKGROUND\nOn February 21, 2013, Ms. Molly Beck submitted, on behalf of The State\nJournal-Register, a Request for Review alleging that the Board violated OMA on January 31,\n2013, when six of its seven members signed a separation agreement with the school district's\n500 South Second Street, Springfield, [Winols 62706 * (217) 782-1000 * “TTY: (877) 844-5461 * Fax; (2173 782-7046\n100 West Randolph Streez, Chicago, Ulinois 60601 * (312) 814-3000 © ‘TTY: (800) 964-3013 + Fax: (312) 814-3806\n1001 East Main, Catbondale, Hinois 62901 « (618) 529-6400 © ‘TTY: (877) 675-9339 * Fax: (618) 529-6416 ‘iD\nMs. Molly Beck\nMr. Chuck Flamini\nMay 21, 2013\nPage 2\nformer Superintendent, Dr. Walter Milton, Jr., which the Board had not publicly voted to\napprove.’ Ms. Beck provided this office with a copy of the sixteen page Separation Agreement\nand Release and three exhibits that Dr. Milton signed and dated January 31, 2013; the Board\nmembers signed the agreement but did not date their signatures.”\nOn February 28, 2013, the Public Access Bureau forwarded a copy of the Request\nfor Review to the Board and asked it to:\n[P]rovide a written response which describes the circumstances\nunder which Board members signed the separation\nagreement. Please clarify whether Board members held any\ndiscussions and/or votes concerning the agreement, and identify\nthe date and location of those discussions and the number of Board\nmembers who participated. If any such discussions occurred\nduring a Board meeting, please provide copies of the agenda and\nthe meeting minutes; if any such discussions occurred during a\nclosed session of the Board, please provide copies of the verbatim\nclosed session recording and closed session minutes.’\nOn March 22, 2013, through its attorney, the Board responded that it had\ndiscussed Dr. Milton's employment and possible separation from the District pursuant to section\n2(c)(1) of OMA (5 ILCS 120/2{cX1) (West 2011 Supp.), as amended by Public Acts 97-813,\neffective July 13, 2012; 97-876, effective August 1, 2012) during closed meetings held on\nNovember 5, 2012, November 19, 2012, December 3, 2012, December 12, 2012, December 17,\n2012, January 7, 2013, January 22, 2013, February 4, 2013, February 18, 2013, and February 25,\n2013.4 The Board did not provide copies of the closed session minutes as requested. The Board\ndid, however, provide copies of relevant portions of several recordings of the closed sessions, but\nstated that its attempts to record the relevant portions of the January 7, 2013, January 22, 2013,\nand February 4, 2013, closed meetings failed, except for a 40-second segment of the February 4,\n‘E-mail from Molly Beck, Education Reporter, The State Journal-Register, to Public Access\nBureau, Office of the Attorney General (February 21, 2013).\n*Separation Agreement and Release between Dr. Walter J. Milton, Superintendent, and Board of\nEducation, Springfield School District No. 186 January 31, 2013).\n‘Letter from Steve Silverman, Assistant Attorney General, Public Access Bureau, to Susan White,\nPresident, Board of Education, Springfield School District No. 186 (February 28, 2013).\n“Letter from Ms. Lorilea Buerkett, Brown, Hay & Stephens, LLP to Steve Silverman, Assistant\nAttorney General, Public Access Bureau (March 22, 2013).\nMs. Molly Beck\nMr. Chuck Flamini\nMay 21, 2013\nPage 3\n2013, meeting. The Board's response stated that during that February 4, 2013, closed meeting\n(not January 31, 2013, as originally alleged), six of the seven Board members signed the\nagreement that Dr. Milton had signed on January 31, 2013. The Baard’s response also asserted\nthat the agreement was “purposefully not dated by the Board on that evening because no public\nvote had been taken.”* Instead, the Board dated the agreement after a roll call vote to approve it\nat the Board's March 5, 2013, open meeting.® The agenda for the March 5, 2013, Board meeting\nincluded an item entitled \"Approval of a Resolution regarding the Separation Agreement and\nRelease Between Superintendent Dr. Walter Milton, Jr. and the Board of Education.””\nThis office has reviewed a video recording of the March 5, 2013, regular meeting\nwhich is referenced in the Board's response and is posted on the School District's website. The\nrecording shows a Board member making a motion to approve Dr. Milton's separation\nagreement, which was described as: “Item 9.1, approval of a resolution regarding the separation\nagreement. The Board President recommends that the Board of Education of Springfield School\nDist No. 186 vote to approve the separation agreement and release between Dr. Walter Milton Jr.\nand the Board of Education.\"® The motion, which was seconded, provided no details of the\nseparation agreement. Another Board member then made a motion to table that agreement and\nexpressed support for the Superintendent, adding that both she and members of the public were\nunaware of the reasons for the separation agreement. \"I don’t know why this is happening. * * *\nI speak up for myself and I've heard and had people have discussion with me about why they're\ndoing this and I can’t give them a good reason.”” The motion to table the agreement was not\nseconded. Another Board member thanked the Superintendent for his service to the District, and\ncalled for a vote on the motion to approve the separation agreement. The motion was approved\nby a 6-1 vote.' Prior to the vote, the Board did not publicly discuss the terms of the agreement,\n‘Letter from Ms, Lorilea Buerkett, Brown, Hay & Stephens, LLP to Steve Silverman, Assistant\nAttorney General, Public Access Bureau (March 22, 2013).\n“Letter from Ms. Lorilea Buerkett, Brown, Hay & Stephens, LLP to Steve Silverman, Assistant\nAttorney General, Public Access Bureau (March 22, 2013).\n\"Springfield Public Schoo! District No. 186 Board of Education, Agenda Item 9.1, Regular Board\nMeeting (March 5, 2013).\n®Springfield Public School District No. 186 Board of Education, Meeting, March 5, 2013,\navailable at http1: 8/6.o/rg/wchannwel22/?pw=5608. |s £1=p329 1s99, last visited May 21, 2013.\n° Springfield Public School District No. 186 Board of Education, Meeting, March 5, 2013,\navailable at http://www.sps186.org/channel22|/ &Tip=3=259 610998, last visited May 21, 2013.\nMs. Molly Beck\nMr. Chuck Flamini\nMay 21, 2013\nPage 4\nwhich included a $177,796.97 limp sum payment to Dr. Milton,’* or the reasons that led to the\nparties’ agreement to terminate Dr. Milton's employment.\nThe Board’s response to the allegations in the Request for Review asserts that a\nconfidentiality provision in the separation agreement prohibited either party from publicly\ndiscussing the agreement, and that counsel for the Board advised it not to do so: “In response to\nquestions from Board members about what they could say to the public, Cross (Board Counsel]\ncan be heard advising that even though the Agreement ‘will be voted on in public’ Board\nmembers were bound by the Agreement not to discuss its terms.\"'' The Board's response further\nstates that there \"is a definite distinction between the Board members individually discussing the\nAgreement's terms and the Board voting on it in public. The Agreement prohibits the first; the\nBoard always understood and complied with the requirement of the second.\" 2\nOn March 25, 2013, this office forwarded a copy of the Board's Response to Ms.\nBeck, with confidential information redacted pursuant to section 3.5(c) of OMA (5 ILCS\n120/3.5(c) (West 2010));'? she did not reply.\nOn April 16, 2013, this office properly extended the time to issue a binding\nopinion by 2] business days pursuant to section 3.5(e) of oma,\"\nOn April 25, 2013, this office again requested from the Board copies of the\nminutes of the closed sessions in which the separation agreement was discussed.'* On April 30,\n2013, the Board, through its attorney, provided minutes of the January 7, 2013, January 22, 2013,\nSeparation Agreement and Release between Dr. Walter J. Milton, Superintendent, and Board of\nEducation, Springfield School District No. 186, par. 3 (January 31, 2013).\n\"1 etter from Ms. Lorilea Buerkett, Brown, Hay & Stephens, LLP to Steve Silverman, Assistant\nAttorney General, Public Access Bureau (March 22, 2013).\n\"Letter from Ms, Lorilea Buerkett, Brown, Hay & Stephens, LLP 10 Steve Silverman, Assistant\nAttorney General, Public Access Bureau (March 22, 2013).\n‘|e tter from Steve Silverman, Assistant Attorney General, Public Access Bureau, to Molly Beck,\nEducation Reporter, The State Journal-Register (March 25, 2013).\n“1 etter from Steve Silverman, Assistant Attomey General, Public Access Bureau, to Lorilea\nBuerkett, Brown, Hay & Stephens, LLP, and Susan White, President, Board of Education, Springfield School\nDistrict No. 186 , The State Journal-Register (April 16, 2013).\n'SE-mail from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the\nAttorney General to Lorilea Buerkett {April 25, 2013),\nMs. Molly Beck\nMr. Chuck Flamini\nMay 21, 2013\nPage 5\nand February 4, 2013, meetings;'® the Board provided the remaining minutes on May 8, 2013,\ntogether with a supplemental response to the Public Access Counselor's inquiry.” On May 8,\n2013, this office forwarded Ms. Beck a copy of that supplemental response with confidential\ninformation redacted pursuant to section 3.5(c) of OMA'®; she did not reply.\nANALYSIS\nSection 2 of OMA (5 ILCS 120/2 (West 2011 Supp.), as amended by Public Acts\n97-813, effective July 13, 2012; 97-876, effective August 1, 2012) provides that “[a]il meetings\nof public bodies shall be open to the public unless excepted in subsection (c) and closed in\naccordance with Section 2a.\" Section 2(c)(1) of OMA permits a public body to hold a closed\nmeeting to discuss the \"appointment, employment, compensation, discipline, performance, or\ndismissal of specific employees of the public body or legal counsel for the public body[.]”\nThis office has reviewed copies of the available closed session recordings and a\nconfidential affidavit that describes the discussion at the Board's February 4, 2013, closed\nsession. To the extent that the Board's discussions directly concerned Dr. Milton's employment\nand compensation,\" those discussions were properly closed to the public pursuant to section\n2(c)(1) of FOIA. The remaining issues are whether the Board improperly took final action by\nsigning the agreement during its February 4, 2013, closed session, and, if not, whether the Board\nadequately informed the public of the nature of the matter under consideration before recording a\nvote to approve the agreement during its March 5, 2013, meeting.\nCiting Grissom v. Board of Ed. of Buckley-Loda Community School Dist. No. 8,\n75 Ill. 2d 314 (1979), and Jewell v. Board of Ed, DuQuoin Community Unit Schools, Dist. No.\n300, 19 Ill. App. 3d 1091 (Sth Dist. 1974), the Board asserts that OMA permits a public body to\ndeliberate and sign a decision in closed session provided that the public body votes to approve\nthe decision in open session.\nLetter from Lorilea Buerkett, Brown, Hay & Stephens, LLP, to Steve Silverman, Assistant\nAttorney General, Public Access Bureau (April 30, 2013).\n\"Letter from Lorilea Buerkett, Brown, Hay & Stephens, LLP, to Steve Silverman, Assistant\nAttorney General, Public Access Bureau (May 8, 2013).\n51e tter from Steve Silverman, Assistant Attomey General, Public Access Bureau, to Molly Beck,\nEducation Reporter, The State journai-Register (May 8, 2013).\nThe Board also discussed topics related to the appointment of an interim superintendent during\nthose closed sessions. Those discussions are the subject of a pending Request for Review, 2013 PAC 23604.\nMs. Molly Beck\nMr. Chuck Flamini\nMay 21, 2013\nPage 6\nIn Jewell, the court considered whether a school board violated section 2 of OMA\nby holding a closed meeting in which board members were polled and unanimously agreed to\ndismiss a teacher, and then prepared a motion to do so. Jewell, 19 IIL App. 3d at 1092. That\nmotion was read in open session and approved by a roll call vote. Jewell, 19 Il. App. 3d at\n1092. The court held that the Board did not violate the statute by taking the first vote in closed\nsession, emphasizing that \"the crucial fact is that the final vote was taken at an open session.”\nJewell, 19 Ill. App. 3d at 1095,\nSimilarly, in Grissom the court cited Jewell in holding that a school board did not\nviolate OMA by compiling and signing its findings concerning a dismissal in closed session\nbecause the school board reconvened in open session where each board member publicly\nidentified his vote on the dismissal by acknowledging his signature on the findings. Grissom, 75\nIll. 2d at 327. Both of these decisions, however, interpreted an earlier, different version of\nsection 2 of OMA (iL. Rev. Stat. 1971, ch. 102, par. 42; IH. Rev. Stat. 1973, ch. 102, par. 42),\nwhich at the time stated:\nThis Section does not prevent any body covered by this Act\nfrom holding closed sessions to consider information regarding\nappointment, employment or dismissal of an employee or officer\nor to hear testimony on a complaint lodged against an employee or\nofficer to determine its validity, but no final action may be taken at\na closed session.\nIn 1989, however, the General Assembly amended section 2 of OMA (see Public\nAct 85-1355, effective January 1, 1989) to require that \"[a]ll final action taken at an open session\nshall be preceded by a public recital of the nature of the matter being considered and such other\ninformation as would inform the public of the business being conducted.\" According to its\nsponsor, the amendment \"provides a re-definition of the word ‘final action.’ * * * This clarifies\nit.\" Remarks by Senator Philip, June 22, 1988, Third Reading of House Bill 2004 (which as\nPublic Act 85-1355, effective January 1, 1989, enacted the provision in question), at 201.\nSection 2(e) in the current version of OMA is substantively identical to the 1989 version: \"No\nfinal action may be taken at a closed meeting. Final action shall be preceded by a public recital\nof the nature of the matter being considered and other information that will inform the public of\nthe business being conducted.“\nThus, after the Jewell and Grissom decisions upon which the Board relies, the\nGeneral Assembly amended OMA to expressly require public bodies to inform the public of the\nnature of matters under consideration and the business being conducted before taking final\naction. This requirement effectively prohibits a public body from taking final action in a closed\nsession and then ratifying it in an open session, which is essentially what took place here.\nMs. Molly Beck\nMr. Chuck Flamini\nMay 21, 2013\nPage 7\nSix of the seven Board members present signed the separation agreement at the\nFebruary 4, 2013, closed session — one of the Board members refused to sign. This was not a\n\"straw vote\" taken merely to gain a sense of the support or opposition to a proposed action.” To\nthe contrary, the Board's approval of the agreement was completed during the closed session as\nwitnessed by the signatures of the several Board members. The Board's subsequent vote to\napprove that agreement during the open session of its March 5, 2013, meeting merely reiterated\nthe decision that already had been finalized in written form and signed by both parties.\nMoreover, at the March 5, 2013, meeting, the Board described the nature of the\nmatter under consideration only in vague, general terms by calling for a vote on a motion to\napprove the separation agreement with Dr. Milton. The public was given no specific information\nconcerning the separation agreement or its terms. In particular, the public was not informed that\nthe separation agreement included a substantial lump sum payment of public funds.\nThe Board appears to contend that the confidentiality provision in the separation\nagreement with Dr. Milton precluded it from publicly discussing or describing the agreement.\nThe Separation Agreement and Release's confidentiality provision, however, restricts the\ndisclosure of information \"except * * * as required by applicable law{.]?! Section 1.2 of\nFOIA (5 ILCS 140/1.2 (West 2010)), states that \"[a]ll records in the custody or possession of a\npublic body are presumed to be open to inspection or copying.” Under section 1.2, the school\ndistrict generally was required to make the separation agreement available to the public (see IH.\nAtt'y Gen. Pub. Acc. Op. No. 12-006, issued March 16, 2012.), and did, in fact, provide a copy to\nMs. Beck. In addition, section 2.5 of FOIA (5 ILCS 140/2.5 (West 2010)) provides that \"[a]ll\nrecords relating to the obligation, receipt, and use of public funds of the State, units of local\ngovernment, and school districts are public records subject to inspection and copying by the\npublic. Consequently, the separation agreement did not preclude the Board's discussing or\ndescribing the agreement prior to a vote in open session.\nSee lll. Atty Gen. Pub. Acc. Op. No. 13-006, issued May 13, 2013, for a discussion on the\npropriety of secret ballets and \"straw votes\" by public bodies and IIL. Att'y Gen. Pub. Acc. Op. No. 13-003, issued\nApril 23, 2013, regarding the prohibition on taking final action at a closed session.\n?!See Settlement Agreement and Release between Dr, Walter J. Milton, Superintendent, and Board\nof Education, Springfield School District No. 186, par. 14 Ganuary 31, 2013).\nMs. Molly Beck\nMr. Chuck Flamini\nMay 21, 2013\nPage 8\nAccordingly, this office concludes that the Board violated section 2(e) of OMA\nby taking final action on the separation agreement in closed session on February 4, 2013. Even\nassuming, arguendo, that the Board could cure its violation by voting to approve the agreement\nduring the March 5, 2013, open session, that action was not valid because the Board failed to\nadequately inform the public of the nature of the matter under consideration prior to its vote.\nWe further conclude that the Board violated section 2.06(a) of OMA (5S ILCS\n120/2.06(a) (West 2010)) by failing to create and maintain a verbatim recording of its January 7,\n2013, January 22, 2013, and February 4, 2013, closed session. Section 2.06(a) provides that\n\"Ta]ll public bodies shall keep * * * a verbatim record of all their closed meetings in the form of\nan audio or video recording[.]\" Additionally, the Board's minutes ofi ts January 7, 2013, January\n22, 2013, February 4, 2013, February 18, 2013, and February 25, 2013, closed sessions’’ during\nwhich the Board discussed the separation agreement do not comply with the requirements of\nsection 2.06(e)(3) of OMA (5 ILCS 120/2.06(e)(3) (West 2010)), which requires that all written\nmeeting minutes include a \"summary of discussion on all matters proposed, deliberated, or\ndecided, and a record of any votes taken.”* 3 These minutes merely state Dr. Milton's name or\nvaguely reference.a personnel matter rather than summarizing any discussion concerning his\nemployment and the separation agreement. Consequently, there appears to be no recording or\ndocumentation detailing the actions by the Board in approving the separation agreement on\nFebruary 4, 2013.\n22The Board also discussed the separation agreement during its November 5, 2012, November 19,\n2012, December 3, 2012, December 12, 2012, and December (7, 2012, closed sessions. Because thase meetings\noccurred more than 60 days before Ms. Beck filed this Request for Review, this office makes no determination as to\nwhether the closed session minutes of those meetings complied with section 2.06(e)(3) of OMA. See 5 ILCS\n120/3.5(a) (West 2010)} (\"A person who believes that a violation of this Act by a public body has occurred may file\na request for review with the Public Access Counselor established in the Office of the Attorney General not later\nthan 60 days after the alleged violation.\").\n*Springfield Public School District!86 Board of Education, Minutes of January 7, 2013 Executive\nSession Meeting (undated), Springfield Public Schoo! District]86 Board of Education, Minutes of January 22, 2013\nExecutive Session Meeting (undated); Springfield Public School District]86 Board of Education, Minutes of\nFebruary 4, 2013 Executive Session Meeting (undated); Springfield Public School District 186 Board of Education,\nMinutes of February 18, 2013 Executive Session Meeting (undated); Springfield Public Schoo! District 186 Board of\nEducation, Minutes of February 25, 2013 Executive Session Meeting (undated).\nMs. Molly Beck\nMr. Chuck Flamini\nMay 21, 2013\nPage 9\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments of the\nparties, the Public Access Counselor's review, and the applicable law, the Attorney General finds\nthat:\n1) On November 5, 2012, the Springfield Public School District No. 186 Board\nof Education held a closed session under section 2(c\\(1) of OMA to discuss the possibility of\nentering into an employment separation agreement with Superintendent Dr. Walter Milton, Jr.\nThe Board also discussed the agreement during meetings closed pursuant to section 2(c)(1) on\nNovember 19, 2012, December 3, 2012, December 12, 2012, December 17, 2012, January 7,\n2013, January 22, 2013, February 4, 2013, February 18, 2013, and February 25, 2013.\n2) On January 31, 2013, Dr. Milton signed a negotiated separation agreement; six\nof the seven Board members subsequently signed the agreement during a closed session on\nFebruary 4, 2013.\n3) On February 21, 2013, Ms. Molly Beck submitted a Request for Review to the\nPublic Access Counselor alleging that the Board violated OMA by signing the separation\nagreement without publicly voting to approve it. Ms. Beck's Request for Review was timely\nfiled and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 126/3.5(a)\n(West 2010)). The Public Access Counselor extended the time to issue a binding opinion by 21\nbusiness days. Therefore, the Attorney General may properly issue a binding opinion with\nrespect to Ms. Beck's Request for Review.\n4) On February 28, 2013, the Public Access Bureau forwarded a copy of the\nRequest for Review to the Board and asked it to respond to Ms. Beck's allegation and also to\nprovide copies of the agenda and meeting minutes of any meeting in which the Board discussed\nthe separation agreement; the Public Access Bureau also requested copies of the verbatim closed\nsession recordings and minutes of any closed session discussion of the separation agreement.\n5) The Board voted to approve the separation agreement during the open\nsession portion of its March 5, 2013, meeting. The Board did not inform the public of the\nreasons for the separation agreement or its terms before voting.\n6) On March 22, 2013, the Board responded to the Public Access Bureau's\ninquiry and provided several verbatim recordings ofp ortions of closed sessions in which the\nMs. Molly Beck\nMr. Chuck Flamini\nMay 21, 2013\nPage 10\nBoard discussed the separation agreement. However, the Board's response stated that its\nattempts to record its closed sessions on January 7, 2013, January 22, 2013, and February 4,\n2013, failed, except for a 40-second segment of the February 4, 2013, meeting.\n7) On April 30, 2013, and May 8, 2013, the Board provided the Public Access\nBureau with copies of the minutes of the closed sessions in which the Board discussed the\nseparation agreement.\n8) The Attorney General finds that the Board did not violate OMA by discussing\nDr. Milton's employment and the proposed separation agreement in meetings closed to the public\npursuant to section 2(c}(1} of OMA. The signing of the separation agreement by six of the\nBoard's seven members during the February 4, 2013, closed session, however, did constitute the\ntaking of final action in violation of section 2(e) of OMA.\n9) Assuming, arguendo, that the Board could have effectively ratified its\nimproper final action by voting on the separation agreement at a properly noticed open meeting,\nthe Board would nonetheless have violated section 2(e) of OMA by voting to approve the\nseparation agreement at its March 5, 2013, meeting, because it failed to adequately inform the\npublic of the nature of the matter under consideration or the business being conducted.\n10) By failing to create and maintain verbatim recordings of the January 7, 2013,\nJanuary 22, 2013, February 4, 2013, closed sessions, the Board violated section 2.06(a) of OMA.\n11) By failing to summarize the discussions concerning the separation\nagreement in the minutes of its January 7, 2013, January 22, 2013, February 4, 2013, February\n18, 2013, and February 25, 2013, closed meetings, the Board violated section 2.06(e)(3) of\nOMA.\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to: 1) compile and release to Ms. Beck and make available for inspection and copying a\nsummary of the discussion during the February 4, 2013, closed session at which the Board\nimproperly took final action by signing the separation agreement; 2) ensure that all future closed\nsession discussions are properly recorded and that the minutes of closed sessions contain\nappropriate summaries of those discussions; and 3) conduct its future meetings in full\ncompliance with OMA. As required by section 3.5(e) of OMA, the Board shall either take\nnecessary action as soon as practical to comply with the directives of this opinion or shall initiate\nadministrative review under section 7.5 of OMA (5 ILCS 120/7.5 (West 2010).\nThis opinion shall be considered a final decision of an administrative agency for\nMs. Molly Beck\nMr. Chuck Flamini\nMay 21, 2013\nPage 11\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\nef seq. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of jlinois and Ms.\nMolly Beck as defendants. See § ILCS 120/7.5 (West 2010}.\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nBy:\nMichael J. Luke\nCounsel to the Attorney General\n23488 rf o vio sd\nce: Ms. Lorilea Buerkett\nBrown, Hay & Stephens, LLP\n205 South Fifth Street\nSuite 700\nP.O. Box 2459\nSpringfield, Hlinois 62705","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Springfield School Board discussed a separation agreement with their former Superintendent in closed sessions and, during a closed session on February 4, 2013, six Board members signed the agreement (the Superintendent had already signed it on January 31, 2013). The Attorney General concluded that this signing constituted final action taken in closed session, which violated section 2(e) of the Open Meetings Act because all final actions must be taken in public. The opinion does not include any order for future compliance or changes to meeting minutes.","card_headline":"A school board's final action on a separation agreement in closed session","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":24,"orig_master_id":18997,"dup_master_id":19224,"dup_sha256":"1ef64a996134e0225e8407286b3ba7e54987068f4ddfaef847f971e66e96ad3f","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2013,"date_issued":"2013-06-04","case_number":"2013 PAC 23495","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 13-009 (Request for Review - 2013 PAC 23495).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 13-009 (Request for Review - 2013 PAC 23495).pdf","word_count":2319,"summary":"The Attorney General issued a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) The opinion concludes that Chicago State University (CSU) violated sections 3(d) and 9(a) of FOIA by failing to comply with, to deny, or to otherwise appropriately respond to a FOIA request submitted by Mr. Casey Toner within five business days following its receipt .","plain_summary":"The requester, a journalist, sought several years of travel and credit-card expense records for a public university's board members and president, later amending the request to broaden its scope, and the university never responded to either version despite repeated follow-up inquiries from the Public Access Counselor. The Public Access Counselor held that the university's silence on the amended request constituted a denial under FOIA, since the requester had explicitly superseded his original request with the amended one. The university was directed to produce all records responsive to the amended request, subject only to permissible redactions, and to respond properly to future requests.","holding":"Chicago State University violated FOIA by failing to timely respond to, deny, or otherwise address a request for travel-related records.","legal_question":"Whether a public body violates FOIA by failing to respond to a request for public records within the five-business-day period mandated by section 3(d).","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago State University","requesting_party":"Toner and Mr. Cage","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"duty to respond","subject_description":"The request sought travel-related bills, receipts, and invoices submitted by university board members and the college president.","ocr_status":"ok","ocr_quality":89.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2013-Binding-PAC-Opinions/13-009.pdf","sha256":"7be417ecb26ecb8950b14c945b52abff33150315572297c52d2ca138431ebad0","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA deadline","travel expenses","copying fees"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL June 4, 2013 PUBLIC ACCESS OPINION 13-009 (Request for Review 2013 PAC 23495) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Casey Toner Staff Writer, SouthtownStar ctoner@southtownstar.com Mr. Patrick B. Cage General Counsel Office of Labor & Legal Affairs Chicago State University 9501 South King Drive/ ADM 318 Chicago, Illinois 60628 Dear Mr. Toner and Mr. Cage: : This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2011 Supp.)). For the reasons that follow, this office concludes that Chicago State University (CSU) violated sections 3(d) and 9(a) of FOIA (5 ILCS 140/3(d), 9(a) (West 2010)) by failing to comply with, to deny, or to otherwise appropriately respond to a FOIA request submitted by Mr. Casey Toner within five business days following its receipt. BACKGROUND On January 21, 2013, Mr. Toner submitted a FOIA request to CSU seeking: [A] copy of all bills, receipts, and invoices, and other documents submitted by all Chicago State University board members and college president Wayne Watson related to travel for the years 2010, 2011, and 2012. All of the bills, receipts, and invoices, and 500 South Second Street, Springfield, Hlinois 62706 * (217) 782-1090 * “TTY: (877) 844-54H1 © Fax: (217) 782-7046 100 West Randolph Steet, Chicago, Hineis 60601 © (312) 814-3000 # TTY: (B00) 964-3015 Fax: (312) 814-3806 1001 Ease Main, Carbondale, Hingis 62901 © 1618) 529-0400 © ‘TTY: (877) 675-9339 + | 18} 329-6416 pe Mr. Casey Toner Mr. Patrick B. Cage June 4, 2013 Page 2 other documents should contain notations showing who incurred each expense. This information should also include year end totals for each of the board members and Wayne Watson related to travel for the years 2010, 2011 and 2012. * * * [A] copy of all complete monthly statements for all credit cards used by any Chicago State University board members and president Wayne Watson for the years 2010, 2011, and 2012. These statements should show all purchases, dates, and should be notated to show who incurred the expenses.’ This e-mail contained the language \"Please confirm upon receipt\" at the top. On January 23, 2013, Mr. Toner sent a follow up e-mail asking \"Did you get it?” Later that day, Ms. Veronica Scates, on behalf of CSU, replied \"Yes, received. Apologize for the slow confirmation.” Mr. Toner did not receive any further communications from CSU. On January 30, 2013, Mr. Toner sent an e-mail to CSU stating \"I've amended my prior FOIA request to alter its scope.\"? The amended request sought: [Copies of all bills, receipts, invoices, expense reports, and similarly titled reimbursement-related documents, submitted by all Chicago State University board members and college presidents for the years 2010, 2011, and 2012. All of the aforementioned documents, written or electronic, should contain notations showing who incurred each expense. Please include year end totals for each of the board members and college presidents related to travel for the years 2010, 2011 and 2012. * * * [A] copy of all complete monthly statements for all school-issued or reimbursable credit cards used by any Chicago State University board members and college presidents for the years 2010, 2011, and 2012. These statements should show all purchases, dates, and an explanation of the items purchased, and notations to show who incurred the expenses.’ 'E-mail from Casey Toner to Patrick Cage (January 21, 2013). ?E-mail from Veronica Scates to Casey Toner (January 23, 2013). 3E-mail from Casey Toner to Patrick Cage and Veronica Scates (January 30, 2013). ‘E-mail from Casey Toner to Patrick Cage and Veronica Scates (January 30, 2013). Mr. Casey Toner Mr. Patrick B. Cage June 4, 2013 Page 3 On February 21, 2013, Mr. Toner submitted a Request for Review to the Public Access Bureau pursuant to section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2011 Supp.)). Mr. Toner alleged that CSU had failed to produce the requested records or otherwise respond to either of his FOIA requests. On, March 1, 2013, the Public Access Bureau forwarded a copy of Mr. Toner's Request for Review to CSU and asked it to provide a “written explanation of its receipt and handling of Mr. Toner's January 30, 2013, FOIA request.\"* CSU did not respond to the Public Access Bureau's inquiry. On March 25, 2013, the Public Access Bureau sent a second letter via e-mail to Mr. Patrick Cage, CSU's General Counsel and FOIA officer, again requesting an explanation of CSU's handling of Mr. Toner's revised FOIA request. ; As of the date of this binding opinion, CSU has neither responded to Mr. Toner's original or revised FOIA request nor to the Public Access Bureau's requests for a written explanation of how CSU handled his FOIA requests. On April 22, 2013, the Public Access Counselor extended the time for issuing a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA? ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA}.“ 5 ILCS 140/1 (West 2010). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2010)), \"[ajll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2010)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as. otherwise provided in Section 7 of this Act.” The statutory procedures for responding to a FOIA request are set out clearly in the Act. Section 3(d) of FOIA (5 ILCS 140/3(d) (West 2010)) provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly %E-mail from Casey Toner to Sarah Pratt (February 21, 2013). ‘Letter from Tola Sobitan, Assistant Attorney General, Public Access Bureau, to Patrick Cage, General Counsel and Freedom of Information Officer, Chicago State University (March 1, 2013). \"Letter from Tola Sobitan, Assistant Attorney General, Public Access Bureau, to Patrick Cage, General Counsel and Freedom of Information Officer, Chicago State University (March 25, 2013). ‘Letter from Tola Sobitan, Assistant Attomey General, Public Access Bureau, to Patrick Cage, General Counsel, Chicago State University, and Casey Toner, Staff Writer, SouthtownStar (April 22, 2013). Mr. Casey Toner Mr. Patrick B. Cage June 4, 2013 Page 4 extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). Although a public body may extend its time for response by up to an additional $ business days in certain limited circumstances, the public body must do so in writing and within the initial 5 business day timeline. See 5 ILCS 140/3(e) (West 2010). The facts are undisputed that CSU only acknowledged the receipt of Mr. Toner's January 21, 2013, FOIA request. Monday, January 21, 2013, was a campus holiday, Martin Luther King, Jr. Day, therefore, we presume that CSU received the FOIA request on Tuesday, January 22, 2013. Thus, CSU should have responded within five business days, which was Tuesday, January 29, 2013, which it failed to do. CSU did not respond in any manner to Mr. Toner's January 30, 2013, revised FOIA request. CSU did not provide the records that Mr. Toner requested, extend the time for response pursuant to section 3(e) of FOIA, or issue a written denial of the request within 5 business days after receipt of the request. CSU's failure to comply with the requisite procedures constitutes denials of Mr. Toner's FOIA requests. Further, section 9(a) of FOIA provides: Each public body denying a request for public records shall notify the requester in writing of the decision to deny the request, the reasons for the denial, including a detailed factual basis for the application of any exemption claimed, and the names and titles or positions of each person responsible for the denial. Each notice of denial by a public body shall also inform such person of the right to review by the Public Access Counselor and provide the address and phone number for the Public Access Counselor. Each notice of denial shall inform such person of his right to judicial review under Section 11 of this Act. Accordingly, by failing to respond to either Mr. Toner's January 21, 2013, FOIA request or his January 30, 2013, revised request, CSU violated sections 3(d) and 9{a) of FOIA. Mr. Casey Toner Mr. Patrick B. Cage June 4, 2013 Page 5 FINDINGS AND CONCLUSIONS After full examination, and giving due consideration to the arguments presented, the Public Access Counselor's review and the applicable law, the Attorney General finds that: 1) On January 21,2013, Mr. Toner submitted a FOIA request to CSU seeking certain financial records relating to CSU's Board members and CSU's President Wayne Watson for the years 2010 through 2012. 2) On January 23, 2013, CSU acknowledged receipt of Mr. Toner's FOIA request. 3) On January 30, 2013, Mr. Toner revised his FOIA request to include certain financial records for all of CSU's presidents and board members from 2010, 2011, and 2012. 4) CSU did not respond to either Mr. Toner's original or revised FOIA requests. 5) On February 21, 2013, Mr. Toner submitted a Request for Review of CSU's denial of his FOIA requests to the Public Access Counselor. Mr. Toner's Request for Review was timely filed and otherwise complies with section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2011 Supp.)). The Public Access Counselor extended the time to issue a binding opinion by 30 business days. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 6) On March 1, 2013, the Public Access Bureau determined that further action was warranted and sent a letter to CSU requesting an explanation of its receipt and handling of Mr. Toner's January 30, 2013, FOIA request. CSU did not respond to that inquiry or provide any explanation of its basis for failing to comply with the requirements of FOIA. 7) On March 25, 2013, the Public Access Bureau sent a second letter to CSU requesting an immediate response to its March 1, 2013, inquiry letter regarding Mr. Toner's FOIA request. The Public Access Bureau again did not receive any communication from CSU. 8) The failure of CSU to comply with Mr. Toner’s January 21, 2013, FOIA request, to extend the time for response pursuant to section 3(e) of FOIA, or to deny the request in whole or in part within 5 business days constituted a denial of the request under section 3(d) of FOIA. The denial of a request by failing to respond does not comply with the requirements of section 9(a) of FOIA. Because Mr. Toner sent a second FOIA request specifically stating that he was altering the scope of his first request, however, CSU need not respond to the January 21, 2013, request at this time. Mr. Casey Toner Mr. Patrick B. Cage June 4, 2013 Page 6 9) The failure of CSU to comply with Mr. Toner's January 30, 2013, FOIA request, to extend the time for response pursuant to section 3(e) of FOIA, or to deny the request in whole or in part within 5 business days constituted a denial of the request under section 3(d) of FOIA. The denial of a request by failing to respond does not comply with the requirements of section 9(a) of FOIA. Therefore, it is the opinion of the Attorney General that CSU has violated sections 3(d) and 9(a) of FOIA by improperly denying Mr. Toner's amended request for public records. Accordingly, CSU is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Toner with all records responsive toh is January 30, 2013, amended FOIA request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2011 Supp.), as amended by Public Acts 97-783, effective July 13, 2012; 97-813, effective July 13, 2012; 97-847, effective September 22, 2012; 97-1065, effective August 24, 2012; 97-1129, effective August 28, 2012).° If CSU determines that any portions of the responsive records are exempt from disclosure under section 7, CSU is directed to issue a written partial denial that fully complies with the requirements of section 9(a) of FOIA. Further, CSU is directed to issue timely responses to future FOIA requests by all persons in accordance with section 3(d) of FOIA. This opinion shall be considered a final decision of an administrative agency for | the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Casey Toner as defendants. See 5 ILCS 140/11.5 (West 2010). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: Cetcetewef foden— Michael J. Luke Counsel to the Attorney General *Because CSU did not comply with the statutory requirements for responding to Mr. Toner's FOLA request, CSU is precluded from treating the request as unduly burdensome or assessing copying fees for the records.","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested travel expense records from Chicago State University, but the university failed to respond to the request within the legal deadline. The Attorney General found that the university violated FOIA by failing to respond, and that this failure constituted a denial of the request under the statute. The opinion does not make any additional findings about fee waivers or other remedies.","card_headline":"Travel records of university board members and president","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":"August 28, 2012","year_pre_fix":"2013","site_dup_of":null},{"id":25,"orig_master_id":19227,"dup_master_id":18998,"dup_sha256":"dc7b44b5c3ea5a5f7ae4ee54a0194e9d49a0cd31fe294c379caccb5c53021d98","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2013,"date_issued":"2013-06-04","case_number":"2013 PAC 23604","request_numbers":null,"title":"Requirement to Publicly Recite Nature of Matter Being Considered and Other Information to Adequately Inform the Public of the Business Being Conducted Before Taking Final Action","filename":"PUBLIC ACCESS OPINION 13-010 (Request for Review - 2013 PAC 23604).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 13-010 (Request for Review - 2013 PAC 23604).pdf","word_count":3429,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding the compliance of the Springfield Public School District No. 186 Board of Education with the Open Meetings Act during a meeting to appoint an interim superintendent.","plain_summary":"The requester, a journalist, challenged the same school district's process for appointing an interim superintendent, arguing the board had effectively decided the appointment behind closed doors before its public vote. The Public Access Counselor found that the board's closed-session discussions were limited to preliminary steps, such as authorizing its attorney to gauge the candidate's interest and agreeing to place the matter on a future public agenda, and that its subsequent open-session vote was preceded by a substantive public discussion of the candidate's salary, duration, and duties. Because the board took no final action behind closed doors and adequately informed the public before voting, the Public Access Counselor found no violation of the Open Meetings Act's requirements.","holding":"The Board did not take final action in a closed session and complied with the Open Meetings Act requirements.","legal_question":"Did the Board comply with the Open Meetings Act when appointing an interim superintendent?","disposition":"no_violation","primary_statute":["5 ILCS 120/2(e)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Springfield Public School District No. 186 Board of Education","requesting_party":"Ms. Molly Beck, The State Journal-Register","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The matter concerned whether the Board improperly finalized the appointment of an interim superintendent during closed session rather than in open session as required by OMA.","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2013-Binding-PAC-Opinions/13-010.pdf","sha256":"47180b84c7a71cd17ebb06b3ae0c693726aedd15743015361447cf7f9e68f9fd","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","final action","interim superintendent","open meetings act","school board"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nAPTORNEY GENERAL\nJune 4, 2013\nPUBLIC ACCESS OPINION 13-010\n(Request for Review 2013 PAC 23604)\nOPEN MEETINGS ACT:\nRequirement to Publicly Recite Nature of Matter\nBeing Considered and Other Information to\nAdequately Inform the Public of the Business\nBeing Conducted Before Taking Final Action\nMs. Molly Beck, Education Reporter\nThe State Journal-Register\n[street address redacted for site publication -- see original PDF]\nMr. Chuck Flamini\nPresident, Board of Education\nSpringfield Public School District No. 186\n1900 West Monroe Street\nSpringfield, Hlinois 62704\nDear Ms. Beck and Mr. Flamini:\nThis is a binding opinion issued by the Attorney General pursuant to section\n3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2010)). For the reasons\ndiscussed below, this office concludes that the Springfield Public School District No. 186 Board\nof Education (Board): 1) did not take final action in a closed session to appoint an interim\nsuperintendent; and 2) complied with the requirements of section 2(e) of OMA (5 ILCS 120/2(e)\n(West 2011 Supp.), as amended by Public Acts 97-813, effective July 13, 2012; 97-876, effective\nAugust 1, 2012) by adequately informing the public of the nature of the business being\nconducted before voting to appoint the interim superintendent in an open meeting.\n$00 South Second Street, Springfield, Hlineis 62706 « (217) 782-1090 > “PTY: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Hiinsis 60601 * (312) 814-3000 * ‘TTY: (800) 964-3013 * Fax: (312) 814-3806\n1001 East Main, Carbondale, Hinois 62901 » (61875296400 » TTY: (877) 075-9339 * Fax: (618) 529-6416 ‘ The Board's response included\nseveral verbatim recordings of closed session discussions, including the closed sessions of its\n‘E-mail from Molly Beck, Education Reporter, State Journal-Register, to Public Access\nCounselor (March 4, 2013).\nLetter from Steve Silverman, Assistant Attomey General, Public Access Bureau, to Susan White,\nPresident, Board of Education, Springfield Public Schools, District 186 (March 8, 2013).\n3Letter from Ms. Lorilea Buerkett, Brown, Hay & Stephens, LLP, to Steve Silverman, Assistant\nAttorney General, Public Access Bureau (March 22, 2013).\nMs. Molly Beck\nMr. Chuck Flamini\nJune 4, 2013\nPage 3\nFebruary 18, 2013, and February 25, 2013, meetings.’ The Board's response further stated, in\nrelevant part:\nBeginning in earnest on February 4, 2013, after the Board had\ncompleted deliberations on the issue of Dr. Milton's employment,\nthe members undertook discussion of interim and successor\nsuperintendents. * * * The Board considered the appointment of\nMr. Leming or a successor superintendent at these sessions, and\nthere is no violation of the Act because final action was taken\npublicly.”\nThe response also asserted that the Board held a \"robust\" public discussion before voting to\napprove Mr. Leming's appointment during its March 5, 2013, meeting.®\nOn March 25, 2013, this office forwarded a copy of the Board's response to Ms.\nBeck, with confidential information redacted pursuant to section 3.5(c) of OMA (5 ILCS\n120/3.5(c) (West 2010));’ she did not reply. On May 2, 2013, this office properly extended the\ntime to issue a binding opinion by 21 business days pursuant to section 3.5(e) of oma?\nANALYSIS\nSection 2(a) of OMA (5 ILCS 120/2 (West 2011 Supp.), as amended by Public\nActs 97-813, effective July 13, 2012; 97-876, effective August 1, 2012) provides that “{a]ll\nmeetings of public bodies shall be open to the public unless excepted in subsection (c) and closed\nin accordance with Section 2a.” Section 2(c)(1) of OMA permits a public body to hold a closed\nmeeting to discuss the “appointment, employment, compensation, discipline, performance, or\n‘The Board issued a consolidated response to the Public Access Bureau's inquiry concerning this\nmatter and a related Request for Review (2013 PAC 23488) concerning the Superintendent's separation agreement.\nSee Ill. Att'y Gen, Pub. Acc. Op. No. 13-007, issued May 21, 2013.\n‘Letter from Lorilea Buerkett, Brown, Hay & Stephens, LLP, to Steve Silverman, Assistant\nAttorney General, Public Access Bureau, at 7 (March 22, 2013).\n‘Letter from Lorilea Buerkett, Brown, Hay & Stephens, LLP, to Steve Silverman, Assistant\nAttorney General, Public Access Bureau, at 4 (March 22, 2013).\n\"Letter from Steve Silverman, Assistant Attorney General, Public Access Bureau, to Molly Beck,\nEducation Reporter, The State Journal-Register (March 25, 2013).\n51e tter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, to Motly Beck,\nEducation Reporter, The State /ournal-Register, Lorilea Buerkett, Brown, Hay & Stephens, LLP, and Susan White,\nPresident, Board of Education, Springfield Public Schools, District 186 (May 2, 2013).\nMs. Molly Beck\nMr. Chuck Flamini\nJune 4, 2013\nPage 4\ndismissal of specific employees of the public body or legal counsel for the public body{.]\"\nHowever, section 2(e) of OMA provides: \"No final action may be taken at a closed meeting.\nFinal action shall be preceded by a public recital of the nature of the matter being considered and\nother information that will inform the public of the business being conducted.”\nThis office has reviewed copies of the available closed session recordings. To the\nextent that the Board directly discussed Mr. Leming's appointment as interim superintendent,\nthose discussions were properly closed to the public pursuant to section 2(c)(L) of OMA. The\nremaining issues are whether the Board improperly took final action during a closed portion ofa\nmeeting, and, if not, whether the Board adequately informed the public of the nature of the\nmatter under consideration before voting to appoint Mr. Leming.\nIn People v. Board of Ed. of Dist. 170 of Lee and Ogle Counties, 40 Ill. App. 3d\n819 (2nd Dist. 1976), the Illinois Appellate Court considered whether a school board violated\nOMA by holding a \"general discussion” and reaching a “tentative consensus” during a closed\nsession concerning employee retention and salaries of non-union employees while collective\nbargaining negotiations were pending with its teachers’ union. The school board subsequently\napproved a collective bargaining agreement with its teachers’ union and employment contracts\nwith non-union employees during open meetings. Board of Ed., 40 I. App. 3d at 821. The\ncourt emphasized that because ihe school board was awaiting the teachers’ union's response to a\ncontract offer that could have a significant impact on the school district's budget, the school\nboard lacked sufficient information to make a final decision about non-union employees at the\ntime of the closed session. Board ef Ed, 40 lll. App. 3d at 822-23. Accordingly, the court held\nthat the school board did not take final action by generally discussing and reaching a tentative\nconsensus on the retention and salaries of non-union employees in closed session. Board of Ed.,\n40 Ill. App. 3d at 823. :\nIn Gosnell v. Hogan, 179 ll. App. 3d 161 (5th Dist. 1989), the Appellate Court\nruled that a school board did not take final action in closed session by choosing to pursue\nmediation of a contract negotiation with an employees’ union. Instead, the court concluded that\n\"mediation was part of the process of reaching a final action with the secretaries union.\nMediation, similar to negotiating, is not an end in itself, but rather, a means to an end.\" Gosnell,\n179 Ill. App. 3d at 176. Thus, under the reasoning in Gosnell, a public body's individual\nstrategic choices during a decision-making process do not constitute final action under OMA.\nSee Gosnell, 179 Ill. App. 3d at 176.\nWhile both of these decisions interpreted earlier, different versions of section 2 of\nOMA (IHL. Rev. Stat. 1973, ch. 102, par. 42; IIL Rev. Stat. 1987, ch. 102, par. 42) those versions\nincluded the language retained by the current version of section 2(e) stating that “no final action\nmay be taken at a closed session.” In 1989, the General Assembly amended section 2 of OMA\nMs. Molly Beck\nMr. Chuck Flamini\nJune 4, 2013\nPage 5\n(see Public Act 85-1355, effective January 1, 1989) to specifically require that “[a]ll final action\ntaken at an open session shall be preceded by a public recital of the nature of the matter being\nconsidered and such other information as would inform the public of the business being\nconducted.\" According to its sponsor, the amendment \"provides a re-definition of the word ‘final\naction.’ * * * This clarifies it.” Remarks by Sen. Philip, June 22, 1988, Senate Debate on Housc\nBill No. 2004 (which, as Public Act 85-1355, effective January 1, 1989, enacted the provision in\nquestion), at 201. Section 2(e) in the current version of OMA is substantively identical to the\n1989 version.\nThus, the General Assembly maintained the prohibition against public bodies\ntaking final action in closed session which was at issue in the Board of Ed. and Gosnell\ndecisions, while amending OMA to expressly require public bodies to inform the public of the\nnature of matters under consideration and the business being conducted before taking final action\nin open session. This requirement effectively prohibits a public body from reaching a final\ndecision in closed session, and then ratifying that decision in an open session.\nThe Board's response to this office acknowledged that it discussed the interim\nsuperintendent position during its February 4, 2013, closed session, but stated that its efforts to\nrecord that portion of the meeting failed except for a 40-second segment; the closed session\nminutes” of that meeting contain no summary of the discussion.'° The Board, however, did\nprovide the Public Access Bureau with copies of the verbatim recordings of the closed session\nportions of its February 18, 2013, and February 25, 2013, meetings. During the February 18,\n2013, closed session, the Board voted to authorize its attorney to ask Mr. Leming whether he\nwould consider serving as interim superintendent. Notably, one Board member indicated that\nBoard members could continue to suggest additional candidates for interim superintendent after\nthe vote.'' On February 25, 2013, the Board interviewed Mr. Leming in the closed portion of its\nmeeting to discuss his background and experience, potential role as interim superintendent, and\nthe duration of the job and the rate of pay. The Board also informally agreed to issue a press\n*Springfield Public School District No. 186 Board of Education, Meeting, February 4, 2013,\nClosed Session Minutes 1.\n‘In Ul. Atty Gen. Pub. Acc. Op. No. 13-007, issued May 21, 2013, the Attorney General\ndetermined that the Board violated section 2.06(a) of OMA (5 ILCS 120/2.06(a) (West 2011 Supp.)) by failing to\ncreate a verbatim recording of the closed session portions of its January 7, 2013, January 22, 2013, and February 4,\n2013, meetings. The Attorney General also concluded that the Board violated section 2.06(¢)(3) of OMA(5 ILCS\n120/2.06(e)(3) (West 2011 Supp.)) by failing to include summaries of discussions in several closed session meeting\nminutes, including the minutes of the February 4, 2013, closed session. Therefore, it is unnecessary for this office to\naddress the same violations in this binding opinion.\n\"Springfield Public School District No. 186 Board of Education, Meeting, February 18, 2013,\n(Audio CD of Closed Session}. .\nMs. Molly Beck\nMr. Chuck Flamini\nJune 4, 2013\nPage 6\nrelease to notify the public that the Board intended to vote on the appointment of an interim\nsuperintendent at its March 5, 2013, meeting.\" The Board issued a press release, dated February\n27, 2013, stating that the Board had \"reached a consensus” and “plans to take formal action\nnaming\" Mr. Leming interim superintendent at its March 5, 2013, meeting.”\nAlthough this press release stated that the Board had reached a consensus to\nappoint Mr. Leming, the verbatim recordings of the February 18, 2013, and February 25, 2013,\nclosed sessions show that the Board did not make a final decision to do so. Instead, the Board\ntook only preliminary steps by authorizing its attorney to gauge Mr. Leming's interest in the\ninterim superintendent position and by agreeing to put a resolution concerning his appointment\non the agenda for the March 5, 2013, meeting. However, the Board neither voted, nor informally\nagreed in closed session to appoint Mr. Leming. The Board’s decision to put that resolution on\nthe agenda constituted, at most, recognition that a consensus existed. Therefore, because the\nBoard did not take final action in a closed session, it did not violate section 2(e) of OMA.\nFurther, a recording of the March 5, 2013, meeting posted on the Board's website\nand referenced in its response to this office shows that the Board substantively described and\npublicly discussed Mr. Leming's appointment before voting to approve it. The agenda for the\nmeeting included an item entitled “Approval of a Resolution Regarding the Interim\nSuperintendent.\"'* The motion publicly recited at the meeting stated:\nThe President of the Board of Education of District 186\nrecommends that the Board of Education vote to name Robert\nLeming as Interim Superintendent from April 1, 2013, through\nJune 30, 2013, at a salary of $750 per day with a written contract to\nbe approved at a later date.’\nAfter the motion was seconded, a Board member initiated a discussion of Mr.\nLeming's salary and questioned how many days he was eligible to work under Teacher\n\"Springfield Public School District No. 186 Board of Education, Meeting, February 25, 2013,\n(Audio CD of Closed Session).\n“Press Release, Springfield Public School District No. 186 Board of Education (February 27,\n2013), available at http://www.sps186.org/communications/?p=76167827&9i6=, last visited May 28, 2013.\n“Springfield Public School District No. 186 Board of Education, Meeting Agenda Item 9.2\n{March 5, 2013).\n“Springfield Public School District No. 186 Board of Education, Meeting, March 5, 2013,\navailable at http://www.sps186.org/channel22| /&?ip=3=2596 10998, last visited May 29, 2013.\nMs. Molly Beck\nMr. Chuck Flamini\nJune 4, 2013\nPage 7\nRetirement System guidelines: “It's only fair the public have these answers * * * I think the\npublic is entitled to know these things.\"'® Mr. Leming responded to questions on those issues,\nand a Board member indicated that the interim superintendent's salary is based on the salaries of\nother superintendents and the District's financial condition. Another Board member asked Mr.\nLeming whether he perceived his role to include recommending the elimination of employment\npositions. After Mr. Lemming described his perception of the role of interim superintendent in\npersonnel and other matters, the Board voted to approve his appointment by a vote of 6-0, with\none Board member voting \"present.”!” The Board’s recital of the motion, discussion of the\nresolution, and vote to approve Mr. Leming's appointment spanned more than 15 minutes. '*\nThe recording of the March 5, 2013, Board meeting demonstrates that the Board\nadequately informed the public of the nature of its proposed action, including discussing the\nsalary and duration of Mr. Leming's employment, as well as his duties and responsibilities as\ninterim superintendent, before voting to approve his appointment. Accordingly, this office\nconcludes that the Board complied with the requirements of section 2(e) of OMA in appointing\nMr. Leming as interim superintendent at its March 5, 2013, meeting.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments of the\nparties, the Public Access Counselor's review, and the applicable law, the Attorney General finds\nthat:\n1) On February 4, 2013, February 18, 2013, and February 25, 2013, the\nSpringfield Public School District No. 186 Board discussed the appointment of an interim\nsuperintendent in sessions closed pursuant to section 2(¢)(1) of OMA.\n2) On February 18, 2013, the Board voted in closed session to authorize its\nattorney to ask Mr. Robert Leming whether he would consider serving as interim superintendent.\nSSpringfield Public Schoo! District No. 186 Board of Education, Meeting, March 5, 2013,\navailable at http://www.sps! 86.org/channel22/7p=5608 1 &i=329199, last visited May 29, 2013.\n\"Springfield Public School District No. 186 Board of Education, Meeting, March 5, 2013,\nMinutes 9.\n'8Springfield Public School District No. 186 Board of Education, Meeting, March 5, 2613,\navailable at http://www.sps186.org/channel22| /&7ip=3=259619098, last visited May 29, 2013. ,\nMs. Molly Beck\nMr. Chuck Flamini\nJune 4, 2013\nPage 8\n3) On February 25, 2013, the Board informally agreed in closed session to\ninclude a resolution concerning Mr. Leming's appointment on the agenda of its March 5, 2013,\nmeeting; the Board also informally agreed to issue a press release to inform the public that it\nintended to vote on the appointment during that meeting.\n4) On February 27, 2013, the Board issued a press release stating that it \"reached\na consensus\" and planned to “take formal action naming\" Mr. Leming interim superintendent at\nits March 5, 2013, meeting.\n5) On March 4, 2013, Ms. Molly Beck submitted a Request for Review to the\nPublic Access Counselor alleging that the Board violated OMA by selecting Mr. Leming as\ninterim superintendent without holding a public vote to approve his appointment. Ms. Beck's\nRequest for Review was timely filed and otherwise complies with the requirements of section\n3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2010)). The Public Access Counselor extended the\ntime to issue a binding opinion by 21 business days. Therefore, the Attorney General may\nproperly issue a binding opinion with respect to Ms. Beck's Request for Review.\n6) The Board voted to appoint Mr. Leming interim superintendent during the\nopen session portion of its March 5, 2013, meeting.\n7) On March 8, 2013, the Public Access Bureau forwarded a copy of the\nRequest for Review to the Board and asked it to respond to Ms. Beck's allegation and also to\nprovide copies of the agenda, open session and closed session minutes, and the verbatim\nrecording of the closed session discussion for the February 25, 2013, meeting.\n8) On March 22, 2013, the Board responded to the Public Access Bureau's\ninquiry and provided verbatim recordings of portions of closed meetings on February 18, 2013,\nand February 25, 2013.\n9) The Attorney General finds that the Board did not violate section 2(¢) of OMA\nby discussing Mr. Leming’s possible appointment as interim superintendent during sessions\nwhich were closed to the public pursuant to section 2(c)(1) of OMA. Further, the Attorney\nGeneral finds that the Board did not take final action to appoint Mr. Leming in a closed meeting.\n10) Before voting to appoint Mr. Leming as the interim superintendent during its\nMarch 5, 2013, meeting, the Board complied with the requirements of section 2(e) of OMA by\npublicly reciting the nature of the matter under consideration and informing the public of the\nbusiness being conducted.\nMs. Molly Beck\nMr. Chuck Flamini\nJune 4, 2013\nPage 9\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and\nSpringfield Public School District No. 186 as defendants. See 5 ILCS 120/7.5 (West 2010).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nMichael J. Luke\nCounsel to the Attorney General\n23604 o no vio sd\nce: Ms. Lorilea Buerkett\nBrown, Hay & Stephens, LLP\n205 South Fifth Street\nSuite 700\nP.O. Box 2459\nSpringfield, Hlinois 62705","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under section 2(e) of OMA, a public body may deliberate on personnel matters in closed session but must take final action in an open meeting, and before voting it must publicly recite enough information about the nature of the matter to inform the public what business is being conducted. Here, the decisive facts were that the Board's actual vote to appoint the interim superintendent occurred during the open portion of the meeting, and the Board's presiding officer identified the candidate and the position being voted on before the vote was taken. Because the vote itself happened in public and the public was told what was being decided, the closed-session deliberations that preceded it did not constitute improper final action, and the recitation requirement was satisfied.","card_headline":"A school board's closed-session appointment of an interim superintendent","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":26,"orig_master_id":19228,"dup_master_id":18999,"dup_sha256":"7c2351cf83fb03fd9db50bbde7b2a348e35feba2051c5dff85b79da9b30e10e9","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2013,"date_issued":"2013-06-11","case_number":"2013 PAC 23559","request_numbers":null,"title":"Records Relating to a Public Body's Internal Investigation into an Employee's Conduct","filename":"PUBLIC ACCESS OPINION 13-011 (Request for Review - 2013 PAC 23559).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 13-011 (Request for Review - 2013 PAC 23559).pdf","word_count":3719,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request submitted by Ms. Maria Chandler for records related to an internal investigation of a traffic accident involving a police chief.","plain_summary":"The requester, a journalist, sought police and internal-investigation records concerning an off-duty car accident involving a police department's assistant chief, and the city government withheld the underlying investigative materials, arguing they related to an \"adjudication\" of a disciplinary case and were therefore exempt. The Public Access Counselor held that an informal internal inquiry that never proceeded to a formal adjudicatory hearing does not qualify as an \"adjudication\" under the narrow exemption the city invoked, and that related records such as the traffic citation and witness accounts were independently public regardless of the investigation. The city government was directed to release the withheld investigative and citation records, subject only to permissible redactions for private information.","holding":"The City improperly withheld investigatory records and traffic citations relating to the accident.","legal_question":"Did the City of Bloomington improperly withhold records related to an internal investigation under the Freedom of Information Act?","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(d)(iv)"],"public_body":"City of Bloomington","requesting_party":"Ms. Maria Chandler (WMBD 31 News)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request concerned records and traffic citations from an internal investigation into a traffic accident involving an assistant police chief.","ocr_status":"ok","ocr_quality":89.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2013-Binding-PAC-Opinions/13-011.pdf","sha256":"262e991c4bc0f92ba953fdc54ff57d78103a64a27499b32532409e5563f94565","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","traffic accident","internal investigation","FOIA request"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATVORNEY GENERAL.\nJune 11, 2013\nPublic Access Opinion 13-011\n(Request for Review 2013 PAC 23559)\nFreedom of Information Act:\nRecords Relating to a Public Body's\nInternal Investigation into an Employee's\nConduct\nMs. Maria Chandler\nWMBD 31-.News\n[street address redacted for site publication -- see original PDF]\nMs. Rosalee Dodson\nAssistant Corporation Counsel\nCity of Bloomington\n109 East Olive Street\nBloomington, Illinois 61701\nDear Ms. Chandler and Ms. Dodson:\nThis binding opinion is issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2011 Supp.)). On February\n27, 2013, Ms. Maria Chandler of WMBD 3! News submitted to the Office of the Public Access\nCounselor a Request for Review of the City of Bloomington’s partial denial of her FOIA request.\nThat request sought information regarding an October 3, 2012, traffic accident on Ireland Grove\nRoad involving Bloomington Assistant Police Chief Bob Wall. For the reasons discussed below,\nthis office concludes that the City improperly withheld investigatory records and traffic citations\nrelating to the accident.\n500 South Second Street, Springfield, Hinvis 62706 * (217) 782-1090 © PY: (B77) 844-5461 © Puy: (217) 782-7056\n100 West Randolph Sirect, Chicago, Hineis 60601 * (312) 814-2000 © “PTY: (800) 964-3013 © Fux: (312) 814-3806\n100T East Main, Carbondate, Himeis 62901 * (618) 529-6400 * “TTY: (877) 675-9339 * Eux: (618) 529-6416 ‘Dm\nMs. Maria Chandler\nMs. Rosalee Dodson\nJune 11, 2013\nPage 2\nBACKGROUND\nMs. Chandler submitted an undated FOIA request to the City seeking \"[alll police\nreports regarding the incident on Ireland Grove Road on October 3, 2012, involving Assistant\nBloomington Police Chief Bob Wall. This includes all documents pertaining to an internal\ninvestigation and any other materials related to this incident.\"’ On February 21, 2013, the City\nprovided Ms. Chandler with a summary report regarding the incident from which certain\ninformation had been redacted. The City cited sections 7(1)(b) and 7(1)(n) of FOIA (5 ILCS\n140/7(1)(b), (n) (West 201] Supp.), as amended by Public Act 97-783, effective J uly 13, 2012;\n97-813, effective July 13, 2012; 97-1065, effective August 24, 2012; 97-1129, effective August\n28, 2012; 97-847, effective September 22, 2012) as the basis for its partial denial of Ms.\nChandler's request:\n« The request asks for “private information\", which, if\ndisclosed, would provide information including a person's\nbirthdate, social security number, home or personal\ntelephone number, home address, and other unique\nidentifiers, which is exempt from disclosure under Section\n7b) of5 ILCS 140/7.\n¢ The request asks for records relating to a public body's\nadjudication of employee grievances or disciplinary cases\nwhich is exempt from disclosure under Section 7(1)(n) of 5\nILCS 140.7. The 3-page final summary report written by\nthen Chief of Police Randall D. McKinley is provided.”\nOn February 27, 2013, Ms. Chandler submitted her Request for Review of the\nCity’s partial denial of her FOLA request, asserting that any \"private information” in the records\ncould be redacted and the remainder of the documents provided to her. On March 1, 2013, this\noffice forwarded a copy of the Request for Review to the City and asked it to provide copies of\nthe records that were withheld together with an explanation of its basis for asserting sections\n‘Letter from Maria Chandler, WMBD 31 News, to Bloomington Police Department (undated).\n*Letter from Rosalee Dodson, Assistant Corporation Counsel, City of Bloomington, to Maria\nChandler, WMBD 31 News (February 21, 2013).\n‘E-mail from Maria Chandler, WMBD 31 News, to Public Access (February 27, 2613).\nMs. Maria Chandler\nMs. Rosalee Dodson\nJune 11, 2013\nPage 3\n7(1)(b) and 7(1)(n).4 On March 20, 2013, the City responded with a letter providing the\nfollowing background:\n[O]n October 3, 2012 Assistant Chief Robert Wall, while\noff-duty in his personal vehicle, struck a light pole in Bloomington\nafter leaving a local bar/restaurant establishment. He then drove to\nhis residence and called the police. After an administrative\ninvestigation, AC Wall was suspended for (5) 8-hour days (40\nhours) without pay, for leaving the scene of an accident. *\nThe City further explained:\nThe disciplinary investigation into AC Wall's actions on\nOctober 3, 2012, ended with a suspension being imposed.\nDisciplinary actions for City employees can result in one of the\nfollowing: counseling, written reprimand, suspension without pay,\nor termination of employment. Here, the matter was formally\nadjudicated with a suspension. Under 7(1)(n), records relating to a\npublic body's adjudication of employee grievances or disciplinary\ncases are exempt from disclosure. The records that a public body\nseeks to exempt under Section 7(1}(n) must be related to the actual\nadjudication. All of the records considered by Chief McKinley in\nmaking his final determination were related to the actual\nadjudication and are therefore exempt.°\nThis office forwarded to Ms. Chandler a copy of the City's response letter on\nMarch 25, 2013.’ Ms. Chandler replied on April 26, 2013, contending that the withheld records\nwere pertinent to the final decision made by Chief McKinley.* Between April 11 and April 22,\n“Letter from Matthew C. Rogina, Assistant Attorney General, Public Access Bureau, to Rosalee\nDodson, Assistant Corporation Counsel, City of Bloomington (March 1, 2013).\nSLetter from Rosalee Dodson, Assistant Corporation Counsel, City of Bloomington, to Matthew C.\nRogina, Assistant Attorney General, Office of the Attorney General, Public Access Bureau (March 20, 2013).\n*Letter from Rosalee Dodson, Assistant Corporation Counsel, City of Bloomington to Matthew C.\nRogina, Assistant Attorney General, Office of the Attorney General, Public Access Bureau (March 20, 2013).\n\"Letter from Matthew C. Rogina, Assistant Attorney General, Public Access Bureau, to Maria\nChandler, WMBD 31 News {March 25, 2013),\n“Letter from Maria Chandler, WMBD 3} News, to Matthew C. Rogina, Assistant Attorney\nGeneral, Public Access Bureau (April 26, 2013).\nMs. Maria Chandler\nMs. Rosalee Dodson\nJune 11, 2013\nPage 4\n2013, the City supplied this office with copies of audio and video recordings relating to the\ntraffic citation and investigation.” These records were not provided to Ms. Chandler.\nOn April 29, 2013, this office sent a letter asking the City whether the\n“disciplinary action\" referenced in the \"Record of Disciplinary Action\" provided “was an\ninformal inquiry, a hearing under the Uniform Peace Officers Disciplinary Act, or an\nadministrative proceeding subject to the City's own rules and whether Assistant Chief Bob Wall\nwas given an opportunity to present evidence in his own defense.\"!° On May 8, 2013, in an e-\nmail to the Public Access Bureau staff, the City explained:\n[I]t was an informal inquiry (not a hearing under the\nUniform Peace Officers DisciplinaArcyt or an administrative\nproceeding subject to the City's own rules). AC Wall was not\npresented with any formal charges. Chief McKinley made his final\ndecision after speaking with AC Wall. AC Wall did not present\nany evidence[.]'!\nOn April 19, 2013, this office properly extended the time to issue a binding\nopinion by 30 business days pursuant to section 9.5(f) of FOIA.”\nANALYSIS\nBecause all public records in the possession or custody of a public body are\npresumed to be open to inspection and copying (5 ILCS 140/1.2 (West 2011 Supp.), exemptions\nto disclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois\nUniv., 176 Ill. 2d 401, 408 (1997). Section 1 of FOIA (5 ILCS 140/1 (West 2011 Supp.)\nprovides:\n°This information includes a 911 audio tape, video from State Farm Insurance Company, accident\nscene photographs, and an audio interview conducted with investigators from the Normal Police Department.\nLetter from Matthew C. Rogina, Assistant Attorney General, Public Access Bureau, to Rosalee\nDodson, Assistant Corporation Counsel, City of Bloomington (April 29, 2013).\n“E-mail from Resalee Dodson, Assistant Corporation Counsel, City of Bloomington, to Matthew\nRogina (May 8, 2013).\n2) etter from Matthew Rogina, Assistant Attorney General, Public Access Bureau, to Maria\nChandler, WMBD 31 News, and Rosalee Dedson, Assistant Corporation Counsel, City of Bloomington (April 19,\n2013).\nMs. Maria Chandler\nMs. Rosalee Dodson\nJune 11, 2013\nPage 5\n[I]t is declared to be the public policy of the State of Illinois\nthat all persons are entitled to full and complete information\nregarding the affairs ofg overnment and the official acts and\npolicies of those who represent them as public officials and public\nemployees consistent with the terms of this Act. Such access is\nnecessary to enable the people to fulfill their duties of discussing\npublic issues fully and freely, making informed political judgments\nand monitoring government to ensure that it is being conducted in\nthe public interest. :\nRestraints on access to information, to the extent permitted\nby this Act, are limited exceptions to the principle that the people\nof this State have a right to fd! disclosure of information relating\nio the decisions, policies, procedures, rules, standards, and other\naspects of government activity that affect the conduct of\ngovernment and the lives of any or all of the people. The\nprovisions of this Act shall be construed in accordance with this\nprinciple|.] (Emphasis added.)\nThus, FOIA requires a narrow interpretation of the language of exemptions that permit the\nwithholding of records.\nSection 7(1)(n) of FOIA\nThe resolution of this matter depends upon whether the City conducted an\n“adjudication” of the allegations against the assistant chief within the meaning of section 7(1)(n)\nof FOIA. The City argues that the allegations were \"adjudicated\" and, therefore, that the records\nthat led to the imposition of final discipline are exempt from disclosure. Black’s Law Dictionary\ndefines “adjudication” as meaning \"[i}he legal process of resolving a dispute; the process of\njudicially deciding a case.\" Black's Law Dictionary 47 (9th ed. 2009). Accordingly, an\n“adjudication hearing” is defined as an \"[a]gency proceeding in which a person's rights and\nduties are decided after notice and an opportunity to be heard.” Black's Law Dictionary 788 (9th\ned. 2009).\nFurther, Black's defines \"discipline\" as \"[p]unishment intended to correct or\ninstruct; esp., a sanction or penalty imposed after an official finding of misconduct\" (Black's Law\nDictionary 531 (9thTM ed. 2009), and a \"disciplinary proceeding” as \"[a]n action brought to\nreprimand, suspend, or expel a licensed professional or other person from a profession or other\nMs. Maria Chandler\nMs. Rosalee Dodson\nJune 11, 2013\nPage 6\ngroup because of unprofessional, unethical, improper or illegal conduct.\" Black's Law\nDictionary 530 (9th ed. 2009).\nSection 7(1)(n) does not exempt from disclosure all records relating to the\ndiscipline of employees ofa public body. Rather, section 7(1)(n) exempts only records relating\nto the public body's adjudication of a disciplinary case or an employee grievance. Records\ngenerated during a public body's internal investigation of a matter that did not result in any\nformal adjudicatory proceeding do not relate to an “adjudication,” within the meaning of section\n7(1)(n).\nThe scope of the section 7(1)(n) exemption has not yet been defined by any\nIllinois reviewing court. Useful to the our analysis of this issue, however, is the Illinois\nAppellate Court's clear distinction between a public body's investigation into and adjudication of\na personnel matter. The Illinois Appellate Court has distinguished an adjudication from an\ninvestigation in determining whether a school board's motion for dismissal of an employee\nconstituted an adjudicatory dismissal order even though the employee elected his right toa\nhearing under section 24-12 of the School Code (105 ILCS 5/24-12 (West 1998)). Board of\nEduc. of Cmty. Consol. School Dist. No. 54 v. Spangler, 328 ll. App. 3d 747 (Ist Dist. 2002). In\nthat case, the court emphasized that investigative activities which precede a final determination\nare not components of an adjudication:\n[T]he function of investigation/charging is distinct from the\nfunction of adjudication. The hearing officer takes and hears\nevidence (adjudication), while the school board simply investigates\nand gathers evidence (investigation). ‘Investigate’ means ‘to trace\nor track; to search into; to examine and inquire into with care and\naccuracy; * * * examination.’ [Citation] 'Adjudicate’ or 'adjudge’\nmeans ‘to decide * * * [and] [i]mplies a judicial determination.’\n[Citation] The legislature clearly left only one function with the\nlocal board, that of investigation and charging. The adjudicatory\nfunction, and all matters attendant thereto, was placed with the\nhearing officer. Spangler, 328 Ill. App. 3d at 757.\nIn Gekas v. Williamson, 393 Ul. App. 3d 573 (4th Dist. 2009) the court addressed\nwhether internal affairs files concerning allegations of police officer misconduct were exempt\nfrom disclosure under FOIA. Although the defendant in Gekas cited provisions of FOIA other\nthan 7(1)(n) to withhold records of internal investigations where the complaints were determined\nto be unfounded, much of the court’s reasoning is applicable here. Noting that \"[t]he disclosure\nof information that bears on the public duties of public employees and officials shall not be\nconsidered as invasion of personal privacy” the court stated:\nMs. Maria Chandler\nMs. Rosalee Dodson\nJune 11, 2013\nPage 7\nThat a complaint against a deputy sheriff is \"unfounded\" is nothing\nmore than a conclusion of the sheriff's office: in response to the\ncomplaint, the public body investigated itself, or \"self-monitored.\"\n* * * If the Act allowed a public body to deny access to complaints\nthat it deemed to be unfounded, defeating the Act would be as easy\nas declaring a complaint to be unfounded. Gekas, 393 Ill. App. 3d\nat 585.\nSimilarly, the issue here is whether the public should be allowed access to the information that\nthe chief of police relied upon in reaching his decision te suspend the assistant police chief\nbecause those records relate to an internal investigation which ended after an informal inquiry\nand did not proceed to an “adjudication” as to the assistant police chief's conduct.\nFederal district courts that have considered the issue in the context of motions for\nprotective orders are divided on whether records such as complaint register files (CR) compiled\nby the Chicago Police Department (CPD), which document complaints regarding Chicago police\nofficers, are exempt under section 7(1)(n). Generally, CR files consist of the investigator's report\nand any potential disciplinary recommendations against an officer who is the subject of a citizen\ncomplaint. Calhoun v. City of Chicago, 273 F.R.D. 421, 423 (N.D. HL 2011) quoting Clark v.\nCity of Chicago, No. 10 C 1803, Doc. 49 at 2. See Calhoun, 273 F.R.D. at 423 (“Some courts [in\nthis District] have concluded that the plain language of the [Illinois] FOIA exemption includes\nCRs, * ** Other courts have disagreed that CRs necessarily relate to an “adjudication\"); see\nalso Bell v. City of Chicage, 2010 WL 753297, at *2 (N.D. IU. 2010) (\"Clearly, a CR is a record\nrelating to the public body's adjudication of employee disciplinary cases\"); but contra, see\nRangel v. City of Chicago, No. 10 C 2750, 2010 WL 3699991, at *3 (N.D. Ill. 2010) (intent of\nsection 7(1)(n} was “certainly not to exempt CR register documents\").\nIn Rangel, (CPD) moved for the entry of a protective order against the disclosure\nof confidential personnel records including complaint register entries. Rangel, 2010 WL\n369999] at *1. In support of its motion, CPD argued that the recent amendments to the Illinois\nFOIA exempted the CRs from disclosure. Rangel, 2010 WL 3699991 at *1. CPD specifically\ncited the section 7(1}(n) exemption. Range?, 2010 WL 3699991 at *2. The court, however,\nrejected CPD's argument that section 7(1)(n) prohibited the disclosure of the CRs and concluded:\nThe earlier version of the adjudications exemption applied, as\nrelevant here, to “[I]nformation concerning a public body's\nadjudication of student or employee grievance or disciplinary\ncases, except for the final outcome of the cases.” 5 Il]. Comp. Stat.\n§ 140/71 )(a) (West 2009). The amended text, nearly identical,\nexempts \"[rJecords relating to a public body's adjudication of\nemployee grievance or disciplinary cases; however, this exemption\nshall not extend to the final outcome of cases in which discipline is\nMs. Maria Chandler\nMs. Rosalee Dodson\nJune 11, 2013\nPage 8\nimposed.” 5 Hl. Comp. Stat. § 140/7(1)(n) (West 2016). In the\nfirst place, employee grievances and discipline is likely related to\nunion and personnel disciplinary procedures. See Our Opinion:\nDon't weaken revised FOIA, THE STATE JOURNAL-REGISTER,\nApr. 27, 2010, http:/Awww.sj-r.com/editoria 1s/x43873749/Our-\nOpinion-Don-t-weaken-revised-FOIA. In any event, there is no\nbasis to conclude that this amendment, enacted approximately one\nmonth afier Gekas was decided, was an effort to broaden the scope\nof the adjudication exemption for public employees, and certainly\nnot to exempt CR register documents. (Emphasis added.) Rangel,\n2010 WL 3699991 at *3\nHere, the City's records indicate that the investigation concerned an alleged\nalcohol-related driving accident involving the assistant police chief. The records consist of the\nCity's police chief's interviews with witnesses and City employees, their fact-based observations\nand accounts, and additional evidence that supported the City's conclusions. There is no\nindication, however, that the City's investigation of the incident culminated in an adjudicatory\nprocedure or \"agency proceeding” where witnesses were called and the identified employee had\na right to cail witness and make arguments. This application of section 7(1)@) to the City's\nrecords is consistent with the decision of the Sangamon County Circuit Court in Calvin\nChristian, Ill v. City of Springfield, et al., No. 2010-MR-461 (June 3, 201 1). In that case, the\ncourt held that section 7(1)(n)'s exemption from disclosure does not extend to “records generated\nas part of [the Springfield Police Department's] investigation of alleged misconduct of its police\nofficers where no adjudicatory process commences.\"\nIn addition, many of the records that the chief of police relied upon in reaching his\nconclusion have no connection to the internal investigation and are public records that relate to\nthe assistant police chief’s citation, which are not subject to any exemption under FOIA. For\nexample, law enforcement reports and traffic citations, such as those involved here, are presumed\nto be open for inspection and copying under FOIA unless they are exempt from disclosure\npursuant to another exemption that the City has not identified. These records exist\nindependently of any internal investigation and do not become \"adjudicatory” simply because\nthey are relied upon by the public body during the course of its investigation.\nMoreover, this office must note the extremely strong public interest in access to a\npublic body's internal investigation into a personnel matter. Disclosure of a full and complete\naccount of a public body's investigation of allegations of employee misconduct ensures that the\ninvestigation is consistent with the public body's internal rules and procedures and that the\ndiscipline imposed, if any, is consistent with the public body's findings. Without a narrow\nconstruction of an “adjudication” under section 7(1)(n), a public body may define an adjudication\nwithout regard to the formality of the proceedings which relate to an investigation of its own\nemployee.\nMs. Maria Chandler\nMs. Rosalee Dodson\nJune 11, 2013\nPage 9\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments of the\nparties, the Public Access Counselor's review, and the applicable law, the Attorney General finds\nthat:\n1) Ms. Maria Chandler, WMBD 31 News, submitted an undated FOIA request to\nthe City seeking “[a]lI police reports regarding the incident on Ireland Grove Road on October 3,\n2012 involving Assistant Bloomington Police Chief Bob Wall. This includes all documents\npertaining to an internal investigation and any other materials related to this incident.\"\n2) On February 21, 2013, the City partially denied Ms. Chandler's request under\nsection 7(1)(n) of FOIA, The City provided Ms. Chandler with a final summary report of the\ninvestigation with certain private information redacted pursuant to section 7A). ,\n3) On February 27, 2013, Ms. Chandler submitted to the Office of the Public\nAccess Counselor a Request for Review of the City's partial denial of her FOIA request. The\nRequest for Review was timely filed and otherwise complies with the requirements of section\n9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2011 Supp.)). The Public Access Counselor extended\nthe time to issue a binding opinion by 30 business days. Therefore, the Attorney General may\nproperly issue a binding opinion with respect to this matter.\n4) On March 1, 2013, this office forwarded a copy of the Request for Review to\nthe City and asked it to explain the legal and factual basis for its assertion of section 70) and\nto provide a copy of the responsive records.\n5) On March 20, 2013, the City supplied us with an explanation of its reasons for\nasserting section 7(1)(n) together with a copy of the responsive records.\n§) For the reasons stated above, the City impropérly responded te Ms. Chandler's\nFOIA request by withholding investigatory records. Such records are not exempt under section\n7(1)(n) of FOIA.\nTherefore, it is the opinion of the Attorney General that the City has, in violation\nof the requirements of the Freedom of Information Act, improperly denied Ms, Chandler's FOIA\nrequest. Accordingly, the City is directed to take immediate and appropriate action to comply\nMs. Maria Chandler\nMs. Rosalee Dodson\nJune 11, 2013\nPage 10\nwith this opinion by responding to Ms. Chandler's request and providing her with responsive\nrecords, subject only to any permissible redactions.!>\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Ms. Maria Chandler\nof WMBD 31 News as defendants. See 5 ILCS 140/11.5 (West 2011 Supp.).\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\n~\nSoe Feng.\nMichael J. Luke\nCounsel to the Attorney General\n8The City may redact additional private information under section 7(1)(b) and, if applicable, any\nidentifying witness information under section 7(1)(d\\iv) (5 ILCS 140/7( (div) (West 2011 Supp.}, as amended by\nPublic Act 97-783, effective July 13, 2012; 97-813, effective July 13, 2012; 97-1065, effective August 24, 2012; 97-\n1129, effective August 28, 2012; 97-847, effective September 22, 2012), which exempts from disclosure\ninformation that would \"[uJnavoidably disclose the identity of a confidential source, confidential information\nfurnished only by the confidential source, or persons who file complaints with or provide information to\nadministrative, investigative, law enforcement, or penal agencies: except that the identities of witnesses to traffic\naccidents, traffic accident reports, and rescue reports shall be provided by agencies of local government, except\nwhen disclosure would interfere with an active criminal investigation conducted by the agency that is the recipient\noft he request[.]\"","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A news reporter requested police records regarding a traffic accident involving an assistant police chief. The City of Bloomington refused to release the documents, but the Illinois Attorney General ruled that the City was wrong to withhold them. The City was ordered to provide the records, as they did not qualify for the exemptions claimed.","card_headline":"Internal investigation records of an assistant police chief's accident","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":27,"orig_master_id":19229,"dup_master_id":19000,"dup_sha256":"832c1eca5db1d0c94c3594b992fb653131225c4e29295c5d3b0cc712c0070503","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2013,"date_issued":"2013-07-29","case_number":"2013 PAC 24760","request_numbers":null,"title":"Duty to Furnish Non-Exempt Records and to Issue a Written Denial For Any Records Not Provided","filename":"PUBLIC ACCESS OPINION 13-013 (Request for Review - 2013 PAC 24760).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 13-013 (Request for Review - 2013 PAC 24760).pdf","word_count":2473,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act (FOIA) request made by Mr. Joseph Ryan of the Chicago Tribune to the City of Harvey for various records related to a property development project.","plain_summary":"The requester, a journalist, submitted five detailed requests to a city government for records concerning a defunct development project, including financial records, contracts, and loan documents, and the city produced only a small fraction of what was sought without formally denying the rest or negotiating any extension. The Public Access Counselor held that the city's partial, unexplained response constituted a denial under FOIA, since it neither complied fully, properly extended its deadline, nor issued the required written denial identifying which records were being withheld and why. The city government was directed to produce all remaining non-exempt records and to provide a proper written explanation for any records it withholds.","holding":"The City of Harvey violated sections 3 and 9(a) of FOIA by failing to furnish all records responsive to Mr. Joseph Ryan's requests or to issue proper written denials.","legal_question":"Did the City of Harvey comply with the Freedom of Information Act in responding to Mr. Joseph Ryan's requests?","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/9(a)"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Harvey","requesting_party":"Mr. Joseph Ryan (Chicago Tribune)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"records access","subject_description":"The request concerned records related to a defunct property development project at 17040 South Halsted Street in Harvey, Illinois.","ocr_status":"ok","ocr_quality":89.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2013-Binding-PAC-Opinions/13-013.pdf","sha256":"6bfee3b06423b9187c6f8ac32210e5921db2c5413314bd92080ab39d041d4975","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA request","City of Harvey","denial of records","public records"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nJuly 29, 2013\nPUBLIC ACCESS OPINION 13-013\n- (Request for Review 2013 PAC 24760)\nFREEDOM OF INFORMATION ACT:\nDuty to Furnish Non-Exempt Records and\nto Issue a Written Denial For Any Records\nNot Provided\nMr. Joseph Ryan, Reporter\nChicago Tribune\n[street address redacted for site publication -- see original PDF]\nThe Honorable Nancy Clark\nCity Clerk\nCity of Harvey\n15320 Broadway Avenue\nHarvey, Illinois 60426\nDear Mr. Ryan and Ms. Clark:\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2012)). As discussed\nbelow, this office concludes that the City of Harvey (City) violated sections 3 and 9(a) of FOIA\n(5 ILCS 140/3, 9(a} (West 2012)) by failing to furnish all records responsive to Mr. Joseph\nRyan's FOIA requests, or alternatively, to issue proper written denials of those requests.\nBACKGROUND\nOn May 13, 2013, Mr. Ryan, on behalf of the Chicage Tribune, submitted five\nseparate FOIA requests to the City, each seeking various records related to a now defunct\nproperty development project at 17040 South Halsted Street, Harvey, Illinois. Specifically, the\nfive requests sought copies of, among other things: (1) all requests for proposals or other\nsolicitations issued since January |, 2005, for the development of the indicated property, all\n500 South Second Street, Springfield, Winois 62706 © (217) 782-1090 « “UTV: (877) 844-5401 * Pax: (217) 782-7046\n100 West Randolph Street, Chicago, Winois 60601 * (312) 814-3000 © ‘PPY: (800) 964-3013 * Fax: (312) 814-3806\ncarbondate, Hino 62001 * (618) 529-6400 « “PPV (877) 675-9359 = Fax: (618) 529-0416 SLetter from Matthew Rogina, Assistant Attorney General, Public Access Bureau, to Randy Vollmer and Andrew J. Hatch (August 6, 2013). \"E-mail from Randy Vollmer to paccess@atg.state.ilus (June 7, 2013). Mr. Randy Vollmer Mr. Andrew J. Hatch September 5, 2013 Page 4 345 Ill. App. 3d at 359. In discussing the meaning of “convenient,” in this context, the court stated: A meeting can be open in the sense that no one is prohibited from attending it, but it can be held in such an ill-suited, unaccommodating, unadvantageous place that members of the public, as a practical matter, would be deterred from attending it. Gerwin, 345 lll. App. 3d at 361. The District's headquarters are in the Village of Broadlands, which is located in southeastern Champaign County. The Board holds its regular meetings at the fire station in Broadlands at 7:00 p.m. in the evening. The April 16, 2013, special meeting, however, was held in Champaign, approximately twenty-six miles from Broadlands, at 9:00 a.m. Accordingly, attending the special meeting would have required traveling to Champaign. Further, the additional travel time necessary to attend a meeting scheduled for 9:00 a.m. on a weekday is likely to have discouraged attendance by persons who might otherwise have attended a meeting held within the District, and there has been no suggestion that the fire station or another suitable facility within the District was not available for the meeting. In these circumstances, by holding a Board meeting approximately 26 miles from the public body's headquarters, \"the public, as a practical matter, [was] deterred from attending it.\" Gerwin, 345 Ill. App. 3d at 361. Accordingly, we conclude that the Board violated section 2.01 of OMA by holding its April 16, 2013, special meeting at a location that was not \"convenient and open\" to the public. We recognize, as pointed out by Mr. Hatch, that by travelling to Champaign for the meeting, the Board may have reduced the cost of legal fees to the District. We also recognize, as Mr. Hatch noted, that no action was taken at the special meeting. The minutes indicate, however, that the Board discussed tax levies, referenda, and a possible bond issue to fund two new fire stations, as well as the need to garner community support for those expenditures.® The possibility of incurring debt and the impact of that debt on taxes are matters of substantial interest to residents of the District and should take place at a location that encourages public attendance. In this instance, more publicly accessible alternatives to holding the meeting in Champaign were available. For example, Board members could have gathered at the Board's usual meeting place or another convenient location within the District and communicated with the Board's attomey via speakerphone. Although no effective remedial action to cure this violation can be undertaken at this time, this office directs the District to ensure that all future Board meetings are held at places ‘Board of Trustees of the Broadlands-Longview Fire Protection District, “Trustees Meeting with Andrew Hatch,\" April 16, 2613, Minutes at 1. Mr. Randy Vollmer Mr. Andrew J. Hatch September 5, 2013 Page 5 that are \"convenient and open\" to the public, in accordance with the requirements of OMA. See generally 1976 Ill. Att'y Gen. Op. 273, 274 (a hearing on a proposed special service area need not be held in the area proposed for inclusion in the special service area, but it must be held at a place reasonably convenient for the taxpayers who would be affected by its creation). FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments presented, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On June 7, 2013, Mr. Randy Vollmer submitted a Request for Review to the Public Access Counselor alleging that the Board of Trustees of the Broadlands-Longview Fire Protection District violated the Open Meetings Act by holding a special meeting on April 16, 2013, at a place that was not convenient to the public. Section 2.01 of OMA provides that \"{a]ll meetings required by [OMA] to be public shall be held at specified times and places which are convenient and open to the public.\" (Emphasis added.) Mr. Vollmer's Request for Review was timely filed and otherwise complies with section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2012)). 2) On June 19, 2013, this office forwarded a copy of Mr. Vollmer's Request for Review to the District and asked for its response to his allegation. 3) On June 28, 2013, the attorney for the Board submitted a written response to the Public Access Counselor in which he stated that the Board held a special meeting at 9:00 a.m. on April 16, 2013, at his office in Champaign, which is located approximately 26 miles from the District's regular meeting place at the fire station in Broadlands. 4) On August 6, 2013, the Public Access Counselor extended the time to issue a binding opinion to September 5, 2013. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 5 ILCS 120/3.5(e) (West 2012). 5) For the reasons more fully set out above, the Attorney General concludes that the Board violated section 2.01 of OMA because it held its April 16, 2013, special meeting at a place that was not “convenient” to the public. Holding the Board's special meeting approximately 26 miles from the District's regular meeting place, during the morning hours of a weekday, may reasonably be presumed to have deterred members of the public from attending the meeting. Based upon the minutes of the special meeting, it does not appear that any members of the public attended the meeting. Mr. Randy Volimer Mr. Andrew J. Hatch September 5, 2013 Page 6 In accordance with these findings of fact and conclusions of law, the Board is directed to conduct its future meetings in full compliance with OMA. In particular, when holding its meetings, the Board is directed to do so at places that are “convenient and open\" to the public, as specifically required by section 2.01 of OMA. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2012). An aggrieved party may obtain judicial review of this decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Randy Vollmer as defendants. See 5 ILCS 120/7.5 (West 2012). Sincerely, LISA MADIGAN ATTORNEY GENERAL by. Chet hor bn. Michael J. Luke Counsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Section 2.01 of OMA requires that public bodies hold meetings at locations that are 'convenient and open' to the public, not merely technically accessible. The decisive fact here was the significant distance -- roughly 26 miles -- between the special meeting location and the district's normal meeting place and geographic jurisdiction, which the PAC found would tend to deter residents from attending. Because no comparable justification for the distant venue was shown to outweigh this deterrent effect, and no members of the public in fact attended, the location failed the statutory convenience standard regardless of whether proper notice was otherwise given. This principle applies broadly: even a properly noticed meeting can violate OMA if the chosen venue is so remote from the body's constituency that it functionally excludes the public from attending.","card_headline":"A fire protection district board's meeting location 26 miles away","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":29,"orig_master_id":19231,"dup_master_id":19002,"dup_sha256":"b12d915e72650ff1cfb6a3cf9164fdb32745aa3741e5b399c408569ba6dbd2b6","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2013,"date_issued":"2013-07-03","case_number":"2013 PAC 23857","request_numbers":null,"title":"Records in the Possession of the Governing Body of a Charter School that Pertain to Public Business Are Public Records","filename":"PUBLIC ACCESS OPINION 13-012 PDF document (Request for Review 2013 PAC 23857).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 13-012 PDF document (Request for Review 2013 PAC 23857).pdf","word_count":5979,"summary":"This document is a binding public access opinion regarding a Freedom of Information Act (FOIA) request made by Mr. Dan Mihalopoulos to the UNO Charter School Network, concerning the availability of public records.","plain_summary":"A requester with a news organization asked a charter school network for records about school construction contracts, invoices, and board minutes, including some records held by the network's closely related nonprofit parent organization. The charter school network turned over some records but claimed it had no other responsive records, arguing it was legally separate from its parent organization and did not possess or control the rest. The Attorney General's office found that the two organizations shared the same leadership, offices, and recordkeeping systems and operated as essentially the same entity for purposes of running the charter schools, so records held by the parent organization (and by contractors hired to build the schools) counted as public records of the charter school network. Because these records related to the use of public funds to build public schools, the PAC ordered the charter school network to produce all responsive records held by itself, its parent organization, and their vendors.","holding":"UNO Charter School Network violated section 3 of FOIA by failing to provide responsive records.","legal_question":"Whether records in the possession of a charter school that pertain to public business are considered public records under FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"UNO Charter School Network","requesting_party":"Mr. Dan Mihalopoulos","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"charter school records","subject_description":"The request concerned the accessibility of records held by a charter school network and its vendors regarding public business.","ocr_status":"ok","ocr_quality":89.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2013-Binding-PAC-Opinions/13-012.pdf","sha256":"5df5c93196e1312bb4fb4e236e74b4dcaee3eb6dacd73c17e9147a455093a49d","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["charter school","public records","FOIA","transparency"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nJuly 3, 2013\nPUBLIC ACCESS OPINION 13-012\n(Request for Review 2013 PAC 23857)\nFREEDOM OF INFORMATION ACT:\nRecords in the Possession of the Governing\nBody of a Charter School that Pertain to\nPublic Business Are Public Records\nMr. Dan Mihalopoulos\nStaff Reporter\nChicago Sun-Times\n[street address redacted for site publication -- see original PDF]\nMr. Alfred Quijano\nFreedom of Information Officer\nUNO Charter School Network\n954 West Washington Boulevard, No. 3\nChicago, IHinois 60607-2224\nDear Mr. Mihalopoulos and Mr. Quijano:\nThis is a binding opinion issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2011 Supp.)). For the reasons discussed\nbelow, this office concludes that UNO Charter School Network (UCSN) violated section 3 of\nFOIA (5 ILCS 140/3 (West 2010)) by failing to provide responsive records in its possession to\nMr. Dan Mihalopoutos pursuant to his FOIA request.\nBACKGROUND\nUnited Neighborhood Organization (UNO) was organized in 1984 as a “not-for-\nprofit corporation community organization [to be operated] exclusively for social, educational,\nreligious, charitable and scientific purposes to work in the interest of the residents of the :\n500 South Second Street. Springfield, Minis 62706 © (217) 782-1090 © ‘T'L'Y: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Hinois GU6U1 © (312) 814-3000 © TEV: (800) 969-3013 « Pax: 412} 814-3806\n1001 East Main, Carbondale, Hinois 62901 * (618) 520-6400 © ‘TI: (877) 675-9339 * Fax: (618) $29-6416 ‘p=\nMr. Dan Mihalopouios\nMr. Alfred Quijano\nJuly 3, 2013\nPage 2\ncommunities of Chicago which it serves.\"’ In 1997, UNO created a subsidiary, UNO Advantage\nCharter School, Inc., to \"obtain a charter for and to operate UNO Advantage Charter School].}'?\nIn 2009, this subsidiary changed its name to UCSN 3 UNO leases charter schools to UCSN;\nsince 2000 UCSN in turn has engaged UNO to manage charter schools pursuant to a\nmanagement agreement.’ \"On average, more than 80 percent of UNO revenues are from\nUCSN.\"\nOn February 15, 2013, Mr. Mihalopoulos, on behalf of the Chicago Sun-Times,\nsubmitted a FOIA request to UCSN seeking various records concerning the construction of\ncharter schools. Specifically, the request sought: (1) contracts between UCSN and d'Escoto,\nInc., including contracts that were paid out of grant moneys disbursed by the State of Hlinois\nDepartment of Commerce and Economic Opportunity (DCEO), (2) invoices that d’Escoto, Inc.,\nsubmitted to UCSN seeking payment of State grant money or other public funds; (3) contracts\nand bid documents related to contracts under which State grant money or other public funds were\npaid to Reflection Window Co., Inc., Windy City Electric, Aguila Security, or Toltec Plumbing;\nand (4) the minutes of UCSN Board meetings from January 1, 2009, to the date of the FOIA\nrequest.” The same day, Mr. Mihalopoulos submitted a substantially similar FOIA request to\nUNO. ;\nOn March 1, 2013, Mr. Mihalopoulos submitted a Request for Review to the\nPublic Access Counselor alleging, among other things, that UCSN failed to respond to his FOIA\n‘Articles of Incorporation under the General Not For Profit Corporation Act, United\nNeighborhood Organization of Chicago (February 10, 1984).\n* Articles of Incorporation under the General Not For Profit Corporation Act, UNO Advantage\nCharter School , Inc. (October 3, 1997).\n*Application to Adopt, Change or Cancel and Assumed Corporate Name under the General Not\nFor Profit Corporation Act, UNO Charter School Network, Inc. July 15, 2009).\n‘Global Credit Portal, Standard & Poor's, Hlinois Finance Authority UNO Charter School\nNetwork; Charter Schools 4 (September 13, 2011).\n5Global Credit Portal, Standard & Poor's, Illinois Finance Authority UNO Charter School\nNetwork; Charter Schools 4 (September 13, 2011).\n‘Letter from Dan Mihalopoulos, Staff Reporter, Chicago Sun-Times, to Alfred Quijano, Freedom\nof (Information Officer, UNO Charter School Network (February 15, 2013).\n\"Letter from Dan Mihalopoulos, Staff Reporter, Chicago Sun-Times, to Alfred Quijano, Freedom\nof Information Officer, United Neighborhood Organization (February 15, 2013). UNO's response to Mr.\nMihalopoulos' FOLA request is the subject of a separate Request for Review. See 2012 PAC 23582. UNO\nresponded by asserting that it is a private not-for-profit corporation and not a “public body\" subject to FOIA.\nMr. Dan Mihalopoulos\nMr. Alfred Quijano\nJuly 3, 2013\nPage 3\nrequest.® On March 8, 2013, a representative of this office contacted Mr. Stephen F. Welcome,\ncounsel for both UCSN and UNO, regarding the Request for Review. Mr. Welcome advised this\noffice that he had not received a copy of Mr. Mihalopoulos's FOIA request to UCSN. Mr.\nWelcome agreed to respond to the request, if this office would provide him with a copy of the\ndocument. On March 11, 2013, the Public Access Bureau e-mailed a copy of the FOIA request\nto Mr. Welcome.”\nOn March 19, 2013, Mr. Welcome responded on behalf of UCSN by providing\nMr. Mihalopoulos with the requested meeting minutes.’ In response to the requests for copies\nof contracts with d'Escoto and invoices from d'Escoto, Mr. Welcome indicated that no responsive\ndocuments exist because UCSN is a “separate entity from UNO.and has not entered into any\ncontracts with d'Escoto Inc., or the other entities cited in\" the FOIA request. In response to the\nrequests for copies of contracts and bid documents involving Reflection Window Co., Inc.,\nWindy City Electric, Aguila Security and Toltec Plumbing, he also asserted that UCSN does not\npossess or control any other responsive records.'' On March 22, 2013, Mr. Mihalopoulos filed a\nRequest for Review of Mr. Welcome's denial, alleging that \"the documents that we are\nrequesting are public records, regardless of whether they are in the possession of UNO or UCSN\n— both basedi n the same office and both led by the same CEO[. yr? Mr. Mihalopoulos enclosed\na September 2011, Standard & Poor's credit rating profile that summarized the relationship\nbetween UNO and UCSN, concluding that \"[w]e view these closely affiliated organizations as\none.\"\nOn March 26, 2013, the Public Access Bureau forwarded a copy of the Request\nfor Review to Mr. Welcome and asked him to:\n*L ever from Dan Mihalopoulos, Staff Reporter, Chicago Sun-Times, to Public Access Counselor,\nOffice of the Attorney General (March 1, 2013).\n°E-mail from Steve Silverman, Assistant Attorney General, to Stephen Welcome (March 11,\n2013).\nThe response did not Include the minutes from the January 24, 2013, meeting because the\nminutes had not yet been approved by the board.\n\"Letter from Stephen F. Welcome, Burke, Burns & Pinelli Ltd., to Dan Mihalopoulos, Staff\nReporter, Chicago Sun-Times (March 19, 2013).\n“E-mail from Dan Mihalopoulos, Staff Reporter, Chicago Sun-Times, to Public Access\nCounselor, Illinois Attorney General's Office (March 22, 2013).\n“Global Credit Portal, Standard & Poor's, Illinois Finance Authority UNO Charter School\nNetwork; Charter Schools 4 (September 13, 2011).\nMr. Dan Mihalopoulos\nMr. Alfred Quijano\nJuly 3, 2013\nPage 4\n[P]lease describe the relationship between UNO and UCSN, and\nclarify whether UCSN has contracted or otherwise delegated\nresponsibilities to UNO; if so, please provide copies of the\ncontract(s) or agreement(s). Please explain the extent to which the\nfunctions and operations of UNO and UCSN overlap and differ,\nand the extent to which these entities are managed by the same\nindividuals and operate at the same physical location. ** * In\naddition, clarify whether UNO and UCSN use the same\nrecordkeeping system, and indicate whether or not each entity’ $\nrecords are accessible to and used by the other entity.’\nIn his response, Mr. Welcome stated that UCSN is the governing body of UNO\nCharter School while \"UNO is a private, not-for-profit entity that performs a multitude of various\nfunctions, including immigration consulting, community-organizing, the building of charter\nschools and the provision of various education-related management services. UNO then leases\nthese schools and offers these services to various entities, including UCSN.\"\"* The response\nstated that \"UNO created UCSN\" but the \"two organizations have always maintained different\nidentities and missions. * * * Unlike UNO, UCSN has a much narrower purpose, i.e., to operate\ncharter schools.\"’® However, UCSN delegated management of UNO charter schools to UNO\nunder a management services agreement:\nAmong the services UNO provides is the development and\nplanning of school policy, as well as oversight and management of\nschool governance, administration, human resources, facilities\nmanagement, reporting, budgetary, accounting, marketing, fund-\nraising, parent relations and legal matters. * * * While these\ndelegations to UNO are broad, encompassing virtually all of the\ngovernance of the charter school, the Board of UCSN remains at\nall times the governing body.\"\"”\n“Letter from Steve Silverman, Assistant Attorney General, Public Access Bureau, to Stephen F.\nWelcome, Burke, Burns & Pinelll Ltd., (March 26, 2013).\n'SLetter from Stephen F, Welcome, Burke, Burns & Pinelli Lid., to Steve Silverman, Assistant\nAttorney General, Public Access Bureau, at 3 (April 11, 2013),\n1 etter from Stephen F. Welcome, Burke, Burns & Pinelli Ltd., to Steve Silverman, Assistant\nAttorney General , Public Access Bureau, at 3 (April 11, 2013).\n\"Letter from Stephen F. Welcome, Burke, Burns & Pinelli, Ltd., to Steve Silverman, Assistant\nAttorney General, Public Access Bureau, at 4 (April 11, 2013).\nMr. Dan Mihalopoulos\nMr. Alfred Quijano\nJuly 3, 2013\nPage 5\nThe response further stated that the boards of UNO and UCSN currently \"share\nthe same members * * *, but those boards meet separately and maintain separate agendas and\nminutes.\"!® Further, UNO's chief executive officer also served as President of UCSN.'? The\nresponse also stated that “some functions of UCSN operate at the same physical location as\nUNO[.]\"”” A copy of the management services agreement lists both entities’ address as 954 West\nWashington Boulevard, Chicago, Illinois 60607.\" Finally, the response stated that \"UNO and\nUCSN use the same record-keeping system and have access to each other's records.\"”2\nTurning to the records that are the subject of the FOIA request, Mr. Welcome\nasserted that the only responsive records in the possession of either UNO or UCSN are the\ncontracts between UNO and d'Escoto, Inc., which are only in the possession of UNO.”? The\nresponse added that neither UCSN nor UNO possesses contracts and bid documents concerning\nReflection Window Co., Inc., Windy City Electric, Aguila Security, or Toltec Plumbing because\nthose companies did not contract directly with UNO. Instead, those entities subcontracted with a\nvendor that UNO hired to provide design and construction services; d'Escoto, Inc., served as\nUNO's representative in dealing with the vendor.”\n8Letter from Stephen F. Welcome, Burke, Burns & Pinelli, Ltd., to Steve Silverman, Assistant\nAttorney General, Public Access Bureau, at 4 (April 11, 2013).\n\"Letter from Stephen F. Welcome, Burke, Burns & Pinelli, Ltd., to Steve Silverman, Assistant\nAttorney General, Public Access Bureau, at 5 (April 11, 2013).\n2% etter from Stephen F. Welcome, Burke, Burns & Pinelli, Ltd., to Steve Silverman, Assistant\nAttorney General, Public Access Bureau, at 5 (April 11, 2013). UCSN's website lists its business address as 954\nWest Washington Boulevard, Chicago, Hlinois. 60607, available at http://echalk.unocharterschools .org/site_\nres_view_folder.a1 s-bp27x0-4?2i2df-8=a970-30eb761636bfb{5098, l ast visited June 7, 2013. UNO's website lists”\nits business address as 954 West Washington Boulevard, #3, Chicago, Ulinois 60607, available at, http://www.uno-\nonline.org, last visited June 7, 2013.\n\"Contract for the purpose of a Management Services Agreement, United Neighborhood\nOrganization - UNO Charter School Network, § 5.06 (November 3, 2010).\n“Letter from Stephen F. Welcome, Burke, Burns & Pinelli, Ltd., to Steve Silverman, Assistant\nAttorney General, Public Access Bureau, at 6 (April 11, 2013).\nLetter from Stephen F. Welcome, Burke, Burns & Pinelli Ltd., to Steve Silverman, Assistant\nAttorney General, Public Access Bureau, at 2 (April 11, 2013).\n*Letter from Stephen F. Welcome, Burke, Burns & Pinelli Ltd., to Steve Silverman, Assistant\nAttorney General, Public Access Bureau, at 2 (April 11, 2013).\nMr. Dan Mihalopoulos\nMr. Alfred Quijano\nJuly 3, 2013\nPage 6\nThis office forwarded a copy of UCSN's response to Mr. Mihalopoulos.”? He\nreplied on April 17, 2013, contending that \"UCSN technically may be the governing body of\nwhat is commonly referred to as UNO's network of charter schools, but UNO effectively governs\nthe charter schools. performing UCSN's operations in ioto.\"* Mr. Mihalopoulos also disputed\nMr. Welcome’s assertion that neither UCSN nor UNO possessed responsive records concerning\ncompanies other than d'Escoto, Inc., and provided this office with an appendix to a letter from\nthe chief executive officer of UNO to DCEO which appeared to reference responsive records.\nAdditionally, Mr. Mihalopoulos argued that records in the possession of\ncompanies that have contracted with a vendor hired by UNO to provide construction and design\nservices are subject to disclosure by UCSN under section 7(2) of FOIA (5 ILCS 140/7(2) (West\n2011 Supp.) , as amended by Public Acts 97-783, effective July 13, 2012; 97-813, effective July\n13, 2012; 97-847, effective September 22, 2012; 97-1065, effective August 24, 2012; and 97-\n1129, effective August 28,.2012).2” Section 7(2) of FOIA provides that a “public record that is\nnot in the possession of a public body but is in the possession of a party with whom the agency\nhas contracted to perform a governmental function on behalf of the public body, and that directly\nrelates to the governmental function and is not otherwise exempt under this Act, shall be\nconsidered a public record of the public body, for purposes of this Act.\" On April 26, 2013, Mr.\nWelcome responded to this argument by asserting that records concerning subcontractors hired\nby UNO's vendor for the design and construction of charter schools do not relate to UCSN's\nmanagement services agreement with UNO and, therefore, fall outside the scope of section 7(2)\nof FOIA.\nOn April 29, 2013, this office asked Mr. Welcome to clarify whether UCSN or\nUNO possesses any other responsive records and to explain why any such records that those\nentities provided to DCEO are no longer in their possession.” On May 16, 2013, Mr. Welcome\nresponded by stating that he located copies of the letter and documents that UNO submitted to\n251 etter from Steve Silverman, Assistant Attorney General, Public Access Bureau, to Dan\nMihalopoulos, Staff Reporter, Chicago Sun-Times (April 12, 2013).\n**1e tter from Dan Mihalopoulos, Staff Reporter, Chicago Sun-Times, to Steve Silverman,\nAssistant Bureau Chief, Public Access Bureau (April 17, 2013).\n* Letter from Dan Mihalopoulos, Staff Reporter, Chicago Sun-Times, to Steve Silverman,\nAssistant Attorney General, Public Access Bureau (April 17, 2013).\n\"41e tter from Stephen F. Welcome, Burke, Burns & Pinelli Ltd., to Steve Silverman, Assistant\nAttorney General, Public Access Bureau, at 2 (April 26, 2013).\nLetter from Steve Silverman, Assistant Attorney General, Public Access Bureau, to Stephen F.\nWelcome, Burke, Burns & Pinelli Ltd., (April 29, 2013).\nMr. Dan Mihalopoulos\nMr. Alfred Quijano\nJuly 3, 2013\nPage 7\nDCEO, including records responsive to the FOIA request which UNO obtained from its vendor\nand other entities.” He provided this office with a copy of UNO's complete response to DCEO,\nbut reiterated that UNO and UCSN do not possess any other requested records concerning\ncompanies subcontracted by UNO's vendor because UNO has not obtained those documents\nfrom its vendor or the other entities.”) °\nOn April 26, 2013, this office properly extended the time to issue a binding\nopinion in this matter to June 12, 2013, pursuant to section 9.5(f} of FOIA? On June 12, 2013,\n* this office properly extended the time period to issue a binding opinion in this matter to July 3,\n2013.\n’ ANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with this Act.\" 5 ILCS\n140/1 (West 2010). All public records in the possession or custody of a public body are\npresumed to be open to inspection and copying. 5 ILCS 140/1.2 (West 2010). Section 3 of\nFOIA provides, in pertinent part:\n(a) Each public body shall make available to any person for\ninspection or copying all public records, except as otherwise\nprovided in Section 7 of this Act. * * *\n(b) Subject to the fee provisions of Section 6 of this Act,\neach public body shall promptly provide, to any person who\nsubmits a request, a copy of any public record required to be\ndisclosed by subsection {a) of this Section and shall certify such\ncopy if so requested. 5 ILCS 140/3(a), (b) (West 2010).\n“Letter from Stephen F. Welcome, Burke, Burns & Pinelli Ltd., to Steve Silverman, Assistant\nAttorney General, Public Access Bureau (May 13, 2013).\n‘Letter from Stephen F. Welcome, Burke, Burns & Pinelli Ltd., to Steve Silverman, Assistant\nAttorney Generai , Public Access Bureau (May 13, 2013).\n*1 etter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, to Dan\nMihalopoulos, Staff Reporter, Chicago Sun-Times, Stephen F, Welcome, Burke, Burns & Pinelli Lid., and Alfred\nQuijano, Freedom of Information Officer, UNO Charter School Network (April 26, 2013).\n“Letter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, to Dan\nMihalopoulos, Staff Reporter, Chicago Sun-Times, Stephen F. Welcome, Burke, Burns & Pinelli Ltd., and Alfred\nQuijano, Freedom of Information Officer, UNO Charter School Network (June 12, 2013).\nMr. Dan Mihalopoulos\nMr. Alfred Quijano\nJuly 3, 2013\nPage 8\nA public body “has the burden of proving by clear and convincing evidence” that a record is\nexempt from disclosure. 5 ILCS 140/1.2 (West 2010).\nSection 27A-5(c) of the Charter Schools Law (105 ELCS 5/27A-5(c) (West 2011\nSupp.), as amended by Public Act 97-813, effective July 13, 2012) provides that the “governing\nbody of a charter school shall be subject to the Freedom of Information Act and the Open\nMeetings Act.\" See Jordan v. Northern Kane Educational Corp., 2009 WL 509744, 3 (N.D. UL\n2009) (\"the governing body of a charter school is subject to the same disclosure requirements\napplicable to other government entities in Illinois. [Citation.] It therefore appears that the\nillinois legislature when enacting the Illinois Charter School Act intended that the governing\nbody of a charter school function as a public, governmental entity”).\nUnder the Charter Schools Law, a charter school proposal \"shall be submitted to\nthe State Board and the local school board in the form of a proposed contract entered into\nbetween the local schoo! board and the governing body of a proposed charter school.\" 105 ILCS\n5/27A-7(a) (West 2010). The \"certified charter shall constitute a binding contract and agreement\nbetween the charter school and a local school board under the terms of which the local school\nboard authorizes the governing body of the charter school to operate the charter school on the\nterms specified in the contract.” (Emphasis added.} 105 ILCS 5/27A-6(a) (West 2010).\nNotably, section 27A-5(h) of the Charter Schools Law (105 ILCS 5/27A-S(h) (West 2011\nSupp.), as amended by Public Act 97-813, effective July 13, 2012) provides that a charter school\nmay contract with a \"for-profit or nonprofit private entity for: * * * the provision of any service,\nactivity, or undertaking that the charter school is required to perform in order to carry out the\nterms of its charter.”\nThe charter governing UCSN charter schools is a contract between UCSN and\nthe City of Chicago Board of Education.“ Under the plain language of section 27A-6(a) of the\nCharter Schools Law, the party authorized to operate a charter school by a local school board\npursuant to such an agreement is the governing body of a charter school. In accordance with\nsection 27A-5(h) of the Charter Schools Law, UCSN, as the governing body of the charter\nschools, has delegated management of its charter schools to its parent company, UNO. The\nCharter Schools Law does not provide that an entity loses its status as the governing body ofa\ncharter school by contracting with another entity to perform management functions.\nAccordingly, UCSN is subject to FOIA under section 27A-5(c) of the Charter Schools Law.\nBecause UCSN contends that only UNO possesses records responsive to Mr. Mihalopoulos'\nRenewal of Charter and Charter School Agreement (UNO Charter School), Board of Education\noft he City of Chicago- UNO Charter School Network, July 1, 2008.\nMr. Dan Mihalopoulos\nMr. Alfred Quijano\nJuly 3, 2013\nPage 9\nFOIA request, however, this office must determine whether records in UNO's possession should\nbe considered public records of UCSN for purposes of FOIA.\nFirst, based on the facts described above, UNO and UCSN operate as the same\nentity for purposes of serving as the governing body of the charter schools, Both entities have\nthe same business address, share the same record-keeping system and each have access to the\nother's records. At the time of the February 15, 2013, FOIA request, the same individuals served\non the UNO and UCSN Boards, and the CEO of UNO was the president of UCSN.** UNO\ndevelops the charter schools for the purpose of leasing them to UCSN which UNO created to\nmanage the schools. UCSN then delegates that management role to UNO pursuant to a\nmanagement services agreement. Among other things, this agreement authorizes UNO to\noversee and manage “maintenance of all facilities[,]\"\"°\"all third party contracts for facility\nimprovement and maintenance” and \"all third party contracts with vendors necessary for the\noperations of the schools{.]\"°’ The independent auditors’ report included in UCSN's 2010 annual\nteport described the agreement as including \"development and opening of new school\ncampuses.\"*® UCSN acknowledges that \"these delegations to UNO are broad, encompassing\nvirtually all of the governance of the charter school[.}°?\nNonetheless, UCSN asserts that \"UNO simply leases buildings to UCSN for\npurposes of operating charter schools. UCSN independently operates these schools as it sees\nfit.\"“\" But, in fact, UNO operates the charter schools under the management services agreement.\nUCSN also has financed the renovation of UNO's buildings for charter schools. In 2008, UNO\nand UCSN \"jointly obtained a loan with a bank in the amount of $65,000,000 recorded on\n“The UNO and UCSN boards recently diversified their membership. Mr. Rangel resigned from\nthe boards, but remains CEO of UNO. Linda Lutton, Embattled UNO charter school leader steps aside, stops short\nof resigning, May 28, 2013, available at http://www.wbez.org/news/embattled-uno-charter-school-leader-steps-\naside-stops-short-resigning- 107403.\nContract for the purpose of a Management Services Agreement, United Neighborhoo\nOrganization - UNO Charter School Network, § 1.01.04 (November 3, 2010). .\n“Contract for the purpose of a Management Services Agreement, United Neighborhood\nOrganization - UNO Charter School Network, § 1.01.07 (November 3, 2010).\n“United Charter Schoo! Network, Inc., 2010 Illinois Charitable Organization Annual Report,\nIndependent Auditors' Report, Notes to Financial Statement 16 (2011).\nLetter from Stephen F. Welcome, Burke, Burns & Pinelli, Ltd., to Steve Silverman, Assistant\nAttorney General, Public Access Bureau, at 4 (April 11, 2013).\n“1 etter from Stephen F. Welcome, Burke, Burns & Pinelli, Ltd., to Steve Silverman, Assistant\nAttorney General, Public Access Bureau, at 7 (April 11, 2013). ,\nMr. Dan Mihalopoulos\nMr. Alfred Quijano\nJuly 3, 2013\nPage 10\n[UCSN's} books and guaranteed by UNO. 4! Proceeds from the loan were used to renovate two\nbuildings: \"All construction costs were paid by UCSN * * * However, the buildings are owned\nby UNO.\" In 2011, UNO and UCSN, “as co-borrowers, refinanced its existing debt of\n$61,733,986 recorded on [UCSN}] and $939,103 recorded on UNO. The existing loans were\nrepaid in a three tranche transaction which closed simultaneously.” This annual report further\nindicates that UCSN's \"TOP MANAGEMENT OFFICIALS AND KEY EMPLOYEES ARE\nPAID VIA THE UNITED NEIGHBORHOOD ORGANIZATION (A RELATED\nORGANIZATION)[;]\" UNO paid UCSN's president, vice-president, and director of operations\n\"FOR THEIR RESPONSIBILITIES IN MANAGING BOTH UCSN AND UNO.\" Thus,\nUCSN has funded renovations to buildings it leases from UNO througha loan guaranteed by\nUNO, and UNO pays the salaries of UCSN's top officials and employees for their roles in\nmanaging both entities.\nBased on all of these facts, it is clear that at the time of the FOIA request, UNO\nand UCSN were controlled by the same individuals and UCSN contracted with UNO to perform\nthe role that UNO created UCSN to perform — operating the charter schools. Under all of these\ncircumstances, there is no substantive distinction between UNO and UCSN with respect to\ndeveloping and operating charter schools. For purposes of governing the charter schools, UNO\nand UCSN are inextricably intertwined and act as the same entity.\nThe requirements of FOIA expressly apply to “all records * * * and all other\ndocumentary materials pertaining to the transaction of public business, regardless of physical\nform or characteristics, having been prepared by or for, or having been or being used by,\nreceived by, in the possession of, or under the control of any public body.” 5 ILCS 146/2(c)\n(West 2011 Supp.). Section 2.5 of FOIA (5 ILCS 140/2.5 (West 2010)) further provides that\n\"fajll records relating to the obligation, receipt, and use of public funds of the State, units of local\ngovernment, and school districts are public records subject to inspection and copying by the\npublic.\" Records concerning the \"affairs of government, the acts of public officials and the\nexpenditure of public funds are public records which are to be made available to any person who\n“United Neighborhood Organization, 2010 Ulinois Charitable Organization Annual Report,\nIndependent Auditors’ Report, Consolidated Notes to Financial Statement 16 (2011). :\n“United Neighborhood Organization, 2010 Illinois Charitable Organization Annual Report,\nIndependent Auditors’ Report, Notes to Consolidated Financial Statements 15 (2012).\n“United Charter School Network, Inc., 2010 INinois Charitable Organization Annual Report,\nIndependent Auditors’ Report, Notes to Financial Statement 13 (2011). ;\n“United Charter School Network, Inc., 2010 IHinois Charitable Organization Annual Report,\n35 (2011).\nMr. Dan Mihalopoulos\nMr. Alfred Quijano\nJuly 3, 2013\nPage il\nsubmits a request to inspect them[.]\" Hamer v. Lentz, 171 Ill. App. 3d 888, 898 (1st Dist. 1988),\nrev'd on other grounds.\nBecause UNO and UCSN act as the same entity for the purpose of serving as the\ngoverning body of charter schools, records responsive to Mr. Mihalopoulos's request which are\nin the possession of or under the control of UNO must also be considered to be in the possession\nand under the control of UCSN. Even assuming, as UCSN argues, that the construction of\ncharter schools is not within the scope of the two entities' management services agreement, the\nrecords requested document the use of public funds to build charter schools, which are \"public\"\nschools that UCSN and UNO manage. Northern Kane Educational Corp., 2009 WL 509744, 2;\nsee also Board of Educ. of Rich Tp. High School Dist. No. 227 v. Illinois State Bd. of Educ.,2011\nIL App (1st) 110182 936, 965 N.E.2d 13, 35 (Ist Dist. 2011) (\"The Charter Schools Law is\nmeant to provide a means to improve educational opportunities for public school students.\").\n(Emphasis added.) Because these records relate to the use of public funds for public schools and\nare in the possession of the governing body of a charter school, this office concludes that those\nrecords are subject to disclosure by UCSN under FOIA.\nSecond, even assuming, arguendo, that UNO and UCSN are separate entities and\nthat UCSN is the sole governing body of a charter school for purposes of section 27A-5(c) of the\nCharter Schools Law, the records in question are nonetheless subject to disclosure by UCSN\nunder section 7(2) of FOIA, These records concern schools that are built by UNO for the\npurpose of leasing them to UCSN, and which UNO then operates pursuant to a management\nservices agreement with UCSN. As discussed above, section 7(2) of FOIA provides that a\n\"public record that is not in the possession of a public body but is in the possession of a party\nwith whom the agency has contracted to perform a governmental function on behalf of the public\nbody, and that directly relates to the governmental function shall be considered a public record of\nthe public body, for purposes of this Act.\" (Emphasis added.) Education is “a vitally important\ngovernmental function.” Puffer-Hefty School Dist. No. 69 vy. Du Page Regional Bd. of School\nTrustees of Du Page, 339 Ul. App. 3d 194, 202 (2nd Dist. 2003). The operation of charter\nschools is authorized by the Charter Schools Law which, as noted above, “is meant to provide a\nmeans to improve educational opportunities for public school students.” Board of Educ. of Rich\nTp. High School Dist. No. 227, 2011 IL App (1) 110182 at $102, 963 N.E.2d at 35. Further,\nUNO has received State grants to build charter schools.** Funding for those grants was\n“United Neighborhood Organization, 2010 Ulinois Charitable Organization Annual Report,\nIndependent Auditors’ Report, Notes to Consolidated Financial Statements 20 (2012).\nMr. Dan Mihalopoulos\nMr. Alfred Quijano\nJuly 3, 2013\nPage 12\nauthorized by Public Act 96-0039, effective July 13, 2009, to “alleviate school overcrowding.\"\nThus, the records in question pertain to the use of public funds by UNO to build\npublic schools, which it leased to UCSN, a subsidiary which UNO created to operate the schools.\nUCSN, in turn, contracted with UNO to oversee and manage the schools. Thus, even if UCSN\ndoes not physically possess the records in question, under section 7(2) it is obligated to obtain\nthem from UNO, because the records directly relate to a governmental function delegated to\nUNO by UCSN. Likewise, any responsive records that are not physically in the possession of\nUCSN or UNO but which are in the possession of vendors that UNO hired with public funds to\nperform design or construction services are subject to disclosure under section 7(2). A vendor\nwhich contracted with UNO to build charter schools funded by State grants is engaged in\nperforming a governmental function on behalf of the governing body of the charter schools.\nConsequently, subcontracts and other records related to that public function are considered\npublic records of UCSN under section 7(2) of FOIA and section 27A-5(c) of the Charter Schools:\nLaw, even if the records are not in the possession of UCSN or UNO, and those records must be\nproduced.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments of the\nparties, the Public Access Counselor's review, and the applicable law, the Attorney General finds\nthat:\n1) On February 15, 2013, Mr. Dan Mihalopoulos sent separate FOIA requests to\nUCSN and UNO seeking meeting minutes and various records concerning the use of public\nfunds to build charter schools.\n2) On March 1, 2013, Mr. Mihalopoulos submitted a Request for Review to the\nPublic Access Counselor alleging that UCSN failed to respond to his FOJA request.\n“Article 7, section 100 of Public Act 96-0039 provides that $98,000,000, or so much thereof as\nmay be necessary, is appropriated from the Build Illinois Bond Fund to the Department of Commerce and Economic\nOpportunity for a grant to the \"United Neighborhood Organization for the acquisition, construction, rehabilitation,\nrenovation and equipping facilities, to a silver certification from the United States Green Building Council's\nLeadership in Energy and Environmental Design Green Building Rating System, to assist in alleviating school\novercrowding in the state.”\nMr. Dan Mihalopoulos\nMr. Alfred Quijano\nJuly 3, 2013\nPage 13\n3) On March 8, 2013, the Public Access Bureau contacted Stephen F. Welcome,\ncounsel for both UCSN and UNO, regarding UCSN's failure to reply to Mr. Mihalopoulos’s\nFebruary 15, 2013, FOIA request. Mr. Welcome stated that he had not received the request from\nUCSN.\n4) On March 11, 2013, the Public Access Bureau forwarded a copy of the UCSN\nFOIA request to Mr. Welcome.\n5) On March 19, 2013, UCSN responded to the FOIA request by providing\ncopies of requested meeting minutes, but asserted that it did not possess any other responsive\nrecords.\n6) On March 22, 2013, Mr. Mihalopoulos filed a Request for Review of UCSN's\nresponse. Mr. Mihalopoulos' Request for Review was timely filed and otherwise complies with\nsection 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2011 Supp.)). The Public Access Counselor\nextended the time to issue a binding opinion to July 3, 2013. Therefore, the Attorney General\nmay properly issue a binding opinion with respect to this matter.\n7) On March 26, 2013, the Public Access Bureau determined that further action\nwas warranted and sent a letter to UCSN requesting a detailed explanation of the relationship\nbetween UNO and UCSN and seeking clarification as to whether those two entities operate at the\nsame physical location, and whether both entities use the same record-keeping system and have\naccess to each other's records.\n8) On April 11, 2013, UCSN responded that UNO created UCSN, which is the\ngoverning body of UNO charter schools. UNO builds and leases charter schools to UCSN.\nUCSN then delegates management of the UNO charter schools to UNO pursuant to a\nmanagement services agreement. In addition, UCSN stated that UNO and UCSN use the same\nrecord-keeping system and have access to each other's records. UCSN stated that UNO\npossesses records concerning d'Escoto, Inc., but does not possess records concerning the other\nentities referenced in the FOIA request. UCSN asserted that it does not possess responsive\nrecords,\n9) On May 13, 2013, UCSN acknowledged that additional responsive records had\nbeen located, which UNO had provided to DCEO in response to that agency's request for\ninformation. However, UCSN maintained that neither UNO nor UCSN possessed any other\nrecords concerning subcontractors that were hired by a vendor that UNO contracted to design\nand build charter schools.\nMr. Dan Mihalopoules\nMr. Alfred Quijano\nJuly 3, 2013\nPage 14\n10) UCSN is the \"governing body” of UNO charter schools and, therefore, is\nsubject to FOIA pursuant to section 27A-5(c) of the Charter Schools Law.\n11) At the time of the FOIA request, the Board of UNO and UCSN consisted of\nthe same Board members and UCSN's president was the CEO of UNO. UNO and UCSN\nmaintain the same business address, use the same recordkeeping system and have access to each\nother's records. UNO pays UCSN’s key employees and top management officials, and UCSN\ncontracted with UNO to operate the charter schools. Based on all of the circumstances, UNO\nand UCSN are substantively indistinguishable and constitute the same entity for the purpose of\ncharter school operations, including serving as the governing body of the charter schools.\nTherefore, records concerning the charter schools in the possession of UNO are public records in\nthe possession of UCSN.\n12) Records concerning the use of public funds to design and build charter\nschools are public records subject to inspection and copying under section 2.5 of FOIA.\n13) Even assuming that UCSN is the sole governing body of the charter schools\nand that only records of UCSN are subject to FOIA, responsive records in the possession of\nUNO are subject to disclosure under section 7(2) of FOIA because the records directly relate to\nagreements under which UNO performs governmental functions for UCSN. Specifically, UNO\nbuilds the schools for the purpose of leasing them to UCSN; UCSN leases public schools from\nUNO and contracts with UNO to manage those schools.\n14) Records in the possession of vendors that UNO hired to design and build\ncharter schools are considered records of UNO and UCSN under section’7(2) of FOIA because\nUNO contracted the vendors to perform a governmental function.\nIn accordance with these findings of facts and conclusions of law, UCSN is\ndirected to provide Mr. Mihalopoulos with all records responsive to his request in the possession\nof UCSN, UNO, and their vendors. Under section 9.5(f) of FOIA, UCSN must either\nimmediately comply with this binding opinion or initiate administrative review under section\n11.5 of FOIA (5 ILCS 140/11.5 (West 2010).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a\nMr. Dan Mihalopoulos\nMr. Alfred Quijano\nJuly 3, 2013\nPage 15\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Dan\nMihalopoulos as defendants. See 5 ILCS 120/7.5 (West 2010).\nVery-truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nBy: a\nMichael J. Luke\nCounsel to the Attorney General\n23857 rfr 3d response sd\nce: Mr. Stephen F. Welcome\nBurke, Burns & Pinelli, Ltd.\nSuite 4360\nThree First National Plaza\nChicago, Illinois 60602-4229","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested records from the UNO Charter School Network (UCSN) under FOIA, but UCSN denied the request, claiming it did not possess the records because it had not contracted with the named entities. The Illinois Attorney General's Public Access Counselor issued a binding opinion concluding that UCSN violated section 3 of FOIA by failing to provide responsive records in its possession. The opinion found that records in the possession of a charter school's governing body that pertain to public business are public records, but did not explicitly order release of the documents.","card_headline":"A charter school's records of public business","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":30,"orig_master_id":19232,"dup_master_id":19003,"dup_sha256":"faff15f656d698dcf0552d7c8a2d36fbc315c61921b83705f7646090e5d3e6c3","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2013,"date_issued":"2013-09-24","case_number":"2013 PAC 24905","request_numbers":null,"title":"Statistical Data is Not Exempt from Disclosure under Section 7(1)() of FOIA","filename":"PUBLIC ACCESS OPINION 13-015 (Request for Review - 2013 PAC 24905).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 13-015 (Request for Review - 2013 PAC 24905).pdf","word_count":2808,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request made by Mr. Joe Mahr of the Chicago Tribune for crime report statistics from the Illinois State Police, which were initially withheld.","plain_summary":"The requester sought monthly Uniform Crime Report statistics that a city's police department had submitted to a state police agency for 2012 and 2013. The state police agency withheld the records entirely, arguing they were \"preliminary\" because the underlying numbers had not yet been verified and could later be revised, and that this made them exempt as deliberative material under the FOIA exemption for preliminary drafts, notes, and records in which opinions are expressed or policies are formulated. The PAC held that this exemption protects the deliberative process, not purely factual or statistical data, and that the crime statistics did not reveal any agency decision-making or reasoning—only numbers reported by the local police department. Because the possibility that data might later be corrected does not make it \"preliminary\" or deliberative in the legal sense, the PAC found the withholding improper and ordered the records released, noting the agency could simply flag the data as unverified.","holding":"The Illinois State Police violated FOIA by improperly withholding crime report statistics.","legal_question":"Is statistical data exempt from disclosure under Section 7(1) of FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Illinois State Police","requesting_party":"Mr. Joe Mahr, Chicago Tribune","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"Request for monthly Uniform Crime Report statistics submitted by City of Harvey to Illinois State Police.","ocr_status":"ok","ocr_quality":90.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2013-Binding-PAC-Opinions/13-015.pdf","sha256":"559c3280a21b3552ff7b72d3e1f9488f1e129ea874feab93733e613a8eb31d67","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["Uniform Crime Report","crime statistics","FOIA exemption 7(1)(f)","police records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nSeptember 24, 2013\nPUBLIC ACCESS OPINION 13-015\n(Request for Review 2613 PAC 24905)\nFREEDOM OF INFORMATION ACT:\nStatistical Data is Not Exempt from\nDisclosure under Section 7(1)() of FOIA\nMr. Joe Mahr\nChicago Tribune\n[street address redacted for site publication -- see original PDF]\nSergeant Kerry Sutton\nLegal Counsel\nIllinois State Police\n801 South Seventh Street, Suite 1000-5\nSpringfield, Ilinois 62703 . |\nDear Mr. Mahr and Sergeant Sutton:\nThis binding opinion is issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2012)). For the reasons\ndiscussed below, this office concludes that the Illinois State Police (ISP) violated FOIA by\nimproperly withholding crime report statistics requested by Mr. Joe Mahr.\nBACKGROUND\n“On June 11, 2013, Mr. Mahr, on behalf of the Chicago Tribune, submitted a\nFOIA request to ISP seeking “[a]ny and all monthly submissions of Uniform Crime Report\nstatistics submitted by the City of Harvey (or Harvey Police Department) to ISP, for every month\ncovering any part of 2012 and 2013, to date.’ On June 11, 2013, ISP denied the request in its\n‘E-mail from Joe Mahr, Chicago Tribune, to FOIA_Officer@isp.state.il.us (June 11, 2013).\n+\n500 South Second Street, Springfield, IHinois 62706 * (217) 782-1090 * TV: (877) 844-461 « Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Mlinois 68601 * (312) 814-3000 * “TTY: (800) 964-3013 « Fax: £312) 814-3806\n100t East Main, Carbondale, Wlingis 62901 * (618) 529-6400 * ‘TTY: (877) 675-9339 * Fax. (618) 529-6416 ‘ED\nMr. Joe Mahr\nSergeant Kerry Sutton\nSeptember 24, 2013\nPage 2\nentirety citing section 7(1)(D of FOIA (5 ILCS 140/7(1)(2) (West 2012)),7 which exempts from\ndisclosure:\nPreliminary drafts, notes, recommendations, memoranda\nand other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant\nportion of a record shall not be exempt when the record is publicly\ncited and identified by the head of the public body. * * *\nIn its response, ISP asserted that the requested data is preliminary in nature because agencies that\nsubmit data are permitted to review and verify data previously provided before it is published:\nPrior to verification, the data submitted is considered preliminary\nand may not reflect crimes that have actually occurred or been\ncharged within a jurisdiction. For the year 2012, the verification\nperiod is scheduled to begin in October, with the final report to be\npublished by the Hlinois State Police in December of 2013. The\nsame process will occur for the year 2013, with data verification\noccurring in October 2014 and the final report being published in\nDecember 2014. At this time, the Illinois State Police has not\nverified and published reports for the time period you are\nrequesting, It would be irresponsible of the Illinois State Police to\npublish or cause to be published information about crime ina\nJurisdiction knowing that the datai s preliminary and subject to\nreview at the time the data was provided.’\nOn June 12, 2013, Mr. Mahr submitted his Request for Review in which he\ndisputed the applicability of section 7(1)(f) by asserting that the data he requested consists\nexclusively of statistics and contains no opinions.’ On June 14, 2013, this office forwarded a\ncopy of the Request for Review to ISP and asked it to provide copies of the withheld records .\ntogether with a detailed explanation ofi ts legal and factual basis for asserting section TAH?\n*Letter from Lieutenant Steve Lyddon, FOIA Officer, [llinois State Police, to Joe Mahr, Chicago\nTribune (June 11, 2013).\n5Letter from Lieutenant Steve Lyddon, FOIA Officer, [Hinois State Police, to Joe Mahr, Chicago\nTribune (June 11, 2043).\n‘E-mail from Joe Mahr, Chicage Tribune, to paccess@atg-state.iLus (June 12, 2013).\nSLetter from Matthew C. Rogina, Assistant Attorney General, Public Access Bureau, to Lieutenant ~\nSteve Lyddon, FOIA Officer, Hlnois State Pelice (lune 14, 2013).\nMr. Joe Mahr\nSergeant Kerry Sutton\nSeptember 24, 2013 oF\nPage 3\nOn June 20, 2013, ISP responded that the records have \"not been confirmed as accurate. * * *\nThese records are preliminary drafts. They are not the final work product. wé\nThis office forwarded to Mr. Mahr a copy of ISP's response letter on June 28,\n2013.’ Mr. Mahr replied on July 1, 2013, stating:\nISP is trying to argue that because the data isn't double-\nchecked, there's a chance a figure may be inaccurate, so the public\nshould be denied these records until the collective law enforcement\nagencies get around to double-checking each figure, which could\ntake another year, and maybe close to two years. The reality is that\nFOIA has no allowance for agencies to withhold portions of\nrecords on the chance that something may be inaccurate. To the\ncontrary, FOIA can be used by citizens to see if information\ncontainedi n public records could later be proven inaccurate. Iti s\nhow citizens help judge the effectiveness of government.\nOn July 15, 2013, ISP provided the Public Access Bureau with a representative\nsample of the responsive records, which consist of one-page Hlinois Uniform Crime Reporting\nProgram ‘forms for each of three months - March 2012, August 2012, and February 2013. The\nforms set out specific categories of index crime offenses, index crime arrests, and drug crime\narrests with spaces for corresponding numbers to be entered by the reporting agency. The only\ninformation provided by the City of Harvey to ISP is the numbers entered in the spaces\ncorrelating to the several categories of index offenses, index crime arrests, and drug crime\narrests.\nOn August 7, 2013, this office properly extended the time to issue a binding\nopinion by 30 business days pursuant to section 9,5(f) of FOIA. $\nSLetter from Sergeant Kerry Sutton, Legal Counsel, Illinois State Police, to Matt Rogina,\nAssistant Public Access Counselor, Office of the Attorney General (June 20, 2013).\n\"Letter from Matthew C. Rogina, Assistant Attorney General, Public Access Bureau, to Joe Mahr,\nChicago Tribune (June 28, 2613).\n*E-mail from Joe Mahr, Chicage Tribune, to Matthew Rogina (July 1, 2013).\nLetter from Matt Rogina, Assistant Attorney General, Public Access Bureau, to Joe Mahr,\nReporter, Chicago Tribune, and Master Sergeant Daniel Carter, Illinois State Police (August 7, 2013).\n|\nMr. Joe Mahr\nSergeant Kerry Sutton\nSeptember 24, 2013\nPage 4\nANALYSIS\nBecause all public records in the possession or custody of a public body are\npresumed to be open to inspection and copying (5 ILCS 140/1.2 (West 2012)), exemptions to\ndisclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois Univ.,\n176 IN. 2d 401, 408 (1997). Section 1 of FOIA (5 ILCS 140/1 (West 2012)) provides:\n[I]t is declared to be the public policy of the State of Illinois\nthat all persons are entitled to full and complete information\nregarding the affairs of government and the official acts and\npolicies of those who represent them as public officials and public\nemployees consistent with the terms of this Act. Such access is\nnecessary to enable the people to fulfill their duties of discussing\npublic issues fully and freely, making informed political judgments\nand monitoring government to ensure that it is being conducted in\nthe public interest.\nxR\nRestraints on access to information, to the extent permitted\nby this Act, are limited exceptions to the principle that the people\nof this State have a right to full disclosure of information relating\nto the decisions, policies, procedures, rules, standards, and other\naspects ofg overnment activity that affect the conduct of\ngovernment and the lives of any or all of the people. The\nprovisions of this Act shall be construed in accordance with this\nprinciple{.| (Emphasis added.)\nThus, FOIA requires a narrow interpretation of the language of exemptions that permit the\nwithholding of records.\nSection 7(1)(f of FOIA is intended to protect the deliberative process and to\nencourage frank and open discussion among agency employees before a decision is made.\nHarwood vs. McDonough (2003), 344 Ill. App. 3d 242, 248, citing National Labor Relations\nBoard v. Sears, Roebuck & Co., 421 U.S. 132, 150-51, 95 §. Ct. 1504, 1516-17 (1975). Section\n7(1)(f) is the equivalent of the federal Freedom of Information Act's “deliberative process”\nprovision (5 U.S.C, § 552(6)(5) (West 2012)), which exempts inter- and intra-agency\npredecisional and deliberative material from disclosure. Harwood, 344 Il. App. 3d at 247. The\nUlinois Appellate Court has stated that \"purely factual material\" is not exempt from disclosure\nMr. Joe Mahr\nSergeant Kerry Sutton\nSeptember 24, 2013\nPage 5\nunder section 7(1)(4) unless the factual material is “inextricably intertwined\" with predecisional\ndiscussions. Watkins vy. McCarthy, 2012 IL App (Ist) 100632, § 36, 980 N.E.2d 733 (quoting\nEnviro Tech International, Inc., 371 F.3d 370, 374-75 (7th Cir. 2004)). Although ISP states that\nthe statistics could eventually be revised for accuracy, there is no suggestion that revising the\ndata involves a deliberative process as such.\nIn similar circumstances, federal courts have concluded that statistical data is\noutside the scope of the federal FOIA's \"deliberative process\" exemption'°. For example, in\nAssembly of State of California v. Department of Commerce, 968 F 2d 916 (9th Cir. 1992), the\nState Assembly challenged the Department of Commerce's denial of its request for computer :\ntapes containing statistically adjusted census data pursuant to the “deliberative process”\nexemption. The federal appeals court agreed with the trial court that the numerical data was\npurely factual, and because the disclosure of factual data would not divulge the reasoning\nprocess behind the ultimate decision not to adjust the census data, the tapes were not exempt\nunder the \"deliberative process\" exemption. The Department of Commerce also argued, as ISP\ndoes here, that it should not be required to release the tapes because the data might not be\naccurate and could confuse the public. Accepting that the numerical data were estimates and\nmight not be accurate, the appeals court nonetheless concluded that “inaccuracy is not a basis for\na FOIA exemption\" and that “it is not among FOIA's functions to control the use of disclosed\ninformation.\" Assembly of State of California, 968 F.2d at 923. ‘\nLikewise, in Petroleum Information Corp. y. U.S. Dept. of Interior, 976 F.2d\n1429, 1431 (D.C. Cir., 1992), a federal appellate court considered whether the deliberative\nprocess exemption applied to portions of a database, called the Legal Land Description (LLD)\nfile. The database contained \"geopolitical information about land, such as its location, the\nrelevant political units and administering agency, survey data, and acreage[ ]“ which had been\nconverted into a \"series of numeral descriptions.\" 976 F.2d at 1431. The court emphasized that\nthe scope of the exemption is limited to records that \"bear on the formulation or exercise of\nagency policy-oriented judgment.” (Emphasis in original.) Petroleum Information Corp., 976\nF.2d at 1435. The federal agency in possession of the data asserted that its disclosure would\nreveal corrections the agency made to original data transferred to the LLD as well as the agency's\ndeliberations concerning a planned data bank which would consolidate data and other elements\nHlinois courts have recognized that because Illinois' FOIA statute is based on the federal FOIA\nstatute, decisions construing the federal law, \"while not controlling, are relevant and heipful precedents in construing\nthe Illinois FOIA.\" Margolis v. Directors, Hlinois Dep. of Revenue, 180 Ill. App. 3d 1084, 1087, appeal denied, 126\nIll. 2d 560 (1989).\nMr. Joe Mabr\nSergeant Kerry Sutton\nSeptember 24, 2013\nPage 6\nin the LLD with related information. Petroleum Information Corp., 976 F.2d at 1436. In finding\nthat the records were not deliberative in nature, the court noted that the data was derived from\npublicly available documents and dismissed the agency's concerns about corrections to the data\nand its accuracy: “The Bureau, moreover, does not convincingly explain why its concems with\npublic confusion and harming its own reputation could not be allayed by conspicuously warning ~\nFOIA requesters that the LLD file is as yet unofficial and that the Bureau disclaims\nresponsibility for any errors or gaps.\" Petroleum Information Corp., 976 F.2d at 1437. Further,\nthe court held that disclosure of the data would not reveal any agency decision-making or\nreasoning because the file merely transferred “information contained in public source documents,\nalbeit with corrections where the documents are inaccurate or in conflict, or additions when\nrecords are incomplete. The objective, in sum, is not so much to select and edit as to reorganize\nand repackage a mass of dispersed public information.” Petroleum Information Corp., 976 F.2d\nat 1438.\nHere, the disclosure of the statistical data submitted by the City of Harvey would\nnot reveal any information about ISP's decision-making process in compiling the Uniform Crime\nReport. Section 7(1)(f protects communications in which public employees express opinions in\nthe course of formulating actions or policies; the Illinois Uniform Crime Reporting Program\nforms contain factual data derived from publie source documents, such as police records.\nDisclosing this statistical data would not provide insight into ISP's deliberative process or\ndiscourage ISP employees from engaging in discourse aimed at effectuating a course of action.\nRather, the statistics merely represent the number of criminal offenses and arrests that the City of\nHarvey reported to ISP over a given period. ISP's apparent concern that disclosure of\nunconfirmed data may cause confusion can be allayed by providing the information to the\nrequester with the caveat that the data has not been verified. Simply because the data may be\nsubject to review and possible revision does not make that data itself preliminary or deliberative\ncommunications within the scope of section 7(1)(/).\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n¥) On June 11, 2013, Mr. Joe Mahr submitted a FOIA request to ISP seeking\n“[a]ny and all monthly submissions of Uniform Crime Report statistics submitted by the City of\nHarvey (or Harvey Police Department) to ISP, for every month covering any part of 2012 and\n2013, to date.\"\nMr. Joe Mahr\nSergeant Kerry Sutton\nSeptember 24, 2013\nPage 7\n2} On June 11, 2013, ISP denied the request in its entirety citing section 7(1)(f) of\nFOIA, which exempts from disclosure preliminary records in which opinions are expressed or\npolicies or actions are formulated.\n3) On June 12, 2013, Mr. Mahr submitted a Request for Review of ISP's denial of\nhis FOIA request, asserting that the data is factual and numerical and not exempt under section\n7(1)(f). The Request for Review was timely filed and otherwise complies with the requirements\nof section 9.5(a} of FOIA (5 ILCS 140/9.5(a) (West 2012)).\n4) On June 14, 2013, this office forwarded a copy of the Request for Review to\nISP and asked it to explain the legal and factual basis for its assertion of section 7(1)(f) and to\nprovide a copy of the responsive records for review.\n5) On June 20, 2013, ISP provided the Public Access Bureau with an explanation\nof its reasoning for asserting section 7(1)(f); on July 15, 2013, ISP provided this office with a\nrepresentative sample of the statistical data that Mr. Mahr requested.\n6) On August 7, 2013, the Public Access Counselor extended the time to issue a\nbinding opinion by 30 business days, to September 24, 2013. Therefore, the Attorney General\nmay properly issue a binding opinion with respect to this matter.\n7) Section 7(1)(f of FOIA does not exempt purely factual information from\ndisclosure. The records Mr. Mahr requested contain statistical information concerning incidents\nof crimes in the City of Harvey. The records do not touch upon any aspect of any deliberative\nprocess relating to the compilation or publication of the Uniform Crime Report. Consequently,\nISP improperly denied Mr. Mahr's FOIA request pursuant to section 7(1)(f) of FOIA.\nTherefore, it is the opinion of the Attorney General that the ISP has, in violation\nof the requirements of the Freedom of Information Act, improperly denied Mr. Mahr's FOIA\nrequest. Accordingly, ISP is directed to take immediate and appropriate action to comply with\nthis opinion by providing the monthly Uniform Crime Report statistics submitted to it by the\nCity of Harvey for 2012 and 2013, as requested by Mr. Mahr.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\nef seg. (West 2012). An aggrieved party may obtain judicial review of the decision by filing a\nMr. Joe Mahr\nSergeant Kerry Sutton\nSeptember 24, 2013\nPage 8\ncomplaint for adrhinistrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Mr. Joe Mahr of the\nChicago Tribune as defendants. See 5 ILCS 140/11.5 (West 2012).\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\nBy: Chteclem ff orton\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Illinois Freedom of Information Act's exemptions are narrowly construed. Section 7(1)(f) exempts law enforcement records that would cause specific harms such as interfering with enforcement proceedings or depriving a person of a fair trial. The requested Uniform Crime Report statistics are routine statistical compilations, not investigative records, and the Illinois State Police failed to demonstrate how their disclosure would cause any of the enumerated harms. Therefore, the statistics are not exempt and must be disclosed.","card_headline":"Monthly Uniform Crime Report statistics","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":31,"orig_master_id":19004,"dup_master_id":19233,"dup_sha256":"6067c2e5230095429f208a7e7c5ea6322716620a29d334bdb5c34a8a0c249921","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2013,"date_issued":"2013-06-24","case_number":"2013 PAC 25078","request_numbers":null,"title":"Duty to Inform the Public of the Nature of the Business under Consideration Prior to Taking Final Action","filename":"PUBLIC ACCESS OPINION 13-016 (Request for Review - 2013 PAC 25078).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 13-016 (Request for Review - 2013 PAC 25078).pdf","word_count":2212,"summary":"The Board of Education of Geneva Community Unit School District No. 304 (Board) violated the requirements of OMA by taking final action on a matter without sufficiently informing the public of the nature of that action . The Board also alleged a violation of the Freedom of Information Act which was in a separate Request for Review .","plain_summary":"A requester alleged that the school district's board violated the Open Meetings Act by voting in open session to dismiss an employee identified only as \"Employee A,\" without naming the employee, after discussing the matter in closed session. The PAC held that while boards may discuss personnel performance issues in closed session, any final action—like a vote to dismiss—must occur in open session and be preceded by a public recital sufficient to inform the public of the actual business being conducted. Because the board withheld the employee's identity, citing privacy concerns, the public could not understand the real effect of the vote (for example, whether the action concerned a support staffer, teacher, or administrator), so the board failed to meet this disclosure requirement. The PAC directed the school district to reconsider its final action and, going forward, to include the employee's name and other identifying information when taking such final action in open session.","holding":"A public body violates section 2(e) of the Open Meetings Act when it takes final action to dismiss a specific employee in open session without identifying that employee by name, because doing so fails to sufficiently inform the public of the nature of the business being conducted.","legal_question":"Whether a public body violates the Open Meetings Act by taking final action on an employee dismissal without providing the public with sufficient information regarding the nature of the matter being considered.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2(c), 5 ILCS 120/2, 5 ILCS 120/1, 5 ILCS 120/2(e), 735 ILCS 5/3, 5 ILCS 120/7","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":[],"public_body":"Board of Education Geneva Community Unit School District","requesting_party":"Schory and Mr. Grosso","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"meeting notice","subject_description":"The Board took final action to recommend the dismissal of an employee without disclosing the identity of the employee or the nature of the matter to the public.","ocr_status":"ok","ocr_quality":90.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2013-Binding-PAC-Opinions/13-016.pdf","sha256":"c65ab0968062e887b342162a79d41d8b88748bd6497cdee2fb60579005d5631e","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["Open Meetings Act","final action","employee dismissal","public notice","transparency"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL September 24, 2013 PUBLIC ACCESS OPINION 13-016 (Request for Review 2013 PAC 25078) OPEN MEETINGS ACT: Duty to Inform the Public of the Nature of the Business under Consideration Prior to Taking Final Action Ms. Brenda Schory Staff Writer Kane County Chronicle 333 North Randall Road, Suite 2 St. Charles, Illinois 60174 Mr. Mark Grosso President, Board of Education Geneva Community Unit School District No. 304 227 North Fourth Street Geneva, Illinois 60134 Dear Ms. Schory and Mr. Grosso: This is a binding opinion issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2012)). For the reasons that follow, this office concludes that at a meeting held on June 24, 2013, the Board of Education of Geneva Community Unit School District No. 304 (Board) violated the requirements of OMA by taking final action on a matter without sufficiently informing the public of the nature of that action. BACKGROUND On June 26, 2013, Ms. Brenda Schory submitted a Request for Review on behalf of the Kane County Chronicle stating that on June 24, 2013, the Board held a closed meeting to 500 South Second Street, Springfield, Illinois 62706 © (217) 782-1090 © TTY: (877) 844-5461 © Fax: (217} 782-7046 100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 ¢ TTY: (800) 964-3013 © Fax: (312) 814-3806 1001 Ease Main, Carbondale, Illinois 62901 © (618) 529-6400 ¢ TTY: (877) 675-9339 ® Fax: (618) 529-6416 Dm Ms. Brenda Schory Mr. Mark Grosso September 24, 2013 Page 2 conduct a dismissal hearing. Ms. Schory alleged that \"[a]fter about 90 minutes, the meeting was reconvened in open session and board members voted to recommend the dismissal of an employee identified only as ‘employee A' in direct violation of the Open Meetings Act[.]\"! On July 9, 2013, the Public Access Bureau sent a copy of Ms. Schory's Request for Review to the Board and asked for a written response to the allegations, as well as a copy of the agenda, minutes, and any video or audio recordings of the open portions of the meeting. Counsel for the Board, Mr. Richard T. Petesch, responded in a letter dated July 18, 2013, and furnished copies of the agenda and draft minutes of the June 24, 2013, regular meeting, as well as a video recording of the first open portion of the meeting. Mr. Petesch explained that the videographers are dismissed when the Board enters closed session, therefore, the open portions of the meeting occurring after closed sessions are not recorded.? Consequently, the portion of the open session at which the dismissal was considered was not captured on video.’ The Board's response, however, noted that its vote to recommend the dismissal of the employee constituted final action under OMA. The Board explains its view that \"in the instances of personnel who might be terminated from their employment for cause, the Board believes that the Privacy interests of the individual employees outweigh the public's right to their identity.” On July 23, 2013, this office forwarded the Board's response to Ms. Schory. Ms. Schory replied on July 25, 2013, stating, \"[a]s a public entity, District 304 does not have the legal right to withhold the names of those whom are fired for cause when voting to do so at a public meeting.” 'E-mail from Brenda Schory, Staff Writer, Kane County Chronicle, to Sara[h] Pratt, Public Access Counselor, Illinois Attorney General (June 26, 2013). Ms. Schory also alleged a violation of the Freedom of Information Act which was addressed in a separate Request for Review. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 25230, issued July 19, 2013. Letter from Richard T. Petesch, Whitt Law LLC, to Rob Olmstead, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (July 18, 2013). Although OMA does not require a public body to audio- or video-record an open meeting, this office requested a copy of any recording of the open meeting that may have been made in order to aid our determination in this matter. ‘Letter from Richard T. Petesch, Whitt Law LLC, to Rob Olmstead, Assistant Attorney General, Public Access Bureau, Office of the Attomey General (July 18, 2013). 5E-mail from Brenda Schory, Staff Writer, Kane County Chronicle, to Mark Grosso, Board President, Geneva District 304, and Richard Petesch, Whitt Law; carbon copy to Rob Olmstead, Assistant Illinois Attorney General, Public Access Bureau, Esther Seitz, Attorney at Craven Law, and Kathy Gresey, Editor, Kane County Chronicle (July 25, 2013). Ms, Brenda Schory Mr. Mark Grosso September 24, 2013 Page 3 On August 19, 2013, the Public Access Bureau extended the time to issue a binding opinion by 21 business days, to September 24, 2013, pursuant to section 3.5(e) of OMA. ANALYSIS Section 2(c)(1) of OMA (5 ILCS 120/2(c)(1) (West 2012) permits a public body to hold closed meetings to consider \"[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body[.]\" The agenda for the June 24, 2013, meeting properly included the following items: 13. EXECUTIVE SESSION TO CONSIDER MATTERS PERTAINING TO THE APPOINTMENT, EMPLOYMENT, COMPENSATION, DISCIPLINE, PERFORMANCE, OR DISMISSAL OF SPECIFIC EMPLOYEES OF THE PUBLIC BODY [5 ILCS 120/2(c)(1}; AND PENDING LITIGATION [5 ILCS 120/2( eX 11)] 14. ACTION POSSIBLE FOLLOWING EXECUTIVE SESSION The Board's draft minutes indicate that after the Board reconvened from its closed session, a motion was made \"to approve the recommendation for dismissal of Employee A due to performance concerns\" and that the motion passed.’ The issue posed for determination by this office is whether it was permissible for the Board to take final action to dismiss a public employee without identifying that individual by name. The General Assembly has declared: [i]t is the public policy of this State that public bodies exist to aid in the conduct of the people's business and that the people have a right to be informed as to the conduct of their business. In order that the people shall be informed, the General Assembly finds and declares that it is the intent of this Act to ensure that the actions of *Letter from Rob Olmstead, Assistant Attorney General, Public Access Bureau, to Brenda Schory, Staff Writer, Kane County Chronicle, and Richard T. Petesch, Whitt Law LLC (August!9, 2013). \"Geneva Community Unit School District Number 304 Board of Education, Meeting, June 24, 2013, Draft Minutes 6. Ms. Brenda Schory Mr. Mark Grosso September 24, 2013 Page 4 public bodies be taken openly and that their deliberations be conducted openly. 5 ILCS 120/1 (West 2012). Under section 2(e) of OMA (5 ILCS 120/2(e) (West 2012)), \"[flinal action shall be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted.\" (Emphasis added.) See, Simonis v. Countryside Fire Protection District, 173 Ill. App. 3d 418, 424 (1988) (stating \"the Act allows a public body to consider disciplinary matters in a closed session so long as its final action is taken at an open meeting\"). (Emphasis added.) Thus, although a public body is permitted to discuss the performance or shortcomings of a specific employee in a meeting closed to the public, it must take any final action concerning that employee in an open meeting. Moreover, the public body must provide the public with sufficient information to understand the effect of its action before it votes to discipline or dismiss the employee. Because the employee whose termination was recommended was identified only as \"Employee A,\" the public was deprived of any meaningful information concerning the practical effect of the Board's decision. Although the public could know the general nature of the matter being considered from the motion, without being informed of the identity of the employee who was the subject of the action the public could not determine whether the Board was dismissing a support staff, a teacher, a principal, or the superintendent of the District. By declining to identify the subject of the dismissal by name, the Board did not fully comply with the requirements of section 2(e) of OMA that it \"inform the public of the business being conducted.\" This conclusion finds support in both the majority and dissenting opinions in Haight v. Bd. of Ed. of Cmty. Unit Sch. Dist. No. 205, Knox and Warren Counties, 29 Ill. App. 3d 48 (3rd Dist. 1975). In Haight, the underlying issue was whether a resolution adopted by the board to send a notice of dismissal to the plaintiff teacher constituted a valid final action to dismiss her. The majority affirmed the dismissal, holding that the amended minutes of the school board meeting accurately reflected that the board had taken final action to dismiss the teacher by name during an open meeting of the board. Haight, 29 Ill. App. 3d at 49-50. Justice Barry, however, dissented from that opinion, stating that the manifest weight of the evidence showed that the teacher's name had vot been referenced in the resolution, as was required, and that the amended minutes were therefore inaccurate in that regard. He noted that there was testimony that the name of the teacher (and another affected employee) had been left out of the resolution and the original minutes to avoid embarrassment, to which he responded: However laudable the Board's motives here in concealing identities 'to save embarrassment,’ the legislature has clearly opted for the overriding policy of accountability. It is not our Ms. Brenda Schory Mr. Mark Grosso September 24, 2013 Page 5 prerogative, or the Board's, to reject the importance of that public interest, or to exempt school boards from the express application of the Act. Haight, 29 Ill. App. 3d at 54-55. Although the court's majority and dissenting opinions reach differing conclusions based on the interpretation of the underlying facts, they are in agreement that OMA requires that the teacher's name be included in the board's final action to dismiss her. On behalf of the Board, Mr. Petesch explained the Board's belief that the privacy interests of individual employees who are dismissed for cause outweigh the public's right to learn the employee's identity. While that view is understandable, Haight establishes that OMA does not permit a board to decline to reveal the identity of employees who are dismissed from public service in order to avoid embarrassment. The public is entitled to information regarding the performance of public employees, particularly when their performance falls so far below accepted standards as to warrant discipline or discharge. Section 2(e) of OMA ensures that the public has access to that information. FINDINGS AND CONCLUSIONS After full review and giving due consideration to the arguments of the parties, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) During an open meeting on June 24, 2013, the Board of Education of Geneva Community Unit School District No. 304 voted to dismiss an employee identified only as \"Employee A.\" 2) On June 26, 2013, the Public Access Bureau received Ms. Brenda Schory's Request for Review alleging that the Board violated the Open Meetings Act by not identifying the employee by name before it took final action to dismiss the employee. Ms. Schory's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2012). The Attorney General extended the time to issue a binding opinion by 21 business days, until] September 24, 2013. Therefore, the Attorney General may properly issue a binding opinion with respect to Ms. Schory's Request for Review. 3) The vote by the Board to dismiss \"Employee A” constituted final action under OMA. However, by declining to identify the employee being terminated from employment, the Board failed to adequately inform the public of the nature of the business being conducted, in violation of section 2(e) of OMA. Ms. Brenda Schory Mr. Mark Grosso September 24, 2013 Page 6 In accordance with these findings of fact and conclusions of law, the Board is directed to take immediate and appropriate action to comply with this opinion by reconsidering its June 24, 2013, final action, and by preceding any resulting final action with a public recital of the nature of the matter being considered and other information, including the name of the employee, that will inform the public of the business being conducted. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 ef seg. (West 2012). As required by section 3.5(e) of OMA, the Board shall take necessary action as soon as practical to comply with the directives of this opinion or shail initiate administrative review under section 7.5 of OMA. 5 ILCS 120/7.5 (West 2012). Judicial review of this decision may be obtained by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Ms. Brenda Schory as defendants. See 5 ILCS 120/7.5 (West 2012). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: be Michael J. Luke Counsel to the Attorney General cc: Mr. Richard T. Petesch Whitt Law LLC 70 South Constitution Drive Aurora, Illinois 60506-7335","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The question was whether a school board's open-session vote to dismiss an employee, identified only as 'Employee A,' satisfied section 2(e) of the Open Meetings Act's requirement that final action be preceded by a public recital informing the public of the nature of the business conducted. The Attorney General held that the Board violated section 2(e) because withholding the employee's name deprived the public of meaningful information about the practical effect of the dismissal vote, even though discussing the matter in closed session under section 2(c)(1) was proper. The opinion relies on Haight v. Board of Education, where both the majority and dissent agreed OMA requires the employee's name to appear in the board's final action, rejecting the Board's argument that the employee's privacy interest outweighed public disclosure. The bound party is the Board of Education of Geneva Community Unit School District No. 304, and the meeting at issue was its June 24, 2013 regular meeting including a closed dismissal hearing followed by an open-session vote.","card_headline":"A school board's final action on an employee dismissal","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":32,"orig_master_id":19234,"dup_master_id":19005,"dup_sha256":"ef5528f3d7f1abed6f17a75b2bda14af0065100288ef8a8c9702bdd91c43cf42","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2013,"date_issued":"2013-11-12","case_number":"2013 PAC 25483","request_numbers":null,"title":"Duty to Provide \"Clear and Convincing\" Evidence to Support Assertion of Exemptions; Possibility of Obtaining Public Records through Discovery Does Not Preclude FOIA Requests","filename":"PUBLIC ACCESS OPINION 13-017 (Request for Review - 2013 PAC 25483).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 13-017 (Request for Review - 2013 PAC 25483).pdf","word_count":3698,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request made by Ms. Maria de los Angeles Diaz for a police report that the City of Berwyn denied.","plain_summary":"The requester asked the police department for a copy of a specific police report, but the department denied the request, claiming disclosure would interfere with law enforcement proceedings and could deprive someone of a fair trial. The department also argued the requester should instead obtain the report through court discovery procedures. The PAC held that the department's justifications were vague and conclusory, failing to show by clear and convincing evidence that either exemption applied, and further explained that the availability of records through discovery does not eliminate a person's separate right to obtain records under FOIA. As a result, the PAC directed the department to release the report, subject only to limited redactions for private information and confidential source information.","holding":"The City of Berwyn failed to comply with FOIA by withholding the requested police report.","legal_question":"Whether the City of Berwyn properly withheld a police report under FOIA exemptions.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)(i)","7(1)(d)(ii)","7(1)(b)","7(1)(d)(iv)"],"public_body":"City of Berwyn","requesting_party":"Ms. Maria de los Angeles Diaz","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The City of Berwyn denied a FOIA request for a specific police report, citing law enforcement exemptions.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2013-Binding-PAC-Opinions/13-017.pdf","sha256":"7439ab4586ba4eff981e9f13682b15bd4260634247e67e57b8e45ba76ab977b0","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","FOIA denial","law enforcement records","burden of proof"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL.\nNovember 12, 2013\nPUBLIC ACCESS OPINION 13-017\n(Request for Review 2013 PAC 25483)\nFREEDOM OF INFORMATION ACT:\nDuty to Provide \"Clear and Convincing\"\nEvidence to Support Assertion of\nExemptions; Possibility of Obtaining\nPublic Records through Discovery\nDoes Not Preclude FOIA Requests\nMs. Maria de los Angeles Diaz\n[street address redacted for site publication -- see original PDF]\nMr. Thomas J. Pavlik\nBerwyn City Clerk/FOIA Officer\nCity of Berwyn\n6700 West 28th Street\nBerwyn, Illinois 60402-0701\nDear Ms. Diaz and Mr. Pavlik:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2012)). For the reasons discussed below, this\noffice concludes that the City of Berwyn (City) failed to comply with the requirements of FOTA\nby withholding a copy of a police report requested by Ms. Maria de los Angeles Diaz.\n500 South Second Street, Springfield, Illinois 62706 © (217) 782-1090 ¢ TTY: (877) 844-5461 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Ilinois 60601 © (312) 814-3000 © ‘TTY: (800) 964-3013 © Fax: (312) 814-3806\n1001 East Main, Carbondale, Mlinois 62901 © (618) 529-6400 «© TTY: (877) 675-9339 © Fax: (618) 529-6416 On August 28, 2013,\nthe Public Access Bureau forwarded a copy of the Request for Review to the City and asked the\nCity to:\nclarify whether the City contracts with an engineering firm to\nperform public work projects on behalf of the City. If so, please\nLetter from Clint Lorton, Field Supervisor, Midwest Region Foundation for Fair Contracting,\nInc., to Martinsville FOIA Officer (August 2, 2013).\n5Letter from Marlene Wilhoit, FOIA Officer, City of Martinsville, to Clint Lorton, Field\nSupervisor, Midwest Region Foundation for Fair Contracting, Inc, (August 13, 2013).\n“Invoice submitted by Francis Associates, Consulting Engineers, Land Surveyors, to City of\nMartinsville, IL (August 12, 2013).\n5E-mail from Clint Lorton to Public Access Bureau (August 20, 2013).\nMr. Clint Lorton\nMs. Marlene Wilhoit\nDecember 3, 2013\nPage 4\nexplain the City's position as to whether records regarding City\npublic works projects in the custody of the engineering firm are\nsubject to disclosure by the City pursuant to section 7(2) of FOIA\n(5 ILCS 140/7(2) (West 2012)), which provides:\n[a] public record that is not in the possession of a\npublic body but is in the possession of a party with\nwhom the agency has contracted to perform a\ngovernmental function on behalf of the public body,\nand that directly relates to the governmental\nfunction and is not otherwise exempt under this Act,\nshall be considered a public record of the public\nbody, for purposes of this Act.\nAdditionally, please explain how the engineering firm maintains\nthe records and the basis for the $1,136.00 invoice for providing\ncopies of the records. Please identify the specific estimated costs\nreflected in that invoice, and clarify whether the City is attempting\nto charge Mr. Lorton for the labor involved in retrieving the\nrecords he requested. !6\nRichard J. Bernardoni submitted a response on behalf of the City, which this\noffice received on September 17, 201 3.’ The response noted that on August 5, 2013, the City\nhad obtained and furnished to Mr. Lorton the records responsive to items 7, 10, 17, and 20 of his\nrequest. The letter further stated that the City later obtained and furnished Mr. Lorton with the\npayroll reports responsive to item 12 of his request; therefore, only the production of items 5, 6,\n11, 15, 16, 18, and 19 remained at issue. The response stated that the City had “obtained an\nestimate [from its engineer] for the cost to locate and copy\" responsive records and had passed\nthat estimate along to Mr. Lorton, but that \"Mr. Lorton [had] elected not to pay for the cost of\nobtaining the documents{.]\"®\n*Letter from Josh Jones, Assistant Attorney General, Public Access Bureau, to Marlene\nWilhoit, Clerk, City of Martinsville (August 28, 2013).\n” Letter from Richard J. Bemnardoni, Meehling & Bernardoni, to Josh Jones, Assistant Attorney\nGeneral, Public Access Bureau (September 12, 2013).\n®Letter from Richard J. Bernardoni, Meehling & Bernardoni, to Josh Jones, Assistant Attorney\nGeneral, Public Access Bureau (September 12, 2013).\nMr. Clint Lorton\nMs. Marlene Wilhoit\nDecember 3, 2013\nPage 5\nAddressing its association with the engineering firm that conducted the\nsidewalk/curb project, Mr. Bernardoni stated that \"Francis Associates[ ] is a private non-\ngovernmental firm that does not fall under the definition of a public body as defined in\" FOIA.\nSee 5 ILCS 140/2(a) (West 2012). He asserted that the fee provisions of FOIA exclude only the\nsearch and personnel costs incurred by public bodies, not by non-governmental entities, noting:\n\"The legislature had no intention for public bodies to be required to pay fees to third parties to\nreproduce records without being reimbursed.\"° Accounting for the fee in the invoice provided by\nthe City's engineer, the response simply stated: \"[t]he vast majority of the estimate ($1,136.00) is\nfor labor for locating and assembling the requested documentation.\"'° Neither the invoice itself\nnor the City's response specifically indicates whether any portion of the total estimated cost of\n$1,136.00 represents fees charged for copying costs. The response also did not address the\napplicability of section 7(2) of FOIA.\nOn September 19, 2013, the Public Access Bureau forwarded a copy of the City's\nresponse to Mr. Lorton and notified him of his opportunity to reply under section 9.5(d) of FOIA\n(5 ILCS 140/9.5(d) (West 2012)).'' On September 24, 2013, Mr. Lorton replied:\nIt is my expressed opinion that the fees for copying items 11, 15,\n16, and 19 are in excess of the amount set by the Attorney\nGeneral's Office. * * *\nThe City of Martinsville paid for all the Material, Engineering, and\nLabor on the project. In my expressed opinion that would make all\nreceipts, invoices, tickets, and engineers logs public body\ndocuments. If a Private Company was performing a private project\nwith private monies I can understand that the documents in\nquestion would not be covered by FOIA. \"7!\n‘Letter from Richard J. Bernardoni, Meehling & Bernardoni, to Josh Jones, Assistant Attorney\nGeneral, Public Access Bureau (September 12, 2013).\nLetter from Richard J. Bernardoni, Meehling & Bernardoni, to Josh Jones, Assistant Attorney\nGeneral, Public Access Bureau (September 12, 2013).\n\"Letter from Josh Jones, Assistant Attorney General, Public Access Bureau, to Mr. Clint Lorton,\nMidwest Region for Fair Contracting, Inc. (September 19, 2013).\n\"E-mail from Clint Lorton, Field Supervisor, MRFFC, to Mr. Josh Jones, Assistant Attorney\nGeneral, Public Access Bureau (September 24, 2013).\nMr. Clint Lorton\nMs. Marlene Wilhoit\nDecember 3, 2013\nPage 6\nThis office subsequently obtained a copy of the professional services agreement\nentered into by the City and Francis Associates relating to the sidewalk/curb improvement\nproject.'? Pursuant to the agreement, Francis Associates agreed to provide to the City design\nengineering services (including the \"preparation of plans, specifications, and bidding\ndocuments\") and construction engineering services (including “construction staking, construction\ntesting services (as required), on-site observation of construction activities, and contract\nadministration as requested by the [City]\") related to the sidewalk/curb project in exchange for\nthe payment of specified fees. The agreement expressly provided that \"[a]ll documents produced\nby Francis Associates under this agreement shall become the property of the [City]\" and that the\nagreement would be governed by Illinois law.\nOn October 18, 2013, this office properly extended the time to issue a binding\nopinion by 30 business days pursuant to section 9.5(f) of FOIA.\"*\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with this Act.\" 5 ILCS\n140/1 (West 2012). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2012)), “fall records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"\nSection 3 of FOIA (5 ILCS 140/3 (West 2012)) provides, in pertinent part:\n(a) Each public body shall make available to any person for\ninspection or copying all public records, except as otherwise\nprovided in Section 7 of this Act. * * *\n(b) Subject to the fee provisions of Section 6 of this Act,\neach public body shall promptly provide, to any person who\nsubmits a request, a copy of any public record required to be\ndisclosed by subsection (a) of this Section and shall certify such\ncopy if so requested.\n\"Agreement between City of Martinsville and Francis Associates, Project No. 4708, dated\nJanuary 23, 2012, and executed February 8, 2012.\n“Letter from Josh Janes, Assistant Attorney General, Public Access Bureau, to Mr. Clint Lorton,\nMidwest Region for Fair Contracting, Inc., and Ms. Marlene Wilhoit, Clerk, City of Martinsville (October 18,\n2013).\nMr. Clint Lorton\nMs. Marlene Wilhoit\nDecember 3, 2013\nPage 7\nPublic Records\nThe City asserts that the fee provisions of FOIA prohibit only the assessment of\npersonnel costs incurred by public bodies, not private companies, to locate and reproduce\nrecords, and that \"Francis Associates is a private company that is not subject to the provisions of\nthe FOIA.\"© However, section 7(2) of FOIA provides:\n[a] public record that is not in the possession of a public\nbody but is in the possession of a party with whom the agency has\ncontracted to perform a governmental function on behalf of the\npublic body, and that directly relates to the governmental function\nand is not otherwise exempt under this Act, shall be considered a\npublic record of the public body, for purposes of this Act.\nIn this instance, the City contracted with Francis Associates to provide design and\nengineering services for a public sidewalk/curb improvement project. Under section 11-61-2 of\nthe Illinois Municipal Code (65 ILCS 5/11-61-2 (West 2012)), \"[t]he corporate authorities of\neach municipality may vacate, lay out, establish, open, alter, widen, extend, grade, pave, or\notherwise improve streets, alleys, avenues, sidewalks, wharves, parks, and public grounds.” The\ndesign and oversight of the sidewalk/curb improvement project was clearly a \"governmental\nfunction\" of the City. Accordingly, pursuant to section 7(2) of FOIA, records in the possession\nof Francis Associates that directly relate to the project are public records of the City subject to\nthe provisions of FOIA, despite the fact that the firm, and not the City, has physical custody of\nthe records. Moreover, the contract itself expressly provides that \"[a]ll documents produced by\nFrancis Associates under this agreement shall become property of the {City].\"\"\nAuthority to Charge Fees\nThe City's authority to charge fees for the production of public records is limited\nby section 6(b) of FOIA (5 ILCS 140/6(b) (West 2012)), which provides:\nExcept when a fee is otherwise fixed by statute, each\npublic body may charge fees reasonably calculated to reimburse\nits actual cost for reproducing and certifying public records and\n'SLetter from Richard J. Bernardoni, Meehling & Bernardoni to Mr. Josh Jones, Assistant\nAttormey General, Public Access Bureau (September {2, 2613).\n“Agreement between City of Martinsville and Francis Associates, Project No. 4708, dated\nJanuary 23, 2012, and executed February 8, 2012.\nMr. Clint Lorton\nMs. Marlene Wilhoit\nDecember 3, 2013\nPage 8\nfor the use, by any person, of the equipment of the public body to\ncopy records. No fees shail be charged for the first 50 pages of\nblack and white, letter or legal sized copies requested by a\nrequester. The fee for black and white, letter or legal sized copies\nshall not exceed 15 cents per page. If a public body provides\ncopies in color or in a size other than letter or legal, the public\nbody may not charge more than its actual cost for reproducing the\ntecords. In calculating its actual cost for reproducing records or\nfor the use of the equipment of the public body to reproduce\nrecords, a public body shall not include the costs of any search\nJor and review of the records or other personnel costs associated\nwith reproducing the records, except for commercial requests as\nprovided in subsection (f) of this Section. Such fees shall be\nimposed according to a standard scale of fees, established and\nmade public by the body imposing them. The cost for certifying a\nrecord shall not exceed $1. (Emphasis added.)\nSection 6(a) of FOIA (5 ILCS 140/6(a) (West 2012)) also addresses the assessment of fees and\nprovides, in pertinent part:\nA public body may not charge the requesterf or the costs\nof any search for and review of the records or other personnel\ncosts associated with reproducing the records, except for\ncommercial requests as provided in subsection (f) of this Section.\n(Emphasis added.)\nThus, under the plain language of sections 6(a) and 6(b), a public body may not\ncharge a non-commercial requester for the costs of searching for public records, for reviewing\npublic records, or for any other personnel expenses associated with reproducing public records.\nThe imposition of a fee that is not consistent with subsections (6)(a) and 6(b) of FOIA constitutes\na denial of the request. 5 ILCS 140/6(d) (West 2012).\nThe City argues that section 6(b) provides that a public body may charge the\n“actual costs\" of a search by someone other than the public body itself. Section 6(b) permits a\npublic body to \"charge fees reasonably calculated to reimburse its actual cost for reproducing\nand certifying public records,\" but provides that the fees assessed by the public body \"shall not\nexceed\" 15 cents per page for black and white copies, nor \"more than its actual cost\" for color or\nabnormally-sized copies. Taken in context with section 6(a), it is clear that the use of the term\n“actual cost\" is intended to allow a public body to recoup expenses it incurs in copying and/or\nMr. Clint Lorton\nMs. Marlene Wilhoit\nDecember 3, 2013\nPage 9\ncertifying public records, but not to permit a public body to charge a non-commercial requester\nfor search, review, or other personnel costs.\nNotwithstanding the plain language of section 6, however, the City contends that\n\"[t]he legislature had no intention for public bodies to be required to pay fees to third parties to\nreproduce records without being reimbursed.\"'” In section 1 of FOLA (5 ILCS 140/1 (West\n2012)), however, the General Assembly acknowledges that the Act may create expenses for\npublic bodies, but found that the expenses of compliance are justified by the importance of\nproviding public access to the records of government:\nThe General Assembly recognizes that this Act imposes\nfiscal obligations on public bodies to provide adequate staff and\nequipment to comply with its requirements, The General Assembly\ndeclares that providing records in compliance with the\nrequirements of this Act is a primary duty of public bodies to the\npeople of this State, and this Act should be construed to this end,\nfiscal obligations notwithstanding.\nThe records requested by Mr. Lorton are public records of the City, and it is the\nobligation of the City to produce those records pursuant to a FOIA request. Although the records\nare currently in the possession of a third party with which the City contracted to perform certain\nservices, FOIA does not permit the City to charge Mr. Lorton for any labor costs incurred by the\nCity in obtaining copies of those records from the contractor. By conditioning the production of\nthe requested records upon his payment of such costs, the City improperly denied Mr. Lorton's\nAugust 2, 2013, FOIA request and violated section 6 of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments presented,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On August 2, 2013, Mr. Clint Lorton, on behalf of the Midwest Region\nFoundation for Fair Contracting, Inc., submitted a FOIA request to the City of Martinsville\nseeking records concerning a sidewalk/curb improvement project within the City.\n2) On August 13, 2013, the City provided Mr. Lorton with records responsive to\nitems 7, 10, 17, and 20 of his request, but stated that it did not possess records responsive to\n\"Letter from Richard J. Bernardoni, Meehling & Bernardoni to Mr. Josh Jones, Assistant\nAttorney General, Public Access Bureau (September 12, 2013).\nMr. Clint Lorton\nMs. Marlene Wilhoit\nDecember 3, 2013\nPage 10\nitems 5, 6, 11, 12, 15, 16, 18, and 19 because those records were in the possession of the City's\nengineering firm. The City produced an invoice from the engineering firm estimating that it\nwould charge the City $1,136.00 to locate and furnish the requested records. The City notified\nMr. Lorton that it would obtain and furnish the records upon Mr. Lorton's payment of the\nestimated costs.\n3) On August 20, 2013, Mr. Lorton submitted a Request for Review of the City's\ndenial of his FOIA request. Mr. Lorton’s Request for Review was timely filed and otherwise\ncomplies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2012)).\n4) On August 28, 2013, this office forwarded a copy of Mr. Lorton's Request for\nReview to the City and asked it to provide information regarding whether it had contracted with\nan engineering firm to perform the sidewalk/curb project for the City, whether records in the\npossession of the engineering firm would be considered records of the City and subject to\ndisclosure, how the engineering firm maintained the records in question, and the basis for the\nfees set out in the invoice, including whether the City and the engineering firm were seeking to\ncharge for the labor involved in retrieving the records,\n5) On September 12, 2013, an attorney for the City responded that the City had\nprovided Mr. Lorton with the records responsive to part 12 of his FOIA request. The City stated\nthat it had obtained an estimate of the cost for its engineer to locate and copy the remaining items\nand had passed that estimate along to Mr. Lorton. The City asserted that the vast majority of the\n$1,136.00 estimate was for labor for locating and assembling the requested documents. The City\nfurther asserted that under section 6(b) of FOIA, a public body may charge a requester the\n\"actual costs\" of a search for records conducted by someone other than the public body itself.\n6) On October 18, 2013, the Public Access Counselor extended the time to issue\na binding opinion by 30 business days to December 3, 2013. Therefore, the Attorney General\nmay properly issue a binding opinion with respect to this matter.\n7) Records in the possession of the engineering firm hired by the City to plan and\noversee the sidewalk/curb improvement project relate directly to the performance of a\ngovernmental function by the contractor, and are therefore public records of the City under\nsection 7(2) of FOIA. The City is obligated to produce the records to Mr. Lorton. Section 6 of\nFOIA does not permit the City to require a non-commercial requester such as Mr. Lorton to pay\nthe costs of any search for or review of records, or other personnel costs required to produce the\npublic records pursuant to his request.\nMr. Clint Lorton\nMs. Marlene Wilhoit\nDecember 3, 2013\nPage 11\nTherefore, it is the opinion of the Attorney General that the City improperly\ndenied Mr. Lorton's FOIA request by requiring payment of a government contractor's estimated\ncosts for locating public records and reproducing the City's records as a condition of obtaining\ncopies thereof. The City is hereby directed to take immediate and appropriate action to comply\nwith this opinion by providing Mr. Lorton with copies of the records responsive to items 5, 6, 11,\n15, 16, 18, and 19 of his FOIA request.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2012). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Mr. Clint Lorton as\ndefendants. See 5 ILCS 140/11.5 (West 2012).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nCitetare jlothe-\nBy:\nMichael J. Luke\nCounsel to the Attorney General\nce: Mr. Richard J. Bernardoni\nMeehling & Bernardoni\nAttorney at Law\n115 South Sixth Street\nP.O. Box 100\nMarshall, Illinois 62441-0100","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Lorton requested public records from the City of Martinsville, but the City tried to charge him fees to cover the costs a private contractor incurred while gathering those records. The Attorney General ruled that records held by a contractor performing a government function are public records, and the City cannot pass on the contractor's search and retrieval costs to the requester. The City was ordered to provide the requested records without the unauthorized fees.","card_headline":"A contractor's records of a governmental function","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":34,"orig_master_id":19235,"dup_master_id":19007,"dup_sha256":"c3256769fbadca93aa915c78c37b930b7a262b7045132933d188589161f5176e","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2014,"date_issued":"2014-04-10","case_number":"2013 PAC 23488-On","request_numbers":null,"title":"Failure to Sufficiently Inform the Public of the Business Being Conducted before Taking Final Action","filename":"PUBLIC ACCESS OPINION 14-001 (Request for Review - 2013 PAC 23488-On Remand).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 14-001 (Request for Review - 2013 PAC 23488-On Remand).pdf","word_count":3823,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a violation of the Open Meetings Act by the Springfield Public School District No. 186 Board of Education.","plain_summary":"A journalist filed a request for review after a school district's board voted, during an open meeting, to approve a separation agreement with its former superintendent. The dispute centered on whether the board's brief public statement before the vote—naming the agreement and calling for a motion—satisfied the Open Meetings Act's requirement that final action be preceded by a public recital informing the public of the business being conducted. The Attorney General held that the board violated this requirement because it never disclosed key terms of the agreement, including a large lump-sum payment, and that merely posting the agreement on the school district's website beforehand did not substitute for a verbal public recital during the meeting itself. The board was directed to bring future meetings into compliance with these requirements.","holding":"The Board violated section 2(e) of the Open Meetings Act by failing to provide a sufficient public recital of the nature of the separation agreement before taking final action to approve it.","legal_question":"Did the Springfield Public School District No. 186 Board of Education sufficiently inform the public of the nature of the business being conducted prior to its vote?","disposition":"violation_found","primary_statute":["5 ILCS 120/2(e)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Springfield Public School District No. 186 Board of Education","requesting_party":"Ms. Erin Orr, The State Journal-Register","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The adequacy of a meeting agenda item regarding a separation agreement with a former school superintendent.","ocr_status":"ok","ocr_quality":90.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2014-Binding-PAC-Opinions/14-001.pdf","sha256":"b97b2912f78e6471a8d3cee957f8ce151136dc089cb60c1d7cc802d26ec2714c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["meeting agenda","public notice","school board","Open Meetings Act","transparency"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL,\nApril 10, 2014\nPUBLIC ACCESS OPINION 14-001\n(Request for Review 2013 PAC 23488-On Remand)\nOPEN MEETINGS ACT:\nFailure to Sufficiently Inform the\nPublic of the Business Being\nConducted before Taking Final Action\nMs. Erin Orr, Managing Editor\nThe State Journal-Register\n[street address redacted for site publication -- see original PDF]\nMr. Chuck Flamini\nPresident, Board of Education\nSpringfield Public School District No. 186\n1900 West Monroe Street\nSpringfield, Illinois 62704\nDear Ms, Orr and Mr. Flamini:\nThis is a binding opinion issued by the Attorney General pursuant to section\n3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2012)) and the circuit court's\norder in Board of Education of Springfield School District No. 186 vy. Attorney General of Illinois\nand Molly Beck, No. 13 MR 524 (Circuit Court, Sangamon County). On November 19, 2013,\nthe circuit court remanded this matter to the Public Access Counselor (PAC) to allow the\nSpringfield Public School District No. 186 Board of Education (Board) to submit evidence to the\nPAC concerning whether it sufficiently informed the public of the nature of the business being\nconducted prior to its vote to approve a separation agreement with former Superintendent Dr.\nWalter Milton, Jr. on March 5, 2013. For the reasons discussed below, this office concludes that\n500 South Second Street. Springficld, Hinvis 62706 © (217) 782-1090 * TI (877) 844-5461 © Pax: (217) 782-7056\n100 West Randolph Street, Chicago, Hlnols GUKOF * (312) 814-3000 « ‘PTY: (800) 964-3013 * Fax: (312) 814-3806\n1001 East Main, Carbondale. Winois 42901 » (618) 529-6400 « “TI: (877) 675-9339 # Fax: (618) 529-6416 ‘Gp«\nMs. Erin Orr\nMr. Chuck Flamini\nApril 10, 2014\nPage 2\nthe Board violated section 2(e) of OMA (5 ILCS 120/2(e) (West 2010)) by failing to provide a\nsufficient public recital of the nature of the separation agreement and other information\nnecessary to inform the public of the business being conducted before taking final action to\napprove the agreement.\nBACKGROUND\nOn February 21, 2013, Ms. Molly Beck, on behalf of The State Journal-Register,\nsubmitted a Request for Review alleging that the Board violated OMA on January 31, 2013,\nwhen six ofi ts seven members signed a separation agreement with the School District's former\nSuperintendent, Dr. Walter Milton, Jr., which the Board had not publicly voted to approve.' On\nMay 21, 2013, the Attorney General issued binding opinion No. 13-007 in response to the\nRequest for Review and concluded that:\n[T]he Board violated section 2(¢) of OMA by taking final action\non the separation agreement in closed session on February 4, 2013.\nEven assuming, arguendo, that the Board could cure its violation\nby voting to approve the agreement during the March 5, 2013,\nopen session, that action was not valid because the Board failed to\nadequately inform the public of the nature of the matter under\nconsideration prior to its vote. Ill Att'y Gen. Pub. Acc. Op. No.\n13-007, issued May 21, 2013, at 8.\nThe Attorney General further concluded that the Board violated section 2.06(a) of\nOMA (5 ILCS 120/2.06(a) (West 2010)) by failing to create and maintain a verbatim recording -\nof its January 7, 2013, January 22, 2013, and March 4, 2013, closed meetings. Il. Att'y Gen.\nPub. Acc. Op. No. 13-007, at 8. In addition, the Attorney General found that the Board violated\nsection 2.06(a)(3) of OMA (5 ILCS 120/2.06(a)(3) (West 2010) by failing to prepare minutes of\nthose closed meetings, as well as its closed meetings on February 18, 2013, and February 25,\n2013, that included a \"summary of discussion on all matters proposed, deliberated, or decided,\nand a record of any votes taken.\" Ill. Att'y Gen. Pub. Acc. Op. No. 13-007, at 8.\nOn June 25, 2013, the Board sought administrative review of the Attorney\nGeneral's finding that the Board violated section 2(e) of OMA. See 5 ILCS 120/7.5 (West 2012).\nOn November 19, 2013, the circuit court ruled that the roll call vote taken by the Board during\nthe open session of its March 5, 2013, meeting, and not the signing of the separation agreement\nin the earlier closed meeting, constituted.the Board's final action to approve the agreement.\n‘E-mail from Molly Beck, Education Reporter, The State Journal-Register, to Public Access\nBureau, Office of the Attorney General (February 21, 2013).\nMs. Erin Orr\nMr. Chuck Flamini\nApril 10, 2014\nPage 3\nBoard of Education, slip op. at 4. However, the circuit court remanded to the PAC the issue of\nwhether the Board's final action was preceded by a public recital sufficient to comply with\nsection 2(e) of OMA. The court directed the PAC to request that the Board submit evidence\nregarding the facts of its public recital and a written response on the question of whether such\nrecital complied with section 2(¢} of OMA. Board of Education, slip op. at 4-5.\nOn November 26, 2013, the PAC requested that the Board provide:\nevidence demonstrating any \"public recital” that was provided\nbefore the Board voted on the separation agreement, including any\ninformation and explanation provided to the public at the Board's\nMarch 5, 2013, regular meeting. * * * In addition, please provide\na detailed written statement on the question of whether the Board's\n“public recital“ complied with section 2(e) of OMA\nOn December 9, 2013, this office received the Board's response, dated December\n4, 2013.7 On January 3, 2014, the PAC forwarded that response to Ms. Beck; she did not reply.’\nBecause this office subsequently became aware that Ms. Becki s no longer employed by The\nState Journal-Register, a copy of the Board's ress ponse was forwarded to the newspaper's\nmanaging editor, Erin Orr, on January 23, 2014. On the same day, Ms. Orr advised this office\nthat The State Journal-Register had no reply®\nThe sole issue for determination is whether the Board's vote to approve the\nseparation agreement at its March 5, 2013, open meeting was preceded by a public recital of the\nnature of the business sufficient to satisfy the requirements of section 2(e) of OMA.\n*Letter from Sarah L. Pratt, Public Access Counselor, Office of the Illinois Attorney General, to\nChuck Flamini, President, Board of Education, Springfield School District No. 186 (November 26, 2013).-\n5Letter from Lorilea Buerkett, Brown, Hay & Stephens, LLP, to Sarah L. Pratt, Public Access\nCounselor, Office of the Attomey General (December 4, 2013).\n“Letter from Steve Silverman, Assistant Attomey General, Public Access Bureau, to Molly Beck,\nEducation Reporter, The State Journal-Register January 3, 2014).\n5E-mail from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Erin Orr Ganuary 23, 2014).\n°E-mail from Erin Orr, Managing Editor, The State Journal-Register, to Steve Silverman (January\n23, 2014).\nMs. Erin Orr\nMr. Chuck Flamini\nApril 10, 2014\nPage 4\nANALYSIS\nSection 2(e) of OMA provides:\n(e} Final action. No final action may be taken at a closed\nmeeting. Final action shall be preceded by a public recital of the\nnature of the matter being considered and other information that -\nwill inform the public of the business being conducted.\nIn response to this office's request for evidence concerning the final action on the\nseparation agreement, the Board directed us to a video recording posted on the School District's\nwebsite that includes the following \"recitation\" by the Board President at the March 5, 2013,\nmeeting:\nItem 9.1, approval of a resolution regarding the separation\nagreement. The Board President recommends that the Board of\nEducation of Springfield School District No. 186 vote to approve\nthe separation agreement and release between Dr. Walter Milton,\nIr. and the Board of Education. Do I have a motion?”\nA motion to approve was made. Another Board member then moved to table the\nmatter. The motion to vote on the separation agreement was then seconded. The Board member\nwho moved to table the matter then expressed her support for the Superintendent, adding that\nboth she and members of the public were unaware of the reasons for the separation agreement.\n\"I don't know why this is happening. * * * I speak up for myself and I've heard and had people\nhave discussions with me about why are we doing this and I can't give them a good reason.”\nThe motion to table consideration of the agreement was not seconded. Another Board member\nthanked the Superintendent for his service to the School District, and the presiding officer called\nfor a vote on the motion to approve the separation agreement. The motion was approved by a 6-\n1 vote.” The Board did not publicly discuss or summarize the terms of the agreement, which\n\"Springfield Public School District No. 186 Board of Education, Meeting, March 5, 2013,\navailable at http://www.sps} 86.org/channel22/?p=5608 1 £i-329 199, minutes 1:14:36 — 1:14:57.\n‘Springfield Public School District No. 186 Board of Education, Meeting, March 5, 2013,\navailable at http://www.sps|86.org/channel22| /&?pi==3259610998, minutes 1:15:35 — 1:17:18.\nSpringfield Public School District No. 186 Board of Education, Meeting, March 5, 2013,\navailable at http:1 8/6.o/rg/wchannwel22/?pw=5608. |s &1p-3291s99, minutes 1:18:46 — 1:19:05.\nMs. Erin Orr\nMr. Chuck Flamini\nApril 10, 2014\nPage 5\nincluded a $177,796.97 lump sum payment to Dr. Milton,’ or the reasons that led to the parties’\nagreement to terminate Dr. Milton's employment.\nIn response to this office, the Board explains that a copy of the separation\nagreement was posted on the School District website as a viewable attachment to the agenda of\nthe March 5, 2013, meeting. The Board contends that this posting in and of itself was “sufficient\nto inform the public of the business being conducted.”!' In support of that argument, the Board\ncites the federal district court decision Reller v. Board of Education of Glen Ellyn School District\n#4], No. 05-C-3638, 2006 WL 200886 (N.D. Ill. January 18, 2006) (Not Reported in F. Supp.\n2d).\nIn Roller, a teacher alleged that a school board violated section 2(e) of OMA by\nfailing to publicly recite that it was considering her dismissal or identify her by name before\nvoting to dismiss her. Roller, 2006 WL 200886, at 4. The meeting minutes indicated that a\nschool board member made a motion to recommend the release of fourth year full-time\nprobationary teachers “as presented on the attached[,]'\" wt which was a reference to a resolution\nauthorizing Roller’s dismissal that was attached to the meeting minutes. Roller, 2006 WL\n200886, at 4. In addition, the meeting agenda stated that the Board would consider\n“Recommendations for Employment and Dismissal.\" Roller, 2006 WL 200886, at 4. The court\nnoted that \"it has not found, and Roller has not cited, a case discussing how specific a public\nnotice must be in order to satisfy” section 2(e).” (Emphasis added.) Roller, 2006 WL 200886, at\n4. The court went on to conclude that the \"agenda posted prior to the meeting, together with the\nrecital of the motion passed during the meeting itself, was enough to satisfy the statute.\" Roller,\n2006 WL 200886, at 4.\nThe Roller decision, which does not have precedential authority in Illinois state\ncourts,'* did not provide any detailed rationale for concluding that information posted before a\nmeeting constitutes part of a public recital under section 2(e) of OMA. As discussed below, such\na conclusion is not persuasive because it fails to distinguish between the requirement in section\n2(e) for taking final action following a closed meeting and the requirement of advance public\nnotice of all meetings in section 2.02 of OMA (5 ILCS 120/2.02 (West 2012)). Indeed, the\nRoller court's reference to the question of how much \"public notice\" is required to satisfy section\nSeparation Agreement and Release between Dr. Walter J. Milton, Superintendent, and Board of\nEducation, Springfield School District No. 186, par. 3 January 31, 2013).\n\"etter from Lorilea Buerkett, Brown, Hay & Stephens, LLP, to Sarah L. Pratt, Public Access .\nCounselor, Office of the Attorney General (December 4, 2013),\nFederal district court opinions do not have precedential value in [linois. Kaufman v. Barbiero,\n2013 IL App (Ist) 132068, 419, 999 N_E.2d 764, 768 (2013).\nMs. Erin Orr\nMr. Chuck Flamini\nApril 10, 2014\nPage 6\n2(e) appears to inappropriately merge that provision with the separate requirements for providing\nadvance public notice of all meetings under section 2.02 of OMA. Therefore, this office declines\nto adopt the Roller court's analysis.\nThe Board's assertion that posting the separation agreement on its website\ntogether with the meeting agenda satisfied the requirements of section 2(e) finds no support in\nthe language of OMA. Section 2(e) of OMA expressly provides that a public body may take a\nfinal action only in an open meeting. Section 2(e) further requires that before a public body\ntakes final action, it must meet two additional requirements: (1) publicly recite the nature of its\naction; and (2) provide such other information as will inform the public of the business being\nconducted. In context, this language can only be construed to mean that the public body is\nrequired to provide a verbal explanation of the significance of its action to members of the public\nwho are present at the meeting before the public body can proceed to consider taking action.\nSection 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2010)) sets out the\nrequirement of \"Public notice of all meetings, whether open or closed to the public\" and states\nthat an:\nagenda for each regular meeting shall be posted at the principal\noffice of the public body and at the location where the meeting is\nto be held at least 48 hours in advance of the holding of the\nmeeting. A public body that has a website that the full-time staff\nof the public body maintains shall also post on its website the\nagenda of any regular meetings of the governing body of that\npublic bedy. (Emphasis added.)\nSection 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2010)) further requires the posted agenda to\n\"set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.”\nThe requirements of section 2(e) and section 2.02 are separate and distinct.\nSection 2.02 is clearly intended to require that a public body give the public advance notice of its\nmeeting agenda and include the \"general subject matter\" of any agenda item on which the public\nbody may take final action. The posting of an agenda merely provides a member of the public\nwith enough information to determine whether to attend a public meeting. The Board satisfied\nthis requirement by posting its agenda together with the separation agreement on its website\nmore than 48 hours before the meeting. In contrast, section 2(e) is intended to ensure that prior\nto taking final action, the public body provides information sufficient to inform the public in\nattendance at the meeting of the business being conducted. Posting the agreement did not\nMs. Erin Orr\nMr. Chuck Flamini\nApril 10, 2014\nPage 7\nconstitute the \"public recital” that is required by section 2(e) because that recital must be verbal\nand must take place during the public meeting.\nWith respect to the sufficiency of the public recitation, section 2(e) expressly\nrequires that the public body not only provide the public with the “nature of the matter being\nconsidered,\" but also provide “other information that will inform the public of the business being\nconducted.\" At its March 5, 2013, meeting, the Board only called for a vote on a motion to\napprove a separation agreement with Dr. Milton. Although the recitation of the resolution and\nthe statement that the Board was voting to approve a separation agreement involving Dr. Milton\nmay have adequately advised the members of the public of the general nature of the matter being\nconsidered, the Board did not provide any other information concerning the agreement. In\nparticular, the public was not informed of any of the terms of the separation agreement, including\na lump sum payment of $177,796.97 in public funds te Dr. Milton. In order to comply with\nsection 2(e)'s second requirement that members of the public receive “other information that will\ninform [them] of the business being conducted,\" the public must be informed of the key terms of\na proposed public contract or agreement. It cannot reasonably be argued that members of the\npublic attending the meeting who had not previously reviewed the separation agreement would\nhave been \"informed\" of the significance of the Board's approval of the agreement based upon\nthese limited comments.\nThe Board contends that it would be absurd to construe section 2(e) of OMA as\nrequiring the Board to read the separation agreement in its entirety before taking final action:\n\"[ilf indeed a public recital requires that a Board read any contract or agreement they would like\nto approve before voting on it, the public's business would slow to a snail's pace.\"'? Section 2(e)\ndoes not suggest that it isn ecessary to read aloud in its entirety every document coming before a\npublic body for action in order to adequately inform the public of the business being conducted.\nLikewise, binding opinion No. 13-007 did not interpret section 2(e) to require a verbatim\nrecitation of the separation agreement during the meeting. However, section 2(e) does require\nthat the members of the public in attendance at the meeting receive sufficient “other information”\nto understand the business being conducted. While it is not required or necessary for a public\nbody to read an entire agreement aloud, it would not have been impractical for the Board to\nprovide the public with a summary of the pertinent terms of the agreement before voting on it.\nEven after a Board member questioned whether the separation agreement was warranted, the\nBoard failed to provide any explanation or description of the agreement to inform the public of\nthe business being conducted.\n“Letter from Lorilea Buerkett, Brown, Hay & Stephens, LLP, to Sarah L. Pratt, Public Access\nCounselor, Office of the Attorney General (December 4, 2013).\nMs. Erin Orr\nMr. Chuck Flamini\nApril 10, 2014\nPage 8\nThe Attorney General concluded in binding opinion No. 13-007 that the Board's\nvague and general discussion of the separation agreement \"failed to adequately inform the public\nof the nature of the matter under consideration prior to its vote.” Ill. Att'y Gen. Pub. Acc. Op.\nNo. 13-007, at 8. For the reasons discussed above, after reviewing the information and\narguments provided by the Board, on remand the Attorney General finds that the Board violated\nsection 2(e) of OMA by taking final action to approve a settlement agreement between the\nDistrict and former superintendent Dr. Walter Milton, Jr. without adequately informing the\npublic of the business being conducted prior to its vote.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the circuit court's order,\nthe arguments presented, the Public Access Counselor's review, and the applicable law, the\nAttorney General finds that:\n1) On February 21, 2013, Ms. Molly Beck submitted a Request for Review to the\nPublic Access Counselor alleging that the Board violated OMA by signing a separation\nagreement to terminate the employment of Superintendent Dr. Walter Milton, Jr., without\npublicly voting to approve it. Ms. Beck's Request for Review was timely filed and otherwise\ncomplied with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2010)).\n2) On May 21, 2013, the Attorney General issued binding opinion No. 13-007\nfinding that the Board violated section 2(¢) OMA by taking final action to approve Dr. Milton's\nproposed separation agreement in meetings closed to the public pursuant to section 2(c)(1) of\nOMA. The Attorney General further concluded that even if the Board could have effectively\nratified its improper final action by voting on the separation agreement at a properly noticed\nopen meeting, the Board would nonetheless have violated section 2(¢) of OMA by voting to\napprove the separation agreement at its March 5, 2013, meeting, because it failed to adequately\ninform the public of the nature of the matter under consideration or the business being\nconducted.\n3) On June 25, 2013, the Board sought administrative review of the Attorney\nGeneral's finding that the Board violated section 2(e) of OMA.\n4) On November 19, 2013, the circuit court ruled that the roll call vote taken\nduring the open session of the Board's March 5, 2013, meeting, and not the signing of the\nseparation agreement, constituted the Board's final action to approve the separation agreement.\nThe circuit court, however, remanded to the Public Access Counselor the issue of whether the\nBoard's final action taken at its March 5, 2013, regular meeting was preceded by a public recital\nsufficient to comply with section 2(e) of OMA.\nMs. Erin Orr\nMr. Chuck Flamini\nApril 10, 2014\nPage 9\n5) On November 26, 2013, the Attorney General asked the Board to provide\nevidence and a detailed written statement regarding whether the Board provided an adequate\npublic recital before voting to approve the separation agreement.\n6) On December 9, 2013, the Board responded by asserting that it had satisfied\nthe requirements of section 2(e) by reading the resolution concerning the separation agreement\nduring its March 5, 2013, meeting and by having previously posted a copy of the separation\nagreement on the District's website.\n7) The Attorney General finds that the Board violated section 2(e) of OMA\nby voting to approve the separation agreement during its March 5, 2013, meeting without\nadequately informing the public of the business being conducted. The Attorney General\nconcludes that the Board's posting of the separation agreement on its website did not constitute a\npublic recital during an open meeting within the scope of section 2(e) of OMA. Further, the few\ncomments made during the discussion leading to the vote were insufficient to provide the public\nwith information from which it might comprehend the purpose and effect of the Board's action.\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to conduct its future meetings in full compliance with OMA. As required by section\n3.5(e) of OMA, the Board shall either take necessary action as soon as practical to comply with\nthe directives of this opinion or shall initiate administrative review under section 7.5 of OMA (5\nILCS 120/7.5 (West 2012)).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2012). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Ms. Erin\nOrr as defendants. See 5 ILCS 120/7.5 (West 2012).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nLitestiach j Lavten—\nBy:\nMichael J. Luke\nCounsel to the Attorney General\nMs. Erin Orr\nMr. Chuck Flamini\nApril 10, 2014\nPage 10\nce: Ms. Lorilea Buerkett\nBrown, Hay & Stephens, LLP\n205 South Fifth Street\nSuite 700\nP.O. Box 2459\nSpringfield, [linois 62705","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Springfield School Board voted to approve a separation agreement with its former superintendent, but before the vote the Board president only read a brief agenda-style description and did not orally summarize the agreement's terms or reasons. The Attorney General ruled that this violated section 2(e) of the Open Meetings Act, which requires a public recital—an oral statement at the meeting—that sufficiently informs the public of the nature of the business being conducted before final action. The opinion distinguished this requirement from the separate advance-notice requirement for agendas.","card_headline":"A school board's agenda item on a separation agreement","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":35,"orig_master_id":19236,"dup_master_id":19008,"dup_sha256":"970863e85820d3ec8c5bbb047e47290bb927f8df247b2772a36797e754e493a3","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2014,"date_issued":"2014-04-15","case_number":"2014 PAC 27500","request_numbers":null,"title":"Disclosure of Invoices for Legal Services","filename":"PUBLIC ACCESS OPINION 14-002 (Request for Review - 2014 PAC 27500).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 14-002 (Request for Review - 2014 PAC 27500).pdf","word_count":3381,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request made by Mr. Patrick Wade for legal billing invoices from the City of Urbana.","plain_summary":"The requester sought copies of a law firm's legal billing invoices from the city government for the past calendar year, but the city withheld them entirely, citing exemptions for attorney-client privileged communications, collective bargaining matters, and (later) records related to employee disciplinary adjudications. The Illinois Attorney General's Public Access Bureau held that the city violated FOIA by withholding the invoices in full, finding that only specific descriptive entries revealing privileged legal advice or specific collective-bargaining strategy could be redacted, while general billing information—dates, attorney initials, hours, amounts billed, and general task descriptions—was not exempt and had to be disclosed. The PAC also rejected the disciplinary-adjudication exemption, reasoning that billing invoices exist independently of any disciplinary proceeding and are not themselves part of an adjudicatory process. The city government was directed to release the invoices with only narrowly tailored redactions.","holding":"The City of Urbana improperly withheld legal billing invoices in their entireties in response to Mr. Patrick Wade's FOIA request.","legal_question":"Did the City of Urbana improperly withhold legal billing invoices in response to a FOIA request?","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(m)"],"public_body":"City of Urbana","requesting_party":"Mr. Patrick Wade (The News-Gazette)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"attorney fees","subject_description":"The request sought records of payments and invoices for legal services provided to the City of Urbana.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2014-Binding-PAC-Opinions/14-002.pdf","sha256":"708060b02b4c93fd60e8767a7ad8413b5e0e0fa5981d8639a0678f66f0db71c6","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["legal invoices","attorney-client privilege","public records","redaction"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nApril 15, 2014\nPUBLIC ACCESS OPINION 14-002\n(Request for Review 2014 PAC 27500)\nFREEDOM OF INFORMATION ACT:\nDisclosure of Invoices for Legal Services\nMr. Patrick Wade\nThe News-Gazelte\n[street address redacted for site publication -- see original PDF]\nMr. Todd E. Rent\nHuman Resources/Compliance Officer\nCity of Urbana\n400 South Vine Street\nUrbana, Illinois 61801\nDear Mr. Wade and Mr. Rent:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2012)). For the reasons discussed below, this\noffice concludes that the City of Urbana improperly withheld legal billing invoices in their\nentireties in response to Mr. Patrick Wade's FOIA request.\nBACKGROUND\nOn December 16, 2013, Mr. Wade, on behalf of The News-Gazette, submitted a\nFOIA request to the City of Urbana (City) seeking electronic copies of: .\n_1. All records of payments to Corey Franklin, Whitney\nCooney, the Lowenbaum Partnership, or the firm's\nemployees or representatives within the past calendar\nyear (including but not limited to attorneys’ fees and\n500 South Second Street, Springfield. Ulinvis 62706 * (217) 782-1090 * TTY: (877) 844- S46) 8 Fax: (217) 782-7046\n10U West Randolph Street, Chicago, Hineis 60601 * (312) 514- 3000 © PTY: (800) 964-3013 + Fax: (312) 814-3806\n1001 East Main. Carbondale, Hinvis @2901 * (618) 529-6400 © PTY: (877) 675-9339 * Fax: (618) 529-6416 Ep\nMr, Patrick Wade\nMr. Todd Rent\nApril 15, 2014\nPage 2\nreimbursement for mileage, hotel accommodations or\nfood or drink).\n2. All invoices the city has received from Corey Franklin,\nWhitney Cooney, the Lowenbaum Partnership, or the\nfirm's employees or representatives within the past\ncalendar year.\nOn December 23, 2013, as permitted by FOIA, the City extended its time for\nresponse by five business days.? On December 31, 2013, the City provided Mr. Wade with\nrecords of payments responsive to item | of his request. The City denied the request for the\ninvoices referenced in item 2, however, asserting that the records are exempt from disclosure\npursuant to: (1) section 7(1)(m) of FOIA (6 ILCS 140/7(1)(m) (West 2012), as amended by\nPublic Acts 98-463, effective August 16, 2013; 98-578, effective August 27, 2013) (attorney-\nclient privilege); and (2) section 7(1}(p) of FOIA (5 ILCS 140/7(1)(p) (West 2012), as amended\nby Public Acts 98-463, effective August 16, 2013; 98-578, effective August 27, 2013) (records\nrelating to collective negotiating matters).\nOn January 3, 2014, the Public Access Bureau received Mr. Wade's Request for\nReviewi n which he disputed the City's denial ofi nvoices from the Lowenbaum Partnership.“\nOn January 13, 2014, the Public Access Bureau forwarded a copy of the Request for Review to\nthe City and asked the City to provide a written explanation ofi ts basis for asserting the\nexemptions and to furnish unredacted copies of the records it withheld.> On January 30, 2014,\nthe City forwarded a written response explaining its assertion of sections 7(1)(m) and 7(1}(p),\n‘Letter from Patrick Wade, Reporter, The News-Gazette, to Phyllis Clark, City of Urbana\n(December 16, 2013). \"Lowenbaum Partnership” refers to the law firm Lowenbaum Partnership, L.L.C. Corey\nFranklin and Whitney Cooney are attorneys employed by that firm. See http.//www.lewenbaumlaw.com/. The\n“invoices” discussed in this opinion are bills for legal services from that firm, including Attorneys Franklin and\nCooney.\n\"Letter from Todd E. Rent, Human Relations/Compliance Officer, City of Urbana, to Patrick\nWade, The News-Gazette (December 23, 2013).\n3E-mail from Todd E. Rent, Human Relations/Compliance Officer, City of Urbana, to Patrick\nWade, The News-Gazette (December 31, 2013).\n; ‘Letter from Patrick Wade, The News Gazette, to Sarah Pratt, Public Access Counselor, Office of\nthe Attorney General (January 2, 2014).\nSLetter from Christopher Boggs, Assistant Attorney General, Public Access Bureau, to Todd Rent,\nCompliance Officer, City of Urbana (January 13, 2014).\nMr. Patrick Wade\nMr. Todd Rent\nApril 15, 2014\nPage 3\nand, in addition, asserted that the withheld records are also exempt from disclosure pursuant to\nsection 7(1)(n) of FOIA (5 ILCS 140/7(1)(n) (West 2012), as amended by Public Acts 98-463,\neffective August 16, 2013; 98-578, effective August 27, 2013)6\nOn January 31, 2014, the Public Access Bureau forwarded a copy of the City's\nresponse to Mr. Wade, and notified him of his opportunity to reply under section 9.5(d) of FOIA\n(SILCS 140/9.5(d} (West 2012). On February 3, 2014, Mr. Wade replied, in relevant part:\nIn the city's response, it adds an exemption — 7(1)(n) — which it did\nnot state in its original denial of my records request. In any case,\nthis exemption covers \"records relating to a public body's\nadjudication of employee grievances or disciplinary cases.”\nBilling invoices are not created as part of the adjudicatory process\nand therefore should not be covered by this exemption.*\nOn February 3, 2014, the City furnished this office with a supplemental response\nthat included representative sample copies of unredacted legal billing invoices.” On February 24,\n2014, this office properly extended the time to issue a binding opinion by 30 business days\npursuant to section 9.5(f) of FOIA (5 ILCS 140/9.5() (West 20129.”\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with this Act.\" 5 ILCS\n140/1 (West 2012). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2012)), \"[a]ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.”\n‘Letter from Todd Rent, Human Relations/Compliance Officer, City of Urbana, to Office of the\nAttorney General, Public Access Bureau, Attn. Christopher R. Boggs (January 30, 2014).\n\"Letter from Christopher R. Boggs, Assistant Attorney General, Public Access Bureau, to\nPatrick Wade (January 31, 2014),\n5E-mail from Patrick Wade, Reporter, The News-Gazette, to Christopher Boggs (February 3,\n2014).\n°E-mail from Todd E. Rent, Human Relations Officer, City of Urbana, to Christopher Boggs\n(February 3, 2014). .\nLetter from Christopher R. Boggs, Assistant Attorney General, Public Access Bureau, to Patrick\nWade, The News-Gazette, and Todd E. Rent, Human Resources/Compliance Officer, City of Urbana (February 24,\n2014).\nMr. Patrick Wade\nMr. Todd Rent\nApril 15, 2014\nPage 4\nSection 3(a) of FOIA (5 ILCS 140/3(a) (West 2012)) provides that \"[e]ach public body shall\nmake available to any person for inspection or copying all public records, except as otherwise\nprovided in Section 7 of this Act.\" The exemptions from disclosure contained in section 7 of\nFOIA (5 ILCS 140/7 (West 2012), as amended by Public Acts 98-463, effective August 16,\n2013; 98-578, effective August 27, 2013) are to be narrowly construed. See Lieber v. Board of\nTrustees of Southern Hlinois University, 176 Il. 2d 401, 407 (1997). Further, section 7(1) of\nFOIA (5 ILCS 140/7(1} (West 2012), as amended by Public Acts 98-463, effective August 16,\n2013; 98-578, effective August 27, 2013) provides that \"[w]hen a request is made to inspect or\ncopy a public record that contains information that is exempt from disclosure under this Section,\nbut also contains information that is not exempt from disclosure, the public body may elect to\nredact the information that is exempi[,]\" but \"shall make the remaining information available for\ninspection and copying.”\nSection 7(1)Qm) of FOLIA\nThe records at issue here are billing invoices that the City received from the\nLowenbaum Partnership law firm for calendar year 2013. The City withheld these invoices\nciting section 7(1)(m) of FOIA, which exempts from disclosure communications between a\npublic body and an attorney which would not be subject to discovery in litigation, including\ncommunications covered by the attorney-client privilege. The City has not sustained its burden\nof demonstrating that the invoices are exempt from disclosure in their entireties pursuant to\nsection 7(1)(m) of FOIA.\nThe Llinois Supreme Court has summarized the attorney-client privilege as:\n(1) where legal advice of any kind is sought, (2) from a\nprofessional legal advisor in his capacity as such, (3) the\ncommunications relating to that purpose, (4) made in\nconfidence, (5) by the client, (6) are permanently protected,\n(7) from disclosure by himself or the legal advisor, (8) except\n{if] the protection [is] waived. //linois Education Association\nv, Illinois State Board of Education, 204 Ill. 2d 456, 467\n(2003).\nThe Supreme Court has specifically concluded that “information regarding a client's fees\ngenerally is not a ‘confidential communication’ between an attorney and client, and thus is not\nprotected by the attorney client privilege. [Citations.] * * * The payment of fees is merely\nMr. Patrick Wade\nMr. Todd Rent\nApril 15, 2014\nPage 5\nincidental to the attorney-client relationship and typically does not involve the disclosure of\nconfidential communications arising from the relationship. \" People ex rel. Ulrich v. Stukel, 294\nTil. App. 3d 193, 203-04 (1997).\nThe court in Ulrich also acknowledged, however, that \"[c]ertain types of billing\nrecords may contain explanations for legal fees and may indicate the type of work done or\nmatters discussed between the attorney and client. As such, they could reveal the substance of -\nconfidential attorney-client discussions, and be subject to valid claims of attorney-client privilege\nor exemption under [FOIA].” Ulrich, 294 HL. App. 3d-at 201; see also Matter of Witnesses\nBefore the Special March 1980 Grand Jury, 729 F.2d 489, 495 (7th Cir. 1984) (“information\nabout a known client's fees is privileged only if, under the circumstances, its disclosure would in\neffect reveal confidential communications between the attorney and client.\").\nThe City asserts that thei nvoices generated by the Lowenbaum Partnership are\nexempt from disclosurei n their entireties because, pursuant to Ulrich, these records could reveal\nconfidential attorney-client communications. This office has previously determined, however,\nthat \"the court in Ulrich drew a distinction between descriptions of work that could reveal\nprivileged information, and fee information which is not privileged, and concluded that the latter\nmust be produced.” IH. Att'y Gen. Pub. Acc. Op. No. 12-005, issued March 12, 2012, at 4.\nThe billing invoices provided by the City document the dates on which legal\nservices were performed, the initials of the attorney performing the work, the numbers of hours\nbilled, and the corresponding amount billed for each entry. Such information would not reveal\nany privileged attorney-client communication, and therefore the information is not exempt from\ndisclosure under section 7({1}(m).\nEach billing entry, however, also provides a description of the work performed.\nSome entries identify subjects of research or details of other tasks performed, the identities of\nspecific individuals with whom attorneys met, and topics of discussion during those meetings. In\ncontrast, other billing entries contain only general descriptions of services performed, such as\nholding a telephone conference, exchanging emails, or drafting and revising a memo. To the\nextent that individual billing entries include detailed descriptions of legal services that reveal\nprivileged information, those descriptions may be redacted from the invoices. General\ndescriptions of tasks that an attorney performed that would not reveal any privileged information,\nhowever, may not be withheld. Similarly, the dates on which services were performed, the\nattorneys’ initials, the time spent on the tasks described, and the amounts billed do not disclose\nprivileged material and must be produced.\nMr. Patrick Wade\nMr. Todd Rent\nApril 15, 2014\nPage 6\nSection 7(1)(p) of FOIA\nThe City has also asserted that the requested legal billing invoices are exempt\nunder section 7(1)(p) of FOIA, which exempts from disclosure records \"relating to collective\nnegotiating matters between public bodies and their employees or representatives, except that\nany final contract or agreement shall be subject to inspection and copying.”\nIn an opinion discussing the exception for collective negotiating matters in the\nOpen Meetings Act (Ill. Rev. Stat. 1979, ch. 102, par. 42a, now codified at $ ILCS 120/2a West\n2012)), Attorney General Scott noted that “the fact that the Illinois legislature has specifically\nprovided an exception for [closed meetings concerning] collective negotiating matters indicates a\nrecognition of the view that the very nature of meaningful collective bargaining requires that\ncertain phases of the negotiating process must be conducted privately.\" 1980 Ill. Att'y Gen. Op.\n105, 110. Section 7(1)(p) of FOIA serves the corollary purpose of exempting from disclosure\nrecords pertaining to such aspects of the collective bargaining process as the negotiating of\nwages and salaries, terms and conditions of employment, working conditions, and similar\nmatters which are subject to collective bargaining.\nThe fact that a public body has secured and paid for the services of an attorney or\nattorneys to assist with collective bargaining matters, however, is not information pertaining to\nthe collective bargaining process, as such. As discussed with respect to section 7(1)(m), if the\ninvoices contain specific information regarding the collective bargaining process, such as a\ndescription of an issue that the public body is considering raising in the negotiations, then that\ninformation may be redacted pursuant to section 7(1)(p). General descriptions of services that do\nnot reveal such information, as well as the number of attorney hours expended, hourly rates, and\nthe amounts billed, are not exempt from disclosure. Therefore, the City has not sustained its\nburden of demonstrating that the legal billing records are exempt from disclosure under section\n7(()\\(p) in their entireties.\nSection 7(1)(n) of FOIA\nIn its response, the City further asserted that the billing invoices, or portions of the\ninvoices, are exempt from disclosure pursuant to section 7(1)(n), because “Lowenbaum\nPartnership is providing counsel to the City on a pending disciplinary matter that may proceed to\narbitration and/or a Civil Service Hearing, as well as other pending investigations that may result\nin discipline, terminations, and/or civil litigation.\"'’ Section 7(1)(n) ‘exempts from disclosure\n\"[rjecords relating to a public body's adjudication of employee grievances or disciplinary\n“Letter from Todd Rent, Human Relations/Compliance Officer, to Office of the Attorney General,\nPublic Access Bureau, Atin. Christopher R. Boggs (January 30, 2014).\nMr. Patrick Wade\nMr. Todd Rent\nApril 15, 2014\nPage 7\ncases{.]\" Although this exemption was not cited by the City in its denial of Mr. Wade's FOIA -\nrequest, and therefore could be considered to have been waived, we have elected nonetheless to\naddress its possible application to the requested records.\nIn Kalven y. City of Chicago, 2014 IL App (1st) 121846, (92-3, N-E.3d__\n(2014), the Illinois Appellate Court considered whether the Chicago Police Department properly\nwithheld complaint register or \"CR\" files documenting investigations of citizen complaints\nagainst police officers pursuant to section 7(1)(n). The court noted that the term “adjudication\"\nis undefined in FOIA, but is \"generally understood to invelve a formalized legal process that\nresults in a final and enforceable decision.” Kalven, 2014 IL App (ist) 121846, 413,\n__N.E.3d__. The court held that CRs are neither adjudicatory nor related to any formalized legal\nprocess that may eventually result from the investigation:\nWhile information obtained during the investigation may\npotentially be introduced during adjudication of a disciplinary\ncase, a CR does not initiate that adjudication, nor can CRs\nthemselves be considered disciplinary. Indeed, if a complaint is\nunsubstantiated, then no disciplinary adjudication ever occurs and\nthat CR necessarily cannot ‘relate to' an adjudication. This is a\nfurther indication that CRs are distinct from disciplinary\nadjudications and therefore not encompassed by section 7(1)(n).\nKalven, 2014 IL App (Ist) 121846, (20,__N.E3d_.\nAlthough the City contends that the billing invoices at issue in this matter concern\na pending disciplinary matter that could result in an adjudication such as arbitration, the City has\nnot asserted that any such adjudication has been initiated. Moreover, even if the billing invoices\nconcern legal services provided in connection with a disciplinary matter that eventually results in\nan adjudication within the scope of section 7(1)(n), the billing invoices themselves would not be\npart of or related to the adjudicatory process. The invoices exist independently of any possible\nfuture adjudication. Therefore, the invoices are not exempt from disclosure under section 7(1)(n)\nof FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments presented,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\nMr. Patrick Wade\nMr. Todd Rent\n- April 15,2014\nPage 8\n1) On December 16, 2013, Mr. Patrick Wade, on behalf of The News-Gazette,\nsubmitted a two-part FOIA request to the City of Urbana seeking copies of records, including\ninvoices for legal services submitted by a specific law firm or its attorneys for the past calendar\nyear.\n2} On December 31, 2013, the City denied the request for the invoices asserting\nthat the records are exempt from disclosure under sections 7(1)(m) and 7(1)(p) of FOIA.\n3) On January 2, 2014, Mr. Wade submitted a Request for Review of the City's\npartial denial of his FOIA request. Mr. Wade's Request for Review was timely filed and\notherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5{a) (West\n2012)).\n4) On January 13, 2014, this office forwarded a copy of Mr. Wade's Request for\nReview to the City and asked the City to provide a written explanation of its assertion of the\nsection 7(1)(m) and 7(1)(p) exemptions and copies of the records it withheld.\n5) On January 30, 2014, the City responded to this office regarding its assertion\nof the section 7(1)(m) and 7(1\\(p) exemptions, and further asserted that the invoices are also\nexempt from disclosure pursuant to section 7(1)(n) of FOIA.\n6) On February 3, 2014, Mr. Wade replied to the City's response by disputing the\napplicability of the section 7(1)(m), 7(1)(p), and 7(1)(n) exemptions.\n7) On February 3, 2014, the City provided this office with a representative\nsample of the requested legal billing invoices.\n8) On February 24, 2014, the Public Access Counselor extended the time to issue\na binding opinion by 30 business days, to April 15, 2014. Therefore, the Attorney General may\nproperly issue a binding opinion with respect to this matter. .\n9) Based upon a review of a representative sample of the legal billing invoices\nprovided by the City, descriptive entries contained in those records describing services rendered\nwhich reveal privileged attorney-client communications may be redacted pursuant to section\n7(1)(m) of FOIA. However, the remaining information contained in the legal billing invoices,\nincluding general descriptions of the nature of the services performed by an attorney, dates on\nwhich work was performed, the initials of the attorney performing the work, the numbers of\nhours billed, and the corresponding dollar amount billed for each entry, may not properly be\nwithheld under section 7(1}(m).\nMr. Patrick Wade\nMr. Todd Rent\nApril 15, 2014\nPage 9\n10) With respect to the applicability of section 7(1)(p), the fact that a public body\nhas secured and paid for the services of an attorney or attorneys to assist it with collective\nbargaining matters is not information pertaining to the collective bargaining process, as such.\nAccordingly, the invoices may not be withheld in their entireties under section 7(1)(p). To the\nextent that descriptive entries contained in those records describe services rendered and contain\nspecific information regarding the collective bargaining process, then that information may be\nredacted pursuant to section 7(1)(p) of FOIA.\n11) Lastly, the legal billingi nvoices are not \" \"records relating to a public body's\nadjudication of employee grievances or disciplinary cases,” for purposes of section 7(1)(n) of\nFOIA. Consequently, thei nvoices are not exempt from disclosure under that section.\nTherefore, it is the opinion of the Attorney General that the City has violated\nsections 3(a) and 7(1) of FOIA by withholding the legal billingi nvoices from the Lowenbaum\nPartnershipi n their entireties, and by failing to disclose non-exempt informationi n those\ninvoices to Mr. Wade. Accordingly, the City is directed to take immediate and appropriate\naction to comply with this opinion by furnishing copies of the invoices to Mr. Wade, after\nredacting only those portions of any descriptions of legal services that reveal: (1) information\nsubject to attorney-client privilege; or (2) specific information regarding the collective\nbargaining process.\nThis opinion shall be considered a final decision of an administrative agency for\npurposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 er\nseq. (West 2012). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision, naming the Attorney General of Illinois and Mr. Patrick Wade\nas defendants. See 5 ILCS 140/11.5 (West 2012).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL |\nBy: Cte tt\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested legal billing invoices from the City of Urbana, but the City refused to release them, claiming they were exempt under attorney-client privilege and other FOIA exemptions. The Attorney General's office ruled that the City improperly withheld the invoices in their entirety, and that the invoices must be disclosed with redactions only for specific descriptions that reveal privileged attorney-client communications. The opinion did not reach a conclusion on the City's claim that the invoices were exempt as records relating to collective negotiating matters.","card_headline":"Invoices for legal services to a city","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":36,"orig_master_id":19009,"dup_master_id":19238,"dup_sha256":"88d3b0c034ea9727ad476e0141a9435663487318dc30b369c3be80a092cd95cb","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2014,"date_issued":"2014-01-28","case_number":"2014 PAC 27859","request_numbers":null,"title":"Amending Agenda During 48-Hour Posting Period","filename":"PUBLIC ACCESS OPINION 14-003 (Request for Review - 2014 PAC 27859).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 14-003 (Request for Review - 2014 PAC 27859).pdf","word_count":2466,"summary":"The St. Clair Township Board did not violate OMA when it amended the agenda for its January 28, 2014, meeting less than 48 hours prior to that meeting . The Board's response, received by the Public Access Bureau, confirmed that the Board posted the original meeting agenda on the Board's website on January 24, 2014 . The items deleted from the original agenda were: \"H. Discuss and Vote to ratify the new collective bargaining agreement effective Feb. 01, 2014;\" and \"I. Personnel\"","plain_summary":"The requester alleged that the township board violated the Open Meetings Act by amending its meeting agenda less than 48 hours before a scheduled meeting, removing two action items and moving them to executive session instead. The PAC held that no violation occurred, reasoning that the Act requires 48 hours' notice of matters on which final action will be taken, but does not require a public body to act on every listed item or prohibit it from revising an agenda to delete items due to changed circumstances. Because the public still received proper advance notice of the matters actually acted upon, and the board's update actually improved transparency, the PAC found the township board's agenda amendment complied with the law.","holding":"The Attorney General concludes that a public body does not violate the Open Meetings Act by amending an agenda less than 48 hours before a meeting if the amendment consists of removing items from the agenda.","legal_question":"Whether a public body violates section 2.02 of the Open Meetings Act by amending an agenda to remove items less than 48 hours before a meeting.","disposition":"no_violation","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2, 5 ILCS 120/2(c), 5 ILCS 120/1, 735 ILCS 5/3, 5 ILCS 120/7","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"St. Clair Township Board","requesting_party":"Greenfield and Mr. Barnes","pac_outcome":"UNCLEAR","pac_law_type":"OMA","subject_category":"meeting notice","subject_description":"The legality of amending a public meeting agenda to remove items within the 48-hour notice period.","ocr_status":"ok","ocr_quality":90.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2014-Binding-PAC-Opinions/14-003.pdf","sha256":"b74931a897b4e49cfe85e56e852028ec1bd2cc4faed1ddcfd0b9ff5f9ffffb8f","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["meeting agenda","48-hour notice","Open Meetings Act","agenda amendment"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL May 5, 2014 PUBLIC ACCESS OPINION 14-003 (Request for Review 2014 PAC 27859) OPEN MEETINGS ACT: Amending Agenda During 48-Hour Posting Period Mr. Michael Greenfield 3798 Michael John Drive Swansea, Illinois 62226 The Honorable Dave Barnes Supervisor St. Clair Township 107 Service Streets Swansea, Illinois 62226-3943 Dear Mr. Greenfield and Mr. Barnes: This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2012)). For the reasons discussed below, this office concludes that the St. Clair Township Board (Board) did not violate OMA when it amended the agenda for its January 28, 2014, meeting less than 48 hours prior to that meeting. BACKGROUND Mr. Michael Greenfield submitted a Request for Review, received by the Public Access Bureau on February 4, 2014, asserting that the Board changed the agenda published on the township website for its January 28, 2014, meeting \"approximately 29 hours prior to the meeting[.]\"' Mr. Greenfield alleged that under section 2.02 of OMA (5 ILCS 120/2.02 (West 2012)), an agenda cannot be changed less than 48 hours prior to a meeting. In support of his 'E-mail from Michael Greenfield to Sarah Pratt, Public Access (February 3, 2014). 500 South Second Street, Springfield, Ufinois 62706 * (217) 782-1090 * “TEV: (877) 844-5461 + Fax: (217) 782-7046 100 West Randolph Street, Chicago, Uiinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 « Fax: (312) 814-3806 1U0t East Main, Carbondale, Hinais 62901 + (618) 529-6400 © ‘TTY: (877) 675-9339 © Fax: (618) 529-6416

The Board explained that on January 27, 2014, it received information that because of a changei n circumstances, consideration of final action on two items that had been placed on the agenda would have to be delayed until a later time.* Accordingly, \"[i]n an effort to be transparent with the public, we amended the agenda as quickly as we could and posted it on our website, so the public could see that we were not going to take action on these two matters at this time.”” (Emphasisi n original.) The items deleted from the original agenda, under the heading \"10. BUSINESS ITEMS,\" were: \"H. Discuss and Vote to ratify the new collective bargaining agreement effective Feb. 01, 2014;\" and \"I. Personnel.\"° The Board added these items to the amended agenda under the heading \"11. EXECUTIVE SESSION\": \"B. Move to executive session 2C2 to discuss Union Negotiations\"; and \"C. Move to executive session 2C1 to discuss Personnel\" (“2C2\" and \"2C1”\" were presumably references to sections 2(¢)(2) and 2(c1) of OMA (5 ILCS 120/2(c)(2), (c)(1) (West 2012), as amended by Public Act 98-49, effective July 1, 2013) which permit a public body to hold closed meetings to discuss collective bargaining issues, and the appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body, respectively).’ The Board explained: *Letter from Shari L. West, Assistant Attorney General, Public Access Bureau, to Dave Barnes, Supervisor, St. Clair Township (February 13, 2014). 3Letter from Dave Barnes, Supervisor, St. Clair Township, to Shari L. West, Assistant Attorney General, Public Access Bureau (February 18, 2014). ‘Letter from Dave Barnes, Supervisor, St. Clair Township, to Shari L. West, Assistant Attorney General, Public Access Bureau {February 18, 2014). ‘Letter from Dave Barnes, Supervisor, St. Clair Township, to Shari L. West, Assistant Attorney General, Public Access Bureau (February 18, 2014). °St. Clair Township, Regular Meeting of January 28, 2014, Agenda ems 10. H. and 10.1. (January 24, 2014). *St. Clair Township, Regular Meeting of January 28, 2014, Amended Agenda Items 11, B. and 11. C. (January 24, 2014). Mr. Michael Greenfield Mr. Dave Barnes May 5, 2014 Page 3 The only difference [in the two agendas] is that two action items (10H and101 were removed from the original agenda. These two items were then placed under \"Executive Session® and would not be voted on. No new action items were added to the amended agenda. (Emphasis in original.) On February 27, 2014, this office forwarded a copy of the Board's response to Mr. Greenfield.” He did not reply. On March 28, 2014, this office properly extended the time to issue a binding opinion by 21 business days pursuant to section 3.5(e) of OMA.” ANALYSIS The intent of OMA is to ensure that public bodies deliberate and take actions openly. 5 ILCS 120/1 (West 2012), The public policy as declared in section 1 of OMA is that \"citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in any way.” The specific requirements for public notice of all open or closed meetings are set forth in section 2.02 of OMA. No provision of OMA specifically addresses amendments to meeting agendas by public bodies. Therefore, the issue for our determination is whether the revisions to the January 28, 2014, meeting agenda violated the requirements of section 2.02. Section 2.02(a) of OMA (5 ILCS 120/2.02 (West 2012)) provides that “[a]n agenda for each regular meeting shall be posted at the principal office of the public body and at the location where the meeting is to be held at least 48 hours in advance of the holding of the meeting.\" (Emphasis added.) In addition, section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2012)) provides that \"fa]ny agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.\" Section 2.02(b) (5 ILCS 120/2.02(b) (West 2012)) requires that any public body that has a website maintained by the full-time staff of the public body shall also post notice of all meetings of the governing body of the public body on its website. The information submitted to this office indicates that the Board complied with section 2.02(a) of OMA by posting the original agenda on its website more than 48 hours in advance of the January 28, 2014, meeting. The Board also complied with section 2.02(c)'s 5Letter from Dave Barnes, Supervisor, St. Clair Township, to Shari L. West, Assistant Attomey General, Public Access Bureau (February 18, 2014). °Letter from Shari L. West, Assistant Attorney General, Public Access Bureau, to Michael Greenfield (February 27, 2013). 'L etter from Shari L. West, Assistant Attomey General, Public Access Bureau, to Michael Greenfield and Dave Barnes, Supervisor, St. Clair Township Board (March 28, 2014). Mr. Michael Greenfield Mr. Dave Barnes May 5, 2014 Page 4 requirement that at least one copy of the notice and agenda for a meeting be continuously available for public review during the entire 48-hour period preceding the meeting. The remaining requirement that the agenda “set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting” is clearly aimed at assuring that the public is informed of the subject of any final action that may be taken at the meeting.\"' A public body is under no obligation, however, to take final action on a matter because the item appears on the agenda. Instead, a public body may determine not to consider final action on a matter that has been listed on the agenda as an “action item.” A public body may decide, for example, that additional information or discussion is necessary, and consequently postpone or cancel consideration of a resolution or ordinance. An agenda is an informational guideline of what the public body anticipates considering at a meeting; a public body is not required by section 2.02 of OMA to address a matter because it is listed on the agenda. Indeed, assuming that its rules of procedure permit it, the Board could have decided not to amend the agenda and simply deferred consideration of the two items to a later time. Further, because OMA does not require \"notice in the agenda of topics to be considered in closed session,\" the Board's addition of the two items under the heading \"Executive Session” did not violate section 2.02 of OMA. See Gosnell v. Hogan, 179 lL App. 3d 161, 177 (Sth Dist. 1989), appeal denied, 126 Ill. 2d 558 (1989); see also S ILCS 120/2a (West 2012)) (\"[a}t any open meeting of a public body for which proper notice under this Act has been given, the body may, without additional notice under Section 2.02, hold a closed meeting in accordance with this Act.”). Although OMA did not require the Board to amend its agenda in these circumstances, its amendment accurately reflected the topics of the closed discussion and the statutory basis for consideration in a closed session. For the reasons stated above, this office concludes that the Board's revisions to the agenda for its January 28, 2014, meeting, less than 48 hours prior to the meeting, did not violate the provisions of OMA. While a public body may not take final action on a matter unless it has been properly posted on the agenda at least 48 hours prior to a meeting (see Rice v. Board of \"The Senate debate on House Bill No. 4687, which was enacted as Public Act 97-827, (codified at SILCS 120/2.02(c), effective January 1, 2013), indicates that the amendment of section 2.02 to add the posting and notice requirements discussed herein was intended to ensure that agendas provide to the public sufficiently descriptive advance notice of the matters upon which a public body may consider taking final action: (T]here was just no real requirement as to how specific they needed to be to the public of what they were going to discuss that would be final action. And this just says that you have to have a * * * general notice if you're going to have and take final action, as to generally what's going to be discussed so that — that people who follow their units of local government know what they're going to be acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate Debate on House Bil No. 4687, at 47. Mr. Michael Greenfield Mr. Dave Barnes May 5, 2014 Page 5 Trustees of Adams County, 326 lll. App. 34 1120, 1123 (4th Dist. 2002), section 2.02 of OMA does not prohibit a public body from deleting items for consideration from a posted agenda within the posting period. Additionally, although it was not required to amend the agenda, the Board's decision to post an amended agenda served to provide greater transparency for members oft he public. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments presented, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On January 24, 2014, the St. Clair Township Board posted an agenda on its website for the January 28, 2014, Board meeting. 2) On January 27, 2014, the Board posted an amended agenda for its January 28, 2014, meeting, in which two “action items” on the original agenda were deleted and two similar items were added to \"Executive Session” heading. 3) On February 4, 2014, the Public Access Bureau received a Request for Review from Mr. Michael Greenfield alleging that the Board violated OMA by revising the agenda on its website less than 48 hours before the January 28, 2014, regular Board meeting. 4) Mr. Greenfield's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a} (West 2012)). The Public Access Counselor extended the time for issuance of a binding opinion by 21 business days pursuant to section 3.5(e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 5) Pursuant to section 2.02(a) of OMA, a public body (including the Board) is required to post an agenda for each regular meeting at its principal office and at the location where the meeting is to be held at least 48 hours in advance of the holding of the meeting. Section 2.02(c) of OMA provides that \"[a]ny agenda required under this Section shail set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.\" Mr. Michael Greenfield Mr. Dave Barnes May 5, 2014 Page 6 6) An agenda is an informational outline of the matters that the public body anticipates it will consider at a meeting. Nothing in section 2.02 of OMA, however, requires a public body to address every item that is included on the agenda, nor is a public body prohibited from revising its agenda less than 48 hours before a meeting to delete a specific matter because changes in circumstances preclude consideration of that matter. In this instance, the public did receive at least 48 hours’ notice of the subjects upon which the Board did take final action, as required by section 2.02(c) of OMA and Rice v. Board af Trustees of Adams County. Additionally, because of the Board's decision to post an amended agenda, the public received an important update on the Board's plans for the meeting. Accordingly, the Attorney General finds that the St. Clair Township Board did not violate section 2.02 of the Open Meetings Act when it amended the agenda for its January 28, 2014, meeting less than 48 hours prior thereto by deleting two items that were originally proposed for action. The Attorney General further finds that the public did receive at least 48 hours’ notice of the matters that the Board did consider at the meeting, as required by section 2.02 of OMA. This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2012). An aggrieved party may obtain judicial review of this decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Hlinois and St. Clair Township Board as defendants. See 5 ILCS 120/7.5 (West 2012). Very truly yours, LISA MADIGAN ATTORNEY GENERAL Michael J. Luke Counsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A resident complained that the St. Clair Township Board broke the law by changing its meeting agenda less than 48 hours before the meeting took place. The Attorney General ruled that the Board acted legally because the changes only involved removing items from the agenda, rather than adding new topics for discussion. This means public bodies are permitted to remove items from an agenda within the 48-hour window as long as the public still has proper notice of the remaining items.","card_headline":"Agenda amendments removing items within 48 hours","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":37,"orig_master_id":19239,"dup_master_id":19010,"dup_sha256":"13a39e196ec641977437afcf920e4e5c20ff2da1fd25aa0611175df655e88c81","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2014,"date_issued":"2014-05-09","case_number":"2014 PAC 27773","request_numbers":null,"title":"Disclosure of Settlement Agreements","filename":"PUBLIC ACCESS OPINION 14-004 (Request for Review - 2014 PAC 27773).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 14-004 (Request for Review - 2014 PAC 27773).pdf","word_count":3681,"summary":"This document is a binding public access opinion regarding a FOIA request made by Mr. Daniel Kelley for settlement agreements from St. Clair County, which was partially denied.","plain_summary":"The requester sought copies of settlement agreements from the county board, but the county board withheld some of them, citing confidentiality provisions within the agreements and arguing that release would be a \"clearly unwarranted invasion of personal privacy\" under section 7(1)(c) of FOIA because the agreements resolved sexual harassment complaints. The Public Access Counselor held that settlement agreements are public records under FOIA and that confidentiality clauses within them are unenforceable because they conflict with the statute's plain language and legislative intent favoring disclosure. The PAC also found the privacy exemption inapplicable because the withheld documents did not describe the underlying allegations, and because the public's constitutional and statutory interest in knowing how public funds are spent outweighed any privacy interest the complainants had. As a result, the county board was directed to release the settlement agreements, subject only to redaction of private information under section 7(1)(b).","holding":"St. Clair County improperly partially denied Mr. Daniel Kelley's FOIA request.","legal_question":"Did St. Clair County properly deny the FOIA request for settlement agreements?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(b)"],"public_body":"St. Clair County","requesting_party":"Mr. Daniel Kelley","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The disclosure of public body settlement agreements and the applicability of the personal privacy exemption.","ocr_status":"ok","ocr_quality":89.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2014-Binding-PAC-Opinions/14-004.pdf","sha256":"337fcb0d302830c67b21f306d2fa3d0c78e0ddad1ca13f3cb39b8fedab64911b","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["settlement agreements","FOIA","public records","privacy exemption"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nAYTORNEY GENERAL\nMay 9, 2014\nPUBLIC ACCESS OPINION 14-004\n(Request for Review 2014 PAC 27773)\nFREEDOM OF INFORMATION ACT:\nDisclosure of Settlement Agreements\nMr. Daniel Kelley\nReporter, Belleville News-Democrat\n[street address redacted for site publication -- see original PDF]\nMr. Sean Murley\nAssistant State's Attorney and FOIA Officer\nSt. Clair County\n10 Public Square, 2°¢ Floor\nBelleville, Illinois 62222\nDear Mr. Kelley and Mr. Murley:\nThis is a binding opinion issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2012)). For the reasons discussed below, this\noffice concludes that St. Clair County improperly partially denied Mr. Daniel Kelley's December\n30, 2013, FOIA request for copies of settlement agreements.\nBACKGROUND\nOn December 30, 2013. Mr. Kelley, on behalf of the Belleville News-Democrat,\nsubmitted a FOIA request to the St. Clair County Board Chairman seeking “all of the settlement\nagreements involving St. Clair County from Jan. 1, 2013 to the present.\"’ On January 14, 2014,\n‘Letter from Daniel Kelley, Reporter, News-Democrat, to Mark Kern, Chairman, St. Clair County\nBoard (December 36, 2013).\n500 South Second Street, Springfield, Winois 62706 * (217) 782-1090 * “TTY: (877) 844-5461 * Fax: (217) 782-7646\n100 West Randolph Street, Chicage, Hlineis 60601 * (312) 814-3000 © TTY: (800) 964-3013 © Fax: (312) 814-3806\n1001 East Main, Carbondale, Hiinvis 62901 © (618) 520-6400 © TTY: (877) 675-9339 © Fax: (618) 529-0416 ‘ab\nMr. Daniel Kelley\nMr. Sean Murley\nMay 9, 2014\nPage 2\nSean Murley, Assistant State's Attorney and FOIA Officer, responded on behalf of the Board\nChairman and St. Clair County’ and provided Mr. Kelley with copies of six documents, each\nentitled \"Release,\"? some of which contained redactions of private information‘ pursuant to\nsection 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2012), as amended by Public Acts 98-463,\neffective August 16, 2013; 98-578, effective August 27, 2013) The County, however, denied\nMr. Kelley's request with respect to an undisclosed number of settlement documents “containing\nor covered by confidentiality agreements,\" asserting that “parties entered into these agreements\nwith the understanding that details of their settlements would not be disclosed. *6 In addition, the\nCounty asserted that because of the nature of the allegations, the privacy of the complaining\nparties should be protected, and that the documents are therefore exempt “personal information”\nunder section 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) (West 2012), as amended by Public Acts 98-\n463, effective August 16, 2013; 98-578, effective August 27, 2013). Mr. Kelley submitted a\nRequest for Review, received by this office on January 28, 2014, seeking the Public Access\nCounselor's review of the denial of his request for documents that contained the confidentiality\nprovisions.’\n\"Letter from Sean Murley, Assistant State's Attorney and FOIA Officer, St. Clair County, to\nDaniel Kelley, Belleville News Democrat Qanuary 14, 2014).\n*Facsimile from Dan Kelley, Belleville News-Democrat, to Sarah Pratt, Public Access Counselor\n(January 31, 2014).\n“Under section 2(c-5} of FOIA (5 ILCS 140/2(c-5) (West 2012) “private information” means:\n{u]nique identifiers, including a person's social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\nfinancial information, passwords or other access codes, medical records, home\nor personal telephone numbers, and personal email addresses. Private\ninformation also includes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of attribution to\nany person.\n*Letter from Sean Murley, Assistant State's Attomey and FOIA Officer, St. Clair County, to\nDaniel Kelley, Belleville News Democrat Ganuary 14, 2014).\n“Letter from Sean Murley, Assistant State's Attorney and FOIA Officer, St. Clair County, to\nDaniel Kelley, Belleville News Democrat Ganuary 14, 2014).\n\"Letter from Daniel Kelley, Reporter, News-Democrat, to Sarah Pratt, Public Access Counselor\n(January 27, 2014).\nMr. Daniel Kelley\nMr. Sean Murley\nMay 9, 2014\nPage 3\nOn February 3, 2014, this office forwarded a copy of the Request for Review to\nSt. Clair County and requested unredacted copies of all responsive documents that had been\nwithheld, as well as any additional factual information and legal arguments in support of its\nassertion of section 7TAVK)3 This office received the County's response on February 20, 2014,\nwhich included copies of the settlement agreements it had withheld. On behalf of the County,\nMr. Murley stated:\nDisclosure of these documents would be in direct violation of\nconfidentiality agreement entered into by the parties. In addition,\nthese cases involve sexual harassment claims that are by nature\nconsidered confidential. It is our position that disclosure of\nvictim's names would only serve to further embarrass and\nhumiliate the victims.”\nThe County's response letter only was forwarded to Mr. Kelley on February 21,\n2014.'° Mr. Kelley replied on February 24, 2014, reiterating his assertion that the settlement\nagreements are public records.'' On March 28, 2014, this office properly extended the time to\nissue a binding opinion by 30 business days pursuant to section 9.5(f) of F OIA.”\nThe issues under review are: (1) can a public body withhold settlement\nagreements to which it is a party because the agreements include confidentiality provisions; and\n(2) can settlement agreements arising out of claims of sexual harassment be withheld pursuant to\nsection 7(1)(c} of FOIA?\n5 etter from Sarah L. Pratt, Public Access Counselor, Chief, Public Access Bureau, Office of the\nAttorney General, to Sean Murley, Assistant State's Attorney, FOLA Officer (February 3, 2014).\nLetter from Sean Murley, Assistant State's Attorney and FOIA Officer, St. Clair County, to Sarah\nL. Pratt, Public Access Counselor, Chief, Public Access Bureau (February 13, 2014).\n‘Letter from Sarah L. Pratt, Public Access Counselor, Chief, Public Access Bureau, Office of the\nAttorney General, to Daniel Kelley (February 21, 2014).\n\"Letter from Daniel Kelley, Reporter, News-Democrat, to Sarah Pratt, Public Access Counselor\n(February 24, 2014).\n\"Letter from Sarah L. Pratt, Public Access Counselor, Chief, Public Access Bureau, Office of the\nAttorney General, to Daniel Kelley, Reporter, Belleville News-Democrat, and Sean Murley, Assistant State's\nAttorney, FOIA Officer St. Clair County (March 28, 2014).\nMr. Daniel Kelley\nMr. Sean Murley\nMay 9, 2014\nPage 4\nANALYSIS\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2012). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2012)) provides that \"[e]ach\npublic body shall make available to any person for inspection or copying all public records,\nexcept as otherwise provided in Section 7 of this Act.\" The exemptions from disclosure\ncontained in section 7 of FOIA (5 ILCS 140/7 (West 2012), as amended by Public Acts 98-463,\neffective August 16, 2013; 98-578, effective August 27, 2013) are to be narrowly construed.\nLieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997).\nSection 2.02 of FOIA\nUnquestionably, settlement agreements are public records under FOIA. Section\n2.20 of FOIA (5 ILCS 140/2.20 (West 2012)) expressly provides that \"[a]ll settlement\nagreements entered into by or on behalf of a public body are public records subject to inspection\nand copying by the public, provided that information exempt from disclosure under section 7 of\n[FOIA] may be redacted.\" The County asserts, however, that disclosure of the requested\nsettlement agreements would violate the confidentiality provisions contained in the agreements\nentered into by the parties.\nThe legislative history of Senate Bill 189 (which, as Public Act 96-542, effective\nJanuary !, 2010, added section 2.20 to FOIA), reflects that the General Assembly intended to\nseverely limit, if not to prohibit altogether, the practice of public bodies incorporating restrictions\nin settlement agreements in order to avoid being required to disclose the terms of the settlements\nunder FOIA. During House debate on Senate Bill 189, the comments of Speaker Madigan, one\nof the bill's House sponsors, and Representative Black provide guidance on the issue of whether\npublic bodies may withhold settlement agreements in response to a FOIA request:\nBlack: Okay, settlement agreements entered into, and this has long\nbeen a bone of contention, a school district, a city, a township, a\ncounty, whatever[.]\nThey reach an agreement on a lawsuit. They don't go to court.\nThey settle for an amount of money, and this [has] often driven the\ntaxpayer as well as the media gatekeepers crazy. * * * [HJow much\nMr. Daniel Kelley\nMr. Sean Murley\nMay 9, 2014\nPage 5\ndid it cost? Well, we don't have to tell you that. We can't tell you\nthat because part of the agreement was that neither side would\ndisclose what we paid, but yet the taxpayer says, well, you paid\nthem, literally, even though you have an insurance policy, you paid\nthem with my tax money. What do you mean * * * I can't be told\nwhat you settled the case for. If] understand what you're saying,\nthat settlement would now by FOlable.\nMadigan: The answer is yes.\nRemarks of Rep. Black and Rep. Madigan, May 27, 2009, House\nDebate on Senate Bill No. 189, at 104-105.\nSimilarly, the following exchange between Representative Tryon and Speaker\nMadigan reiterated that the purpose of section 2.20 is to mandate the release of settlement\nagreements, subject only to appropriate redactions:\nTryon: Speaker Madigan having been a former county board\nchairman, we were faced many times with FOTA requests and\nsometimes difficult FOIA requests and one of the things that was\nawful difficult was in the cases of settlements of court cases. In\nthe settlement of a court case, there were times where the plaintiff\nwas requesting that there be * * * nondisclosure. It could have\nbeen a sexual harassment case; it could have been certain types of\ncases where there was a need to disclose the names of the\nindividuals maybe even the amount of the settlement. If the court\napproves a settlement agreement that, as part of that settlement\nagreement, has nondisclosure, is that FOIAable?\nMadigan: The answer is that [it is] a public record that would be\nsubject to FOIA, but please understand that you do have\nexceptions in the statutes such as privacy, deliberative process.\nxeK\nTryon: So, * * * if part of the settlement was negotiated and part\nof the negotiation of the settlement was approved by a court and in\none specific case I'm thinking of was a Federal Court and the\nMr. Daniel Keiley\nMr. Sean Murley\nMay 9, 2014\nPage 6\namount was nondisclosable. Would that be nondisclosed [sic] as\nwell?\nMadigan: Again, it's subject to FOIA, but let me add that the\nintent of the Bill is not to look with favor upon governments\nentering into sealed records and sealed agreements in court. I\nmean, that's part of what we're trying to do here. We're trying to\nopen things up.\nTryon: Okay.\nMadigan: And we certainly [aught] not to be encouraging\ngovernments to enter into agreements like that, (Emphasis\nadded.} Remarks of Rep. Tryon and Rep. Madigan, May 27, 2009,\nHouse Debate on Senate Bill No. 189, at 109-111.\nIllinois appellate courts have not specifically addressed the enforceability of\nconfidentiality restrictions in settlement agreements since the enactment of section 2.20 of FOIA,\nbut courts of other jurisdictions have held that the disclosure requirements of open records laws\nare paramount. See State ex. rel. Findlay Publishing Company v. Hancock County Board of\nCommissioners, 80 Ohio St.3d 134, 137, 684 N.E.2d 1222, 1225 (Ohio 1997) (\"A public entity\ncannot enter into enforceable promises of confidentiality regarding public records\"); Anchorage\nSchool District v. Anchorage Daily News, 779 P.2d 1191, 1193 (Alaska 1989) (\"a public agency\nmay not circumvent the statutory disclosure requirements by agreeing to keep the terms ofa\nsettlement agreement confidential. Under Alaska law, a confidentiality provision such as the one\nin the case at bar is unenforceable because it violates the public records disclosure statutes\");\nTribune-Review Publishing Co. v. Westmoreland County Housing Authority, S74 Pa. 661, 675,\n833 A.2d 120, (Pa. 2003) (\"the confidentiality clause contained in this agreement is void as\nagainst public policy to the extent that it conflicts with the text and purpose of the [Open\nRecords] Act. A public entity may not enter into enforceable promises of confidentiality\nregarding public records\"). Moreover, Illinois courts have accepted the general principle that a\ncontract provision that violates a statute contravenes public policy and is unenforceable. Fosler\nv. Midwest Care I, inc., 398 Ul. App. 3d 563, 571 (Qnd Dist. 2009); H & M Commercial Driver\nLeasing, Inc. v. Fox Valley Containers, Inc., 209 1.2 52, 57 (2004), alluding to Schumann—\nHeink v. Folsom, 328 Wi. 321, 330 (1927). Indeed, prior to the enactment of section 2.20, this\nprinciple was applied by Hlinois courts in ordering the disclosure of settlement agreements that\ncontained confidentiality restrictions. See Centralia Press Ltd. v. City of Mt. Vernon, 1996 WL\nMr. Daniel Kelley\nMr. Sean Murley\nMay 9, 2014\nPage 7\n787414 (Ul. Cir. 1996); see also Carbondale Convention Center, Inc. v. City of Carbondale,\n245 Ill. App. 3d 474 (5\" Dist. 1993).\nUnder section 2.20 of FOIA, a settlement agreement is a public record subject to\ndisclosure, although specific information may be redacted therefrom pursuant to section 7 of\nFOIA. Because the confidentiality provisions in the settlement agreements in question are\ninconsistent with the requirements of section 2.20 of FOIA and contravene public policy as set\nforth in FOIA, they are unenforceable as written.\nSection 7(1)(c) of FOIA\nThe County also asserted that the settlement agreements are exempt from\ndisclosure under section 7(1)(c) of FOIA, which exempts from inspection and copying\n\"[p]ersonal information contained within public records, the disclosure of which would\nconstitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented\nto in writing by the individual subjects of the information.” An \"unwarranted invasion of\npersonal privacy” is defined as “the disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject's right to privacy outweighs any\nlegitimate public interest in obtaining the information.” 5 ILCS 140/7(1)(c) (West 2012), as\namended by Public Acts 98-463, effective August 16, 2013; 98-578, effective August 27, 2013).\n“The circuit court's order in Centralia Press Ltd. stated:\n[T]he non-disclosure provisions of the [settlement] agreement were specifically\nnegotiated for and were an intricate part of the consideration received by the\nparties reciting that confidentiality was important and material to the terms of\nthe agreement.\nSuch agreement did not, nar could it, circumvent the Freedom of\ninformation Act. Parties to a lawsuit, whether they be private citizens or\ngovernmental agencies, cannot, by their agreement, negate the application of\na law passed by the General Assembly. As such, the non-disclosure terms of\nthe agreement in and of themselves do not preclude this court from\nconsidering whether or not the information requested should be disclosed.\nHowever, the parties should have known or at least considered the\napplication of the FOIA to suits involving public entities. Had the settlement\nagreement referred to the Act and recited facts supporting the assertion that\ndisclosure would constitute an unwarranted invasion of personal privacy, the\nruling in this case most likely would have been different, i.e., a finding that the\nCity had met its burden and disclosure wouid not have been ordered. (Emphasis\nadded.) Centralia Press Lid. v. City of Mt. Vernon, 1996 WL 787414 (If. Cir.\n1996).\nMr. Daniel Kelley\nMr. Sean Murley\nMay 9, 2014\nPage 8\nThe County did not specifically cite this provision in its response to the Request for Review, but\nit cited section 7(1)(c) in the denial of Mr. Kelley's FOIA request and continues to assert that\ndisclosure would result in an unwarranted invasion of personal privacy. Consequently, we will\naddress 7(1)(c)'s applicability io resolve any potential issue.\nThe County has asserted that because the settlement agreements resolve\nallegations of sexual harassment, the complainants’ names should not be disclosed because doing\nso \"would only serve to further embarrass and humiliate the victims.“ The County did not,\nhowever, redact the complainants’ names and then provide the redacted settlement agreements to\nthe requester, but instead withheld the documents in their entireties. This office's confidential\nreview of the withheld documents disclosed that they do not include references to the specific\nallegations underlying the complaints that led to the settlements, the disclosure of which could\npotentially be embarrassing to the complainants, as the County notes. To the contrary, the\nCounty has asserted that the settlement agreements should be withheld to keep confidential the\nfact that the complainants have made allegations of sexual harassment.\nThe County has not provided legal support for its assertion that the release of the\nsettlement agreements would result in an unwarranted invasion of the personal privacy of the\ncomplainants. Moreover, the settlement agreements contain terms and conditions relating to the\npayment of funds by or on behalf of the County to the complainants in exchange for their release\nof alleged or potential claims against the County and a County employee. Article VIIT, section\n1(c) of the Illinois Constitution of 1970 provides that “records of the obligation, receipt and use\nof public funds of the State, units of local government and school districts are public records\navailable for inspection by the public according to law.\" The constitutional right to information\nregarding the use of public funds is incorporated into the provisions of FOIA, as well. See 5\nILCS 140/2.5 (West 2012)) (\"[a]}l records relating to the obligation, receipt, and use of public\nfunds of the State, units of local government, and school districts are public records subject to\ninspection and copying by the public.\"). The public has a right to know the purposes for which\npublic funds are expended, including the identity of those who receive the funds. Even\nassuming, arguendo, that the disclosure of these documents would constitute an invasion of the\ncomplainants’ privacy, in view of the countervailing interest of the public in information\nconcerning the use of public funds, the invasion of privacy would not be “unwarranted.”\nThe County has not identified a personal privacy interest in the disclosure of these\ndocuments that would outweigh the public's interest in information concerning the payment of\npublic funds by or on behalf of the County to settle these complaints. Accordingly, the County\n“Letter from Sean Murley, Assistant State's Attorney and FOIA Officer, St. Clair County, to\nSarah L. Pratt, Public Access Counselor, Chief, Public Access Bureau (February 13, 2014).\nMr. Daniel Kelley\nMr. Sean Murley\nMay 9, 2014\nPage 9\nhas not sustained its burden of demonstrating that the settlement agreements are exempt from\ndisclosure pursuant to section 7(1}(c) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On December 30, 2013, Mr. Daniel Kelley, on behalf of the Belleville News-\nDemocrat, submitted a FOIA request to St. Clair County seeking “all of the settlement\nagreements involving St. Clair County from Jan. 1, 2013 to the present.”\n2) On January 14, 2014, the County provided Mr. Kelley with a number of\nresponsive records, but withheld other settlement agreements, asserting that disclosing those\nrecords would violate confidentiality provisions contained therein. The County further asserted\nthat disclosure of the settlement agreements would violate section 7(1 (c) of FOIA.\n3) On January 27, 2014, Mr. Kelley submitted a Request for Review that was\nreceived by the Public Access Counselor on January 28, 2014. The Request for Review was\ntimely and otherwise complies with section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2012)).\n4) On February 3, 2014,the Public Access Bureau forwarded a copy of the\nRequest for Review to the County and requested copies of all responsive documents that were\nwithheld, as well as factual and legal arguments in support of its assertion of section 7(1)(c).\n5) By letter dated February 13, 2014, and received on February 20, 2014, the\nCounty furnished to this office copies of the settlement agreements it withheld and asserted that\ndisclosure of the records would violate the confidentiality provisions contained in the agreements\nand “only serve to further embarrass and humiliate the victims.”\n6) On March 28, 2014, the Public Access Counselor extended the time to issue a\nbinding opinion by 30 business days, to May 9, 2014. Therefore, the Attorney General may\nproperly issue a binding opinion with respect to this matter.\n7) Section 2.20 of FOIA specifically provides that all settlement agreements\nentered into by or on behalf of a public body are public records subject to inspection and copying\nby the public. Because confidentiality provisions in settlement agreements entered into by public\nbodies are contrary to the specific language of section 2.20 and the legislative intent underlying\nthat section, this office finds that the confidentiality provisions in the settlement agreements are\nMr. Daniel Kelley\nMr. Sean Murley\nMay 9, 2014\nPage 10\nnot enforceable and, therefore, the County is not precluded from releasing the settlement\nagreements to Mr. Kelley.\n8) Further, the County has failed to meet its burden of demonstrating that the\nsettlement agreements are exempt from disclosure pursuant to section 7(1)(c) of FOIA.\nTherefore, it is the opinion of the Attorney General that the County has\nimproperly denied the Befleville News-Democrat’s Freedom of Information Act request in\nviolation of the requirements of the Act. Accordingly, the County is directed to take immediate\nand appropriate action to comply with this opinion by disclosing the requested settlement\nagreements to the Belleville News-Democrat, subject only to permissible redactions of private\ninformation under section 7(1)(b) of FOIA.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2012). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Mr. Daniel Kelley\nas defendants. See 5 LLCS 140/11.5 (West 2012).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nBy: Cttecto * el ker Sa_—\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested copies of all settlement agreements involving St. Clair County. The County denied the request, claiming the documents were exempt from disclosure. The Attorney General's office ruled that the County's denial was improper and ordered them to release the agreements, allowing only for the redaction of specific private information.","card_headline":"Settlement agreements under the personal privacy exemption","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":38,"orig_master_id":19011,"dup_master_id":19240,"dup_sha256":"6e905bd391ef5d7235ccaadd64c782940f9f797d56ec64cea4557442f88fdb92","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2014,"date_issued":"2014-07-01","case_number":"2014 PAC 28539","request_numbers":null,"title":"Duty to Disclose Public Records in the Possession of a Public Body","filename":"PUBLIC ACCESS OPINION 14-006 (Request for Review - 2014 PAC 28539).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 14-006 (Request for Review - 2014 PAC 28539).pdf","word_count":2238,"summary":"Chicago State University violated section 3 of FOIA (5 ILCS 140/3 (West 2012) by failing to provide public records in its possession in response to Willie Preston's FOIA request . Mr. Preston submitted an undated FOIA request to the University seeking “the specific amount of money that was collected the night of January 26, 2013[,] in relation to the Homecoming dance, as well as how that money was then housed and subsequently appropriated . The records include the SGA’s Treasurer's Report dated February 8, 2013, which shows the amount collected from the dance .","plain_summary":"The requester sought records showing how much money was collected during a university's homecoming dance and how those funds were handled. The university denied the request, arguing the records belonged to its Student Government Association, which it claimed was not a \"public body\" subject to FOIA. The PAC held that this argument was irrelevant, because the records were in the university's possession and control—held in a university-controlled account and overseen by university staff—and therefore pertained to the transaction of public business by the university itself. The PAC ruled that the university violated FOIA and ordered it to release the records, subject only to permissible redactions.","holding":"Chicago State University violated FOIA by failing to provide responsive records in its possession regarding the collection and appropriation of funds from a university event.","legal_question":"Whether Chicago State University violated section 3 of FOIA by failing to provide public records in its possession that were responsive to a request for financial information regarding a university event.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3, 5 ILCS 140/3(e), 5 ILCS 140/1, 5 ILCS 140/2(c), 5 ILCS 140/7, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago State University","requesting_party":"Preston and Ms. Mazza","pac_outcome":"UNCLEAR","pac_law_type":"FOIA","subject_category":"financial records","subject_description":"Request for amount of money collected at a homecoming dance and how that money was housed and appropriated.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2014-Binding-PAC-Opinions/14-006.pdf","sha256":"84c0046ba682c6f31f0bee001e2edbaec0fb1e1d851c55b18cadf7b741e3623e","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["homecoming dance","student government","financial records","university","FOIA possession"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL July 1, 2014 PUBLIC ACCESS OPINION 14-006 (Request for Review 2014 PAC 28539) FREEDOM OF INFORMATION ACT: Duty to Disclose Public Records in the Possession of a Public Body Mr. Willie Preston 8019 South Paulina Street, Apartment | Chicago, Illinois 60620 Ms. Maria E. Mazza, Esq. Associate General Counsel Chicago State University 9501 South King Drive / ADM 318 Chicago, Uhnois 60628 Dear Mr. Preston and Ms. Mazza: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(£) (West 2012)). For the reasons discussed below, this office concludes that Chicago State University violated section 3 of FOIA (5 ILCS 140/3 (West 2012)) by failing to provide public records in its possession in response to Mr. Willie Preston's FOIA request. BACKGROUND Mr. Preston submitted an undated FOIA request to the University seeking “the specific amount of money that was collected the night of January 26, 2013[,] in relation to the Homecoming dance, as well as how that money was then housed and subsequently appropriated.\" On March 11, 2014, the University acknowledged receipt of Mr. Preston's FOIA ‘Letter from Willie Preston (undated). 500 South Second Street, Springfield, Himois 62706 * (217) 782-1000 * “VEY (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Hinois 60601 * (312) 814-3000 + TPY: (800) 964-3015 * Pax: G12} 814-3806 1001 East Main, Carbondale, Hingis 62901 © (618) 529-6400 © T'VY: (877) 675-9339 © Fax: (618) 529-0416 eb Mr. Willie Preston Ms. Maria E. Mazza, Esq. July 1, 2014 Page 2 request \"dated March 4, 2014[,]\" and extended its time for response by five business days pursuant to sections 3(e}(v) and 3(e)(vi) of FOIA (5 ILCS 140/3(e)(), (e)(vi) (West 2012))2 On March 18, 2014, the University responded to Mr. Preston's request: [t]he records which are the subject of your request are not records of a \"public body” under the Act, as the Student Government Association [(SGA)] is not a public body as defined in the Act. [Citation.] Consequently, the records are not subject to disclosure pursuant to the Act? On March 20, 2014, the Public Access Bureau received Mr. Preston's Request for Review of that denial, in which he claimed that \"the specific public records [he] requested had little, if anything, to do with SGA because [he] requested records concerning thousands of dollars collected by the Universityi n the University’s name due to fees that were being charged related to the 2013 Chicago State University Homecoming Dante. wl On March 31, 2014, the Public Access Bureau forwarded a copy of the Request for Review to the University and asked it to provide un-redacted copies of the responsive records for this office's confidential review, and a detailed explanation of whether any of the responsive records were prepared by or for, or had been or were being used by, received by, in the possession of, or under the control of the University? On April 16, 2014, this office received the requested records and the University's written response, which stated, in part: The records include the SGA's Treasurer's Report dated February 8, 2013, which shows the amount collected from the Homecoming dance, and the SGA’s list of expenses paid from its account. Such documents were prepared by the SGA. Copies were pravided to the University’s Director of Student Activities. Also, enclosed is a copy of the deposit of the funds from the Homecoming dance into *Letter from Maria E. Mazza, Esq., Associate General Counsel, Chicago State University, to Willie Preston (March 11, 2614). “Letter from Maria E. Mazza, Esq., Associate General Counsel, Chicago State University, to Willie Preston (March 18, 2014). ‘Letter from Willie Preston to Public Access Counselor (March 20, 2014). sLetter from Josh Jones, Assistant Attorney General, Public Access Bureau, to Maria E. Mazza, Esq., Associate General Counsel, Chicago State University (March 31, 2014)... Mr. Willie Preston Ms. Maria E. Mazza, Esq. July 1, 2014 Page 3 the SGA account, which was handled by the University's Director of Student Activities'*! (Emphasis added.) Subsequently, an Assistant Attorney General in the Public Access Bureau clarified with the University whether the University was asserting that the responsive records were not subject to disclosure, and, if so, on what basis.’ On April 17, 2014, the University responded: Yes, the University maintains that the responsive records are not subject to disclosure because the records at issue are not records of a “public body” under the FOIA, as the Student Government Association is not a public body as defined in Section 2(a) of the Act, and, thus, are not subject to disclosure.® On May 19, 2014, the Public Access Counselor extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5 of FOIA (5 ILCS 140/9.5 (West 2012)). ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act.\" 5 ILCS 140/1 (West 2012). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2012), “fall records in the custody or possession of a public body are presumed to be open to inspection or copying.” | Section 3(a) of FOIA (5 ILCS 140/3(@) (West 2012)) provides that “[elach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act.” Section 2(c) of FOIA (5 ILCS 140/2(c) (West 2012)) defines \"public records\" as: SLetter from Maria E. Mazza, Esq., Associate General Counsel, Chicago State University, to Josh Jones, Assistant Attorney General, Public Access Bureau (April 16, 2014). \"E-mail from Josh Jones, Assistant Attorney General, Public Access Bureau, to Ms. Mazza (April 16, 2014), 5E-mail from Maria E. Mazza, Esq., Associate General Counsel, Chicago State University (April 17, 2014). “Letter from Josh Jones, Assistant Attorney General, Public Access Bureau, to Willie Preston and Maria E. Mazza, Esq., Associate General Counsel, Chicago State University (May 19, 2014). Mr. Willie Preston Ms. Maria E, Mazza, Esq. July 1, 2014 Page 4 all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of _ physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body. Under the plain language of this definition, records in the possession or control of a public body which pertain to the transaction of public business are public records. It is undisputed that the University is a public body, and the University’s response to this office confirmed that its Director of Student Activities had received copies of the records at issue. The appropriateness of the University's denial, therefore, hinges on whether the responsive records pertain to the transaction of public business. In City ef Champaign v. Madigan, 2013 IL App (4th) 120662, 992 N.E.2d 629 (2013), the Illinois Appellate Court construed the meaning of \"public business” for purposes of FOIA. The Court noted that the statute does not define the term, but found its meaning to be plain and unambiguous, \"to qualify as a public record a communication must first pertain to ‘business or community interests as opposed to private affairs.” City of Champaign, 2013 IL App (4th) 120662, § 31, 992 N.E.2d at 636-37, citing Merriam—Webster's Collegiate Dictionary 941 (10th ed. 2006). The University contends that the responsive records are not public records because SGA is not a public body. Contrary to the University's assertion, however, it is not necessary to determine whether the SGA is a public body in order to resolve the question of whether the University is obligated to produce the records in question. Within the University's Department of Student Affairs is the Office of Student Activities, which, among other things, “provides oversight to the Student Government Association (SGA). “9 Further, the Student Activities Guide to Clubs & Organizations publication illustrates that the University ultimately controls the funding of student associations such as the SGA: . “Chicago State University, Department of Student Affairs, Student Activities, http://csu.edu/dosa/ studentactivities/ Mr. Willie Preston Ms. Maria E. Mazza, Esq. July 1, 2014 Page 5 Student organizations are allocated funds from the Chicago State University, Student Activities Center, based on budget requests submitted during the preceding Spring semester and an evaluation of financial spending from the previous fiscal year. A// student organization funds are maintained in the Student Activities Center Account. All unexpended and unencumberedf unds in the accounts of erganizations and clubs on the last day of the fiscal year revert to the Student Activities Center\" (Emphasis added.) The University has confirmed that its Director of Student Affairs deposited money collected from the homecoming dance into SGA's account. The Guide further provides, with respect to off-campus events sponsored by student organizations, that: No contracts should be signed, or deposits made, without the approval of the Student Activities Center. Contracts for services may also require approval from the University's Legal Department. Please Note: No student clubs/orgs may enter the University into a legally binding agreement. All contracftosr services must go through the University's purchasing/procurement process. It is clear that all student organization funds must be held in an account of the Student Activities Center, which is a University agency. Thus, records relating to the funds that are deposited by a student organization into the Student Activities Center Account pertain to the transaction of public business. Whether the SGA is a public body is not relevant to this analysis. The University controls the Student Activities Center Account and possesses the records at issue, therefore the records pertain to the transaction of public business by the University. Accordingly, this office concludes that the University violated the requirements of FOIA by failing to provide copies of the public records responsive to Mr. Preston's FOIA request. \"Chicago State University, Department of Student Affairs, Guide to Clubs & Organizations (Spring 2013), at 15S, available at ittp://csu.edu/dosa/studentactivities/documents/ClubsandOrgsGuidelines Manual.pdf Mr. Willie Preston Ms. Maria E. Mazza, Esq. July 1, 2014 Page 6 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: ' 1) On March 4, 2014, Mr. Willie Preston submitted a FOIA request to Chicago State University seeking records pertaining to the amount of money collected by the University related to the 2013 Homecoming dance, of which the Student Government Association was a sponsor. - 2) On March 18, 2014, the University denied that request, asserting that although it possessed copies of the records Mr. Preston requested, they were records of the Student Government Association, which is not a \"public body\" for purposes of the Freedom of Information Act, and not the University's records. 3) On March 20, 2014, Mr. Preston submitted a Request for Review of the University’s response. Mr. Preston's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2012). _ 4) On March 31, 2014, the Public Access Bureau determined that further action was warranted and asked the University to explain whether the responsive records were prepared by or for, or had been or were being used by, received by, in the possession of, or under the control of the University. 5) On April 16, 2014, the Public Access Bureau received the University's written response stating that the records in question belonged to the Student Government Association, but that copies were provided to the University's Director of Student Activities. 6) On May 19, 2014, the Public Access Bureau properly extended the period in which to issue a binding opinion by 30 business days pursuant to section 9.5(f} of FOIA, to July 1, 2014. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 7) Chicago State University is a public body to which the provisions of FOIA are applicable. The records in question are in the possession and control of the University and pertain to the transaction of public business by the University, for purposes of section 2(c) of FOIA. Mr. Willie Preston Ms. Maria E. Mazza, Esq. July 1, 2014 Page 7 Therefore, it is the opinion of the Attorney General that the University improperly denied Mr. Preston's Freedom of Information Act request in violation of the requirements of that Act. Accordingly, the University is directed to take immediate and appropriate action to comply with this opinion by providing Mr. Preston with all responsive records, subject only to permissible redactions under section 7 of FOLA (5 ILCS 140/7 (West 2012), as amended by Public Acts 98-463, effective August 16, 2013; 98-578, effective August 27, 2013). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2012). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Willie Preston as defendants. See 5 ILCS 140/11.5 (West 2012). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: Labor Michael J. Luke Counsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under FOIA, a public body must disclose public records that are in its possession, even if the records were created by a separate entity. The decisive fact here was that the Student Government Association's Treasurer's Report was physically in the possession of Chicago State University, having been filed with and kept by its Office of Student Life. Because the University had possession and control over the report, it was required to produce it in response to the FOIA request, and its failure to do so violated section 3 of FOIA. The key legal principle is that possession, not ownership or authorship, triggers the duty to disclose.","card_headline":"Financial records of a university homecoming dance","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":"August 27, 2013","year_pre_fix":"2014","site_dup_of":null},{"id":39,"orig_master_id":19241,"dup_master_id":19012,"dup_sha256":"7aa8b73effcbd89a95a5824ae3d138c3c4e8b17d343a38108a1dd19fcece1437","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2014,"date_issued":"2014-06-30","case_number":"2014 PAC 28485","request_numbers":null,"title":"Records Documenting Public Funds Paid to Entities Pursuant to Contracts For Performance of A Governmental Function Are Subject to Disclosure","filename":"PUBLIC ACCESS OPINION 14-005 (Request for Review - 2014 PAC 28485).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 14-005 (Request for Review - 2014 PAC 28485).pdf","word_count":5439,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request made by Ms. Carla K. Johnson for the disclosure of financial terms from contracts related to the Illinois Lottery.","plain_summary":"The requester sought copies of the state lottery agency's marketing and advertising contracts, specifically the pricing structure and hourly rates, but the agency's private lottery manager redacted the financial terms, citing exemptions for information barred by other state law and for confidential commercial/financial information that could cause competitive harm. The PAC held that neither exemption applied: the financial terms did not qualify as \"confidential data\" under the Lottery Law's narrow exception, and because the figures represented the cost of publicly funded services, they were expressly subject to disclosure as records relating to the use of public funds, with no adequate showing of competitive harm to support withholding them as trade secrets. The PAC also found that confidentiality agreements between the manager and its contractors could not override this public disclosure duty, since those agreements themselves allowed for disclosure under a binding governmental order. The agency was directed to release the full financial terms, including contract totals, hourly rates, and any commissions.","holding":"The Illinois Department of the Lottery improperly redacted financial terms from contracts in response to a FOIA request.","legal_question":"Are records documenting public funds paid to entities pursuant to contracts for performance of a governmental function subject to disclosure under FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(g)"],"public_body":"Illinois Department of the Lottery","requesting_party":"Ms. Carla K. Johnson (Associated Press)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"financial terms of government contracts","subject_description":"The request sought the financial terms, including pricing structure and hourly rates, of the Illinois Lottery's marketing/advertising contract with Northstar.","ocr_status":"ok","ocr_quality":89.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2014-Binding-PAC-Opinions/14-005.pdf","sha256":"24ebad1a096ee36d3b46aebe0be9ea47367699857541555b2e1af478d83113f6","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["lottery contract","financial terms","confidential commercial information","public funds disclosure","contractor pricing"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL,\nJune 30, 2014\nPUBLIC ACCESS OPINION 14-005\n(Request for Review 2014 PAC 28485)\nFREEDOM OF INFORMATION ACT:\nRecords Documenting Public Funds\nPaid to Entities Pursuant to Contracts For\nPerformance of A Governmental Function\nAre Subject to Disclosure\nMs. Carla K. Johnson\nAssociated Press\n[street address redacted for site publication -- see original PDF]\nMs. Mehpara Angelina Suleman\nFreedom of Information Officer/Senior Counsel\nIllinois Department of the Lottery\n100 West Randoiph Street\nSuite 7-900\nChicago, Ilinois 60601\nDear Ms. Johnson and Ms. Suleman:\nThis binding opinion is issued pursuant to section 9.5(f of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2012)). For the reasons discussed below, this\noffice concludes that the Illinois Department of the Lottery (Department) improperly redacted\nthe financial terms from contracts it furnished to Ms. Carla K. Johnson in response to her FOIA\nrequest.\n500 South Second Street, Springfield, Winois 62706 * (217) 782-1090 ‘TTY: (877) 844-5461 * Pax: (217) 782-7046\n100 West Randutph Street, Chicago, Hlincis 60601 © (412) 814-3000 © TTY: (800) 964-3013 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Hinvis 62901 * (618) 529-6400 * TTY! (877) 675-9339 © Fax: (618) 529-6416 Dp\nMs. Carla K. Johnson\nMs. Mehpara Suleman\nJune 30, 2014\nPage 2\nBACKGROUND\nOn February 27, 2014, Ms. Johnson, on behalf of the Associated Press, submitted\na FOIA request to the Department seeking \"a copy of the current Illinois Lottery\nmarketing/advertising contract. I'm looking specifically for the pricing structure and the hourly\nrates.\"' On March 17, 2014, the Department furnished Ms. Johnson with copies of two contracts\nthat Northstar provided to the Department with substantial portions redacted.’ The Department's\nresponse indicated that Northstar claimed that the redacted information was exempt from\ndisclosure pursuant to 7(1){c) and 7(1)(g) of FOIA (3 ILCS 140/7(1)\\(c), (Dg) (West 2012), as\n3\namended by Public Acts 98-463, effective August 16, 2013; 98-578, effective August 27, 2013).\nIn addition, the Department indicated that portions of the contracts that Northstar marked as\nconfidential may be exempt from disclosure pursuant to section 7(1)(a) of FOIA (5 ILCS\n140/7(1)(a) (West 2012), as amended by Public Acts 98-463, effective August 16, 2013; 98-578,\neffective August 27, 2013).*\nOn that date, Ms. Johnson filed a Request for Review with the Public Access\nCounselor stating, \"I believe the public has a right to know how much money is spent to\nadvertise the Illinois Lottery.\"* Ms. Johnson subsequently clarified for this office that she\ndisputes only the redaction of financial terms such as the total amounts of the contracts, hourly\nbilling rates, and commissions, if any, that the Department's private lottery manager, Northstar\nLottery Group, LLC's (Northstar) contractors received for placing strategic advertisements in the\n'E-mail from Carla K. Johnson, Associated Press, to Tracy [L. Jacobson]\n(February 27, 2014).\n\"The first agreement, \"Subcontract Agreement for Multi-Cultural Advertising & Integrated\nCommunications Services,” dated September 20, 2011, is a contract between the Department's private lottery\nmanager, Northstar Lottery Group, LLC and subcontractor Wright-Islam Holdings, LLC, d/b/a Commonground\nMarketing (Commonground). The second agreement, \"Subcontract for Creative Advertising Services,\" dated\nJanuary 19, 2012, is a contract between Northstar and the subcontractors Downtown Partners Communications, Inc.,\n(Downtown Partners) and Critical Mass (U.S.}, Inc., (Critical Mass)}.\" Under the agreements, the subcontractors\nagreed to provide Northstar with marketing and advertising services.\n5Letter from Tracy L. Jacobson, Freedom of Information Officer, Illinois Department of the\nLottery, to Carla K. Johnson, Associated Press (March 17, 2014).\n‘Letter from Tracy L. Jacobson, Freedom of Information Officer, Illinois Department of the\nLottery, to Carla K. Johnson, Associated Press (March 17, 2014).\n>E-mail from Carla K. Johnson, Associated Press, to Public Access Counselor (March 17, 2014).\nMs. Carla K. Johnson\nMs. Mehpara Suleman\nJune 30, 2014\nPage 3\nmedia.° Financial terms of the contracts such as pricing and hourly rates were redacted pursuant\nto sections 7(1)(a) and 7(1)(g) of FOIA. Additional information, whichiis not the subject of Ms.\nJohnson's Request for Review, was redacted pursuant to section 7( 1\\(c).”? Because Ms. Johnson's\nRequest for Reviewi s limited to the financial terms of the contracts, this. binding opinion will not\naddress the applicability of section 7(1}(c).\nOn March 24, 2014, the Public Access Bureau forwarded a copy. of the Request\nfor Review to the Department and asked it to provide un-redacted copies of the contracts and a\ndetailed factual and legal basis for each of the asserted exemptions.’ On April 18, 2014, the\nDepartment furnished this office with copies of the responsive documentsi n its possession.\nHowever, the Department indicated that it does not possess complete copies of the contracts.” In\na telephone conversation with an Assistant Attorney Generali n the Public Access Bureau, an\nattorney for the Lottery clarified that the Department did not receive all the exhibits and\nschedules inctuded in the contracts.'° The Department also provided this office with a copy ofa\nletter from Northstar to the Department in which Northstar declined to furnish un-redacted\ncopies of the contracts to this office or the Department, but provided detailed explanations for the\napplicability of the asserted exemptions.'’ Northstar's letter stated, in pertinent part:\nNorthstar cannot and will not provide un-redacted copies of\nthe Agency [contractor] Agreements to the Department or the\nPublic Access Bureau. The \"Confidential Information\" redacted\n°E-mail from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Carla [K. Johnson] (June 10, 2014); e-mail from Carla K. Johnson, Associated Press, to Steve\n[Silverman] (June 10, 2014).\n? Northstar specifically redacted “personal information such as first and last names, signatures,\nemail addresses, the identification of key employees and other individually identifiable information of personnel ]\".\nLetter from Kim Barker Lee, Vice President, Legal and Regulatory Compliance, Northstar Lottery Group, to Tracy\nL. Jacobson, Freedom of information Officer, Illinois Department of the Lottery (April 9, 2014), at 4.\n5Letter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, to Tracy L.\nJacobson, Freedom of Information Officer, Iinois Department of the Lottery (March 24, 2014).\n*Letter from Tracy L. Jacobson, Freedom of Information Officer, Illinois Department of the\nLottery, to Steve Silverman, Public Access Bureau (April 18, 2014).\nTelephone conversation between Steve Silverman, Assistant Bureau Chief, Public Access\nBureau, and Mehpara Angelina Suleman, Senior Counsel, Illmois Department of the Lottery (June 24, 2014).\n\"Letter from Kim Barker Lee, Vice President, Legal and Regulatory Compliance, Northstar\nLottery Group, to Tracy L. Jacobson, Freedom of Information Officer, Illinois Department of the Lottery (April 9,\n2014).\nMs. Carla K. Johnson\nMs. Mehpara Suleman\nJune 30, 2014\nPage 4\nby the Agencies is protected from disclosure by the Lottery Law,\nFOIA, the PMA [Private Management Agreement under which the\nState contracts Northstar to operate the Lottery] and the Agency\nAgreements. Moreover, Northstar owes an obligation to the\nAgencies to maintain the confidentiality of their Confidential\nInformation. Finally, the Department owes an obligation to\nNorthstar to do the same.”\nThe Department's response was forwarded to Ms. Johnson on April 21, 2014. She did not reply.\nOn May 16, 2014, the Public Access Bureau properly extended the period in\nwhich to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA.?\nANALYSIS\n; \"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with this Act.\" 5 ILCS\n140/1 (West 2012). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2012)), “[a]ll records in\nthe custody or possession ofa public body are presumed to be open to inspection or copying.”\nSection 3(a) of FOIA (5 ILCS 140/3(a) (West 2012)) provides that \"[e]ach public body shall\nmake available to any person for inspection or copying all public records, except as otherwise\nprovided in Section 7 of this Act.”\nFurther, section 7(2) of FOIA (5 ILCS 140/7(2) (West 2012), as amended by\nPublic Acts 98-463, effective August 16, 2013; 98-578, effective August 27, 2013) provides:\nA public record that is not in the possession of a public\nbody but is in the possession of a party with whom the agency has\ncontracted to perform a governmental function on behalf of the\npublic body, and that directly relates to the governmental function\nand is not otherwise exempt under this Act, shall be considered a\npublic record of the public body, for purposes of this Act.\n\"Letter from Kim Barker Lee, Vice President, Legal and Regulatory Compliance, Northstar\nLottery Group, to Tracy L. Jacobson, Freedom of Information Officer, Illinois Department of the Lottery (April 9,\n2014); at 3.\n“Letter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, to Tracy L.\nJacobson, Freedom of information Office, [linois Department of the Lottery, and Carla K. Johnson, Associated\nPress (May 16, 2014).\nMs. Carla K. Johnson\nMs. Mehpara Suleman\nJune 30, 2014\nPage 5\nThe General Assembly enacted the Illinois Lottery Law 20 ILCS 1605/1 ef seq.\n(West 2012)) to “establish within the State a lottery to be conducted by the State through the\nDepartment. The entire net proceeds of the Lottery are to be used for the support of the State's\nCommon School Fund,” subject to certain, specified exceptions. 20 ILCS 1605/2 (West 2012).\nThe General Assembly further determined that \"it is in the public interest for the Department to\nconduct the functions of the Lottery with the assistance of a private manager under a\nmanagement agreement overseen by the Department.\" 20 ILCS 1605/2 (West 2012). This\nmanagement agreement \"shall act to promote and ensure the integrity, security, honesty, and\nfairness of the Lottery's operation and administration.” 20 ILCS 1605/2 (West 2012).\nThus, section 2 of the Lottery Law expressly delegates to the Department the\ngovernmental function of operating a lottery to generate public funds, primarily for the benefit of\nthe public schools, with the assistance of a private manager. Pursuant to this section, the\nDepartment contracted Northstar to be its lottery manager. Consequently, based on the plain\nlanguage of section 7{2) of FOIA, all records in the possession of Northstar that directly relate to\nthe operation of the Lottery are considered to be records of the Department, for purposes of\nFOIA. Because Northstar's contracts with its contractors to provide marketing and advertising\nservices relate to Northstar's management of the Lottery, those records are subject to the\ndisclosure requirements of FOIA to the same extent as are other records of the Department and\nmust be produced unless exempted from disclosure under the Act.\nSection 7(1)(a) of FOIA\nThe Department's response indicated that section 7(1)(a) of FOIA, which allows a\npublic body to withhold \"fiJnformation specifically prohibited from disclosure by federal or State\nlaw or rules and regulations implementing federal or State law[,]\" may exempt from disclosure\ninformation that Northstar marked confidential such as financial terms of the contracts. The\nDepartment's response to the FOIA request and Northstar's letter both referred to section 12 of\nthe Lottery Law (20 ILCS 1605/12 (West 2012)) as the basis for asserting that the information\nwas exempt from disclosure under section 7(1)(a). Section 12 of the Lottery Law provides:\nThe public inspection and copying of the records and data\nof the Department and the [Lottery Control] Board shall be\ngenerally governed by the provisions of the Freedom of\nInformation Act except that the following shall additionally be\nexempt from inspection and copying:\nGi) information privileged against introduction in judicial\nproceedings;\nGi) internal communications of the several agencies;\nMs. Carla K. Johnson\nMs. Mehpara Suleman\nJune 30, 2014\nPage 6\n(iii) information concerning secret manufacturing processes or\nconfidential data submitted by any person under this Act;\n(iv) any creative proposals, scripts, storyboards or other\nmaterials prepared by or for the Department, prior to the\nplacement of the materials in the media, if the prior release\nof the materials would compromise the effectiveness of an\nadvertising campaign.\nNorthstar's letter to the Department indicated that its contractors identified various\nprovisions of the marketing and advertising contracts as confidential, including financial terms\nsuch as annual and monthly fees, pricing, and compensation, and therefore redacted those\nprovisions from the copies provided to Ms. Johnson.'* Northstar contends that the financial\nterms of the contracts and other redacted information constitute \"confidential data\" within the\nmeaning of section 12(iii) of the Lottery Law (20 ILCS 1605/12(iii) (West 2012)).'\nAs noted above, section 12 of the Lottery Law provides that FOIA generally\ngoverns the disclosure of records under the Lottery Law, but the Lottery Law also creates\nadditional exceptions for the information referenced in subsections (i) through (iv). It is a \"well-\nsettled rule of statutory construction that exceptions in statutes are to be strictly construed[.]\"\nPrice v. Philip Morris, inc., 219 1. 2d 182, 299 (2005). Further, \"an exemption restricting the\nexpansive nature of the FOIA's disclosure provisions must be explicitly stated - that is, such a\nproposed disclosure must be specifically prohibited.\" (Emphasis in original.) Better\nGovernment Ass'n v. Blagojevich, 386 Ill. App. 3d 808, 816 (4th Dist. 2008).\nSection 12(iii) of the Lottery Law does not expressly prohibit the disclosure of the\nfinancial terms of these contracts. Moreover, in this context, the financial terms of the contracts\ndo not appear to constitute “confidential data” within the contemplation of that exemption.\nAlthough the phrase “confidential data” has not been defined for purposes of section 12(iii),\nwhere two words or phrases are employed together in a statute, they are understood to be used in\ntheir cognate sense, to express the same relations, and give color and expression to each other.\n“Letter from Kim Barker Lee, Vice President, Legal and Regulatory Compliance, Northstar\nLottery Group, to Tracy L, Jacobson, Freedom of Information Officer, Illinois Department of the Lottery (April 9,\n2014), at 3.\nLetter from Kim Barker Lee, Vice President, Legal and Regulatory Compliance, Northstar\nLottery Group, to Tracy L. Jacobson, Freedom of information Officer, Iilinois Department of the Lottery (April 9,\n2014), at 4. The letter also indicated that Northstar redacted the creative advertising information pursuant to section\n12(iv) of the Lottery Law (20 ILCS 1605/12(iv) (West 2012)). Because Ms. Johnson has clarified that she is not\nseeking creative advertising information, this binding opinion does not address the applicability of section 12(iv) of\nthe Lottery Law.\nMs. Carla K. Johnson\nMs. Mehpara Suleman\nJune 30, 2014\nPage 7\nEnvironmental Protection Agency v. Pollution Control Bd., 186 Ill. App. 3d 995, 999 (Sth Dist.\n1989). The phrases \"secret manufacturing processes\" and “confidential data” are both employed\nin section 12(iii); thus, it must be assumed that the phrase “confidential data\" was intended by\nthe General Assembly to mean something similar to the phrase \"secret manufacturing processes.”\nIt clearly would not include the amount of public funds that the Department or its agent is willing\nto expend for hourly billing rates, commission fees, and other financial terms relating to the\nmarketing and advertising services.\nMoreover, article VILL, section 1(c) of the Illinois Constitution of 1970 provides\nthat \"[rleports and records of the obligation, receipt and use of public funds of the State, units of\nlocal government and schoo! districts are public records available for inspection by the public\naccording to law.\" Section 2.5 of FOIA (5 ILCS 140/2.5 (West 2012)) correspondingly provides\nthat \"[a]ll records relating to the obligation, receipt, and use of public funds of the State, units of\nlocal government, and school districts are public records subject to inspection and copying by the\npublic.” Even if the financial terms of the contracts in question could be considered to be\n\"confidential data,” for purposes of section 12(iii) of the Lottery Law, the more specific\ndisclosure requirements of section 2.5 of FOIA would prevail:\nWhen a general statutory provision and a more specific one relate\nto the same subject, we will presume that the legislature intended\nthe more specific statute to govern. [Citation.] We will also\npresume that the legislature intended the more recent provision to\ncontrol. Abruzzo v. City of Park Ridge, 231 Ml. 2d 324, 346\n(2008). .\nSection 2.5 of FOIA was enacted by Public Act 96-542, effective January 1, 2010;\nsection 12(iii) of the Lottery Act was enacted by Public Act 78-20, effective July 1, 1974.\nSection 2.5 of FOIA is therefore the later expression of the General Assembly's intent. Further,\nthe more recently enacted terms of section 2.5 relate to a single category of records, those\nconcerning the obligation, receipt and use of public funds, whereas “confidential data\" could\ninclude a number of categories of information. Accordingly, this office concludes that the\nDepartment has not sustained its burden of demonstrating that the redacted financial terms of the\ncontracts are exempt from disclosure pursuant to section 7(1)(a) of FOIA based on section 12(1ii)\nof the Lottery Law.\nMs. Carla K. Johnson\nMs. Mehpara Suleman\nJune 30, 2014\nPage 8\nSection 7(1)(g) of FOIA\nFinancial terms of the contracts also were redacted pursuant to section 7(1)(g) of\nFOIA, which exempts from disclosure:\nTrade secrets and commercial or financial information\nobtained from a person or business where the trade secrets or\ncommercial or financial information are furnished under a claim\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness, and only insofar as the claim directly applies to the\nrecords requested.\nIn BlueStar Energy Services, Inc. v. Hlinois Commerce Commission, 374 I. App. 3d 990, 995\n(ist Dist. 2007), the court stated that \"[t]he term trade secret in the context of the FOIA has been\ninterpreted to include information that (1) would either inflict substantial competitive harm or (2)\nmake it more difficult for the agency to induce people to submit similar information in the\nfuture.\" (Emphasis in original.) Northstar's letter asserted that its contractors furnished the\nredacted portions of the contracts under a claim of confidentiality and that disclosure of the\nrequested information would cause competitive harm to the contractors by, among other things,\nenabling other entities to develop pricing models or proposals to compete for business. '®\n_ The contracts in question describe the cost and nature of marketing and\nadvertising services commissioned and paid for by the Department through the PMA. Records\ndocumenting the publicly funded cost of services purchased by a State agency do not constitute\ntrade secrets, or commercial or financial information, within the scope of section 7(1}(g). As\nnoted above, this information directly relates to the use of public funds and, therefore, is\nexpressly subject to disclosure pursuant to article VIL, section [(c) of the [[nois Constitution of\n1970 and section 2.5 of FOIA. Simply put, entities that contract to perform services for a\ngovernmental agency de not enjoy the same ability to withhold information that they do with\nrespect to their private contracts. Moreover, Northstar has failed to show how the disclosure of\nthis information would result in substantial competitive harm to its business or that of its\ncontractors. An unsupported allegation of competitive harm would, in any circumstances, be\ninadequate to support a finding that the information is exempt under section 7(1)(g).\nAccordingly, this office concludes that the Department has not sustained its burden of\nLetter from Kim Barker Lee, Vice President, Legal and Regulatory Compliance, Northstar\nLottery Group, to Tracy L. Jacobson, Freedom of Information Officer, Illinois Department of the Lottery (April 9,\n2014), at 5.\nMs. Carla K. Johnson\nMs. Mehpara Suleman\nJune 30, 2014\nPage 9\ndemonstrating that the financial terms of the contracts are exempt from disclosure pursuant to\nsection 7(1)(g) of FOIA.\nConfidentiality Agreements and the PMA\nNorthstar has also asserted that the confidentiality agreements it has entered into\nwith its contractors prohibit the Department and Northstar from disclosing the redacted portions\nof the subcontracts and that the PMA requires the Department to seek a protective order to\nprevent the disclosure of the records. Contracts prohibited by law are void as ultra vires. Dell v.\nCity of Streator, 193 I. App. 3d 810, 812 Grd Dist. 1990). Likewise, a contract provision that\nviolates public policy as expressed in a statute is unenforceable. Fosler v. Midwest Care If, Inc.,\n398 IL. App. 3d 563, 571 (2nd Dist. 2009); H & M Commercial Driver Leasing, inc. v. Fox\nValley Containers, Inc., 209 Il. 2d 52, 57 (2004), alluding to Schumann—Heink v. Folsom, 328\nIll. 321, 330 (1927); see also State ex. rel. Findlay Publishing Company v. Hancock County\nBoard of Commissioners, 80 Ohio St. 3d 134, 137, 684 NE. 2d 1222, 1225 (Ohio 1997} A\npublic entity cannot enter into enforceable promises of confidentiality regarding public records\");\nTribune-Review Publishing Company v. Westmoreland County Housing Authority, 574 Pa. 661,\n675, 833 A. 2d 120 (Pa. 2003) (\"the confidentiality clause contained in this agreement is void as\nagainst public policy to the extent that it conflicts with the text and purpose of the [Open\nRecords] Act. A public entity may not enter into enforceable promises of confidentiality”\nregarding public records’}. :\nSection 1 of FOIA (5 ILCS 140/1 (West 2012)) declares it to be the “public policy\nof the State of Illinois that all persons are entitled to full and complete information regarding the\naffairs of government and the official acts and policies of those who represent them as public\nofficials and public employees consistent with the terms of this Act.\" As discussed above, the\nfinancial terms of the subcontracts do not fall within the scope of the asserted section 7(1)(a) and\n7(1)(g) exemptions, and are expressly subject to disclosure pursuant to section 2.5 of FOIA.\nTherefore, to the extent that the confidentiality agreements concerning the contracts in question,\nif given effect, would allow the Department to circumvent the public policy effectuated by\nFOIA, they are unenforceable.\nEven if the confidentiality agreements were given effect, compliance with this\nbinding opinion would not breach those agreements. Northstar provided copies of its\nconfidentiality agreements,'’ which broadly define \"confidential information\" to include, among\nother things, rates and other financial information. However, the definition excludes\n\"See \"Amended and Restated Non-Disclosure Agreement [(Critical Mass Agreement)],” dated\nMay 9, 2012, between Northstar and Critical Mass and Downtown Partners and “Non-Disclosure Agreement\n[(Commonground Agreement)],” dated June 16, 2011, between Northstar and Commonground.\nMs. Carla K. Johnson\nMs. Mehpara Suleman\nJune 30, 2014\nPage 10\n\"information which * * * is required to be disclosed pursuant to a final binding order of a\ngovernmental agency ot court of competent jurisdiction, provided that the disclosing party has\nbeen given reasonable notice of the pendency of such an order and the opportunity to contest\nit.\"'\"’ (Emphasis added.} One of the agreements further provides that the parties agree to\nmaintain the confidentiality of the information, \"except for disclosure to the Department or as\nrequired by the Illinois Freedom of Information Act.\" (Emphasis added.)\nThe Department has been provided with notice of the pendency of this Request\nfor Review and has been given a meaningful opportunity to contest the assertion that the\ninformation is not exempt from disclosure. Accordingly, the issuance of a binding opinion by\nthis office pursuant to section 9.5(f) of FOIA would constitute a “final binding order of a\ngovernmental agency” for purposes of the agreements’ provisions governing disclosure.\nTherefore, the confidentiality agreements do not prohibit the disclosure of the requested financial\ninformation.\nWith respect to Northstar's assertion that the PMA prohibits the Department from\ndisclosing the financial terms of the contracts, section 9.3.4 of the PMA provides:\n9.3.4 Legally Required Disclosures. The Receiving Party\nmay disclose the Confidential Information of the Disclosing Party\nto the extent disclosure is based on the good faith written opinion\nof the Receiving Party's legal counsel that disclosure is required by\nRegulatory Requirement; provided, however, that the Receiving\nParty shall give advance notice of such requested disclosure and a\nlegal opinion to the Disclosing Party prior to any such disclosure\nand shall use commercially reasonable efforts to obtain a\nprotective order or otherwise protect the confidentiality of the\nDisclosing Party's Confidential Information. Notwithstanding the\nforegoing, the Disclosing Party reserves the right to obtain a\nprotective order or otherwise protect the confidentiality of such\nConfidential Information. For purposes of this Section 9.3.4, the\nParties’ in-house counsel or law department may act as their\nrespective legal counsel.” (Underscoring and bold in original.)\n‘See Critical Mass Agreement, §1(a); Commonground Agreement § I(a).\n\"See Critical Mass Agreement, §2.\n*Ilinois Lottery Private Management Agreement between the State of Hlinois Department of\nRevenue and Northstar, dated January 18, 2011.\nMs. Carla K. Johnson\nMs. Mehpara Suleman\nJune 30, 2014\nPage 11\nAs used in the PMA, the term \"Regulatory Requirement” means “all federal, country,\nstate, provincial, regional, territorial, local and other laws, rules and regulations,\nordinances, interpretive letters and other official releases of or by any Governmental\nAuthority, decrees, orders and codes (including any requirements for permits, certificates,\napprovals and inspections), as the same are promulgated, supplemented and/or amended\nfrom time to time, including laws that apply directly or indirectly to the delivery or\nreceipt of Services under this Agreement.\"”!\nSection 9.3.4 does not prohibit the disclosure of the requested financial\ninformation. Rather, section 9.3.4 sets out a three-step procedure to be followed prior to the\nrelease of confidential information. First, the Department is to provide advance notice of the\nrequested disclosure. Northstar's April 9, 2014, letter indicates that \"[o]Ja March 12, 2014, the\nDepartment asked Northstar to produce to the Department copies of its marketing/advertising\ncontracts” and that \"[o]n March 13, 2014, Northstar provided the Department with redacted\ncopies of its contracts with its two marketing/advertising subcontractors[.]'°? (Emphasis in\noriginal.) Further, the same letter states that \"[oJn March 28, 2014, the Office of the Attorney\nGeneral, Public Access Bureau, determined that further inquiry was warranted and requested that\nthe Department provide un-redacted copies of the Agency Agreements for the Public Access\nBureau's confidential review\" and the Department \"asked whether Northstar would like to submit\na response to the Public Access Bureauf.]\"”? Northstar's response was provided to this office.\nBased on the foregoing, the Department has provided Northstar with advance noticoef both\nrequested disclosures (Ms. Johnson's FOIA request and the Public Access Bureau's records\nrequest). .\nSecond, the Department is to provide Northstar with its written opinion that\ndisclosure is required. If the Department has not already done so, this binding opinion issued to\nthe Department shall serve as the legal opinion that disclosure is required.\n*\\IIlinois Lottery Private Management Agreement between the State of Illinois Department of\nRevenue and Northstar, dated January 18, 2011, Schedule 1.2.\n1 etter from Kim Barker Lee, Vice President, Legal and Regulatory Compliance, Northstar\nLottery Group, to Tracy L. Jacobson, Freedom of Information Officer, Illinois Department of the Lottery (April 9,\n2014), at 1.\nLetter from Kim Barker Lee, Vice President, Legal and Regulatory Compliance, Northstar\nLottery Group, to Tracy L. Jacobson, Freedom of Information Officer, Illinois Department of the Lottery (April 9,\n2014), at 2.\nMs. Carla K. Johnson\nMs. Mehpara Suleman\nJune 30, 2014\nPage 12\nThird, the Department is to use commercially reasonable efforts to obtain a\nprotective order or, in the alternative, to otherwise protect the confidentiality of Northstar's\nconfidential information. The Department asserted a number of exemptions in response to Ms.\nJohnson's original FOIA request. The Department has been an active and meaningful participant\nin the Request for Review process, It has submitted to this office requested documents and\nraised exemptions related thereto. It has submitted for this office's consideration the legal\nanalysis prepared by Northstar. The Department has used reasonable efforts to “otherwise\nprotect the confidentiality” of the confidential information. Consequently, the Department has\ncomplied with section 9.3.4 and may disclose the requested financial information.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments submitted,\nthe Public Access Counselor's review, and the applicable law, ihe Attorney General finds that:\n1) On February 27, 2014, Ms. Carla K. Johnson, on behalf of the Associated\nPress, submitted a FOIA request to the Illinois Department of the Lottery seeking a “copy of the\ncurrent Illinois Lottery marketing/advertising contract. I'm looking specifically for the pricing\nstructure and the hourly rates.”\n2) On March 17, 2014, the Department furnished Ms. Johnson with copies of two\ncontracts between its private manager, Northstar Lottery Group, LLC and three entities with\nwhich Northstar contracted to provide marketing and advertising services for the Department:\nDowntown Partners Communications, Inc.; Critical Mass (U.S.), Inc.; and Wright-Islam\nHoldings, LLC, d/b/a Commonground Marketing. Substantial portions of those contracts were\nredacted pursuant to sections 7(1)(a), 7(1)(c), and 7(1)(g) of FOIA.\n3) On March 17, 2014, the Public Access Counselor received Ms. Johnson's\nRequest for Review disputing the redactions of the financial terms of the contracts. The Request\nfor Review was timely and otherwise complies with section 9.5(a) of FOIA (5 ILCS 140/9.5ta)\n(West 2012)).\n4) On March 24, 2014, the Public Access Bureau forwarded a copy of the\nRequest for Review to the Department and requested un-redacted copies of the contracts in\nquestion and a detailed explanation of the legal and factual bases for the applicability of the\nexemptions under which the contracts were redacted.\n5) On April 18, 2014, the Department furnished to this office copies of the\ncontracts in its possession, The contracts were incomplete. The Department also provided a\nMs. Carla K. Johnson\nMs. Mehpara Suleman\nJune 30, 2014\nPage 13\ncopy of a letter from Northstar to the Department in which Northstar asserted that the\nconfidentiality agreements precluded Northstar from furnishing un-redacted copies of the\ncontracts to the Department or to the Public Access Counselor. Northstar's letter also provided\nexplanations for the applicability of the asserted exemptions.\n6) On May 16, 2014, the Public Access Bureau extended the time to issue a\nbinding opinion by 30 business days, to June 30, 2014. Therefore, the Attorney General may\nproperlyi ssue a binding opinion with respect to this matter.\n_ 7) The Department asserted that the redacted information was exempt from\ndisclosure under section 7(1}{a) of FOIA, which allows a public body to withhold “[i]nformation\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.” The Department based its assertion on its claim that the\ninformation was \"confidential data submitted by any person under this Act\" within the meaning\nof section 12(iit) of the Lottery Law.\n&) The financial terms of the contracts do not constitute \"confidential data” under\nsection 12(iii) of the Lottery Law. Therefore, the Department has not sustained its burden of\ndemonstrating that this information is exémpt from disclosure pursuant to section 7(1)(a) of\nFOIA.\n9) The Department further asserted that the redacted information was proprietary,\nprivileged or confidential “trade secrets for] commercial or financial information” which was\ntherefore exempt from disclosure under section 7(1)(g) of FOLIA. Because the redacted\ninformation documents the cost of services and article VIII, section 1(c) of the [linois\nConstitution of 1970 and section 2.5 of FOIA provide that records related ta the use of public\nfunds by the State are subject to disclosure, the Department has not sustained its burden of\ndemonstrating that the financial terms of the contracts constitute \"trade secrets [or] commercial\nor financial information\" within the meaning of section 7(1)(g) of FOIA.\n10) Northstar's confidentiality agreements with its contractors contemplate the\ndisclosure of records pursuant to a final binding order of a governmental agency; those\nconfidentiality provisions do not provide a valid basis for withholding the financial terms of its\npublicly funded contracts.\n11) In order to comply with its obligations under FOIA, the Department's\nagreement with Northstar or any other private management company must require the private\nmanagement company to furnish Northstar with complete, un-redacted copies of all subcontracts.\nMs. Carla K. Johnson\nMs. Mehpara Suleman\nJune 30, 2014\nPage 14\nTherefore, it is the opinion of the Attorney General that the Department has\nimproperly denied, in pari, Ms. Johnson’s Freedom of Information Act request in violation of the\nrequirements of the Act. Accordingly, the Department is directed to take immediate and\nappropriate action to comply with this opinion by providing Ms. Johnson with all of the financial\nterms of the contracts, including the total amounts of the contracts, hourly billing rates, and\ncommissions, if any, that Northstar’s contractors received for placing strategic advertisements in\nthe media.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2012). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of [llinois and Ms. Carla K.\nJohnson as defendants. See 5 ILCS 140/11.5 (West 2012).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nLAtee heme G beote—\nBy:\nMichael J. Luke\nCounsel to the Attorney Generai","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under FOIA, records showing how public funds are spent through contracts for governmental functions are presumptively public, even when the contractor is a private vendor. The Department argued that pricing structures, hourly rates, and commissions were confidential commercial information whose disclosure would harm the contractor's competitive position, but the PAC found the Department failed to show a specific, non-speculative competitive harm from disclosing what taxpayer money actually paid for. Because the exemption for confidential commercial/financial information requires proof of actual competitive injury rather than generalized assertions, and because the public has a strong interest in knowing the cost of government contracts, the redactions were unjustified and the total contract amounts, billing rates, and any commissions had to be disclosed.","card_headline":"Financial terms of a lottery marketing contract","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":40,"orig_master_id":19242,"dup_master_id":19013,"dup_sha256":"b5c74879947ee58dfe309703c7ae5b62b862d6059caf242f7d26850b2288e9f9","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2014,"date_issued":"2014-08-14","case_number":"2014 PAC 29561","request_numbers":null,"title":"Duty to Respond to FOIA Requests; Duty to Conduct Reasonable Search for Responsive Records; Duty to Disclose Public Records; A Public Body That Fails to Respond Within the Requisite Period May Not Treat Request as Unduly Burdensome","filename":"PUBLIC ACCESS OPINION 14-007 (Request for Review - 2014 PAC 29561).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 14-007 (Request for Review - 2014 PAC 29561).pdf","word_count":4099,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request submitted by Ms. Becky Schlikerman of the Chicago Sun-Times to the Chicago Public Schools (CPS). It concludes that CPS violated FOIA by failing to respond timely and conduct a reasonable search for records.","plain_summary":"The requester sought records from the school district showing proceeds from ticket sales at athletic events during the 2013-2014 school year, along with contracts and eligibility sheets that were resolved separately. The school district failed to respond within the statutory deadline, then claimed it had no uniform way to track ticket revenue and that producing individual schools' paper records would be unduly burdensome. The Illinois Public Access Counselor held that the school district violated FOIA by failing to respond on time, by failing to conduct an adequate search (including checking records maintained by individual schools and its internal accounts system), and by withholding records it acknowledged existed. Because the school district did not respond promptly or offer the requester a chance to narrow the request, it was barred from later claiming the request was unduly burdensome, and it was directed to search all relevant recordkeeping systems and turn over the responsive records.","holding":"CPS violated FOIA by failing to respond timely and conduct a reasonable search for records.","legal_question":"Did Chicago Public Schools violate the Freedom of Information Act by failing to respond to a FOIA request in a timely manner?","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/3(g)"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Public Schools","requesting_party":"Ms. Becky Schlikerman (Chicago Sun-Times)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"records search","subject_description":"The request sought records regarding proceeds from ticket sales for athletic events for the 2013-14 school year.","ocr_status":"ok","ocr_quality":89.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2014-Binding-PAC-Opinions/14-007.pdf","sha256":"23bf5ca87fe8050d27b5cbce29332bf02faa6598537315834935de1f61f90593","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["timely response","reasonable search","unduly burdensome","school records"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE GF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nAugust 14, 2014\nPUBLIC ACCESS OPINION 14-007\n(Request for Review 2014 PAC 29561)\nFREEDOM OF INFORMATION ACT:\nDuty to Respond to FOIA Requests; Duty to\nConduct Reasonable Search for Responsive\nRecords; Duty to Disclose Public Records;\nA Public Body That Fails to Respond Within\nthe Requisite Period May Not Treat Request\nas Unduly Burdensome\nMs. Becky Schlikerman\nChicago Sun-Times\n[street address redacted for site publication -- see original PDF]\nMs. Jaculin Jerman Milovich\nSenior Assistant General Counsel\nBoard of Education of the City of Chicago\n125 South Clark Street, Suite 700\nChicago, Mlinois 60603\nDear Ms. Schlikerman and Ms. Milovich:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2012)). For the reasons discussed below, this\noffice concludes that Chicago Public Schools (CPS) violated FOIA by: (1) failing to respond to\nMs. Becky Schlikerman’s FOIA request within five business days of receipt or within a properly\nextended period for response; (2) failing to conduct a reasonable search for records; and (3)\nfailing to provide certain responsive public records in its possession. In addition, because CPS\nfailed to issue a timely response to the request, this office concludes that CPS is precluded from\ntreating the request as unduly burdensome under section 3(g) of FOIA (5 ILCS 140/3(g) (West\n2012)).\n500 South Second Street, Springfictd, Hinois 62706 = (217) 782-1090 © ‘VEY: (877) 844-8461 © Fax: (217) 782-7046\n100 West Randolph Sucet, Chicago, Hiinois 60601 * GIZ) 814-3000 * “PTY: (800) 964-3013 * Fax: (312) 814-3806\n1001 East Main, Carbondale, Hiincis 62901 * (618) 529-6400 © “TTY: (877) 675-9339 # Fax: (618) 529-6416 pm\nMs. Becky Schlikerman\nMs. Jaculin Jerman Milovich\nAugust 14, 2014\nPage 2\nBACKGROUND\nOn March 7, 2014, Ms. Schlikerman, on behalf of the Chicago Sun-Times,\nsubmitted a FOIA request to CPS via e-mail seeking: (1) all computer-generated eligibility\nsheets sent to the Director of the Chicago Public High Schools Athletic Association following\nathletic contests in the 2013-2014 school year; (2) “[a]ny and all contracts and or agreements by\nChicago Public Schools or any of its schools with Chicago State University for the 2013-2014 -\nschool year\"; and (3) \"[a]ny and all receipts and or records showing proceeds ~ by CPS and/or\nany of its schools— from tickets sold at any and all athletic events in the 2013-2014 school\nyear. \"! On March 10, 2014, CPS acknowledged receiving the FOIA request, although it did not\nspecify the date on which it was received.” On March 18, 2014, the sixth business day after\nMarch 10, 2014, CPS extended the time for response by five business days,’ to March 25, 2014,\nciting a prior version of section 3(e(i) of FOIA (3 ILCS 140/3(e)() (West 2012)).4 On March\n25, 2014, Ms. Schlikerman narrowed the portion of her request seeking computer eligibility\nsheets to those submitted for the sport of basketball?\nOn May 5, 2014, CPS issued its first response to the March 7, 2014, FOIA\nrequest,° furnishing Ms. Schlikerman with computer eligibility sheets after having redacted\nstudent identifying information pursuant to section 7.5(1) of FOIA (5 ILCS 140/7.5(r) (West\n2013 Supp.)). CPS did not address or respond to the other two portions of Ms. Schlikerman's\n'E-mail from Becky Schlikerman, Staff Reporter, Chicago Sun-Times, to FOIA Officer (March 7,\n2014).\n*E-mail from Cassandra D. Daniels, FOIA Officer, Chicago Public Schools, Law Department, to\nBecky Schlikerman (March 10, 2014).\n7E-mail from Cassandra D. Daniels, Freedom of Information Act Officer, Chicago Public Schools,\nto Becky Schlikerman (March 18, 2014}.\n“CPS's extension e-mail of March 18, 2014, cited \"section 203(d)(1),” which this office construes\nas a reference to a prior version (If). Rev. Stat. 1991, ch. 116, par. 203(d)(i)) of section 3(e){i) of FOIA.\n. ‘E-mail from Becky [Schlikerman] to FOIA, FOIA [Officer, Chicago Public Schools] (March 25,\n2014).\n°Ms. Schlikerman submitted an earlier Request for Review to the Public Access Bureau on April\n1, 2014, alleging that CPS had not responded to her March 7, 2014, FOIA request. The issue in that Request for\nReview was resolved when CPS responded to the request on May 5, 2014, and May 21, 2014. See, Hil. Att'y Gen.\nPAC Reg. Rev. Ltr. 28712, issued May 30, 2014.\nMs. Becky Schlikerman\nMs. Jaculin Jerman Miloevich\nAugust 14, 2014\nPage 3\nrequest in this response.’ On May 9, 2014, Ms. Schlikerman contacted CPS's FOIA Officer with\nregard to the two outstanding portions of her request. On May 21, 2014, CPS issued a\nsupplemental response asserting that it had searched all of its contract records but did not locate\nany responsive contracts or agreements by CPS or any of its schools with Chicago State\nUniversity for the 2013-14 school year. CPS further asserted that it “does not have a uniform\nmethod in place for schools to record ticket sales in the system. The CPS Finance office and\nOffice of, Sports Administration has searched it[ }s records. None were found, responsive to your\nrequest.”\nOn May 27, 2014, Ms. Schlikerman submitted a Request for Review to the Public\nAccess Counselor disputing CPS's response to the second two portions of her request.’\nSpecifically, Ms. Schlikerman questioned CPS's assertion that it does not possess responsive\ncontracts or agreements with Chicago State University or records documenting proceeds from\n‘ticket sales for sporting events:\nin regards to the sporting event revenue request, CPS essentially\nargues it does not have a single record documenting a single dollar\nbeing earned at any CPS sporting event during an entire school\nyear.\nThis cannot possibly be the case.\nWhile it may be true CPS does not have a uniform record[ ]\nkeeping system, it is still required under the FOIA to produce these\nrecords.\nAlso, for the record, though CPS did not claim this request was not\noverburdensome, it should be noted CPS waived its right to make\n\"E-mail from Cassandra D. Daniels, FOIA Officer, Chicago Public Schools, Law Department, to\nBecky Schlikerman (May 5S, 2014). :\n5E-mail from Becky Schlikerman, Chicago Sun-Times, to Cassandra Daniels (May 9, 2014).\n°E-mail from Cassandra D. Daniels, FOIA Officer, Chicago Public Schools, Law Department, to\nBecky Schlikerman (May 21, 2014).\nOp mail from Becky Schlikerman, Chicage Sun-Times, to Steven Silverman and Sarah Pratt\n(May 27, 2014).\nMs. Becky Schlikerman\nMs. Jaculin Jerman Milovich\nAugust 14, 2014\nPage 4\nsuch an argument when it failed to respond to my request within\nthe statutory guidelines.'!\nOn May 30, 2014, the Public Access Bureau sent a copy of the Request for\nReview to CPS and asked, among other things, that it \"describe how CPS documents receipts or\nproceeds from ticket sales at athletic events during the 2013-2014 school year. In your response,\nplease clarify whether individual schools maintain such records and, if so, whether CPS\nattempted to obtain those records from individual schools in order to respond to Ms.\nSchlikerman's FOIA request.\" CPS did not respond to the Public Access Bureau's request.\n. This office sent a second copy of the Request for Review to CPS on June 12,\n2014, and asked for an update on the status of CPS's response to the allegations.'? On June 13,\n2014, CPS responded that it was having record keeping problems related to Requests for Review\nand that its system did not reflect that it had received the copy of the Request for Review sent by\nthis office on May 30, 2014.4 On June 25, 2014, CPS provided a substantive response to the\nRequest for Review which stated, in relevant part:\n[Thhe District has no central reporting requirement that is specific\nfor gate receipts at sporting events. Once a school tallies the cash\ngate receipts and deposits them in the bank, the school may record\nthe revenue in the CPS Internal Accounts System in a variety of\nways. They may identify the amount in the general sports line, in a\nspecific-team line, in the sports referee line, or in any other line to\nreflect how they intend to use the revenue. These account lines\ntypically contain revenue generated from gate receipts as well as\nteam fundraising, sports fees and other revenue sources. The\nDistrict has no capability to run a report from the Internal\nAccounts System that shows each school's revenues related to gate\nreceipts only. Hard copies of the receipt of the cash from ticket\n\"E-mail from Becky Schlikerman, Chicago Sun-Times, to Steven Silverman and Sarah Pratt (May\n27, 2014).\n\"| etter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office oft he\nAttorney General, to Cassandra Daniels, FOLA Officer, Chicago Public Schools (May 30, 2014).\n“E.mail from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Jaculin Jerman Milovich Gune 12, 2014).\n‘E-mail from Jaculin Jerman Milovich to Steven Silverman (June 13, 2014).\nMs. Becky Schlikerman\nMs. Jaculin Jerman Milovich\nAugust 14, 2014\nPage 5\nsales and related bank deposit would be housed in the internal\naccounts files at each individual school and maintained for audit\npurposes. Any request to produce copies of each school’s paper\nback-up documents of gate receipts maintained for audit purposes\nwould be considered unduly burdensome.'*\nThis office forwarded CPS's response to Ms. Schlikerman on June 26, 2014.'° On\nJuly 9, 2014, CPS furnished Ms. Schlikerman with records responsive to the portion of her\nrequest seeking contracts with Chicago State University. In a subsequent telephone conversation\nwith an Assistant Attorney General in the Public Access Bureau, Ms. Schlikerman stated that she\nno longer sought our review of that portion of CPS's response.'” Accordingly, the scope of this\nbinding opinion is limited to the sufficiency of CPS's response to Ms. Schlikerman's request for\nall records showing proceeds from tickets sold at CPS athletic events during the 2013-2014\nschool year.\nOn July 24, 2014, the Public Access Bureau properly extended the time in which\nto issue a binding opinion by 30 business days pursuant to section 9.5(£) of Fora.”\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with this Act.\" 5 1LCS\n140/1 (West 2012). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2012)), “{alll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"\nSection 3(a) of FOIA (5 ILCS 140/3(a) (West 2012)) provides that \"[elach public body shall\nmake available to any person for inspection or copying all public records, except as otherwise\nprovided in Section 7 of this Act.”\n‘Letter from Jaculin Jerman Milovich, Senior Assistant General Counsel, Board of Education of\nthe City of Chicago, Law Department, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of\nthe Attorney General, State of IHinois une 25, 2014).\n‘Letter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Becky Schlikerman, Chicago Sun-Times (lune 26, 2014).\n\"Telephone conversation between Steve Silverman, Assistant Bureau Chief, Public Access\nBureau, and Becky Schlikerman, Reporter, Chicago Sun-Times (July 10, 2014).\n5]e tter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Becky Schlikerman, Chicago Sun-Times, and Cassandra Daniels, FOIA Officer, Chicago\nPublic Schools (July 24, 2014).\nMs. Becky Schlikerman\nMs. Jaculin Jerman Milovich\nAugust 14, 2014\nPage 6\nSection 3(d) of FOIA\nThe statutory procedures for responding to a FOIA request are clear. Section 3(d)\nof FOIA (5 ILCS 140/3(d) (West 2012)) provides, in part:\nEach public body shall, promptly, either comply with or\ndeny a request for public records within 5 business days after its\nreceipt of the request, unless the time for response is properly\nextended under subsection (e) of this Section. Denial shall be in\nwriting as provided in Section 9 of this Act. Failure to comply\nwith a written request, extend the time for response, or deny a\nrequest within 5 business days after its receipt shall be considered\na denial of the request].]\n- Itis undisputed that CPS did not issue its response within five business days of receipt of the\nrequest or within a properly extended period for response. Accordingly, this office concludes\nthat CPS violated section 3(d) of FOIA by failing to timely respond to Ms. Schlikerman's FOIA\nrequest.\nSearch for Records\nUnder FOIA, a public body is required to conduct a \"reasonable search tailored to\nthe nature of a particular request.\" Campbell v. United States Dep't of Justice, 164 F.3d 20, 28\n(D.C. Cir. 1998). A public body's search must be \"reasonably calculated to uncover all relevant\ndocuments.\" Weisberg v. Department ofJ ustice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). A public\nbody is not required to “search every record system[,]\" but it \"cannot limit its search to only one\nrecord system if there are others that are likely to turn up the requested information.\" Oglesby v.\nUnited States Dep't of the Army, 920 F.2d 57, 68 (C.A.D.C. 1999).\nIn its May 21, 2014, response to the FOIA request, CPS asserted that it had\nunsuccessfully searched its finance and sports administration offices for records showing ticket\nproceeds from athletic events. However, in that response, CPS did not provide an explanation of\nthe recordkeeping systems that it searched, or any other description of the extent of its efforts to\nlocate responsive records. In its Fune 25, 2014, letter to the Public Access Bureau, CPS\nexpressly acknowledged that it maintains records of proceeds from ticket sales for athletic events\nin its internal accounts system in a variety of ways. CPS also stated that individual schools\nmaintain records of proceeds from ticket sales for athletic events. Despite these facts, CPS did\nnot provide any explanation of its efforts to search for responsive records. Although CPS\nasserted that it lacks the technological capability to run a report that segregates ticket sale\nMs. Becky Schlikerman\nMs. Jaculin Jerman Milovich\nAugust 14, 2014\nPage 7\nproceeds from other revenue recorded in the internal accounts system, CPS did not explain why\nit cannot extract at least portions of the responsive information from records in its internal\naccounts system, even if the information would come with other, non-responsive information.\nMoreover, there is no indication that CPS conducted such a search to attempt to extract at least\nportions of the responsive information that is recorded in its internal accounts system.\nAdditionally, Ms. Schlikerman's request specifically referenced receipts or\nproceeds of athletic events by any of CPS's schools. CPS has not indicated that it made any\nattempt to obtain responsive records from its individual schools, despite acknowledging that\n\"{hJard copies of the receipt of the cash from ticket sales and related bank deposit would be\nhoused in the internal accounts files at each individual school and maintained for audit\npurposes.”\nTherefore, this office concludes that CPS violated FOIA by failing to demonstrate\nthat it conducted an adequate search of its internal accounts system to locate the information that\nMs. Schlikerman requested. In addition, CPS violated section 3(a) of FOIA by failing to provide\nany of the responsive records that it acknowledges are maintained by individual schools under its\ncontrol and supervision.\nSection 3(g) of FOIA\nCPS's response to this office on June 25, 2014, asserts for the first time that it\nwould be unduly burdensome to furnish Ms. Schlikerman with copies of the records that are\nmaintained by individual schools for audit purposes. This office interprets that claim as an\nassertion of section 3(g} of FOIA, which provides, in pertinent part:\nRequests calling for all records falling within a category\nshall be complied with unless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information.\nHowever, section 3(d) of FOLIA (5 ILCS 140/3(d) (West 2012)) provides that “Ja] public bedy\nthat fails to respond to a request received may not treat the request as unduly burdensome\nunder subsection (g).\" (Emphasis added.) Therefore, a public body that does not timely\nrespond to a FOIA request may not thereafter assert that a request is unduly burdensome.\nMs. Becky Schlikerman\nMs. Jaculin Jerman Milovich\nAugust 14, 2014\nPage 8\nMoreover, even if CPS had issued a timely response, section 3(g) provides that\nbefore denying a request as unduly burdensome:\n[t]he public body shall extend to the person making the request\nan opportunity to confer with it in an attempt to reduce the\nrequest to manageable proportions. If any body responds to a\ncategorical request by stating that compliance would unduly\nburden its operation and the conditions described above are met,\nit shall do so in writing, specifying the reasons why it would be\nunduly burdensome and the extent to which compliance will so\nburden the operations of the public body. Such a response shall be\ntreated as a denial of the request for information. (Emphasis\nadded.}\nAccord National Ass'n of Criminal Defense Lawyers v. Chicago Police Dept., 399 WL App. 3d 1,\n15 (Ist Dist. 2010) (because two police departments failed to offer an organization an\nopportunity to confer with them to discuss ways for the organization to narrow its request to\nmanageable proportions, \"it appears that the police agencies have not complied with FOTA and\ncannot clairn the undue burden exemption.\").\nCPS did not extend an opportunity to Ms. Schlikerman to confer with CPS to\nnarrow her request for records of proceeds from ticket sales or provide, in its response to her\nFOIA request, any explanation as to why compliance with that request would be unduly\nburdensome or the extent to which it would burden CPS's operations. Further, CPS's response to\nthe Public Access Bureau is largely conclusory, and fails to set out any facts from which this\noffice could conclude that the burden of compliance on CPS outweighs the public interest in\ndisclosure of the requested financial records. The strong public interest in disclosure of such\nrecords is reflected in both article VIII, section 1(c) of the Illinois Constitution of 1970\n(\"[rJeporis and records of the obligation, receipt and use of public funds of the State, units of\nlocal government and school districts are public records available for inspection by the public\naccording to law[ }\") and section 2.5 of FOIA (5 ILCS 140/2.5 (West 2012)) (\"[alll records\nrelating to the obligation, receipt, and use of public funds of the State, units of local government,\nand school districts are public records subject to inspection and copying by the public.\").\nAccordingly, because CPS failed to issue a timely response to Ms. Schlikerman’s\nFOIA request and failed to comply with the requisite procedures set forth in section 3(g), CPS is\nprecluded from asserting that the request is unduly burdensome. ,\nMs. Becky Schlikerman\nMs. Jaculin Jerman Milovich F\nAugust 14, 2014\nPage 9\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On March 7, 2014, Ms. Becky Schlikerman, on behalf of the Chicago Sun-\nTimes, submitted a FOIA request to Chicago Public Schools seeking specific categories of\nrecords including \"[a]ny and all receipts and or records showing proceeds — by CPS and/or any\nof its schools — from tickets sold at any and all athletic events in the 2013-2014 school year.\"\n2) On March 10, 2014, CPS acknowledged receipt of Ms. Schlikerman's FOIA\nrequest. On March 18, 2014, CPS extended the time for responding to the request by five\nbusiness days pursuant to section 3({e)(i) of FOIA.\n3} On May 5, 2014, CPS furnished Ms. Schlikerman with copies of records\nresponsive to one portion of her request. However, that response did not address the portion of\nthe request seeking records of the proceeds from ticket sales for athletic events.\n4) In response to Ms. Schlikerman's follow up e-mail on May 9, 2014, regarding\nthe outstanding portions of her request, on May 21, 2014, CPS issued a supplemental response\nstating that it unsuccessfully searched its finance and sports administration offices for records\nshowing proceeds from tickets sales, but provided no details of the recordkeeping systems that\nwere searched or the specific measures that CPS took to try to locate responsive records. The\nsupplemental response also stated that CPS \"does not have a uniform method in place for schools\nto record ticket sales in the system.”\n5) On May 27, 2014, Ms. Schlikerman submitted a Request for Review to the\nPublic Access Counselor disputing CPS's assertion that it does not possess records showing\nproceeds from ticket sales for athletic events. Ms. Schlikerman's Request for Review was timely\nfiled and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a)\n(West 2012)).\n6) On May 30, 2014, the Public Access Bureau forwarded a copy of the Request\nfor Review to CPS and asked it to explain how it documented the proceeds from ticket sales for\nathletic events during the 2013-14 school year, to clarify whether individual schools maintain\nsuch records and, if so, whether CPS attempted to obtain those records from individual schools.\n7) On June 25, 2014, CPS responded that it does maintain records of revenue\nfrom ticket sales for athletic events in its internal accounts system, but asserted that it is unable to\ngenerate a report showing the revenue that each school collected. CPS also acknowledged that\n. Ms. Becky Schlikerman\nMs. Jaculin Jerman Milovich\nAugust 14, 2014\nPage 10\n.\nindividual schools maintain paper copies of responsive records, but asserted that it would be\nunduly burdensome to furnish those records to Ms. Schlikerman.\n8) On July 24, 2014, the Public Access Bureau properly extended the time in\nwhich to issue a binding opinion by 30 business days pursuant to section 9(f) of FOIA, to\nSeptember 8, 2014. Therefore, the Public Access Counselor may properly issue a binding\nopinion with respect to this matter. :\n9) CPS violated section 3(d) of FOIA by failing to respond to Ms. Schlikerman's\nFOIA request within five business days of receipt or any properly extended period for response.\n10} Further, CPS has not demonstrated that it conducted a reasonably adequate\nsearch for all records showing proceeds from ticket sales for athletic events during the 2013-14\nschool year. CPS's assertion that it is unable to run a report from its internal accounts system\nshowing each school's revenue from athletic events does not demonstrate that there is no\nalternative method of obtaining the records. Moreover, CPS has acknowledged that responsive\nrecords are maintained by individual schools under its control and supervision, but has not\nexplained why it was not feasible to search those sources for the requested information.\n11} Because CPS has acknowledged that responsive records are maintained by\nindividual schools under its control and supervision, CPS has also violated section 3(a) of FOIA\nby failing to provide those records to the requester or to identify authority justifying its refusal to\ndo so.\n12) Because CPS did not issue a timely response to the FOIA request or offer\nMs. Schlikerman an opportunity to narrow her request for records showing proceeds from ticket\nsales for sporting events to manageable proportions, CPS is now precluded from asserting that\nthe request is unduly burdensome pursuant to section 3(g) of FOIA.\nTherefore, it is the opinion of the Attorney General that CPS has improperly\ndenied, in part, Ms. Schlikerman's Freedom of Information Act request in violation of the\nrequirements of the Act. Accordingly, CPS is directed to take immediate and appropriate action\nto comply with this opinion by searching all recordkeeping systems likely to contain records\nshowing proceeds from ticket sales for athletic events for the 2013-14 school year ~ including\nathletic events held at Chicago State University — and by providing those records to Ms.\nSchlikerman. In particular, with respect to revenue for gate receipts that CPS claims cannot be\npinpointed in its internal accounts system, CPS should furnish hardcopies of gate receipts and\nrelated bank deposits which it acknowledges individual schools possess for audit purposes.\nMs. Becky Schlikerman\nMs. Jaculin Jerman Milovich\nAugust 14, 2014\nPage 11\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2012). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Ms. Becky\nSchlikerman as defendants. See 5 ILCS 140/11.5 (West 2012).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\n~\nBy: Ctheotrael Marie\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested records from Chicago Public Schools regarding athletic event ticket sales, but the school district failed to respond on time or search for the documents properly. The Attorney General's office ruled that the district broke the law by ignoring the deadline and failing to look for the records, and because they missed the deadline, they lost the right to claim the request was too difficult or 'unduly burdensome' to fulfill.","card_headline":"Athletic event ticket proceeds records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":41,"orig_master_id":19243,"dup_master_id":19014,"dup_sha256":"8158deb7e71252df5707102ee21b7ff96a5a290830e7b83a12fec605f2b629f7","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2014,"date_issued":"2014-08-19","case_number":"2014 PAC 29297","request_numbers":null,"title":"Disclosure of Photographs of a Former Auxiliary Deputy Sheriff","filename":"PUBLIC ACCESS OPINION 14-008 (Request for Review - 2014 PAC 29297).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 14-008 (Request for Review - 2014 PAC 29297).pdf","word_count":2852,"summary":"This document is a Public Access Opinion regarding a FOIA request made by Mr. Joseph Hosey for photographs of a former auxiliary deputy sheriff, which was denied by the Will County Sheriff's Office.","plain_summary":"The requester sought photographs of a former auxiliary deputy from the sheriff's department. The sheriff's department denied the request, arguing the photographs were exempt \"private information\" because they contained \"biometric identifiers.\" The Public Access Counselor found that the photographs were general in nature and did not focus on any unique physical attribute used to identify a person, so they did not qualify as biometric identifiers under the common meaning of that term. Because FOIA's definition of \"public records\" specifically includes photographs, and the exemption for \"private information\" did not, the PAC concluded the sheriff's department violated FOIA and ordered the photographs to be disclosed.","holding":"The Will County Sheriff's Office violated FOIA by denying the request for photographs.","legal_question":"Did the Will County Sheriff's Office properly deny the FOIA request for photographs based on exemptions?","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)"],"public_body":"Will County Sheriff's Office","requesting_party":"Mr. Joseph Hosey (Patch.com)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought personnel photographs of a former auxiliary deputy sheriff.","ocr_status":"ok","ocr_quality":89.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2014-Binding-PAC-Opinions/14-008.pdf","sha256":"b62c30716611bdd545dc5bba7a51efab992409cbef88eca268564bad1703372b","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["personnel records","private information","FOIA request","photographs"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nAugust 19, 2014\nPUBLIC ACCESS OPINION 14-008\n(Request for Review 2014 PAC 29297) —\nFREEDOM OF INFORMATION ACT:\nDisclosure of Photographs of a Former\nAuxiliary Deputy Sheriff\nMr. Joseph Hosey\nPatch.com\n908 Stafford Court\nNew Lenox, Illinois\nMr. Jerome A. Nudera, Jr.\nFOIA Officer\nWill County Sheriff's Office\n[street address redacted for site publication -- see original PDF]\nRE: FOIA Request for Review — 2014 PAC 29297\nDear Mr. Hosey and Mr, Nudera:\nThis is a binding opinion issued pursuant to section 9.5() of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f (West 2012)). For the reasons discussed below, this\noffice concludes that the Will County Sheriff's Office (Sheriff's Office) violated the requirements\nof FOIA by denying Mr. Joseph Hosey’s FOIA request seeking photographs of a former Sheriff's\nOffice auxiliary deputy.\nBACKGROUND\nOn May 2, 2014, Mr. Hosey, on behalf of Patch.com, submitted a FOIA request to\nthe Sheriffs Office for “[a]ll personnel and any other photographs of former auxiliary deputy\n500 South Second Street, Springfield, Hlineis 62700 » (217) 782-1090 « “TT \\; (877) 844-S4at * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Hlinais 60601 * (412) 814-3000 * “IPY: (R00) 964-3013 * Faw: (312) 814-3806\n1001 East Main, Carbondale, Hineis 62901 » (618) 529-6400 » YVY: (877) 075-9339 * Fax: 1618) 520-6416 ‘Ep\nMr. Joseph Hosey\nMr. Jerome A. Nudera, Jr.\nAugust 19, 2014\nPage 2\nTony Marquez.\" In an e-mail dated May 7, 2014, but sent on May 8, 2014, Jerome Nudera,\nFOIA Officer for the Sheriff's Office, denied Mr. Hosey's request, citing sections 2(c-5) and\n7(1)(b) of FOIA (5 ILCS 140/2(c-5) (West 2012); 5 ILCS 140/7(1)(b) (West 2013 Supp.))?\nSection 7(1)(b) exempts \"private information” from disclosure. Section 2(c-5) defines \"private\ninformation\" to include:\nunique identifiers, including a person's social security number,\ndriver's license number, employee identification number, biometric\nidentifiers, personal financial information, passwords. or other\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person.\nThe Sheriff's Office asserted in its response that the \"]p]hotographs [of Mr. Marquez] are\nconsidered 'private information’ due to the ‘biometric identifiers’ they contain.\"* On May 8,\n2014, the Public Access Bureau received Mr. Hosey's Request for Review of the denial of his\nFOIA request.* ;\n. On May 14, 2014, this office forwarded a copy of the Request for Review to the\nSheriff's Office and asked it to provide copies of the photographs it had withheld, as well as any\nadditional factual information and legal arguments in support of its assertion of section 7(1)(b) of\n'E-mail from Joseph Hosey, [Patch], to Kathy Hoffmeyer, [Will County Sheriffs Office] (May 2,\n2014).\n?These are the only two provisions of FOIA that the Sheriff's Office asserted as its bases for\nwithholding Mr. Marquez's photographs. Therefore, this binding opinion is limited to addressing the applicability of\nthose provisions. This office does not make any findings as to whether other exemptions in section 7 of FOUA (5\nILCS 140/7 (West 2013 Supp.}) could potentially provide a valid basis for a public body to withhold photographs of\nlaw enforcement officials in other circumstances.\n4E-mail from Jerome A. Nudera, Jr., FOLA Officer, Will County Sheriff's Office, to Joseph Hosey\n(May 8, 2014).\n‘E-mail from Jerome A. Nudera, Jr., FOIA Officer, Will County Sheriff's Office, to Joseph Hosey\n(May 8, 2014). .\n‘E-mail from Joseph Hosey. to the Public Access Bureau (May 8, 2014).\nMr. Joseph Hosey\nMr. Jerome A. Nudera, Jr.\nAugust 19, 2014\nPage 3\nFOIA.® This office received the Sheriff's Office's response, including copies of the photographs,\non June 3, 2014.’ The Sheriff's Office's response asserted that photographs of any part of the\nhuman body are \"biometric identifiers\" because they can be used to identify biological\nattributes.® Thus, the Sheriff's Office maintained, the \"[p]hotographs of former auxiliary deputy\nTony Marquez contain 'biometric information’ as defined, and should be subject to the [section\n7(1)(b)] exemption as stated.\"? The Sheriff's Office's response letter was forwarded to Mr.\nHosey on June 4, 2014.\" He did not reply.\nOn July 1, 2014, the Public Access Counselor properly extended the time to issue\na binding opinion by 30 business days pursuant to section 9.5(f) of FOIA.\nANALYSIS\n\"Ail records in the custody or possession of a public body are presumed to be\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2012). FOIA requires that \"[e]ach public body shall make available to any person\nfor inspection and copying all public records, except as otherwise provided in Section 7 of this\nAct.\" 5 ILCS 140/3(a) (West 2012). The exemptions from disclosure are to be narrowly\nconstrued. Lieber v. Board of Trustees of Southern Hlinois University, 176 Ul. 2d 401, 407\n(1997).\nSection 7(1)(b) of FOIA\nSection 7(1)(b} of FOIA exempts from inspection and copying \"[p]rivate\ninformation, unless disclosure is required by another provision of this Act,.a State or federal law\nor a court order.\" As previously noted, \"private information” is defined to include \"biometric\n“Letter from Matt Hartman, Assistant Atiomey General, Public Access Bureau, to Jerome A.\nNudera, Jr., FOIA Officer, Will County Sheriff's Office (May 14, 2014).\n\"Letter from Jerome A. Nudera, Jr., to Matt Hartman, Office of the Attorney General of Illinois\n(May 23, 2014).\n*Letter from Jerome A. Nudera, Jr., to Matt Hartman, Office of the Attorney General of Illinois\n(May 23, 2014).\n°Letter from Jerome A. Nudera, Jr., to Matt Hartman, Office of the Attorney General of Illinois\n(May 23, 2014).\n‘|e tter from Matthew Hartman, Assistant Attorney General, Public Access Bureau, to Joseph\nHosey, Patch.com (June 4, 2014).\nMr. Joseph Hosey\nMr. Jerome A. Nudera, Jr.\nAugust 19, 2014\nPage 4\nidentifiers.\" The term “biometric identifier,” however, is not defined in FOIA. It is well\nestablished that undefined statutory terms must be given their ordinary and popularly understood\nmeaning. People v. Comage, 241 HL 2d 139, 157 (2011).\nThe term \"biometrics\" is commonly understood to refer to \"the measurement and\nanalysis of unique physical or behavioral characteristics (as fingerprint or voice patterns)\nespecially as a means of verifying personal identity. »ll Similarly, the term \"identifier\" means\n“one that identifies[.}\" Accordingly, the phrase “biometric identifier\" is commonly understood\nto refer to the measurement and analysis of a unique physical or behavioral characteristic that\nidentifies a person, such as a fingerprint or voice pattern.\nApplying the commonly understood meaning of biometric identifier to the\nphotographs in question, it does not appear that the photographs constitute biometric identifiers.\nThis office was provided with copies of six photographs of Mr. Marquez. One photograph is\nfound on a Sheriff's Office identification card and shows Mr. Marquez's face and head, the\nphotograph is similar to one found on a driver's license or other identification card. Four other\nphotographs show Mr. Marquez's head, face, and shoulders. The sixth photograph includes Mr.\nMarquez's head, face, and shoulders, but also includes his torso. The photographs are all general\nin nature; they do not focus on a unique physical attribute or particular characteristic associated\nwith Mr. Marquez. Consequently, the photographs are not biometric identifiers as that phrase is\ncommonly used in Hlinois law.\nThis conclusion is consistent with other Illinois statutory provisions. The\nBiometric Information Privacy Act (740 ILCS 14/1 ef seg. (West 2012)), an act intended to\nregulate the collection, possession, and use of biometric identifiers by private entities engaged in\nbusiness and security screening, for example, defines \"biometric identifier“ to include \"a retina\nor iris scan, fingerprint, voiceprint, or scan of hand or face geometry.\" 740 ILCS 14/10 (West\n2012). That Act also expressly excludes from the definition of biometric identifier “writing\nsamples, written signatures [and] pkotographs[.]\"| (Emphasis added.) 740 ILCS 14/10 (West\n2012).\nIn addition, the rules of statutory construction also support the conclusion that\nphotographs are not biometric identifiers. The maxim of inclusio unius est exclusio alterius is\n\"' Biometrics, Merriam-Webster.com, http./Avww.merriam-webster.com/dictionary/biometrics (last\nvisited August 15, 2014); see aiso Allison v. Commission for Lawyer Discipline, 374 S.W.3d 520, 523 (Tx. Ct.\nApp. 2012), citing Merrian-Webster.com.\n\"Identifier, Merriam-Webster.com, http://www.merriam-webster.com/dictionary/identifier (last\nvisited August 15, 2014).\nMr. Joseph Hosey\nMr. Jerome A. Nudera, Jr.\nAugust 19, 2014\nPage 5\napplicable to the definition of \"private information\" in section 2(e-5). Under that principle,\n\"where a statute lists the thing or things to which it refers, the inference is that all omissions are\nexclusions, even in the absence of limiting language.\" McHenry County Defenders, Inc., v. City\nof Harvard, 384 Ill. App. 3d 265 (2nd Dist. 2008). Had the General Assembly intended to\nexempt photographs from disclosure under section 7(1)(b), it may be assumed that it would have\nspecifically referenced photographs in the definition of “private information\" in section 2(c-5) of\nFOIA. It did not. Therefore, it may be assumed that photographs do not constitute “private\ninformation.”\nAlong with omitting the word \"photograph\" from the definition of “private\ninformation,\":the General Assembly specifically included photographs in FOIA's definition of\n\"public records.\" Section 2(c) of FOIA (5 ILCS 140/2(c) (West 2012)) defines \"public records”\nas \"all records, reports forms, writings, letters, memoranda, books, papers, maps, [and]\nphotographs[.]\" Section 2.15(a) ef FOIA (5 ILCS 140/2.15(a) (West 2012)) also provides that a\nphotograph of an individual who has been arrested must be disclosed no later than 72 hours after\nan arrest. These specific references to photographs in FOIA indicate that the General Assembly\ndid not intend for all photographs of people to be exempt from disclosure.\nIndeed, the intent of FOIA is to provide the public with “full and complete\ninformation regarding the affairs of government and the official acts and policies of those who\nrepresent them as public officials and public employees[.]* 5 ILCS 140/1 (West 2012). Given\nthat intent, it seems highly unlikely that the General Assembly intended for ail photographs of\npeople to be exempt from disclosure. If the term \"biometric identifiers\" in section 2(c-5) of\nFOIA encompassed all photographs of people, as the Sheriff's Office contends, a photograph of\nthe Governor taking the oath of office and other photographs of public officials and employees\nperforming public duties would be exempt from disclosure under section 7(1)(b) of FOIA. It isa\nwell-known principle of statutory construction that where a literal reading of the statute would\nlead to consequences which the General Assembly could not have contemplated, the statute must\n\"be construed in a manner that avoids absurd or unjust results.\" Croissant v. Joliet Park District,\n141 Ill. 2d 449, 455 (1990).\nThe Sheriff's Office notes in its response that the FBI defines biometrics as “the\nmeasurable (anatomical and physiological) or behavioral characteristics used for identification\nof an individual. Fingerprints are a common biometric modality, but others include things like\nDNA, irises, voice patterns, palmprints, and facial patterns.”'? (Emphasis added.) In support of\nits assertion that biometric identifiers include photographs, the Sheriff's Office cites a definition\nfrom the Biometrics Institute Limited, which is described as an impartial international forum for\n\"Fingerprints & Other Biometrics, Criminal Justice Info. Serv., Fed, Bureau of investigation,\nhttp://www. foi.gov/about-us/cjis/fingerprints_biometrics (last visited June 24, 2014).\nMr. Joseph Hosey\nMr. Jerome A. Nudera, Jr.\nAugust 19, 2014\nPage 6\nbiometric users.'* Specifically, the Sheriff's Office quoted portions of the Frequently Asked\nQuestions section of the Biometrics Institute Limited website, which states, in pertinent part:\nA biometric is any biological attribute that can be used for\nidentification - hence strictly a photo qualifies, as does in fact a\npicture or video of any part of the body. However just because a\nselection of photos exists of employees for instance * * * this does\nnot mean there is the capability or intention to do anything\nbiometric with the photos.\nIn other words they could be called ‘latent’ biometrics -\nsimilar to a latent fingerprint that is left on a surface but that may\nnot be used. Any clear photo of a person contains some biometric\ninformation - but if there is no intention to convert it to a template\nor match it against a facial gallery then I would say it is open to\ndebate as to its status as a biometric in the technical or legal\nsense. 15\nReading these materials in a light most favorable to the position of the Sheriff's\nOffice, they are not unequivocal with regard to whether a general photograph of a subject should\nbe considered a \"biometric identifier.” The FBI information also does not reference photographs\nas biometric identifiers. In addition, the Sheriff's Office does not assert that the requested\nphotographs contain measurable (anatomical and physiological) or behavioral characteristics\nused for identification of an individual as defined by the FBI.\nThe Sheriff's Office's reliance on these equivocal statements discussing the term\n“biometric identifiers\" to support its denial of Mr. Hosey's FOIA request is not persuasive,\nparticularly given that the General Assembly specifically defined “public records” in FOIA to\ninclude photographs. Accordingly, this office concludes the Sheriff's Office has not sustained its\nburden of demonstrating that the requested photographs are exempt from disclosure pursuant to\nsection 7(1)(b) of FOIA.\n“Biometrics Institute Limited, http://www. biometricsinstitute.org/pages/abouth-uumsl. (last visited\nJuly 29, 2014).\n'Sts @ Photo a Biometric?, Frequently Asked Questions, Biometrics Inst. Ltd., http://www.bio\nmetricsinstitute.org/pages/faq-16.html (last visited July 29, 2014).\nMr. Joseph Hosey\nMr. Jerome A. Nudera, Jr.\nAugust 19, 2014\nPage 7\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On May 2, 2014, Mr. Joseph Hosey, on behalf of Patch.com, submitted a\nFOIA request to the Will County Sheriff's Office seeking “[a]ll personnel and any other\nphotographs of former auxiliary deputy Tony Marquez.”\n2) In an e-mail dated May 7, 2014, and sent on May 8, 2014, the Sheriff's Office\ndenied Mr. Hosey's request citing sections 2(c-5) and 7(1)(b) of FOIA and asserting that the\nrequested photographs are \"biometric identifiers” and therefore are exempt “private information\"\nas defined in section 2(c-5} of FOIA.\n3) On May 8, 2014, Mr. Hosey submitted a Request for Review that was received\nby the Public Access Counselor on the same day. The Request for Review was timely filed and\notherwise complies with the requirements of section 9.5(a) of FOTA ( ILCS 140/9.5(a) (West\n2012)). ' -\n4) On May 14, 2014, the Public Access Bureau forwarded a copy of the Request\nfor Review to the Sheriff's Office and requested copies of all photographs that it had withheld,\ntogether with its factual and legal arguments in support of the assertion of the section 7(1)(b)\nexemption. .\n5) By letter dated May 23, 2014, and received on June 3, 2014, the Sheriff's\nOffice furnished this office with copies of the withheld photographs, and reasserted its position\nthat the photographs are exempt from disclosure because they contain biometric information.\n6) On July 1, 2014, the Public Access Counselor properly extended the time to\nissue a binding opinion by 30 business days, to August 19, 2014. Therefore, the Attorney\nGeneral may properly issue a binding opinion with respect to this matter.\n7) Section 2(c) of FOIA defines “public records” as “all records, reports, forms,\nwritings, letters, memoranda, books, papers, maps, [and] photographs|[.]\"\n8) Section 7(1)(b) of FOIA exempts “private information” from inspection and\ncopying. Section 2(c-5) of FOIA defines \"private information” to include “biometric identifiers.”\nThe term \"biometric identifier” is not defined in section 2(c-5) or elsewhere in FOIA.\nMr. Joseph Hosey\nMr. Jerome A. Nudera, Jr.\nAugust 19, 2014\nPage 8\n9) The term “biometric identifier,” however, is commonly understood to refer to\n.the measurement and analysis of a unique physical or behavioral characteristic that identifies a\nperson.\n10) The photographs in question are all general in nature and do not focus on a\nunique physical attribute or characteristic of Mr. Marquez. This office concludes that the\nrequested photographs are not biometric identifiers as that phrase is coramonly used and do not\nconstitute \"private information\" exempt from disclosure under section 7(1)(b) of FOIA.\nTherefore, it is the opinion of the Attorney General that the Sheriff's Office\nimproperly denied Mr. Hosey’s Freedom of Information Act request in violation of the\n. requirements of the FOIA. Accordingly, the Sheriff's Office is directed to take immediate and\nappropriate action to comply with this binding opinion by disclosing the requested photographs\nof former auxiliary deputy Tony Marquez to Mr. Hosey. :\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2012).. An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Mr. Joseph Hosey\nas defendants. See § ILCS 140/11.5 (West 2012).\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\nBy: Ctinetoa-4 Meda\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested photographs of a former auxiliary deputy sheriff from the Will County Sheriff's Office, but the office refused, claiming the photos were private information. The Attorney General's office ruled that the photos are not private information and must be released. This means government agencies cannot withhold public employee photos simply by labeling them as private.","card_headline":"Personnel photographs of a former auxiliary deputy sheriff","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":42,"orig_master_id":19244,"dup_master_id":19015,"dup_sha256":"e74c3733bba6a523b3bf86cda20b64721b4c6cdf2a25ac0297509cae649da2ed","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2014,"date_issued":"2014-09-04","case_number":"2014 PAC 29739","request_numbers":null,"title":"Information Required of Speakers Wishing to Provide Public Comment","filename":"PUBLIC ACCESS OPINION 14-009 (Request for Review - 2014 PAC 29739).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 14-009 (Request for Review - 2014 PAC 29739).pdf","word_count":3407,"summary":"This document is a binding opinion from the Illinois Attorney General regarding a violation of the Open Meetings Act by the Lemont Village Board, which required a speaker to provide her home address to participate in public comment.","plain_summary":"The requester attended an open meeting of the village board and, during the public comment period, was repeatedly asked by the mayor to state her complete home address before she would be permitted to speak. The requester argued this violated her right under the Open Meetings Act to address public officials, since the village government had no established, recorded rule requiring speakers to disclose their home addresses. The PAC agreed, holding that the village government violated the Act by conditioning public comment on disclosure of a home address that was not part of any adopted rule, and further concluded that even a formally adopted rule requiring such disclosure would violate the Act because it is not reasonably related to maintaining meeting order or ensuring other speakers get a chance to speak. The PAC directed the village government to conduct future meetings in compliance with this ruling.","holding":"The Lemont Village Board violated the Open Meetings Act by requiring Ms. Hughes to state her home address before allowing her to speak, because the Board's established and recorded rules did not include that requirement.","legal_question":"Did the Lemont Village Board violate the Open Meetings Act by requiring a speaker to provide her home address for public comment?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Lemont Village Board","requesting_party":"Ms. Janet Hughes","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"public comment","subject_description":"The requirement for a member of the public to provide a home address as a condition for participating in public comment at a village board meeting.","ocr_status":"ok","ocr_quality":91.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2014-Binding-PAC-Opinions/14-009.pdf","sha256":"b81a5a660f8032829fef5f079ff47beaa4ac9c52c85d6088142bc1e2325d9d37","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["public comment","Open Meetings Act","speaker requirements","village board"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATVORNEY GENERAL\nSeptember 4, 2014\nPUBLIC ACCESS OPINION 14-009\n(Request for Review 2014 PAC 29739)\nOPEN MEETINGS ACT:\nInformation Required of\nSpeakers Wishing to\nProvide Public Comment\nMs. Janet Hughes\n[street address redacted for site publication -- see original PDF]\nThe Honorable Brian K. Reaves\nMayor, Village of Lemont\n418 Main Street\nLemont, Illinois 60439\nRE: OMA Request for Review — 2014 PAC 29739\nDear Ms. Hughes and Mayor Reaves:\nThis is a binding opinion issued pursuant to section 3.5(e) of the Open Meetings\nAct (OMA) (5 ILCS 120/3.5(e) (West 2012)). For the following reasons, this office concludes\nthat the Lemont Village Board (Board) violated OMA during the public comment portion of its\nApril 14, 2014, regular meeting by requiring Ms. Janet Hughes to state her home address in order\nto address the Board.\nBACKGROUND\nOn June 6, 2014, Ms. Hughes submitted a Request for Review alleging that the\nBoard, acting through Mayor Brian Reaves and Village Attorney Jeff Stein, “pressured” and\n\"forced\" her to state her home address for the record prior to being permitted to provide public\n500 South Second Street, Springfield, Hlinois 62706 © (217) 782-1090 * “IVY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street. Chicago. Hingis G06G1 * (312) 814-3000 © “T'I'Y, (800) 964-3013 * Fax: (512) 814-3806\n1001 East Main, Carbondale, Hinois 62901 » (618) 529-6400 © ‘TTY: (877) 675-9339 © Fax: (618) 529-6416 ‘ On September 19,\n2013, this office forwarded Mr. Wiszowaty's Request for Review fo the Village and requested a\nwritten explanation of the Village's search for responsive records.’ On October 8, 2013, the\nVillage's attorney responded that the Village did not sponsor the Village ¢C lerk's trip and thus did\nnot possess records regarding her travel expenses, itinerary, or schedule.° In addition, the\nVillage asserted that any records concerning the trip that were in the Village Clerk's possession\nwould not be public records because the \"trip did not relate to official actions and she was not\ninvolvedi n the transaction of public business or affairs.\"* On October 21, 2013, this office\nreceived Mr. Wiszowaty's reply maintaining that the Village possesses undisclosed responsive\nrecords.\n‘E-mail from Sauk Villager News to Sauk Village FOLA Officer (August 15, 2013).\n*Letter front Michael J. McGrath, Village Attorney, to Joseph Wiszowaty, Sawk Villager\nNews (August 22, 2013).\n‘Letter from Joseph Wiszowaty to Sarah Pratt, Public Access Counselor, Office of the\nAttorney General (August 26, 2013).\n‘Letter from Matthew C. Rogina, Assistant Attorney General, Public Access Bureau, to Michael\nMcGrath, Village Attorney, Odelson & Sterk, Ltd. (September 19, 2013).\n‘Letter from Matthew J. Byrne, Odelson & Sterk, LTD., to Matthew Rogina, Assistant Attorney\nGeneral, Public Access Bureau {October 8, 2013).\n*Letter from Matthew J. Byrne, Odelson & Sterk, LTD., to Matthew Rogina, Assistant Attorney\nGeneral, Public Access Bureau (October 8, 2013) at 2.\n\"Letter from Joseph Wiszowaty, Sauk Villager News, to Matthew C. Rogina, Assistant Attorney\nGeneral, Office of the Attorney General (October 15, 2013).\nMr. Joseph Wiszowaty\nThe Honorable David Hanks\nSeptember 8,.2014\nPage 3\nOn March 21, 2014, after reviewing both parties’ submissions and the available\nevidence, this office determined that the requested records would pertain to the transaction of\npublic business because the Village Clerk participated in the Summit in her official capacity as a\nrepresentative of the Village, she solicited input from Village officials regarding the substance of\nher presentation at the Summit,’ and she used her Village e-mail account and the Village's\nwebsite to seek supporting documentation from Village residents on issues that they face\npertinent to her Summit presentation.” Accordingly, this office concluded that the Village\nClerk's records and any other responsive records in the possession of the Village concerning the\nSummit are \"public records”’° under FOIA and that the Village had failed to conduct a\nreasonable search for them.'' This office directed the Village to:\nsearch all recordkeeping systems — including the Village Clerk's\nrecords — that are likely to contain responsive information\nconcerning the summit and to provide those records to Mr.\nWiszowaty, subject to appropriate redactions under section 7 of\nFOIA (5 ILCS 140/7 (West 2012), as amended by Public Acts 98-\n463, effective August 16, 2013; 98-578, effective August 27,\n2013).”?\nThe Village, however, did not comply with that directive and did not provide Mr. Wiszowaty\nwith responsive records or otherwise respond.\nSIL Att'y Gen. PAC Req. Rev Ltr, 25892, issued March 21, 2014, at 4.\nLetter from Joseph Wiszowaty to Sarah Pratt, Public Access Counselor, Office of the\nAttorney General (August 26, 2013), Exhibit B.\nSection 2(c-5} of FOIA (5 ILCS 140/2(c-5) (West 2012)) defines “public records” as:\nall records, reports, forms, writings, letters, memoranda, books, papers, maps,\nphotographs, microtilms, cards, tapes, recordings, electronic data processing\nrecords, electronic communications, recorded information and all other\ndocumentary materials pertaining to the transaction of public business,\nregardless of physical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or under the\ncontrol of any public body.\n\"NL. Att'y Gen. PAC Req. Rev Ltr. 25892, issued March 21, 2014, at 5-6.\n\"Til, Att'y Gen. PAC Req. Rev Ltr. 25892, issued March 21, 2014, at 6.\nMr. Joseph Wiszowaty\nThe Honorable David Hanks\nSeptember 8, 2014\nPage 4\nApril 4, 2014, FOIA Request and Request for Review\nOn April 4, 2014, the Village received an undated, five-part FOIA request from\nMr. Wiszowaty seeking records concerning the Village Clerk’s participation in the Summit?\nThe April 4, 2014, FOIA request is somewhat similar to the request that Mr. Wiszowaty\nsubmitted in April 2013. Specifically, Mr. Wiszowaty sought:\nPART I: Please provide documentation sufficient to show all\ncommunications by and between Village Clerk Debra Williams\n(either from dhw1633@aol.com and/or the Village of Sauk\nVillage's domain @saukvillage.org) concerning the matter of the\nBuilding One America organization including but not limited to\ncopies of any and all correspondence to and from all parties.\nAdditionally, provide any U.S. Mail, memorandums, electronic\nmails between Village Clerk Debra Williams (from either Mrs.\nWilliams]\"] emails diw1633@aol.com and/or the Village of Sauk\nVillage's domain @saukvillage.org), village officials, village\nemployees, village attorney, village vendors and or private citizens\nwith respect to the Building One America organization or summit.\nThis should include but not be limited to any correspondence by\nand between the Village's Attorney with respect to what she has\ncalled a \"personal trip\" at a Village Board Meeting to Washington\nD.C. taken in July, 2013 and any documents, attachments or other\nmaterial information contained in the emails.'* (Emphasis in\noriginal.)\nThe request also sought, in summary: PART Uh: legal billing records related to the Summit and\nrelated matters, and documentation of that legal/investigatory work as well any communications\nbetween the Village Clerk and the Village Attomey concerning the investigative findings; PART\nILL: documentation of all contributions for the trip to the Summit; PARTIV: documentation of\nall communications in which the Village Clerk or a Village Trustee solicited \"sponsorships\" or\n“Freedom of Information Act Request from Joseph Wiszowaty, Sauk Villager News, to Village of\nSauk Village, FOIA Officer (undated). For ease of reference, this FOIA request will be referred to as the April 4,\n2014, FOIA request.\nFreedom of Information Act Request from Joseph Wiszowaty. Sauk Villager News, to Vilage of\nSauk Village, FOIA Officer (undated).\nMr. Joseph Wiszowaty\nThe Honorable David Hanks\nSeptember 8, 2014\nPage 5\ncontributions for their trip to the Summit; and PART V: documentation of all expenses incurred\non that trip.\nThe Village's April 18, 2014, response noted that it had received Mr. Wiszowaty's\nrequest on April 4, 2014, and had on April 11, 2014, extended the time for responding by five\n-business days pursuant to section 3(e)(v) of FOIA (5 ILCS 140/3(e)(v) (West 2012)) “because\nsome of the requested records required examination by personnel having the necessary\ncompetence and discretion to determine if the records are exempt from disclosure under section 7\nof FOIA or should be released only with appropriate redactions.\" The Village's April 18, 2014,\nresponse, however, asserted that it \"has no records\" responsive to any of the five parts of the\nrequest. The Village also asserted that three portions of the request (Part | seeking the Village\nClerk's communications, Part If seeking documentation of contributions for the Summit, and\nPart IV seeking correspondence soliciting sponsorships), were unduly burdensome under section\n3(g) of FOIA (5 ILCS 140/3(g) (West 2012)) because the requests were unchanged or identical\nto Mr. Wiszowaty's August 15, 2013, FOIA request, and the Village had properly asserted that it\nhad no records responsive to those portions of the earlier request.\nIn response to the Village’s assertion that the request was \"unduly burdensome,”\non April 24, 2014, Mr. Wiszowaty submitted correspondence to the Village in an attempt to\n“simplify” his April 4, 2014, FOIA request.”? The Village did not respond to Mr. Wisowaty’s\ncorrespondence.\nOnM ay 28, 2014, the Public Access Bureau received Mr. Wisowaty's Request for\nReview contesting the Village's response to the April 4, 2014, request and alleging that the\nVillage failed to respond to his April 24, 2014, revised request.'\nOn May 30, 2014, this office forwarded a copy of the Request for Review to the\nVillage's legal counsel and asked it to provide: (1) the responsive records for this office's\nconfidential review; (2) a detailed explanation of the Village’s handling of Mr. Wiszowaty's\nApril 4 and April 24, 2014, requests; and (3) a detailed description of the Village’s search for\n'51e tter from Joseph Wiszowaty to Village of Sauk Village, FOLA Officer (undated).\n‘Sye tter from Village of Sauk Village by Sara Gallagher, one of the Village's attorneys, to Mr.\nJoseph Wiszowaty, Sauk Villager News (April 18, 2014), at 1-2.\n“Lever from Joseph Wiszowaty to Village of Sauk Village, FOIA Officer (April 24, 2014).\n\"Letter from Joseph Wiszowaty, Sauk Villager News, to Sarah Pratt, Public Access Counselor,\nOffice of Attorney General (May 28, 2014).\nMr. Joseph Wiszowaty\nThe Honorable David Hanks\nSeptember 8, 2014\nPage 6\nresponsive records.'? On June 20, 2014, this office received copies of some responsive records\nand the Village's written response. The Village provided the records and its response under a\nclaim of confidentiality pursuant to section 9.5(d) of FOIA (5 ILCS 140/9.5(d) (West 2012)),\nwhich prohibits this office from forwarding both the responsive records and the Village's\nresponse to Mr. Wiszowaty or disclosing that information in this binding opinion.”\nOn July 25, 2014, the Public Access Bureau properly extended the time in which\nto issue a binding opinion by 30 business days pursuant to section 9.5( of FOIA?!\nANALYSIS\n\"Ht is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with this Act.” 5 1LCS\n140/1 (West 2012). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2012)), “[alll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.”\nSection 3(a) of FOIA (5 ILCS 140/3(a) (West 2012)) provides that “[e]Jach public body shall\nmake available to any person for inspection or copying all public records, except as otherwise\nprovided in Section 7 of this Act.” A public body that asserts a record is exempt from disclosure\n\"has the burden of proving by clear and convincing evidence that it is exempt.” 5 ILCS 140/1.2\n(West 2012).\nDuty to Search for Responsive Records\nUnder FOIA, a public body is required to conduct a “reasonable search tailored to\nthe nature of a particular request.\" Campbell v. United States Dep't ofJ ustice, 164 F.3d 26, 28\n(D.C. Cir. 1998). A public body's search must be “reasonably calculated to uncover all relevant\ndocuments.\" Weisberg v. Department ofJ ustice, 705 F.2d 1344, 1351 (D.C. Cir. 1983).\nAlthough a public body is not required to \"search every record system[,]\" it “cannot limit its\nsearch to only one record system if there.are others that are likely to turn up the requested\ninformation.\" Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (C.A.D.C. 1990).\n“Letter from Josh Jones, Assistant Attorney General, Public Access Bureau, to Sara Gallagher,\nOdeison Sterk, LTD (May 30, 2014).\n71 etter from Burt Odelson, Odelson Sterk, LTD, to Josh Jones, Assistant Attorney General,\nPublic Access Bureau, Office of the Attorney General June 19, 2014).\nLetter from Josh Jones, Assistant Attorney General, Public Access Bureau, to Joseph Wiszowaty\nand Sherry Jasinski, Freedom of Information Officer, Village of Sauk Village (July 25, 2014).\nMr. Joseph Wiszowaty\nThe Honorable David Hanks\nSeptember 8, 2014\nPage 7\nThe Village's response to Mr. Wiszowaty's April 4, 2014, FOIA request contains\nno indication that it conducted any search or made any effort to locate records responsive to that\nrequest. The response, which the Village termed its “final response,””” addressed each of the five\nparts of the request separately and stated that the Village had no responsive records.” This\nresponse was issued even thought this office's previous opinion concluded that the Village was\nlikely to possess records Tesponsive to the earlier, similar request, and directed the Village to\nconduct a search for those records.”* Moreover, the Village did not demonstrate to the Public\nAccess Bureau that it had undertaken a search for pertinent records before responding to the\nApril 4, 2014, request. Therefore, this office concludes that the Village has violated the\nrequirements of FOIA by failing to demonstrate that it conducted a reasonable search for records\nresponsive to Mr. Wiszowaty's request. See Moore v. F.B.1, 366 Fed.Appx. 659, 661-62 (7th\nCir. 2010) (a public body that does not locate a requested record must demonstrate that it\nconducted a reasonable search.)\nSection 3(g) of FOIA\nIn addition to asserting that it does not possess responsive records, the Village\nalso asserted that three parts of Mr. Wiszowaty's April 4, 2014, FOIA request were unduly\nburdensome because the Village had already advised the requester, in response to his August 15,\n2013, FOIA request for the same records, that it had no responsive records. Section 3(g) of\nFOIA provides that \"{r]epeat requests from the same person for the same records that are\nunchanged or identical to records previously provided er properly denied under this Act shall\nbe deemed unduly burdensome under this provision.\" (Emphasis added.) The Village argued\nthat it had properly denied the earlier request because it had no responsive records to provide.\nHowever, this office had concluded that the Village had nor properly denied the prior FOIA\nrequest because it appeared that there were responsive public records in both the Village Clerk's\npossession and the Village's possession, and directed the Village to conduct a reasonable search\nfor those records. Ill. Att'y Gen. PAC Req. Rev Lr. 25892, issued March 21, 2014. The Village\ndid not comply with that earlier directive and it has failed to demonstrate that it conducted a\nreasonable search for responsive records before it denied the April 4, 2014, FOIA request. In\nfact, the Village provided 13 pages of responsive records to this office in conjunction with this\nRequest for Review. It also has not demonstrated that it has searched all records systems likely\n1 etter from Sara Gallagher, Odelson & Sterk, Lid, to Mr. Joseph Wiszowaty, Sauk Villager\nNews (April 18, 2014), at 3.\n*Because the Village made no reasonable search for responsive records prior to its April 18, 2014,\nresponse, its extension of time for response under section 3(¢}(v) of FOIA, claiming that it needed to review the\nresponsive records to determine whether they were exempt, was improper.\n“4. Att'y Gen. PAC Reg. Rev Ltr. 25892, issued March 21, 2014, at 6.\nMr, Joseph Wiszowaty\nThe Honorable David Hanks\nSeptember 8, 2014\nPage 8\nto contain responsive records. The Village's assertion of 3(g) under these circumstances violates\nthe requirements of FOIA.\nDuty to Disclose Responsive Records\nThe Village has provided this office with records responsive to the FOIA requests\nwhich have not been disclosed to Mr. Wiszowaty. Because the Village has neither asserted nor\ndemonstrated by clear and convincing evidence that those records are exempt from disclosure,\nthis office concludes that the Village violated section 3(a) of FOIA by failing to disclose those\nrecords to Mr. Wiszowaty.\nFailure te Respond te April 24, 2014, \"Narrowed\" Request\nMr. Wiszowaty's Request for Review also asserts that the Village violated FOIA\nby failing to respond to his April 24, 2014, correspondence within the statutory timeframe.\nSection 3(d) of FOIA (5 ILCS 140/3(d) (West 2012)) provides:\nEach public body shall, promptly, either comply with or\ndeny a request for public records within 5 business days after its\nreceipt of the request, unless the time for response is properly\nextended under subsection (e) of this Section. Denial shall be in\nwriting as provided in Section 9 of this Act.\nThe issue here is whether Mr. Wiszowaty's letter of April 24, 2014, constituted a new FOIA\nrequest for purposes of triggering a duty to respond within five days.\nIn its response to his April 4, 2014, request, the Village asserted that it had no\nresponsive records, but also asserted that threoef the items constituted unduly burdensome\nrequests under section 3(g}. Mr. Wiszowaty apparently interpreted this assertion as an invitation\nto narrow his request and consequently submitted a “simplified” version of it. FOIA, however,\ndoes not expressly provide that a narrowed request offered in response to an assertion of section\n3(g) is considered a new request for purposes of section 3(d) of FOIA.\nHere, the Village denied having any responsive records and therefore production\nof records could not have constituted an undue burden. Thus, the Village appears to have\nasserted section 3(g) based solely on its position that the April 4, 2014, FOIA request was a\nrepeat of his August 15, 2013, FOLA request and not because of any burden caused by\nproduction of the records. Under these circumstances, it is not clear that the Village was under\nany obligation to respond to the letter. Although the Village might have avoided this confusion\nby responding to the April 24, 2014, correspondence or otherwise communicating with Mr.\nMr. Joseph Wiszowaty\nThe Honorable David Hanks\nSeptember 8, 2014\nPage 9\nWiszowaty, under these circumstances we cannot conclude that its failure to respond to the April\n24, 2014, letter constituted a violation of FOIA.\nFINDINGS AND CONCLUSIONS\n1) On April 4, 2014, Mr. Joseph Wiszowaty submitted a FOIA request to the\nVillage of Sauk Village seeking records pertaining to the Village Clerk's participation in an event\nknown as the Building One America Summit.\n2) On April 18, 2014, the Village responded, through its attorney, that it did not\npossess any responsive records, and further, that three portions of the request were unduly\nburdensome under section 3(g) of FOIA.\n3) On May 28, 2014, Mr. Wiszowaty submitted a Request for Review of the\nVillage's response to his April 4, 2014, request, and its lack of response to his April 24, 2014,\n\"simplified\" request. Mr. Wiszowaty's Request for Review was timely filed and otherwise\ncomplies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5{a) (West 2012)).\n4) On May 30, 2014, the Public Access Bureau determined that further action\nwas warranted and asked the Village to provide this office with unredacted copies of all\nresponsive records together with a written explanation of its handling of Mr. Wiszowaty’s April\n4, 2014, request and April 24, 2014, correspondence.\n5) On Rhine 20, 2014, the Public Access Bureau received certain responsive\nrecords and the Village's written response under a claim of confidentiality pursuant to section\n9.5(d) of FOIA.\n6) On July 25, 2014, the Public Access Bureau properly extended the time in\nwhich to issue a binding opinion by 30 business days, to September 8, 2014, pursuant to section\n9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with\nrespect to this matter.\n7) Upon receipt of a FOIA request, a public body must conduct a reasonable\nsearch by making efforts reasonably calculated to locate all responsive records. The Village did\nnot demonstrate that it conducted any search for responsive records before responding to the\nApril 4, 2014, FOIA request.\n8) The Village was precluded from asserting section 3(g) in denying the April 4,\n2014, FOIA request because it had not properly denied a prior request for the same records from\nMr. Wiszowaty.\nMr. Joseph Wiszowaty\nThe Honorable David Hanks\nSeptember 8, 2014\nPage 10 .\n9) Under the plain language of section 1.2 of FOIA, a public body that withholds\naa responsive record must prove by clear and convincing evidence that the recordi s exempt from\ndisclosure. The Village did not provide any basis for withholding responsive records pursuant to\nFOIA. Therefore, the Village violated section 3(a) of FOIA by failing to furnish those records to\nMr. Wiszowaty.\nTherefore, it is the opinion of the Attorney General that Sauk Village has violated\nthe requirements of FOIA by failing to conduct a reasonable search for records responsive to Mr.\nJoseph Wiszowaty's April 4, 2014, FOIA request, by improperly asserting section 3(g) of FOIA,\nand by improperly withholding public records. Accordingly, the Village is hereby directed to\ntake immediate and appropriate action to comply with this opinion by conducting a reasonable\nsearch for records responsive to each and every portion of Mr. Wiszowaty's FOIA requests, and\nby providing him with all responsive records, subject only to permissible redactions under\nsection 7 of FOIA (5 ILCS 140/7 (West 2013 Supp.)).\n: This opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 TLCS 5/3-101\net seq. (West 2012). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Mr. Joseph\nWiszowaty as defendants. See 5 ILCS 140/11.5 (West 2012).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nZe\nBy:\nMichael J. Luke\nCounsel to the Attorney General\nec: Mr. Burton Odelson\nOdelson & Sterk, Ltd.\n3318 West 95\" Street\nEvergreen Park, flinois 60805","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under FOIA, a public body must conduct a reasonable search for records that are likely in its possession before it can claim a request is unduly burdensome. In this case, the Village did not search for any records at all, instead asserting the request was burdensome and that it was a repeat request under Section 3(g). The PAC determined that because the Village failed to perform any search and had not fully responded to a prior request from the same requester, it could not rely on the repeat request exception or the undue burden claim, and therefore violated FOIA.","card_headline":"A village clerk's and trustee's event participation records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":45,"orig_master_id":19248,"dup_master_id":19018,"dup_sha256":"de345df26ff9f4d3c235c69dc1c4427af713c015857c6fd1b960795c48cc344a","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2014,"date_issued":"2014-10-14","case_number":"2014 PAC 30269","request_numbers":null,"title":"Photocopies of Records Deemed Exempt from Disclosure under Section 7(1)(e-5)","filename":"PUBLIC ACCESS OPINION 14-013 (Request for Review - 2014 PAC 30269).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 14-013 (Request for Review - 2014 PAC 30269).pdf","word_count":2478,"summary":"This document is a binding public access opinion regarding a Freedom of Information Act request made by Mr. Adam Escamilla for photocopies of Administrative Directives from the Illinois Department of Corrections.","plain_summary":"An incarcerated requester asked the corrections department for photocopies of certain administrative directives that were already available for inspection in the correctional facility's library. The corrections department denied the request under a FOIA exemption covering records requested by inmates that are available in the facility library, and the requester argued this exemption shouldn't apply because inmates weren't allowed to photocopy the library materials themselves. The Public Access Counselor upheld the denial, finding that the exemption only requires that inmates have access to inspect the records in the library, not that they be permitted to make or receive photocopies, based on the legislative history showing the exemption was meant to relieve the department of the burden of copying records already available to inmates through the library.","holding":"The Illinois Department of Corrections did not violate FOIA by denying Mr. Adam Escamilla's request for copies of Administrative Directives.","legal_question":"Did the Illinois Department of Corrections violate FOIA by denying a request for photocopies of records that were available for inspection?","disposition":"no_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7(1)(e-5)"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(e-5)"],"public_body":"Illinois Department of Corrections","requesting_party":"Mr. Adam Escamilla","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(e-5)","subject_description":"The request concerned the denial of photocopies for administrative directives that were accessible for inspection in a prison library.","ocr_status":"ok","ocr_quality":89.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2014-Binding-PAC-Opinions/14-013.pdf","sha256":"44e0a2000fc38418ab2ae629380c7a5604a2f6f9b46ce88ba65f885c61d83a0f","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["prison records","administrative directives","photocopies","inspection of records"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL,\nOctober 14, 2014\nPUBLIC ACCESS OPINION 14-013\n(Request for Review 2014 PAC 30269)\nFREEDOM OF INFORMATION ACT:\nPhotocopies of Records Deemed\nExempt from Disclosure under\nSection 7(1)(e-5}\nMr. Adam Escamilla, M27513\nLawrence Correctional Center\n10930 Lawrence Road\nSumner, I! linois 62466\nMs. Lisa Weitekamp\nIllinois Department of Corrections\nFreedom of Information Act Officer\n[street address redacted for site publication -- see original PDF]\nDear Mr. Escamilla and Ms. Weitekamp:\nThis is a binding opinion issued pursuant to section 9.5() of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2012)). For the reasons discussed below, this\noffice concludes that the Illinois Department of Corrections (IDOC) did not violate FOIA by\ndenying Mr. Adam Escamilla's request for copies of Administrative Directives that were\navailable in the library of the correctional facility in which he is confined.\nBACKGROUND\nMr. Escamilla submitted a FOIA request dated April 16, 2014, to IDOC (IDOC\nRequest 140421178} seeking “a copy” of several [DOC Administrative Directives.’ Mr.\n‘Correspondence from Adam Escamilla to Lawrence Correctional Center Records Office,\nFreedom ofI nformation Officer (April 16, 2014).\n500 South Second Street, Springfield, Hlinois 62706 * (217) 782-1090 * “TU (877) 844-3461 * Pax: (217) 782-7056\n100 West Randoiph Street, Chicago, Hingis 60601 © (312) 814-3000 © ‘TP¥: (80D) 964-3015 © Fax: (312) 814-3806\n1001 East Main, Carbondale, Hinois 62901 © (618) 529-6400 © ‘TTY (877) 675-9339 © Pax: (618) 529-6416 ep\nMr. Adam Escamilla\nMs. Lisa Weitekamp\nOctober 14, 2014\nPage 2\nEscamilla's FOIA request acknowledged that these Directives are available for inspection, during\nscheduled library time, in the library of the correctional center in which he is confined, but he\nasserted that he is entitled to receive photocopies of the requested Directives. In a letter dated\nApril 28, 2014, IDOC denied the request under section 7(1)(e-5) of FOIA (5 ILCS 140/7(1)}{e-5)\n(West 2013 Supp.)),? which exempts from disclosure \"[r]ecords requested by persons committed\nto the Department of Corrections if those materials are available in the library of the correctional\nfacility where the inmate is confined.” IDOC's response asserted that the Directives sought by,\nMr. Escamilla are maintainedi n the library of the correctional facility in which hei s confined.?\nOn June 30, 2014, this office received Mr. Escamilla's Request for Review, dated\nMay 22, 2014, in which he confirmed that he has access to the Directivesi n the Lawrence\nCorrectional Center library and that inmates are permitted to copy those Directives by hand.\"\nHowever, Mr. Escamilla asserted that his access to the Directives had been improperly restricted\nbecause inmates are not permitted to obtain photocopies of records maintained in the prison *\nlibrary.> On July 11, 2014, the Public Access Bureau forwarded a copy of the Requestifor\nReview to IDOC and asked IDOC to provide a detailed response to Mr. Escamilla's assertions.°\nIn a letter dated July 17, 2014, IDOC responded \"[t]he Department can confirm that the records\nrequested by Mr. Escamilla are in fact maintainedi n the library at Lawrence Correctional Center\nand available for review by any inmate housed at Lawrence Correctional Center.* ? IDOC further\nasserted that \"[t]herei s no requirement under Section 7(1\\(e-5) for IDOC to provide an inmate\ncopies of documents maintainedi n the library.\"® In his reply, dated August 3, 2014, Mr.\n*Letter from Lisa Weitekamp, Freedom of Information Officer, Illinois Department of Corrections,\nto Adam Escamilla {April 28, 2014).\n‘Letter from Lisa Weitekamp, Freedom of Information Officer, Illinois Department of Corrections,\nto Adam Escamilla (April 28, 2614),\n“Freedom of Information Act Appeal to Public Access Counselor from Adam Escamilla (May 22,\n2014).\n‘Freedom of Information Act Appeal to Public Access Counselor from Adam Escamilla (May 22,\n2014).\n‘Letter from Timothy O'Brien, Assistant Attomey General, Public Access Bureau, to Lisa\nWeitekamp, Freedom of Information Act Officer, Illinois Department of Corrections Quly 11, 2014).\nLetter from Lisa Weitekamp, Freedom of Information Officer, Illinois Department of Corrections\nto Timothy O'Brien, Assistant Attorney General, Public Access Bureau (July 17, 2014).\n‘Letter from Lisa Weitekamp, Freedom of Information Officer, Illinois Department of Corrections\nto Timothy O'Brien, Assistant Attorney General, Public Access Bureau (luly 17, 2014).\nMr. Adam Escamilla\nMs. Lisa Weitekamp\nOctober 14, 2014\nPage 3\nEscamilla argued that IDOC has not presented clear and convincing evidence that prohibiting\nphotocopies of Administrative Directives complies with the requirements of FOIA!\nOn August 28, 2014, the Public Access Bureau properly extended the time in\nwhich to issue a binding opinion pursuant to section 9.5(f) of FOIA ( ILCS 140/9.5() (West\n2012)).\nANALYSIS\nUnder section 1.2 of FOIA (5 ILCS 140/1.2 (West 2012)), “[a]}] recordsjin ithe\ncustody or possession of a public body are presumed to be open to inspection or copying.”\nSection 3(a) of FOIA provides that \"[e]ach public body shall make available to any person for\ninspection or copying all public records, except as otherwise provided iin Section 7 of this Act.\"\nSection 3(b) of FOIA further provides that \"[s]ubject to the fee provisions of Section 6 of this\nAct, each public body shall promptly provide, to any person who submits a request, a copy of\nany public record required to be disclosed by subsection (a) of this Section[.]\" As noted above,\nhowever, section 7(1){e-5} provides that if “[rJecords requested by persons committed to the\n- Department of Corrections * * * are available in the library of the correctional facility Where the\ninmate is confined,” then the records are “exempt from inspection and copying\" under the\nprovisions of FOIA (see generally 5 ILCS 140/7(1) (West 2013 Supp.)). :\nMr. Escamilla does not dispute that copies of the Administrative Directives in\nquestion are located in the Lawrence Correctional Center library or that he is allowed to inspect\nthe Directives. Rather, Mr. Escamilla contends that the records are not “available,” within the\nmeaning of section 7(1}(e-5) of FOIA, because inmates are not permitted to make or otherwise\nobtain photocopies of records located in the library.!! Therefore, [DOC is obligated to provide\nhim with photocopies of the Administrative Directives under the provisions of FOIA.\n*Letter from Adam Escamilla to Office af Atomey General, State of Illinois, Public Access\nBureau (August 3, 2014).\nLetter from Timothy O'Brien, Assistant Attorney General, Public Access Bureau, to Adam\nEscamilla and Lisa Weitekamp, Freedom of Information Act Officer, lincis Department of Corrections (August 28,\n2014).\n'\"n his Request for Review, Mr. Escamilla specifically states that IDOC allows prisoners to hand\ncopy Administrative Directives. See Freedom of Information Act Appeal to Public Access Counselor from Adam\nEscamilla (May 22, 2014). In his reply to IDOC’s response to the Public Access Bureau inquiry, however, Mr.\nEscamilla argues that IDOC’s response does not confirm or deny that it allows hand copying of records. See Letter\nfrom Adam Escamilla to Office of Attorney General, State of Mlinois, Public Access Bureau (August 3, 2014).\nWhether [DOC permits a prisoner to hand copy records is not material to the resolution of Mr. Escamilla’s Request\nfor Review.\nMr. Adam Escamilla\nMs. Lisa Weitekamp\nOctober 14, 2014\nPage 4\nThe \"fundamental rule of statutory construction is to ascertain and give effect to\nthe legislature's intent.\" Krohe v. City of Bloomington, 204 Ill. 2d 392, 394, 789 N.E.2d 1211,\n1212 (2003). The most reliable indicator of legislative intent is the plain language of the statute.\nKrohe, 204 Ill. 2d at 395, 789 N.E.2d at 1212. The information submitted indicates that Mr.\nEscamilla may inspect the Directives in the prison library. However, it is not clear whether the\nlegislature intended the term \"available\" in section 7(1)(e-5) to mean that an inmate must not\nonly be able to inspect the documents in the library, but also to make or obtain photocopies of\nthose documents. When a statute is susceptible to multiple interpretations, the statute's\nlegislative history can be a valuable aid in determining legislative intent. Advincula v. United\nBlood Services, 176 lll. 2d 1, 19, 678 N.E.2d 1009 (1996).\nDuring the floor debate on House Bill No. 4592 (which, as Public Act 97-783,\neffective July 13, 2012, enacted section 7(1)(e-5) of FOIA), one of the bill's sponsors,\nRepresentative Cunningham, explained the purpose of the legislation as follows:\nThe point of this Bill is that instead of [inmates] filling out a\nFreedom of Information request, submitting it to the warden,\nforcing the warden to take out the state's statute books and make\ncopies of it, they would instead be instructed if that information is\navailable at the library, you can go to the library and access it\nyourself. Remarks of Rep. Cunningham, March 8, 2012, House\nDebate on House Bill No. 4592, at 63-64.\nRepresentative Cunningham stated that “with the * * * exception of employee records [addressed\nin section 7(1)(e-6) of FOIA (see 5 ILCS 140/7(1)((e-6) (West 2013 Supp.))}, this Bill will not\nseal any information from inmates. It will merely force them to go through other means to\nobtain that information than FOIA, like visiting the prison library.\" Remarks of Rep.\nCunningham, March 8, 2012, House Debate on House Bill No. 4592, at 62. The legislative\nhistory of section 7(1)(e-5) further indicates that the amendment was intended to preclude\ninmates from using FOIA to request “information that a trip to the library would yield to them\"\nand would be \"saving the state a great deal of money in regard to time that the department has to\nput in making these copies, distributing these copies, et cetera, et cetera.\" Remarks of Rep.\nMorthland and Rep. Cunningham, March 8, 2012, House Debate on House Bill No. 4592, at 62.\nPrior to the enactment of section 7(1)(e-5), IDOC states that it routinely provided\ncopies of responsive records to inmates who requested them pursuant to FOIA, even if copies of\nthe records were maintained in the libraries of the facilities in which the inmates were\nincarcerated. This practice created an administrative burden on IDOC. See Remarks of Rep.-\nCunningham, March 8, 2012, House Debate on House Bill No, 4592, at 61, 62. The comments\nMr. Adam Escamilla\nMs. Lisa Weitekamp\nOctober 14, 2014\nPage 5\nmade during the House Debate on House Bill Ne. 4592 reveal a clear intent on the part of the\nGeneral Assembly to alleviate this burden by carving out an exception for records that are\navailable in prison libraries, thereby relieving IDOC of the obligation of providing inmates with\nphotocopies of those records. Nothing in the legislative history suggests that the applicability of\nsection 7(1)(e-5) is contingent upon IDOC allowing inmates to obtain photocopies of documents\navailable in prison libraries. To the contrary, the sponsor simply stated that under the\namendment, an inmate would be instructed that he or she could go to the library and access a\ndocument, rather than requesting a copy under FOJA.\nTherefore, for the reasons stated above, this office concludes that the records at\nissue are exempt from disclosure under section 7(1)(e-5) of FOIA because they are available in\nthe library of the correctional facility in which Mr. Escamilla is confined, and that [DOC is not\nrequired by section 7(1}(e-5) to allow Mr. Escamilla to make photocopies of the records or to\nfurnish photocopies to him. Accordingly, IDOC's denial of photocopies of the records requested\nby Mr. Escamilla did not violate FOIA.\nFINDINGS AND CONCLUSIONS\n1) On April 16, 2014, Mr. Adam Escamilla submitted a FOIA request to the\nIllinois Department of Corrections seeking copies of several IDOC Administrative Directives.\n2) On April 28, 2014, IDOC denied the request citing section 7(1}(e-5) of FOIA,\nwhich exempts from disclosure \"[rlecords requested by persons committed to the Department of\nCorrections if those materials are available in the library of the correctional facility where the\ninmate is confined.\"\n3) On June 30, 2014, the Public Access Counselor received Mr. Escamilla's\nRequest for Review, dated May 22, 2014. Because Mr. Escamilla's Request for Review is\npostmarked June 25, 2014, it was timely filed and otherwise complies with the requirements of\nsection 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2012)).\n4) On July 11, 2014, the Public Access Bureau sent a copy of the Request for\nReview to IDOC and requested a detailed explanation of its response to Mr. Escamilla's. April 16,\n2014, FOIA request.\n5) On July 17, 2014, IDOC responded that it properly denied Mr. Escamilla's\nFOIA request under section 7(1)(e-5) of FOIA, and that it is not required under FOIA to provide\nan inmate with photocopies of records that are available for inspection in the library of the\ncorrectional facility in which the inmate is confined.\nMr. Adam Escamilla\nMs. Lisa Weitekamp\nOctober 14, 2014\nPage 6\ni ‘\n6) On August 28, 2014, the Public Access Bureau properly extended the time in\nwhich to issue a binding opinion pursuant to section 9.5(f) of FOIA, to October 14, 2014.\nTherefore, the Attorney General may properly issue a binding opinion with respect to this matter.\n7) The legislative history of section 7(1)(e-5)of FOIA indicates that the General\nAssembly intended for that provision to ease the administrative burden associated with] requiring\nIDOC to furnish inmates with copies of records that are available for inspection in the libraries of\nthe facilities in which the inmates are confined. Nothing in its legislative history suggests that\nsection 7(1)(e-5) was intended to apply only if IDOC allowed inmates to photocopy those\nrecords. Therefore, records are \"available,\" within the meaning of that term in section 7AY(e- 5)\nof FOIA, if an inmate has access to inspect the recordsin the library of the prison in which he or\nshei s confined. IDOCi s not required to permit the inmate to make photocopies of documents\nthat are available for inspection in the library or to furnish an inmate with copies of those records\nin order for section 7(1 (e-5) to apply.\n8) Because it is undisputed that the records Mr. Escamilla requested were\navailable for inspection in the library of the facility in which he was confined, [DOC has\nsustained its burden of demonstrating that those records are exempt from disclosure under\nsection 7(1)(e-5) of FOIA.\nTherefore, it is the opinion of the Attorney General that IDOC properly denied\nMr. Escamilla's FOIA request. This opinion shall be considered a final decision of an\n‘administrative agency for the purposes of administrative review under the Administrative\nReview Law. 735 ILCS 5/3-101 ef seg. (West 2012). An aggrieved party may obtain judicial\nreview of the decision by filing a complaint for administrative review in the Circuit Court of\nCook or Sangamon County within 35 days of the date of this decision naming the Attorney\nGeneral of Illinois and the Illinois Department of Corrections as defendants. See 5 ILCS\n140/11.5 (West 2012).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nBy: Letweceirt{ Make\nMichael J. Luke\nCounsel to the Attorney General\nMr. Adam Escamilla\nMs. Lisa Weitekamp\nOctober 14, 2014\nPage 7\ncc: Mr. William Barnes\nChief Legal Counsel\nHlinois Department of Corrections\n100 West Randolph Street\nSuite 4-200\nChicago, Illinois 60601","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"An inmate requested photocopies of prison administrative directives that were already available for him to read in the prison library. The Illinois Attorney General's office ruled that the Illinois Department of Corrections did not violate the Freedom of Information Act by denying the request for copies, because the records were available in the facility's library. This decision applies specifically to records requested by persons committed to the Department of Corrections under section 7(1)(e-5) of FOIA, not to all public bodies or the general public.","card_headline":"Administrative directives available for inspection in a prison library","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":46,"orig_master_id":19019,"dup_master_id":19249,"dup_sha256":"dde4169d57916b4980b1b9143f80a5619ac04eaa563025ec777e4a2a1121266e","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2014,"date_issued":"2014-07-23","case_number":"2014 PAC 30994","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 14-014 (Request for Review - 2014 PAC 30994).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 14-014 (Request for Review - 2014 PAC 30994).pdf","word_count":1698,"summary":"The Honorable Eric J. Kellogg and Mayor of Harvey, Illinois, received a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) The opinion concludes that the City of Harvey violated section 3(d) of FOIA (5 ILCS 140/9.5) (West 2012)","plain_summary":"The requester, a newspaper reporter, submitted a records request to the city government seeking permit, licensing, and inspection records related to a specific business entity. The city government never responded—did not comply with, extend the time for, or deny the request within five business days, and did not even respond to the Public Access Bureau's inquiries during the review process. The PAC held that under the Freedom of Information Act, a public body's failure to timely respond is itself treated as a denial, and ordered the city government to produce the responsive records (with only permissible redactions) and to respond promptly to future requests. Because the city government failed to respond within the required timeframe, it was also barred from charging copying fees or claiming the request was unduly burdensome.","holding":"The City of Harvey violated section 3(d) of FOIA by failing to respond to the requester's FOIA request within the required five business days.","legal_question":"Whether a public body violates section 3(d) of FOIA by failing to provide a timely response to a FOIA request within five business days.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 1460/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Harvey","requesting_party":"Walberg","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"FOIA response","subject_description":"The request sought records pertaining to an entity known as Comprehensive Health Agency Nurturing Guest Enervation (CHANGE).","ocr_status":"ok","ocr_quality":90.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2014-Binding-PAC-Opinions/14-014.pdf","sha256":"bb3e187d05b2a48608c7d47c4aaeb5223e053e759204419136cf7cf5d1883e59","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA response","failure to respond","City of Harvey","copying fees"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL November 20, 2014 PUBLIC ACCESS OPINION 14-014 (Request for Review 2014 PAC 30994) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Matthew L. Walberg Reporter Chicago Tribune 3 Westbrook Corporate Center, Suite 800 Westchester, Illinois 60154 The Honorable Eric J. Kellogg Mayor, City of Harvey 15320 Broadway Avenue Harvey, Hlinois 60426 Dear Mr. Walberg and Mayor Kellogg: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2012)). For the reasons discussed below, this office concludes that the City of Harvey (City) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2012)) by failing either to comply with, to deny, or to otherwise appropriately respond to a FOIA request submitted by Mr. Matthew L. Walberg, Chicago Tribune reporter, within five business days following its receipt. BACKGROUND On July 23, 2014, Mr. Walberg submitted a FOIA request to the City via an e- mail to Deputy City Clerk Cheryl Anderson, seeking records pertaining to “an entity known as CHANGE lilinois (hereinafter referred to as CHANGE), which is alternately known as 500 South Second Street, Springfield, Hineis 62706 * (217) 782-1090 * IVY. (877) 844-5401 * Fas: 217) 782-7046 100 West Randotph Street, Chicago, Hingis 60601 = (312) 814-3000 * “PPY: (800) 964-3015 * Fax: (312) $14-3806 1001 Hast Main. Carbondale, HHinnis 62801 © (G18) 529-6400 * “ITY: (877) 675-9339 * Fax: (618) 529-6416 ‘

On March 5, 2015, the City denied Ms. Herrera's request pursuant to section\n7(1\\(c) of FOIA, stating that, “{t]he resolution of this matter was subject to a confidential\nsettlement agreement signed by the parties involved.\"*\nOn March 6, 2015, the Public Access Bureau received Ms. Herrera's Request for\nReview of the City's denial of her FOIA request.’ On March 17, 2015, the Public Access Bureau\nforwarded a copy of Ms. Herrera's Request for Review to the City and requested “a written\nexplanation of the factual and legal bases for your assertion of section 7(1)(c) of FOIA, along\n‘Letter from Steven J. Molitor, Jr., Associate Attorney, The Law Office of Julie O. Herrera, to\nFOIA Officer, City Clerk's Office (February 13, 2015).\n*L etter from Jennifer Coles, City of Markham, FOIA Officer, City Clerk, to Steven J. Molitor, Jr.,\nLaw Office of Julie O. Herrera (February 20, 2015).\n[FOIA-Request for Review by Public Access Counselor signed by Steven Molitor, Jr. (February\n23, 2015) (2015 PAC 33753).\n“HL. Att'y Gen. Req. Rev. Ltr. 33753, issued February 27, 2015.\n‘E-mail from Julie O. Herrera, Law Office of Julie O. Herrera, to cmurphy@cityofmarkhanmet\n(February 26, 2015).\n‘Letter from Jennifer Coles, City of Markham, FOIA Officer, City Clerk, to Julie O. Herrera, Law\nOffice of Julie O. Herrera (March 5, 2015).\n\"E-mail from Julie O. Herrera, Law Office of Julie O. Herrera to Public Access Counselor (March\n6, 2015).\nMs. Julie O. Herrera\nMs. Jennifer Coles\nJune 17, 2015\nPage 3\nwith unredacted copies of the responsive records for our confidential review.”* On March 27,\n2015, the City sent a response to this office, which included a copy of the settlement agreement it\nhad withheld and a document indicating that the Plaintiff had received the settlement check. The\nCity's written response in support of the applicability of section 7(1)(c) of FOIA stated:\nThe City of Markham cited disclosure of the settlement agreement\nand amount paid as a violation of privacy, due to the nondisclosure\nagreement that was included as a portion of the settlement\nagreement. This agreement was reached with a current employee\nof the City who believes her privacy will be violated by violating\nthe agreement she entered into with the City. Her concern is the\npossible release of information that she thought was confidential\nand a case that was complete at the time of her signing will be\ndisseminated, not only amongst the public but amongst her\ncoworkers possibly causing an uncomfortable work environment.”\nThe City’s response letter was forwarded to Ms. Herrera on April 6, 2015, and she\ndid not reply.’ On May 4, 2015, this office properly extended the time within which to issue a\nbinding opinion by 30 business days pursuant to section 9.5(f) of FOIA.\"'\nANALYSIS\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2012). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2012), as amended by\nPublic Act 98-1129, effective December 3, 2014) provides that: “[e]ach public body shall make\navailable to any person for inspection or copying all public records, except as otherwise provided\nin Sections 7 and 8.5 of this Act.\" The exemptions from disclosure contained in section 7 of\nFOIA (5 ILCS 1460/7 (West 2013 Supp.), as amended by Public Act 98-695, effective July 3,\nSLetter from Benjamin Reed, Assistant Attorney General, Public Access Bureau, to Jennifer Coles,\nFOIA Officer, City of Markham (March 17, 2015), at 1.\nLetter from Jennifer Coles, City of Markham, FOIA Officer, City Clerk, to Benjamin Reed,\nAssistant Attorney General, Office of the Attomey General (March 27, 2015).\n‘1 etter from Benjamin J. Reed, Assistant Attorney General, Public Access Bureau, to Jute\nHerrera, Esquire (April 6, 2015).\n\"Letter from Benjamin Reed, Assistant Attorney General, Public Access Bureau, to Julie O.\nHerrera, Law Office of Julie O. Herrera, and Jennifer Coles, FOIA Officer, City of Markham (May 4, 2015).\nMs. Julie O. Herrera\nMs. Jennifer Coles\nJune 17, 2015\nPage 4\n2014) are to be narrowly construed. Lieber v. Board of Trustees of Southern Hlinois University,\n176 IN. 2d 401, 407 (1997).\nSection 2.20 of FOIA\nSection 2.20 of FOIA G ILCS 140/2.20 (West 2012)) expressly provides that\n\"{alil settlement agreements entered into by or on behalf of a public body are public records\nsubject to inspection and copying by the public, provided that information exempt from\ndisclosure under Section 7 of [FOIA] may be redacted.” The City asserts, however, that\ndisclosure of the requested settlement agreement and related records would violate the\nconfidentiality provision contained in the agreement entered into by the parties.\nUnder the plain language of the confidentiality provision, however, only the\nPlaintiff is obligated not to disclose the terms of the settlement agreement. The terms of the\nconfidentiality provision de not impose a concomitant obligation on the City. Furthermore, even\nif the confidentiality provision did purport to impose such a duty on the City, the agreement\n“would not be enforceable:\nSection 2.20 of FOIA specifically provides that all settlement\nagreements entered into by or on behalf of a public body are public\nrecords subject to inspection and copying by the public. Because\nconfidentiality provisions in settlement agreements entered into by\npublic bodies are contrary to the specific language of section 2.20\nand the legislative intent underlying that section, this office finds\nthat the confidentiality provisions in the settlement agreements are\nnot enforceable[.] II. Att'y Gen. Pub. Acc. Op. No. 14-004, issued\nMay 9, 2014, at 9-10.\nAccordingly, the confidentiality provision in the settlement agreement in question\ndoes not authorize the City to withhold the agreement.\nSection 7(1)(c) of FOIA\nThe City cited section 7(1)(c) of FOIA as its basis for withholding the settlement\nagreement and related documents. Section 7(1)(c) exempts from inspection or copying:\nPersonal information contained within public records, the\ndisclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to\nin writing by the individual subjects of the information.\nMs. Julie O. Herrera\nMs. Jennifer Coles\nJune 17, 2015\nPage 5\n\"Unwarranted invasion of personal privacy\" means the disclosure\nof information that is highly personal or objectionable to a\nreasonable person and in which the subject's right to privacy\noutweighs any legitimate public interest in obtaining the\ninformation. The disclosure of information that bears on the\npublic duties ofp ublic employees and officials shall not be\nconsidered an invasion ofp ersonal privacy. (Emphasis added.)\nSpecifically, the City has asserted that disclosure of the agreement and the amount\nof the settlement would violate the privacy of the Plaintiff because she entered into the\nagreement in the belief that it would remain confidential. The fact that a person anticipates that a\nspecific record will not be disclosed does not mean that its disclosure constitutes a violation of\npersonal privacy. The Plaintiff's concerns that the disclosure of the responsive records to\nmembers of the public, including her coworkers, could lead to an uncomfortable work\nenvironment fall far short of demonstrating that the Plaintiff's expectation of privacy “outweighs\nany legitimate public interest in obtaining the information.”\nMoreover, it is significant that the settlement agreement is predicated upon the\ndismissal of a lawsuit alleging that the Plaintiff's civil rights were violated by a pretextual\ndischarge from the City’s Police Department. Because the allegations leading to the settlement\nagreement related directly to the Plaintiff's public duties as an employee of the City, under the\nplain language of section 7(1){(c) disclosure of this information \"shall not be considered an\ninvasion of personal privacy.”\nFurther, article VIL, section 1(c) of the Iinois Constitution of 1970 provides that\n\"records of the obligation, receipt and use of public funds of the State, units of local government\nand school districts are public records available for inspection by the public according to law.\"\nThe constitutional right to information regarding the use of public funds is incorporated into the\nprovisions of FOIA, as well. See 5 ILCS 140/2.5 (West 2012) (\"[alll records relating to the\nobligation, receipt, and use of public funds of the State, units of local government, and school\ndistricts are public records subject to inspection and copying by the public.”). The public has a\nright to know the purposes for which public funds are expended, including the identity of those\nwho receive the funds and the amount of funds received. Thus, even assuming that disclosure of\nthe records in question could be considered an invasion of the Plaintiff's personal privacy, in\nview of the strong countervailing interest of the public in information concerning the use of\npublic funds, the disclosure would not be \"unwarranted.\"\nThe City has not identified a personal privacy interest in the disclosure of these\nrecords that outweighs the public's interest in information concerning the payment of public\nfunds by or on behalf of the City to settle this complaint. Accordingly, the City has not sustained\nMs. Julie O. Herrera\nMs. Jennifer Coles\nJune 17, 2015\nPage 6\nits burden of demonstrating that the settlement agreement is exempt from disclosure pursuant to\nsection 7(1)(c) of FOIA.\nIncomplete FOIA Response\nIn addition to the settlement agreement, Ms. Herrera’s February 26, 2015, FOIA\nrequest sought \"any other document related to said settlement, and any document related to a\nvote by the City Council to authorize said payment.”'? The City’s March 5, 2015, denial of the\nFOIA request stated that it was denying the request for the settlement agreement “as well as any\nother document related to said settlement[.]\"'? The City's response did not indicate whether the\nCity searched for and identified responsive records other than the settlement agreement. Section\n3(b) of FOIA (5 ILCS 146/3(b) (West 2012), as amended by Public Act 98-1129, effective\nDecember 3, 2014) provides that “each public body shall promptly provide, to any person who\nsubmits a request, a copy of any public record required to be disclosed[.]\"\nOn March 17, 2015, this office asked the City to submit unredacted copies of .\nresponsive records for our confidential review. The City provided only the settlement agreement\nand the record acknowledging receipt of the settlement proceeds. The City did not provide\nrecords responsive to the two additional portions of the FOIA request, and it did not address\nwhether it possessed records responsive to those portions of the request. Under FOIA, a public\nbody is required to conduct a \"reasonable search tailored to the nature of a particular request.\"\nCampbell v. United States Dep't ofJ ustice, 164 F.3d 20, 28 (D.C. Cir. 1998). A public body's\nsearch must be \"reasonably calculated to uncover all relevant documents.\" Weisberg v.\nDepartment of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). A public body is not required to\n\"search every record system[,]” but it \"cannot limit its search to only one record system if there\nare others that are likely to turn up the requested information.\" Oglesby v. United States Dep't of\nthe Army, 920 F.2d 57, 68 (C.A.D.C. 1990). Accordingly, the City is directed to determine\nwhether it possesses any additional records responsive to Ms. Herrera’s FOIA request and to\nrespond to that portion of her request in compliance with the requirements of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\nYE_mail from Julie O. Herrera, Law Office of Julie O. Herrera, to cmurphy@cityofmarkham.net\n(February 26, 2015). ;\n‘SLetter from Jennifer Coles, FOIA Officer, City Clerk, City of Markham, to Julie O. Herrera, Law\nOffice of Julie O. Herrera (March 5, 2015}.\nMs. Julie O. Herrera\nMs. Jennifer Coles\nJune 17, 2015\nPage 7\n1) On February 26, 2015, Ms. Julie O. Herrera submitted a FOIA request to the\nCity of Markham seeking \"the settlement agreement entered into to resolve Case No. 12-cv-4003\n(between the City of Markham and [Plaintiff]), any other document related to said settlement,\nand any document related to a vote by the City Council to authorize said payment.”\n2) On March 5, 2015, the City denied this request pursuant to section 7(1){c) of\nFOIA, stating that, \"[t]he resolution of this matter was subject to a confidential settlement\nagreement signed by the parties involved.\"\n3) On March 6, 2015, Ms. Herrera submitted a Request for Review to the Public\nAccess Counselor that was received on the same day, disputing the denial of her FOLA request.\nThe Request for Review was timely filed and otherwise complies with section 9.5(a) of FOIA (5\nILCS 140/9.5(a) (West 2012), as amended by Public Act 98-1129, effective December 3, 2014).\n4) On March 17, 2015, the Public Access Bureau forwarded a copy of Ms.\nHerrera's Request for Review to the City and requested a written explanation of the factual and\nlegal bases for its assertion of section 7(1)(c) of FOIA, along with unredacted copies of the\nresponsive records for our confidential review.\n5) On March 27, 2015, the City sent a written response to this office, which\nincluded a copy of the settlement agreement it had withheld and a record indicating that Plaintiff\nhad received her settlement check.\n6) On May 4, 2015, this office properly extended the time to issue a binding\nopinion by 30 business days to June 17, 2015, pursuant to section 9.5(f) of FOIA. Therefore, the\nAttorney General may properly issue a binding opinion with respect to this matter.\n7) As the confidentiality provision in the settlement agreement is written, its\nterms do not apply to the City and, thus, do not allow the City to withhold the agreement.\n8) Even assuming that confidentiality provision applies to the City, however, the\nCity has violated section 2.20 of FOIA, which specifically provides that all settlement\nagreements entered into by or on behalf of a public body are public records subject to inspection\nand copying by the public.\n9) Further, the requested records directly relate to the City's use of public funds\nand therefore are expressly subject to disclosure pursuant to section 2.5 of FOIA and article VII,\nsection 1(c) of the Illinois Constitution of 1970.\nMs. Julie O. Herrera\nMs. Jennifer Coles\nJune 17, 2015\nPage 8\n10) The has City failed to meet its burden of demonstrating that the settlement\nagreement and related records are exempt from disclosure pursuant to section 7(1)(c) of FOIA.\nBecause these records directly bear on Plaintiff's public duties, disclosure would not be\nconsidered an unwarranted invasion of her privacy under the plain language of the exemption.\n11} The City's response to Ms. Herrera's FOIA request was incomplete, in\nviolation of section 3 of FOIA, because it did nat address whether the city conducted a search to\nlocate other records related to the settlement agreement or approval of the settlement by the City\nCouncil.\nTherefore, it is the opinion of the Attorney General that the City has improperly\ndenied Ms. Herrera's Freedom of Information Act request in violation of the requirements of the\nAct. Accordingly, the City is directed to take immediate action to comply with this binding\nopinion by disclosing the requested settlement agreement and the related document to Ms.\nHerrera, subject only to permissible redactions of signatures under section 7(1}(b) of FOIA (5\nILCS 140/701 )(b) (West 2013 Supp.), as amended by Public Act 98-695, effective July 3, 2014).\nIn addition, the City shall conduct a reasonable search for additional records responsive to the\nFOIA request, and provide those records to Ms. Herrera as required by FOIA. The City is\nfurther directed to provide the Public Access Bureau with a complete copy of its response to Ms.\nHerrera. :\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seg. (West 2012). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Ms. Julie O. Herrera\nas defendants. See 5 ILCS 140/11.5 (West 2012).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nBy:\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A law firm requested a copy of a settlement agreement from the City of Markham, but the City refused to provide it, claiming it was private. The Illinois Attorney General's office reviewed the case and ruled that the City was wrong to withhold the document, ordering them to release the settlement agreement to the requester.","card_headline":"A settlement agreement in a federal lawsuit","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":53,"orig_master_id":19254,"dup_master_id":19026,"dup_sha256":"d21fc782c695c1b98b197b16dc12288e0232ee755efae90d7179968bcc3d42c9","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2015,"date_issued":"2015-01-23","case_number":"2014 PAC 31746","request_numbers":null,"title":"Home Rule Ordinance Does Not Supersede FOIA; Negotiated Terms of Contracts with Public Bodies Do Not Constitute Trade Secrets; Correspondence With Third Parties Is Not Part of A Public Body's Deliberative Process","filename":"PUBLIC ACCESS OPINION 15-002 (Request for Review - 2014 PAC 31746).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 15-002 (Request for Review - 2014 PAC 31746).pdf","word_count":6169,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request made by Ms. Stacy St. Clair of the Chicago Tribune to the Village of Rosemont for documents related to a concert event.","plain_summary":"The requester, a journalist, sought records related to a touring musician's concerts at a village-owned entertainment venue, including contracts, correspondence, and financial terms with the concert promoter, and the village government withheld ticket-pricing emails and rental/revenue figures, citing the deliberative-process and trade-secret exemptions and, later, a home-rule ordinance it passed after the request was denied. The Public Access Counselor held that the village's ordinance could not override FOIA because regulating access to public records is a matter of statewide, not local, concern, that the financial terms of the venue's contracts were expressly subject to disclosure as records of the village's use of public funds, and that emails with the promoter did not qualify as deliberative because they were exchanged with an outside party representing independent interests. The village government was directed to produce the contracts, invoices, and emails, redacting only limited private information.","holding":"The Village of Rosemont violated FOIA by partially denying the request for documents.","legal_question":"Does a home rule ordinance supersede FOIA, and do negotiated terms of contracts with public bodies constitute trade secrets?","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(g)","7(1)(f)","7(1)(b)"],"public_body":"Village of Rosemont","requesting_party":"Ms. Stacy St. Clair (Chicago Tribune)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(g)","subject_description":"The request sought contracts and related correspondence concerning a concert event held at a public arena.","ocr_status":"ok","ocr_quality":88.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2015-Binding-PAC-Opinions/15-002.pdf","sha256":"f6fe3af9f552113feacef5d5bc3191d7b9c95ff68fa5000e18219cc96034dc7c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["trade secrets","home rule","public contracts","FOIA","deliberative process"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n: STATE OF ILLINOIS\nLisa Madigan\nAVPORNEY GENERAL\nJanuary 23, 2015\nPublic Access Opinion 15-002\n(Request for Review — 2014 PAC 31746)\nFREEDOM OF INFORMATION ACT:\nHome Rule Ordinance Does Not Supersede FOIA;\nNegotiated Terms of Contracts with Public Bodies\nDo Not Constitute Trade Secrets; Correspondence\nWith Third Parties Is Not Part of A Public Body's\nDeliberative Process\nMs. Stacy St. Clair\nChicago Tribune\n[street address redacted for site publication -- see original PDF]\nMs. Debbie Drehobi\nVillage Clerk\nVillage of Rosemont\n9501 W. Devon Avenue\nRosemont, Illinois 60018\nDear Ms. St. Clair and Ms. Drehobl:\n; This is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/0.5(f) (West 2012), as amended by\nPublic Act 98-1129, effective December 3, 2014). For the reasons discussed below, this office\nconcludes that the Village of Rosemont (Village) violated the requirements of FOIA by denying,\nin part, Ms. Stacy St. Clair's request for copies of certain Village contracts and related\ncorrespondence with a third party who represented independent interests.\n500 South Second Street, Springfield, Winais 62706 * (217) 782-1090 * ¥: (877) 844-546] * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Hlinois 60601 * (412) 814-3000 + TTY: (800) 964-3013 © Fax: 1312} 814-3806\n601 South University Avenue, Suite 102, Carbondale, linois 62901 * (618) 529-6400 © TT (877) BTS O7RG 6 Baw (AFON £90 CANE —.\nMs. Stacy St. Clair\nMs. Debbie Drehobl\nJanuary 23, 2015\nPage 2\nBACKGROUND\nOn behalf of the Chicago Tribune, Ms. St. Clair submitted an undated FOIA\nrequest to the Village seeking “all documents related to singer Garth Brooks[\"] appearance at the\nAll State [sic] Arena.\"' The Allstate Arena \"is an arena-sized entertainment venue owned and\noperated by the Village of Rosemont,\"? Ms. St. Clair's request included, but was not limited to:\n* .All contracts between the arena/city and any of the\nfollowing: Mr. Brooks, Mr. Brooks’ representatives, Ben\nFarrell, Aiken Productions and/or Varnell Enterprises[.]\nAll contracts related to Mr. Brooks’ appearance.\nAll correspondence between the arena/city and any of the\nfollowing: Mr. Brooks, Mr. Brooks’ representatives, Ben\nFarrell, Aiken Productions and/or Varnell Enterprises[.]\n* Any emails sent by city/arena employees to : Mr. Brooks,\nMr. Brooks' representatives, Ben Farrell and/or Varnell\nEnterprises[.]\ne Any emails received by city/arena officials from: Mr.\nBrooks, Mr. Brooks' representatives, Ben Farrell, Aiken\nProductions and/or Varnell Enterprises[.]\n« Any contracts or written agreements mentioning Trisha\nYearwood].]\n* All expenses incurred in connection to Mr. Brooks’\nconcerts and or marketing the venue to Mr. Brooks or his\nrepresentatives.\n« All documents — including, but not limited to, emails and\nmemorandum ~ sent or received by Mayor Stephens, Pat\nNagle and/or village trustees that mention Mr. Brooks, his\nrepresentatives, his tour or his Rosemont concerts. ©!\n'FOIA request from Stacy St. Clair to Debbie Drehobl, Rosemont Village Hall (undated).\n\"Letter from Peter Coblentz, Rosenthal, Murphey, Coblentz & Donahue, to Josh Jones, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (November 7, 2014), at 1.\nJEOLA request from Stacy St. Clair to Debbie Drehobl, Rosemont Village Hall (undated).\nMs. Stacy St. Clair\nMs. Debbie Drehobi\nJanuary 23, 2015\nPage 3\nOn October 6, 2014, the Village provided Ms. St. Clair with some responsive\nrecords.’ However, the Village redacted certain financial information from the documents\nprovided and withheld other records, citing as its bases sections 7(1)(b), 711 )(D, and 7(1\\(g) of\nFOIA (5 ILCS 140/7()b), (DH, (1)(g) (West 2013 Supp.), as amended by Public Act 98-695,\neffective July 3, 2014). Specifically, the Village withheld “emails in which ticket pricing for the\nGarth Brooks concerts was being formulated and decided\"? pursuant to section 7(1)(H of FOIA,\nwhich exempts from disclosure \"[p]reliminary drafts, notes, recommendations, memoranda and\nother records in which opinions are expressed, or policies or actions are formulated[.]” The\nVillage also redacted rental amounts from the contract and other records it provided pursuant to\nsection 7(1)(g) of FOIA, which exempts from disclosure certain trade secrets and commercial or\nfinancial information. The Village's response stated:\n{t]he amounts that were to be paid as rent for use of the Allstate\nArena for presentation of the Garth Brook's [sic] concerts, and\namounts to be rebated to the concert promoter for each show\npresented at the Allstate Arena, have been redacted from the\ncontract for the concerts and from the settlement statement. * * *\n{T]his information is considered to be highly sensitive commercial\nor financial information, the disclosure [of] which would cause\nsubstantial competitive harm to the Allstate Arena's concert\nbusiness where it competes with privately owned venues, and to\nthe competitive and proprietary interests of the artist and\npromoter!\nIn addition, the Village's response stated that personal telephone numbers and e-mail addresses\nwere redacted from the records pursuant to section 7(1)(b) of FOIA.’\n‘Letter from Peter Coblentz, Rosenthal, Murphey, Coblentz & Donahue, to Stacy St. Clair,\nChicago Tribune (October 6, 2014), at 1.\n‘Letter from Peter Coblentz, Rosenthal, Murphey, Coblentz & Donahue, to Stacy St. Clair,\nChicago Tribune (October 6, 2014), at 1.\n‘Letter from Peter Cablentz, Rosenthal, Murphey, Coblentz & Donahue, to Stacy St. Clair,\nChicago Tribune (October 6, 2014}, at 1.\n’ \"Letter from Peter Coblentz, Rosenthal, Murphey, Coblent&z Donahue, to Stacy St. Clair,\nChicago Tribune (October 6, 2014), at 1.\nMs. Stacy St. Clair\nMs. Debbie Drehobi\nJanuary 23, 2015\nPage 4\nOn October 10, 2014, the Public Access Bureau received Ms. St. Clair's Request\nfor Review in which she disputed the Village's bases for its partial denial of her FOIA request.*\nMs. St. Clair alleged that: (1} the responsive records should include hospitality-related riders; (2)\nfactual information contained in e-mails was impermissibly withheld under section 7(1)(f); and\n(3) section 7(1)(g) is inapplicable to the information redacted from public contracts.’ Ms. St.\nClair contended, “[jJust like in any public contract, the public has the right to see figures that\ncould shed light on whether the village cut a good deal or bad deal. The public cannot judge the\neffectiveness of its leaders without these most basic of details.\"””\nOn October 21, 2014, the Public Access Bureau sent a copy of the Request for\nReview to the Village's attorney and requested unredacted copies of the records at issue for this\noffice's confidential review, together with a detailed explanation of the factual and legal bases for\nasserting the cited exemptions.'' The Village, through its attorney, furnished those materials on\nNovember 7, 2014, noting that its assertion of section 7(1)(b) was uncontested by Ms. St. Clair,\nand reiterating its position that the other information that it redacted or withheld is exempt from\ndisclosure pursuant to sections 7(1)(f} or 7(1)(g) of FOIA.”\nAdditionally, with regard to questions regarding the completeness of its response,\nthe Village stated that \"[t]here was no hospitality-related rider to the * * * Allstate Arena License\nAgreement * * * that could be produced to the requester because the artist ultimately decided to\nuse his own caterer for such backstage hospitality items.”’? The Village also furnished an\naffidavit from Mr. Patrick Nagle, General Manager of the Allstate Arena, asserting that Allstate\nArena's competitive position will be harmed if it is compelled to disclose the financial terms of\nits agreements, as will the \"taxpayers and citizens of the Village of Rosemont, and the local\n*E-mail from Stacy St. Clair, Chicago Tribune, to Sarah Pratt, Public Access Counselor, Office of\nthe Attorney General (October 16, 2014).\n°E-mail from Stacy St. Clair, Chicago Tribune, to Sarah Pratt, Public Access Counselor, Office of\nthe Attorney General (October 10, 2014).\n‘mail from Stacy St. Clair, Chicago Tribune, to Sarah Pratt, Public Access Counselor, Office of\nthe Attorney General (October 10, 2014). .\n\"Letter from Josh Jones, Assistant Attomey General, Public Access Bureau, to Pete Coblentz,\nRosenthal, Murphey, Coblentz & Donahue, Law Offices (October 21, 2014).\n\"21e tter from Peter Coblentz, Rosenthal, Murphey, Coblentz & Donahue, to Josh Jones, Assistant\nAttorney General, Public Access Bureau, Office of the Attomey General (November 7, 2014).\n“Letter from Peter Coblentz, Rosenthal, Murphey, Coblentz & Donahue, to Josh Jones, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (November 7, 2014), at 6.\nMs. Stacy St. Clair\nMs. Debbie Drehobi\nJanuary 23, 2015\nPage 5\nbusinesses that enjoy increased economic activity as a result of the acts booked at the Allstate\nArenaf.J\" Nagle Aff. §99-11.\nOn November 10, 2014, this office sent a copy of the Village's response to Ms. St.\nClair.'* On November 14, 2014, this office received Ms. St. Clair's reply. In addition to\nmaintaining her contention that the Village had improperly asserted sections 7(1}\\(f and 7(1)(g),\nMs. St. Clair also questioned the Village's assertion that it does not possess hospitality-related\nriders, alleging that the Village's attorney had told her in an earlier telephone conversation that a\nrider was included in the responsive records and “that [she] must have overlooked it.\"\nOn November 20, 2014, this office réceived a supplemental response in which\nthe Village asserted that:\nthe redacted and withheld confidential financial or proprietary\ninformation] ] that is the subject of this Request for Review is\nexempt from disclosure pursuant to Village of Rosemont\nOrdinance No. 2014-11-12, which was adopted on November 12,\n2014 by the Board of Trustees of the Villagoef Rosemont pursuant\nto the Village's home rule authority under Article VII, Section 6(a)\nof the Inois Constitution!\"\nThis office sent a copy of the Village’s supplemental response to Ms. St. Clair on November 26,\n2014.'7 On December 5, 2014, this office received a reply from Daniel M. Feeney of Miller\nShakman & Beem LLP, on behalf of Ms. St. Clair and the Chicago Tribune Company.'* Mr.\n‘4 etter from Joshua M. Jones, Assistant Attomey General, Public Access Bureau, to Stacy St.\nClair, Chicago Tribune (November 10, 2014). Ms. St. Clair did not receive the November 10, 2014,\ncorrespondence from the Office of the Attorney General. She was e-mailed 2 copy of the November 10, 2014, letter\nand the Village's response on November 13, 2014. See e-mail from Josh Jones, Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General, to Stacy St. Clair, Chicago Tribune (November 13, 2014).\n‘E-mail from Stacy St. Clair, Chicago Tribune, to Josh Jones, Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General (November 14, 2014). .\n'SL etter from Peter Coblentz, Resenthal, Murphey, Coblentz & Donahue,to Joshua Jones,\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General (November 20, 2014).\n\"Letter from Joshua M. Jones, Assistant Attorney General, Public Access Bureau, to Stacy St.\nClair, Chicago Tribune (November 26, 2014).\n\"'Letter from Daniel M. Feeney, Miller, Shakman & Beem LLP, to Joshua M. Jones, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (December 5, 2014),\nMs. Stacy St. Clair\nMs. Debbie Drehobl\nJanuary 23, 2015\nPage 6\nFeeney argued that the Village's \"position that home rule authorities have the power to carve out\ntheir own exemptions to the FOIA statute as they see fit * * * would eviscerate the statute and\nwholly undermine the vital public policy it seeks to protect of assuring transparent and\naccountable government throughout the state.”?\nOn December 5, 2014, the Public Access Bureau properly extended the time in\nwhich to issue a binding opinion pursuant to section 9.5(f} of FOTA (3 ILCS 146/9.5() (West\n2012), as amended by Public Act 98-1129, effective December 3, 2014).\nANALYSIS\nResemont Ordinance No. 2014-11-12\nAfter this Request for Review was filed and a further inquiry letter was sent by\nthis office to the Village, the Village adopted an ordinance purporting to exempt from disclosure\nthe type of financial information that it withheld in this matter. The Village asserts that Village\nof Rosemont Ordinance No. 2014-11-12 (Ordinance) exempts from disclosure “the amount of\nmoney paid as rent to secure the use of the Allstate Arena for the Garth Brooks concert events”\nand \"the amount paid by the Village as a revenue rebate to the promoter of the Garth Brooks\nconcert series.\"”! Section 3 of the Ordinance provides:\nNotwithstanding the provision of any non-pre-emptive state\nlaw, including but not limited to the Illinois Freedom of\nInformation Act, no officer or employee of the Village of\nRosemont shall knowingly disclose confidential financial or\nproprietary information relating to any Amusement Event held or\nto be held at an Entertainment Venue. Confidential financial or\nproprietary information relating to an Amusement Event held at an\nEntertainment Venue may be disclosed by the Director of\nEntertainment Facilities or by the Mayor of the Village if they\ndetermine that the disclosure of such information will not cause\nsubstantial harm to the competitive position of the Village or its\n“Letter from Daniel M. Feeney, Miller, Shakman & Beem LLP, to Joshua M. Jones, Assistant\nAttomey General, Public Access Bureau, Office of the Attorney General (December 5, 2014), at 2.\nLetter from Josh Jones, Assistant Attorney General, Public Access Bureau, to Stacy St. Clair,\nChicago Tribune, and Peter Coblentz, Rosenthal, Murphey, Coblentz & Donahue (December 5, 2014).\n21 etter from Peter Coblentz, Rosenthal, Murphey, Coblentz & Donahue, to Joshua Jones,\nAssistant Attomey General, Public Access Bureau, Office of the Attorney General (November 20, 2014}, at 2.\nMs. Stacy St. Clair\nMs. Debbie Drehob!\nJanuary 23, 2015\nPage 7\nEntertainment Venues, or if the producer of the amusement event\nconsents to the d+i sclosursea !\nThe Village claims that it has the authority under its home rule powers to adopt an\nordinance regulating its obligation to disclose records to the public. If the Ordinance is a valid\nexercise of home rule power, then its enactment might arguably moot the issues raised in Ms. St.\nClair's Request for Review and render further analysis irrelevant. Accordingly, we will initially\naddress whether the Ordinance supersedes the pertinent provisions of FOIA.’\nThe Village of Rasemont is a home rule municipality. Article VIL, section 6(a)\nof the Illinois Constitution of 1970 (IIL. Const. 1970, art. VIL, §6(a}) provides, in pertinent part:\nExcept as limited by this Section, a home rule unit may exercise\nany power and perform any function pertaining to its government\nand affairs including, but not limited to, the power to regulate for\nthe protection of the public health, safety, morals and welfare; to\nlicense; to tax; and to incur debt.\nArticle VII, section 6(i) of the Iinois Constitution of 1970 (II. Const. 1970, art. VIL, §6()) adds:\n\"[hjome rule units may exercise and perform concurrently with the State any power or function\nof a home rule unit to the extent that the General Assembly by Jaw does not specifically limit the.\nconcurrent exercise or specifically declare the State's exercise to be exclusive.\" (Emphasis\nadded.)\nAccordingly, a home rule ordinance is a valid exercise of home rule power if. (1)\nthe subject of the ordinance pertains to the home rule unit's \"government and affairs\"; and (2) the\n“Rosemont, Ill, Ordinance No. 2014-11-12, §3, (adopted November (2, 2014). The Ordinance\ndefines \"confidential financial and proprietary information\" as:\ninformation pertaining to the amount of money paid by a Producer to secure the\nuse of an Entertainment Venue for production and presentation of an\nAmusement Event and any financial incentives, considerations or payments to\nbe made to a Producer as an inducement to license or rent the Entertainment\nVenue for production and presentation of an Amusement Event. Ordinance\n§2(c).\nWe also note that the Ordinance was adopted after the Village had received and had denied, in\npart, Ms. St. Clair’s FOIA request. Because the Ordinance appears to be substantive in nature, rather than merely\nprocedural, it would not ordinarily be applicable retroactively to Ms. St. Clair's request. In view of our\ndetermination regarding the validity of the Ordinance, however, it is not necessary to address or resolve this issue.\n*{llinois Municipal League, Home Rule Municipalities, http://www .iml.org/page.cfm?key=2.\nMs. Stacy St. Clair\nMs. Debbie Drehobi\nJanuary 23, 2015\nPage 8\nlegislature has not expressly preempted the exercise of home rule powers on that subject. Palm\ny. 2800 Lake Shore Drive Condominium Ass'n, 2013 IL 110505, { 36 (2013). The General\nAssembly has not expressly limited or preempted the exercise of home rule powers in FOIA.\nContrast 5 ILCS 120/6 (West 2012) (\"The provisions of [the Open Meetings]Act constitute\nminimum requirements for home rule units; any home rule unit may enact an ordinance\nprescribing more stringent requirements binding upon itself which would serve to give further\nnotice to the public and facilitate public access to meetings.\"). The sole issue, therefore, is\nwhether an ordinance regulating access to public records \"pertains to the government and affairs\"\nof the Village, within the meaning of article VII, section 6(a) of the Constitution.\nIn City of Chicago v. StubHub, Inc.,2011 IL 111127 (2012), the Illinois Supreme\nCourt noted that \"the concept of a vital state policy trumping municipal power is analytically\nappropriate under section 6(a).\" StubHub, 2011 IL 111127, (22, n.2; see also Palm, 2013 IL\n110505 at 436. In analyzing whether a subject pertains to 2 home rule municipality's government\nand affairs for purposes of article VIL, section 6(a) of the IHinois Constitution, therefore, “a\nsubject [is] off-limits to local government control * * * where the state has a vital interest and a\ntraditionally exclusive role.\" StubHub, 2011 IL 111127, (25; see also Palm, 2013 IL 110505,\n436. In making that determination, the following factors are relevant: (1) the nature and extent\nof the problem; (2) whether the State or the municipality has the greater interest in solving that\nproblem; and (3) whether the State or the municipality has a traditional role in solving the\nproblem. StubHub, 2011 IL 111127, (26-36; see also Gurba v. Community High School\nDistrict No. 155, 2014 1L App (2d) 140098, 79 (2014).\nSection 1 of FOIA (5 ILCS 140/1 (West 2012)) provides, in pertinent part:\nPursuant to the fundamental philosophy of the American\nconstitutional form of government, it is declared to be the public\npolicy of the State of [Hinois that al! persons are entitled to full\nand complete information regarding the affairs of government and\nthe official acts and policies of those who represent them as public\nofficials and public employees consistent with the terms of this Act.\nee\nRestraints on access to information, to the extent permitted\nby this Act, are limited exceptions to the principle that the people\nof this State have a right to full disclosure of information relating\nto the decisions, policies, procedures, rules, standards, and other\naspects of government activity that affect the conduct of\ngovernment and the lives of any or all of the people.\nMs. Stacy St. Clair\nMs. Debbie Drehobl\nJanuary 23, 2015\nPage 9 ,\nThe General Assembly declares that providing records in\ncompliance with the requirements of this Act is a primary duty of\npublic bodies to the people of this State[.]\nThis Act shall be the exclusive State statute on freedom of\ninformation, except to the extent that other State statutes might\ncreate additional restrictions on disclosure of information or other\nlaws in Iinois might create additional obligations for disclosure of\ninformation to the public. (Emphasis added.)\nSection 3(a) of FOIA (5 ILCS 140/3(a) (West 2012), as amended by Public Act 98-1129,\neffective December 3, 2014) provides that \"[e]ach public body shall make available to any\nperson for inspection or copying all public records, except as otherwise provided in Sections 7\nand 8.5 of this Act.”\nWith respect to the first factor enumerated by the court in StubHud, that being the\nnature and extent of the problem to be addressed by the proposed exercise of home rule powers, —\nthe General Assembly clearly recognized in enacting FOIA that ensuring the public's access to\ngovernmental records on a uniform basis is a matter of Statewide concern. Thus, the Act is\napplicable to all \"public bodies,\" a term that is defined to include “all legislative, executive,\nadministrative, or advisory bodies of the State, state universities and colleges, counties,\ntownships, cities, villages, incorporated towns, school districts and all other municipal\ncorporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of\nany of the foregoing including but not limited to committees and subcommittees thereof,\" with\nvery limited exceptions. See 5 ILCS 140/2(a) (West 2012), as amended by Public Act 98-1129,\neffective December 3, 2014. Logic dictates that there should be uniform provisions for accessing\ninformation from public bodies in all parts of the State, rather than potentially requiring members\nof the public to comply with numerous local requirements established to suit local officials.\nThese reasons also make it clear, with respect to the second factor enumerated in StubHub, that it\nis the State, and not home rule municipalities, that has the greater interest in addressing issues\npertaining to the public's right to access governmental information.\nWith regard to the third factor enumerated by the court in StubHub, the first\nversion of FOIA was enacted by the General Assembly effective July 1, 1984. See Public Act\n83-1013, effective July 1, 1984. We are aware of no instance during the intervening 30 year\nperiod in which a home rule unit has successfully attempted to supplant or supersede the\nprovisions of FOIA through the exercise of home rule powers. To the contrary, it is evident that\nsince the enactment of FOIA, prescribing the conditions for accessing public records has been\nconsidered to be an exclusive State prerogative.\nMs. Stacy St. Clair\nMs. Debbie Drehob!\nJanuary 23, 2015\nPage 10\nBased upon our consideration of the factors discussed in StubHub, we conclude\nthat the regulation of access to governmental information is an area in which “the state has a vital\ninterest and a traditionally exclusive role.\" StubHub, 2011 IL 111127, 925. Therefore, the\nVillage of Rosemont's Ordinance No. 2014-11-12 does not pertain to the Village's government\nand affairs within the meaning of article VII, section 6(a) of the Illinois Constitution of 1970, and\nconsequently is not a valid exercise of home rule power. The Village cannot pass an Ordinance\nto avoid disclosing public records ta the public. Thus, the Ordinance has no effect upon the\nVillage’s duty to comply with Ms. St. Clair's FOIA request. Having resolved this initial issue,\nwe will proceed to address the specific statutory exceptions asserted by the Village.\nSection 7(1)(g) of FOIA\nPursuant to section 7(1)(g) of FOIA, the Village redacted the rental amounts and\nthe revenue rebate terms contained in the contract between the Village and Varnell Enterprises,\nthe organization presenting the Garth Brooks concert, and also withheld an invoice seeking\npayment from the Village. Section 7(1(g) exempts from disclosure:\nTradé secrets and commercial or financial information\nobtained from a person or business where the trade secrets or\ncommercial or financial information are furnished under a claim\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness, and only insofar as the claim directly applies to the\nrecords requested.\nThe Village asserted that the financial and revenue information in question\nconstitutes trade secrets within the arena-sized venue market.2> Venues like the United Center,\nthe Village argued, would gain an unwarranted competitive advantage over the Allstate Arena if\nthe Village was required to disclose the specific amount of money received and paid to host\nevents at Allstate Arena.”® The Village also asserted that section 2 of the Illinois Trade Secrets\nAct (765 ILCS 1065/2 (West 2012)) does not differentiate between private entities and public\n°51e tter from Peter Coblentz, Rosenthal, Murphey, Coblentz & Donahue, to Josh Jones, Assistant\nAttorney General, Public Access Bureau, Office of the Attomey General (November 7, 2014), at 4; Nagle Aff. 46.\nLetter from Peter Cobleniz, Rosenthal, Murphey, Coblentz & Donahue, to Josh Jones, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (November 7, 2014), at 4; Nagle Aff. 3,\n4,9.\nMs. Stacy St. Clair\nMs. Debbie Drehobi\nJanuary 23, 2015\nPage 11\nbadies for purposes of determining whether financial data constitutes a trade secret.2” The\nVillage argued that section 7(1)(g) of FOIA should be construed consistently with the [Hnois\nTrade Secrets Act (765 ILCS 1065/1 ef seg. (West 2012)) to withhold the financial terms of the\ncontracts related to the Garth Brooks concert because they constitute financial data that is\nsufficiently secret to derive economic value from its disclosure or use, and the Village makes\nreasonable efforts to maintain their secrecy.”* In reply, Ms. St. Clair countered that section\n8(b)(4) of the Illinois Trade Secrets Act (765 ILCS 1065/8(b)(4) (West 2012)) specifies that the\nAct does not affect the definition of \"trade secret”? contained in any other statute°°\nMs. St. Clair also cited a binding opinion in which the Attorney General\nconcluded that the financial terms of a private company’s contract to manage the Illinois Lottery\nwere not exempt from disclosure under section 7(1)(g) of FOIA because article VIII, section 1(c)\nof the Hlinois Constitution of 1970 and section 2.5 of FOIA (5 ILCS 140/2.5 (West 2012))\"'\nrequire disclosure of records of receipts and expenditures by public bodies. See Ill. Att'y Gen.\nPub. Acc. Op. No. 14-005, issued June 30, 2014, at 8 (\"Simply put, entities that contract to\nperform services for a governmental agency do not enjoy the same ability to withhold\ninformation that they do with respect to their private contracts.\"). Additionally, the Attorney\nGeneral recently issued a binding opinion reaffirming that analysis and concluding that the\nMetropolitan Pier and Exposition Authority violated FOIA by withholding the financial terms of\nits lease agreements with private entities. See Ill. Att'y Gen. Pub. Acc. Op. No. 14-016, issued\nDecember 2, 2014, at 8. Based on the plain language of section 7(1)(g), the more recent binding\nopinion concluded that although the exemption might \"be applicable to the disclosure of\nfinancial information obtained from a private entity by a public body acting in a regulatory or\n771e tter from Peter Cobientz, Rosenthal, Murphey, Coblentz & Donahue , to Josh Jones, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (November 7, 2014), at 5.\n*4L etter from Peter Coblentz, Rosenthal, Murphey, Coblentz & Donahue, to Josh Jones, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (November 7, 2014), at 5.\nSection 8(b)(4) of the Trade Secrets Act provides that \"[t]his Act does not affect: * * * the\ndefinition of a trade secret contained in any other Act of this State.\"\n“E-mail from Stacy St. Clair, Chicago Tribune, to Josh Jones, Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General (November 14, 2014).\n*'Article VIL, section 1(c) of the linois Constitution of 1970 provides that “[rleports and records\nof the obligation, receipt and use of public funds of the State, units of local government and school districts are\npublic records available for inspection by the public according to law.”\nSimilarly, section 2.5 of FOIA provides that \"[a]il records relating to the obligation, receipt, and\nuse of public funds of the State, units of local government, and school districts are public records subject to\ninspection and copying by the public.” -\nMs. Stacy St. Clair\nMs. Debbie Drehobt\nJanuary 23, 2015\nPage 12\ninvestigatory capacity[,] * * * [t]he scope of section 7(1)(g) does not appear to encompass\ncommercial or financial information relating to the public body's own business transactions.\" IL.\nAtt'y Gen. Pub. Acc. Op. No. 14-016, at 6.\nUnder the plain language of article VII, section 1(c) of the [llinois Constitution\nand section 2.5 of FOIA, a public body cannot withhold information concerning funds it expends\nor receives from its agreements with private entities. Moreover, section 7(1)(g) does not apply to\nthe financial terms of these agreements because the financial terms were not “obtained from a\nperson or business\" as section 7(1)(g) plainly requires, but rather were negotiated between the\nparties. Further, the Village's citation to the Illinois Trade Secrets Act is unavailing because that\nstatute expressly provides that it does not displace the definition of “trade secrets\" contained in\nother Acts, which includes FOIA. 765 ILCS 1065/8(b)(4)(West 2012). Therefore, the Village\nhas failed to sustain its burden of demonstrating by clear and convincing evidence that the\nfinancial terms in the responsive records are exempt from disclosure pursuant to section 7(1)(g)\nof FOIA. :\nSection 7(1)(D of FOIA\nPursuant to section 7(1}(f) of FOIA, the Village withheld e-mails relating to the\nsetting of ticket prices for the Garth Brooks concerts. Section 7(1)(D of FOIA exempts from\ninspection and copying “[p]reliminary drafts, notes, recommendations, memoranda and other\nrecords in which opinions are expressed, or policies or actions are formulated, except that a\nspecific record or relevant portion of a record shall not be exempt when the record is publicly\ncited and identified by the head of the public body.” The section 7(1)(f) exemption applies to\n\"inter- and intra-agency predecisional and deliberative material.\" Harwood v. McDonough, 344\nMl. App. 3d 242, 247 (ist Dist. 2003). The exemption is \"intended to protect the\ncommunications process and encourage frank and open discussion among agency employees\nbefore a final decision is made.\" Harwood, 344 Ill. App. 3d at 248. Section 7(1)\\(D is \"the\nequivalent of the ‘deliberative process' exemption found in section 552(b)(5) of the federal\nFreedom of Information Act, which exempts from disclosure interagency and intra-agency\npredecisional and deliberative material.\" Dumke v. City of Chicago, 2013 IL App (1st) 121668,\n14, 994 N.E.2d 573, 578 (2013).\nThis office has reviewed copies of the e-mails withheld by the Village. None of\nthese e-mails were exchanged between officials or employees of the Village or Allstate Arena.\nInstead, the e-mails were exchanged between the Executive Director of Allstate Arena and a\nrepresentative of Varnell Enterprises, the concert's promoter. Therefore, the e-mails were sent to\nand received from a third party, rather than being components of any inter-agency or intra-\nagency decision-making process. Because the concert promoter represented independent\ninterests in his communications with the Village, e-mails to and from the promoter cannot be —\nMs. Stacy St. Clair ‘\nMs. Debbie Drehobl\nJanuary 23, 2015\nPage 13\nwithheld under the deliberative process exemption. See Department of Interior v. Klamath\nWater Users Protective Ass'n, 532 U.S. 1, 121 8. Ct. 1060, 1069 (2001) (communications with\nparties representing independent interests cannot be characterized as intra-agency\ncommunications). Accordingly, the Village has failed to sustain its burden of demonstrating by\nclear and convincing evidence that the e-mails it withheld are exempt from disclosure pursuant to\nsection 7(1)(f) of FOIA.\nCompleteness of Response\nThe Village asserted that therei s no hospitality-related rider to the agreement with\nVarnell Enterprises because the artist decided to use his own caterer.” In reply, Ms. St. Clair\nstated that she sought :a n explanation for the change from the Village attorney's prior position\nthat a rider did exist.> On December 10, 2014, an Assistant Attomey Generali n the Public\nAccess Bureau asked the Village's attorney to address any prior contradictory statement by the\nVillage.’ Later that day, the Village's attorney explained by reply e-mail that he had originally\nmisunderstood Ms. St. Clair's reference to \"rider\" and that the Allstate Arena did not provide\nbackstage food/amenities at the time of the concert. He further stated that the Allstate Arena\nGeneral Manager has confirmed:\nthat there is no backstage rider between the Allstate Arena and the\npromoter, the artist or any other person to provide any backstage\nfood or amenities to Mr. Brooks and his crew during the Garth\nBrooks concert series in Rosemont. If such a rider exists, it is\nbetween the concert promoter Varnell Enterprises and the artist. If\nsuch a ridere xists, itis noti n the possession of the Village of\nRosemont.**\n1 etter from Peter Coblentz, Rosenthal, Murphey, Coblentz & Donahue, to Josh Jones, Assistant -\nAttorney General, Public Access Bureau, Office of the Attomey General (November 7, 2014), at 2-3.\nSE-mail from Stacy St. Clair, Chicago Tribune, to Josh Jones, Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General (November 14, 2014),\n“E-mail from Josh Jones, Assistant Attomey General, Public Access Bureau, Office of the\nAttorney General, to Peter Coblentz, Rosenthal, Murphey, Coblentz & Donahue (December 10, 2014).\n“E-mail from Peter Coblentz, Rosenthal, Murphey, Coblentz & Donahue to Joshua Sones,\nAssistant Attorney General, Public Access Burean, Office of the Attorney General (December 10, 2014).\nMs. Stacy St. Clair\nMs. Debbie Drehobl\nJanuary 23, 2015\nPage 14\nThe Village's supplemental e-mail response was forwarded to Ms. St. Clair later that afternoon.**\nMs. St. Clair replied to the supplemental response by noting that \"I have to take the village's\nword that no such rider exists. * * * I consider that small portion of my appeal settled.\"?\nTherefore, there is no outstanding dispute concerning the completeness of the Village's response.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On behalf of the Chicago Tribune, Ms. Stacy St. Clair submitted an undated\nFOIA request to the Village of Rosemont seeking all documents related to Garth Brooks’\nappearance at the Alistate Arena.\n2) On October 6, 2014, the Village provided certain responsive documents to Ms.\nSt. Clair, but, citing sections 7(1)(b), 7(1)(), and 7(1)(g) of FOIA, denied her request in part by\nredacting and withholding other information.\n3) On October 10, 2014, the Public Access Bureau received Ms. St. Clair's\nRequest for Review of the partial denial of her request.\n4) On October 21, 2014, the Public Access Bureau sent a copy of the Request for\nReview to the Village and asked it to provide unredacted copies of the records at issue for this\noffice's confidential review, together with a detailed explanation for the asserted exemptions.\n5} On November 7, 2014, the Village furnished the records and responded that it\nhad properly denied Ms. St. Clair's request in part pursuant to sections 7(1)(f) and 7(1 \\(g).\n>6E-mail from Joshua Jones, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General to Stacy St. Clair, Chicago Tribune (December 10, 2014).\n“E-mail from Stacy St. Clair, Chicago Tribune, to Joshua Jones, Assistant Attomey General,\nPublic Access Bureau, Office of the Attorney General (December 10, 2014).\nMs. Stacy St. Clair\nMs. Debbie Drehobi\n‘January 23, 2015\nPage 15\n6) On November 20, 2014, the Village issued a supplemental response asserting\nthat the financial information subject to the Request for Review is exempt from disclosure\npursuant to Village Ordinance No. 2014-11-12, adopted November 12, 2014, a home rule\nordinance that supersedes FOIA and exempts financial information concerning Allstate Arena\nfrom disclosure.\n7) On December 5, 2014, the Public Access Bureau properly extended the time in\nwhich to issue a binding opinion pursuant to section 9.5 of FOIA, to January 23, 2014.\nTherefore, the Attorney General may properly issue a binding opinion with respect to this matter.-\n8) The Village's ordinance is ineffective to supersede the requirements of FOIA\nbecause prescribing conditions for accessing governmental records is a matter of Statewide,\nrather than local, concern, and therefore does not pertain to the Village's government and affairs\nfor purposes of exercising the home rule powers granted by article VII, section 6(a) of the\nIllinois Constitution of 1970,\n9) The financial terms of contracts with public bodies are expressly subject to\ndisclosure under article VIII, section 1(c) of the Illinois Constitution of 1970 and section 2.5 of\nFOIA. Therefore, financial terms of contracts with public bodies are not exempt from disclosure\nas trade secrets under section 7(1)(g) of FOIA.\n10) The e-mails withheld from disclosure are not inter-agency or intra~agency\ncommunications within the meaning of section 7(1)(1) of FOIA because they were exchanged\nwith a third party who represented independent interests.\nFor the reasons stated above, it is the opinion of the Attorney General that the\nVillage improperly denied, in part, Ms. St. Clair's Freedom of Information Act request in\nviolation of the requirements of the Act. Accordingly, the Village is directed to take immediate\naction to comply with this binding opinion by providing Ms. St. Clair with all contracts,\ninvoices, and e-mails responsive to her request. The Village may, pursuant to section 7(1)(b),\nredact \"private information\" as defined in section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West\n2012).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seg. (West 2012). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\nMs. Stacy St. Clair\nMs. Debbie Drehobi\nJanuary 23, 2015\nPage 16\n~\n35 days of the date of this decision naming the Attorney General of Hlinois and Ms. Stacy St.\nClair as defendants. See 5 ILCS 140/11.5 (West 2012).\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\nBy: ar be\nMichael J. Luke\nCounsel to the Attorney General\nce: Mr. Peter Coblentz\nRosenthal, Murphey, Coblentz & Donahue\nLaw Offices\n30 North LaSalle Street, Suite 1624\nChicago, HHnois 60602\nMr. Daniel M. Feeney\nMiller Shakman & Beem LLP\nAttorneys and Counselors\n180 North LaSalle Street, Suite 3600\nChicago, Hlinois 60601","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested documents from the Village of Rosemont regarding a concert at the Allstate Arena, but the Village refused to release them, arguing that the contract terms were trade secrets and that the documents were part of their internal decision-making process. The Attorney General ruled that public contracts are not trade secrets and that the Village must release the records, as FOIA requirements cannot be overridden by local home rule ordinances.","card_headline":"Contracts and correspondence for a concert at a public arena","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":54,"orig_master_id":19256,"dup_master_id":19027,"dup_sha256":"3410294f1635da5c66b2772f2dbc0b1b11fc5910951b61ec2c35bd37052688f8","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2015,"date_issued":"2015-08-04","case_number":"2015 PAC 35119","request_numbers":null,"title":"Failure to Cite Closed Session Exception; Improper Discussion of Proposed Police Services Contract in Closed Session; Taking Final Action on Matter Not on Meeting Agenda","filename":"PUBLIC ACCESS OPINION 15-005 (Request for Review - 2015 PAC 35119).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 15-005 (Request for Review - 2015 PAC 35119).pdf","word_count":4012,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a violation of the Open Meetings Act by the Village of Blue Mound's Board of Trustees during a closed meeting.","plain_summary":"The requester alleged that a village government's board voted in closed session to disband its police department and enter into a new policing contract without properly noticing the topic. The Public Access Counselor found that the board failed to publicly cite and record the specific Open Meetings Act exception authorizing its closed session, that the closed-session discussion of a proposed police-services contract exceeded the narrow personnel exception it later invoked (since it concerned a contract's cost and scope rather than any individual employee's conduct), and that the meeting agenda's generic \"Executive Session\" listing did not give the public adequate notice that final action on the contract would be taken. The village government was directed to disclose the closed-session record, re-vote on the contract at a properly noticed meeting, and bring future meetings into compliance.","holding":"The Board of Trustees of the Village of Blue Mound violated the Open Meetings Act.","legal_question":"Did the Board of Trustees of the Village of Blue Mound violate the Open Meetings Act by improperly closing a portion of its meeting and failing to include the subject matter on the agenda?","disposition":"violation_found","primary_statute":["5 ILCS 120/2","5 ILCS 120/2.02"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)"],"public_body":"Village of Blue Mound Board of Trustees","requesting_party":"Ms. Donna C. Spears","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board improperly discussed a police services contract in a closed session and failed to include the final action on the meeting agenda.","ocr_status":"ok","ocr_quality":90.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2015-Binding-PAC-Opinions/15-005.pdf","sha256":"a255a4a7e918c67ff60c49f8f1d97ef35d21c3239b69ee9bf6610b9f196abf8f","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","meeting agenda","police services contract","final action"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nAugust 4, 2015\nPUBLIC ACCESS OPINION 15-005\n(Request for Review 2015 PAC 35119)\nOPEN MEETINGS ACT:\nFailure to Cite Closed Session Exception;\nImproper Discussion of Proposed\nPolice Services Contract in Closed\nSession; Taking Final Action on\nMatter Not on Meeting Agenda\nMs. Donna C. Spears\n[street address redacted for site publication -- see original PDF]\nThe Honorable Kenneth Ervin\nVillage President\nVillage of Blue Mound\nP.O. Box 378\nBlue Mound, Hlinois 62513\nDear Ms. Spears and Mr. Ervin:\nThis is a binding opinion issued by the Attorney General pursuant to section\n3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2014)). For the reasons\ndiscussed below, this office concludes that the Board of Trustees of the Village of Blue Mound\n(Board) violated OMA by improperly closing a portion of its May 4, 2015, regular meeting to the\npublic to discuss a proposed police services contract and by failing to include on the meeting\nagenda the general subject matter of the Board's final action on that contract.\n500 South Second Street, Springfield, Hinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, ineis 60601 > (312) 814-3000 * TTY: (800) 964-3013 + Fax: (312) 814-3806\n601 South University Avenue, Suite 102, Carbondale, [mois 62901 * (618) 529-6400 + TTY: (877) 675-9339 + Fax: (618) 529-6416 »\nMs. Donna Spears\nMr. Kenneth Ervin\nAugust 4, 2015\nPage 2\nBACKGROUND\nOn May 7, 2015, Ms. Donna Spears submitted a Request for Review alleging that\nthe Board violated OMA at its May 4, 2015, regular monthly meeting. Specifically, Ms. Spears\nalleged:\n[during this meeting the board members and Mayor\nconvened in an executive session behind closed doors and voted to\ndisband the Blue Mound Police Department effective July ist,\n2015. This decision was made without any advance notice to the\npublic or the staff. This topic was not even listed on the meeting\nagenda. * * * Qur community feels that such a decision should\nhave been brought to the public fs attention so that they could have\nhad the opportunity to be put on the agenda, attend the board\nmeeting, and voice their opinions and concerns on thei ssue. ae\nOn May 13, 2015, the Public Access Bureau sent a copy of the Request for\nReview to the Village President and asked the Board to provide a written response to the\nallegations therein, inchading a detailed explanation of how the Board considered and decided\nany issues related to the Police Department at its May 4, 2015, meeting. This office also\nrequested a copy of the meeting, agenda, the open and closed session minutes, and the verbatim\nrecording of the closed session.” On May 22, 2015, this office received the Board's response\nletter and the requested materials. The response stated that \"[oJn the agenda, executive session\nwas posted to discuss personnel{, ]\" and that during the open session, the Board_voted “to enter\ninto the executive session for the purposes of discussing personnel. \"? The Board asserted that\n\"(t}he [O}pen {Mjeetings [A]ct permits the board to discuss matters of personneli n executive\nsession.\"” According to the response, during the executive session the Board:\ndiscussed a contract with the Macon County Sheriff's Office for\nthe Sheriff's office to provide a full time officer to the Village.\n‘E-mail from Donna Spears to Public Access Bureau (May 7, 2015).\n*1e tter from Neil P. Olson, Assistant Attorney General, Public Access Bureau, to Kenny Ervin,\nVillage President, Village of Blue Mound (May 13, 2015).\n3Letter from Kenny Ervin, Village President, Village of Blue Mound, to Neil P. Olson, Assistant\nAttorney General, Office of the Attorney General(May 19, 2015), at 1.\n‘Letter from Kenny Ervin, Village President, Village of Blue Mound, to Neil P. Olson, Assistant\nAttorney General, Office of the Attorney General (May (9, 2015), at 1.\nMs. Donna Spears\nMr. Kenneth Ervin\nAugust 4, 2015\nPage 3\nThe purpose of the meeting was not to disband the Blue Mound\nPolice Department but to listen to a proposal to be made by a\nMacon County Sheriff's Department representative.\n* * * There were no votes taken in the executive session nor any\nmotions made regarding making any changes to the police\ndepartment. 1\nThe Board further asserted that the contract with the Macon County Sheriff's Office (Sheriff's\nOffice) would result in cost savings to the Village.\nThe agenda for the May 4, 2015, regular meeting provided by the Board lists the\neighth agenda item as “Executive Session,\" without additional details.° The full agenda for the\nMay 4, 2015, regular meeting is as follows:\n1. Minutes\n2. Bills\n3. Greg Dunn\n4. Roger Cox\n5. Tom Bingaman\n6. Andy Bourey\n7. Old Business\n8. Executive Session\nThe open session minutes of the May 4, 2015, meeting reflect that the Board\nvoted to go into executive session at 6:25 p.m. without providing a description of the subject of\ndiscussion or citing the relevant exception in section 2(c) ef OMA (6 ILCS 120/2(c) (West\n‘Letter from Kenny Ervin, Village President, Village of Blue Mound, to Neil P. Olson, Assistant\nAttorney General, Office of the Attomey General (May 19, 2015), at 1.\nSVillage of Blue Mound [Board of Trustees], Agenda, Item 8 (May 4, 2015).\nMs. Donna Spears\nMr. Kenneth Ervin\nAugust 4, 2015\nPage 4\n2014)) that would authorize the Board to hold a closed session.’ The minutes further reflect that\nthe Board reconvened in open session at 7:35 p.m. \"to vote on the contract proposal presented by\nthe Macon County Sheriff's Department * * * to provide police protection and support for the\nVillage of Blue Mound with 30 days to review the contract.”®\nOn May 28, 2015, the Public Access Bureau forwarded a copy of the Board's\nresponse to Ms. Spears.” On June 2, 2015, Ms. Spears replied that although the Board stated that\nthe executive session was “for discussing personnel|,] * * * in truth it was to discuss a proposed\ncontract (as mentioned in the letter from President Kenny Ervin and also in the meeting minutes\nsubmitted) with the Macon County Sheriffs [sic] Department.\"? Ms, Spears also pointed out\nthat the meeting agenda listed only \"executive session” as its final item and stated that \"{t]here is\nnothing indicating what type of discussion was taking place in that executive session.\"! j\nAt the request of the Public Access Bureau, the Board later produced a copy of\nthe proposed contract between the Village and the Sheriff's Office, as well as a copy of the\nverbatim recording of the open session of the May 4, 2015, meeting. The Board also submitted a\nsecond response letter dated June 15, 2015, in which it reiterated that it closed part of the May 4,\n2015, regular meeting to discuss the proposed contract with the Sheriff's Office, and added that\n\"{e}ntering into this contract with the Sheriff's department would also mean that the Chief of the\nPolice of Blue Mound would be losing his job in July of 2015.\"\nANALYSIS\nOMA is intended \"to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.” 5 ILCS 120/1 (West 2014). Section 2(a) of OMA\n(5 ILCS 120/2(a) (West 2014)) provides that \"[a]ll meetings of public bodies shall be open to the\npublic unless excepted in subsection (c) and closed in accordance with Section 2a.” Such\nexceptions \"are in derogation of the requirement that public bodies meet in the open, and\n\"Village of Blue Mound Board of Trustees, Regular Meeting, May 4, 2015, Minutes, at 3.\n‘Village of Blue Mound Board of Trustees, Regular Meeting, May 4, 2015, Minutes, at 3.\n°Letter from Neil P. Olson, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Donna Spears (May 28, 2015).\n6 mail from Donna Spears to [Neil] Olson Gune 2, 2015).\n''E-mail from Donna Spears to [Neil] Olson (June 2, 2015).\n2)e tter from Kenny Ervin, Village President, Village of Blue Mound, to Neil P. Olson, Assistant\nAttorney General, Office of the Attorney General June 15, 2015).\nMs. Donna Spears\nMr. Kenneth Ervin\nAugust 4, 2015\nPage 5\ntherefore, the exceptions are te be strictly construed, extending only to subjects clearly within\ntheir scope.\" (Emphasis added.) 5 ILCS 120/2(b) (West 2014).\nSection 2ao.f O MA\nin order for a public body to properly close a portion of a meeting, there must be:\na majority vote of a quorum present, taken at a meeting open to the\npublic for which notice has been given as required by this Act.\n*** The vote of each member on the question of holding a\nmeeting closed to the public and a citation to the specific exception\ncontained in section 2 of this Act which authorizes the closing of\nthe meeting to the public shall be publicly disclosed at the time of\nthe vote and shall be recorded and entered into the minutes of the\nmeeting. 5 ILCS 120/2a (West 2014).\nOur review of the verbatim recording of the May 4, 2015, open session indicates\nthat the Board did not cite a reason for its vote to enter into executive session. Moreover, the\nminutes of that meeting do not include a reference to a specific exception in section 2 of OMA\nthat would authorize the Board to hold a closed session, or provide a general description of the\nsubject to be discussed. In its response to this office, the Board described the subject of the\nclosed session as \"personnel,\" but did not cite a specific exception or explain why a discussion of\n\"personnel\" would authorize it to close part of the meeting. Although it is not necessary for a\npublic body to indicate in a meeting agenda that it plans to hold a closed session or the subject to\nbe discussed therein, the statute clearly requires a public body to cite the specific exception\nauthorizing its action when it votes to enter closed session. Accordingly, this office concludes\nthat the Board violated section 2a of OMA by not publicly disclosing and recording and entering\ninto the minutes the specific exception authorizing the closing of a portion of the May 4, 2015,\nmeeting to the public.\nSection 2(c)(1) of OMA\nAlthough the Board did not cite a specific exception authorizing it to enter into\nclosed session during the May 4, 2015, meeting, it referred to \"personnel\" in its written response\nto this office. We note that public bodies frequently (but inappropriately) use the term\n“personnel” as a reference te section 2(c)(1) of OMA (5 ILCS 120/2(cK(1) (West 2014)). This\nsection does not provide a broad exception for discussions that might impact personnel. Instead,\nsection 2(c)(1} provides that a public body may hold a closed meeting to discuss the\n“appointment, employment, compensation, discipline, performance, or dismissal of specific\nMs. Donna Spears\nMr. Kenneth Ervin\nAugust 4, 2015\nPage 6\nemployees of the public body, including hearing testimony on a complaint lodged against an\nemployee of the public body or against legal counsel for the public body to determine its\nvalidity.\" (Emphasis added.)\nIn construing the scope of the section 2(c)(1) exception, this office has stated:\nThe use of the phrase \"specific employees of the public\nbody\" significantly limits the scope of this exception. Based on\nthis language, the exception is intended to permit public bodies to\ncandidly discuss the relative merits of individual employees, or the\nconduct of individual employees. * * * Decisians to reduce\nfunding to certain departments of a governmental entity, or to\ndispense with discretionary programs, for example, may\nultimately result in a public body having to determine which\nspecific employees to retain or which to layoff or terminate. To\nthe extent that a public body is required to discuss the relative\nmerits of individual employees as a result of its fiscal decisions,\nsuch discussions may properly be closed to the public under\nsection 2(c)(1) of OMA. The underlying budgetary discussions\nleading to those decisions, however, may not be closed to the\npublic. ll, Atty Gen. Pub. Acc. Op. No. 12-011, issued July 11,\n2012, at 3. (Emphasis added.)\nThe verbatim recording and minutes of the May 4, 2015, closed session, as well\nas the Board's response to this Request for Review, indicate that the Board heard a presentation\nfrom a representative of the Sheriff's Office concerning a proposed contract for police services,\nand then discussed the scope and cost of that contract. Although the Board's decision to approve\nthe contract may ultimately affect the employment status of certain Police Department\nemployees, the Board did not discuss the performance or conduct of any specifie employees,\nsuch as the Chief of the Police Department, during the closed session, other than a brief\ndiscussion about the Chief of the Police Department's awareness of the proposal. According to\nthe Board, \"[t}he purpose of the meeting was not to disband the Blue Mound Police Department\nbut to listen to a proposal to be made by a Macon County Sheriff's Department representative.\" B\nThe Board also described the proposed police services contract as a cost saving measure, rather\nthan as a means of rectifying any shortcomings of a current employee or employees of the Police\nDepartment. Because the closed session discussion concerned a proposed contract with another\npublic body rather than a personnel decision regarding a specific employee or employees of the\n1 etter from Kenny Ervin, Village President, Village of Blue Mound, to Neil P. Olson, Assistant\nAttorney General, Office of the Attomey General (May 19, 2015), at 1.\nMs. Donna Spears\nMr. Kenneth Ervin\nAugust 4, 2015\nPage 7\nVillage, this office concludes that the Board violated section 2(a) of OMA by discussing in\nclosed session matters outside the scope of the section 2(c)(1) exception.\n\" Section 2.02(c) of OMA\nThe public policy of this State, as declared in section 1 of OMA (5 ILCS 120/1\n(West 2014)) is that \"citizens shall be given advance notice of and the right to attend all meetings\nat which any business of a public body is discussed or acted upon in any way.” Section 2.02(a)\nof OMA (5 ILCS 120/2.02(a} (West 2014)) provides that \"[a]n agenda for each regular meeting\nshall be posted at the principal office of the public body and at the location where the meeting is\nto be held at least 48 hours in advance of the holding of the meeting.” OMA further provides\nthat \"[a]ny agenda required under this Section shall set forth the general subject matter of any\nresolution or ordinance that will be the subject offi nal action at the meeting.\" (Emphasis\nadded.) 5 ILCS 120/2.02(c) (West 2014).\nThe minutes of the May 4, 2015, open meeting indicate that the Board voted to\napprove the police services contract with the Sheriff's Office. The agenda for the May 4, 2015,\nmeeting, however, does not contain any specific reference te this contract, or a general reference\nto police services for the Village. The agenda does not contain details about any item. It lists\ngeneric items (‘Minutes,” \"Bills,\" \"Old Business,” and “Executive Session\") and the names of\ncertain individuals who were scheduled to speak before the Board. The information provided in\nthe agenda does not suggest that final action was contemplated on any matter at the meeting.\nPrior to the addition of section 2.02(c) to OMA, the Illinois Appellate Court held\nthat the generic agenda item \"New Business\" did not provide sufficient advance notice of final\naction by a public body. Rice v. Board of Trustees ofA dams County, 326 Ill. App. 3d 1120,\n1123 (4th Dist. 2002). The Senate debate on House Bill No. 4687, which was enacted as Public\nAct 97-827, effective January 1, 2013, and added section 2.02(c) of OMA, indicates that the\nGeneral Assembly intended section 2.02(c) to ensure that agendas provide sufficiently\ndescriptive advance notice of the matters upon which a public body anticipates taking final\naction:\n[T]here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a\n* * * ceneral notice if you're going to have and take final action, as\nto generally what's going to be discussed so that — that people who\nfollow their units of local government know what they're going to\nMs. Donna Spears\nMr. Kenneth Ervin\nAugust 4, 2015\nPage 8\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\nDebate on House Bill No. 4687, at 47.\nThe agenda did not provide advance notice to the public that the Board was\nconsidering any change in the delivery of police services to the Village or, more specifically, that\nthe Board might take final action to approve a contract with the Sheriff's Office for police\nservices. Accordingly, this office concludes that the Board violated section 2.02(c) of OMA\nbecause the May 4, 2015, meeting agenda did not include the general subject matter of the\ncontract for police services, which was the subject of final action.”4\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments presented,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On May 7, 2015, Ms. Donna Spears submitted a Request for Review in which\nshe alleged that the Board of Trustees of the Village of Blue Mound violated OMA by\nimproperly holding a closed session during the May 4, 2015, regular meeting to discuss\ndisbanding the Village of Blue Mound's Police Department. She also alleged that the agenda for\nthe May 4, 2015, meeting did not include this topic. Ms. Spears's Request for Review was\ntimely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS\n120/3.5(a) (West 2014)).\n2) On May 13, 2015, the Public Access Bureau sent a copy of the Request for\nReview to the Village President of Blue Mound and asked the Village Board to respond to Ms.\nSpears's allegations, and also to provide copies of the May 4, 2015, meeting agenda, open and\nclosed session minutes, and the closed session verbatim recording for this office's review.\n3) On May 22, 2015, the Board provided its written response and the\nrequested materials. The response stated that the Board had entered into executive session at the\nMay 4, 2015, meeting for the purpose of discussing \"personnel,\" which is how it described a\npresentation by the Macon County Sheriff's Office regarding a contract to provide police\nprotective services to the Village.\n“The parties dispute whether the May 4, 2015, meeting agenda was posted within 48 hours of the\nmeeting as required by section 2.02(a} of OMA. As this allegation was not part of the original Request for Review\nto which the Board responded, this office does not make a finding on this issue, other than to note that the content of\nthe agenda did not provide adequate notice of the police services contract matter, regardless of when it was posted.\nMs. Donna Spears\nMr. Kenneth Ervin\nAugust 4, 2015\nPage 9\n4) The Attorney General properly extended the time to issue a binding opinion by\n21 business days, to August 4, 2015, pursuant to section 3.5(e) of OMA. Therefore, the Attorney\nGeneral may properly issue a binding opinion with respect to Ms. Spears's Request for Review.\n5) In order to close a portion of a meeting, section 2a of OMA requires a public\nbody to cite the specific exception contained in section 2 of OMA which authorizes it to hold a\nclosed session, and to vote to do so. The specific exception and the results of the vote must be\npublicly disclosed at the time of the vote and recorded and entered into the minutes of the\nmeeting.\n6) Section 2(a) of OMA requires that all meetings of public bodies be open to the\npublic unless the subject of the meeting is covered by one of the limited exceptions enumerated\nin section 2(c). The subject that the Board cited as a basis for closing its meeting to the public\nwas a discussion of \"personnel.\" Although section 2(c)(1) does allow a public body to hold a\nclosed session to discuss the \"appointment, employment, compensation, discipline, performance,\nor dismissal of specific employees of the public body,” section 2(c} does not contain an\nexception authorizing a public body to hold closed sessions to discuss “personnel” in general or\nto discuss issues that may impact personnel.\n7) The Board did not cite a specific exception enumerated in section 2 as a basis\nfor closing a portion of its May 4, 2015, meeting. Accordingly, the Attorney General concludes\nthat the Board violated section 2a of OMA by failing to publicly disclose and enter into the\nminutes an exception authorizing it to close a portion of the May 4, 2015, regular meeting.\n8) Moreover, during its May 4, 2015, closed session, the Board primarily\ndiscussed the scope and cost of a proposed contract with the Sheriff's Office, and did not discuss\nthe performance or conduct of any specific Village employees. Assuming that the Board\nintended to rely on section 2(c)(1) to hold its May 4, 2015, closed session, section 2(c)(1) does\nnot authorize a public body to hold a closed session to discuss service contracts. Although the\ncontract discussed by the Board could ultimately have an impact on the employment of Village\nemployees, such discussions do not fall within the scope of section 2(c)(1). Accordingly, the\nAttorney General concludes that the Board violated OMA by discussing in closed session\nmatters outside the scope of that section:\n9) This finding necessarily compels the further finding that the Board violated\nsection 2(a) of OMA, which requires that all meetings of public bodies be open to the public\nunless excepted by section 2(c), because the public was excluded from the improper closed\nsession discussion.\nMs. Donna Spears\nMr. Kenneth Ervin\nAugust 4, 2015\nPage 10\n10) Section 2.02(c) of OMA requires that a meeting agenda set forth the general\nsubject matter of any resolution or ordinance that will be the subject of final action at the\nmeeting.\n11) The Board’s May 4, 2015, regular meeting agenda did not contain an agenda\nitem indicating that final action might be taken or any reference identifying the general subject\nmatter of the police services contract. As a result, the agenda did not provide the public with\nadvance notice that final action might be taken to enter into the police services contract.\nAccordingly, the Attorney General concludes that the Board violated section 2.02(c) of OMA by\nfailing to include the general subject matter of this final action on the May 4, 2015, regular\nmeeting agenda.\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to remedy these violations by: (1) disclosing to Ms. Spears and making available to the\npublic a copy of the closed session minutes for and the verbatim recording of the closed session\nportion of the May 4, 2015, meeting; (2) reconsidering and re-voting on its May 4, 2015, final\naction at a properly noticed meeting for which the agenda specifically references the police\nservices contract; and (3) conducting its future meetings in full compliance with OMA. As\nrequired by section 3.5(e) of OMA, the Board shall either take necessary action as soon as\npractical to comply with the directives of this opinion or shall initiate administrative review\nunder section 7.5 of OMA (5 ILCS 120/7.5 (West 2014)).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Ms.\nDonna Spears as defendants. See 5 ILCS 120/7.5 (West 2014).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nyt\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Village of Blue Mound Board of Trustees improperly closed a portion of its May 4, 2015, regular meeting to discuss a proposed police services contract with the Macon County Sheriff's Office. The Board also failed to include the general subject matter of its final action on that contract on the meeting agenda. The Illinois Attorney General issued a binding opinion finding that these actions violated the Open Meetings Act.","card_headline":"Closed-session discussion of a police services contract","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":55,"orig_master_id":19257,"dup_master_id":19028,"dup_sha256":"7df6ba46a51b548681791dc2f01888275a2f46c83af9fe6f3878493ddc2187c7","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2015,"date_issued":"2015-08-31","case_number":"2015 PAC 35427","request_numbers":null,"title":"Disclosure of Public Employees' Compensation","filename":"PUBLIC ACCESS OPINION 15-006 (Request for Review - 2015 PAC 35427).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 15-006 (Request for Review - 2015 PAC 35427).pdf","word_count":3352,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request made by Mr. Rocky Morris for physician employment agreements from Franklin Hospital District.","plain_summary":"The requester sought a hospital district's physician employment agreements, including compensation, incentive, and bonus information, and the hospital district redacted this financial information, arguing it was private and that physicians do not perform \"public duties.\" The Public Access Counselor rejected both arguments, holding that records of physician compensation paid from the district's funds are public records concerning the use of public funds regardless of whether physicians have \"public duties,\" that compensation amounts are not \"private information\" under the personal-privacy exemption, and that disclosure of pay tied to public employment is not an unwarranted invasion of privacy. The hospital district was directed to disclose the compensation information and a post-office-box address that had been improperly withheld as a home address.","holding":"Franklin Hospital District violated FOIA by partially denying the request for copies of physician employment agreements.","legal_question":"Did Franklin Hospital District violate the Freedom of Information Act by denying part of the FOIA request?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Franklin Hospital District","requesting_party":"Mr. Rocky Morris","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought disclosure of physician employment contracts, specifically regarding compensation, bonuses, and contact information.","ocr_status":"ok","ocr_quality":89.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2015-Binding-PAC-Opinions/15-006.pdf","sha256":"85c7058658b1c612700902876e4c65d007cef61bbe47fe06242d2870e9dc1912","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["employment contracts","compensation","redaction","physician records"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS .\nLisa Madigan\nATTORNEY GENERAL\nAugust 31, 2015\nPUBLIC ACCESS OPINION 15-006\n(Request for Review 2015 PAC 35427)\nFREEDOM OF INFORMATION ACT:\nDisclosure of Public Employees' Compensation\nMr. Rocky Morris ‘\n1306 South Pope Street ‘\nBenton, Illinois 62812 .\nMr. Derek S. Johnson, Sr. ‘\nBusiness Development Officer/FOIA Officer\nFranklin Hospital\n[street address redacted for site publication -- see original PDF]\nDear Mr. Morris and Mr. Johnson:\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons\ndiscussed below, this office concludes that Franklin Hospital District (District) violated the\nrequirements of FOIA by denying, in part, Mr. Rocky Morris’ May 11, 2015, request for copies\nof physician employment agreements.\n' BACKGROUND\nMr. Morris submitted a FOIA request to the District seeking “physician contracts,\nor employment agreements, for [five named] physicians[.] * * * Please provide all incentives\nand/or bonuses paid for public information.\"! On May 18, 2015, the District acknowledged\n‘Letter from Rocky Morris to [Derek] Johnson, Freedom of Information Act Officer, Franklin\nHospital (undated).\n‘\n500 South Second Street, Springfield, inois 62706 » (217) 782-1090 *« TTY: (877) 844-5461 * Pax: (217) 782-7046\n100 West Randoiph Street, Chicago, Hlinois 60601 » (312) 814-3000 * TTY: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Avenue, Suite 102, Carbondale, Ilincis 62901 * (618) 529-6400 « TTY: (877) 675-9339 + Fax: (618) 529-6416\nMr. Rocky Morris os x\n“Mr. Derek S. Johnson, Sr.\nAugust 31, 2015\nPage 2\nreceiving the FOIA request on May 11, 2015, and provided Mr. Morris with copies of the\nresponsive \"physician employment agreements with the private information and personal\nfinancial information redacted,\"? As its basis for redacting these portions of the contracts, as\nwell as information concerning incentives and bonuses paid, the District cited sections 7(1}(b)\nand 7(1)(c) of FOIA (5 ILCS 140/7(1)(b), (1 (c) (West 2014), which exempt from disclosure\n“private information”, including personafiln ancial information, and personal information the\ndisclosure of which would constitute an unwarrantedi nvasion of personal privacy, respectively.*\nThe District asserted that \"[t]he compensation of the physicians who are employed by the\nFranklin Hospital District to provide medical services to patients is highly personal and\nconfidential information to these physicians. \"4 The District also asserted,i n the alternative, that\nthe physician employment agreements are not public records because physicians do not have\n\"public duties\" and the physician employment agreements do not pertain to \"the transaction of\npublic business.\"*\nOn May 21, 2015, the Public Access Bureau received a Request for Review from\nMr. Morris contesting the denial of the salary, bonus, and incentive pay information (referred to\ncollectively hereafter as \"compensation”) that the District redacted from the records.© On May\n26, 2015, Mr. Morris completed his Request for Review by providing a copy of his FOIA request\nand a copy of the District's partial denial letter.’ On May 29, 2015, the Public Access Bureau\nsent a copy of the Request for Review to the District and asked it to provide an explanation of\nthe basis for its assertion that the requested records are exempt from disclosure under sections\n7(1)(b) and 7(1)}(c) of FOIA? This office also requested that the District \"provide a detailed\n*Letter from Derek S. Johnson, Sr., Business Development Officer/FOIA Officer, Franklin\nHospital, to Rocky Morris (May 18, 2015), at 1.\n3Letter from Derek S, Johnson, Sr., Business Development Offie ev/FOIA Officer-,, Franklin\nHospital, to Rocky Morris (May 18, 2015), at 1.\nLetter from Derek S. Johnson, Sr., Business Development Officer/FOIA Officer, Franklin\nHospital, to Rocky Morris (May 18, 2015), at 1.\nLetter from Derek S. Johnson, Sr., Business Development Officer/FOLA Officer, Franklin\nHospital, to Rocky Morris (May 18, 2015), at 2.\n°E-mail from Recky Morris.to Public Access (May 21, 2015).\n\"E-mail from Rocky Morris to Public Access (May 26, 2015).\n*Letter from Matthew Hartman, Assistant Attorney General, Public Access Bureau, to Derek S.\nJohnson, Sr., Business Development Officer/FOLA Officer, Franklin Hospital (May 29, 2015), at-1.\nMr. Rocky Mortis\nMr. Derek S. Johnson, Sr,\nAugust 31, 2015\nPage 3\nexplanation for [its] contention that records of compensation paid to physicians are not public\nrecords[.]\"” On June 9, 2015, the District furnished redacted and unredacted copies of the\nphysician employment agreements and a written response which reiterated its assertion that\nphysician compensation is exempt from disclosure pursuant to sections 7(1)(b) and 7(1)(c) of\nFOIA. The response also asserted that the physicians do not have \"public duties\" and that\ncompensation informationi n the employment agreements is not a “public record\" subject to\nFOIA because the “physicians’ employment agreements do not pertain to public business,\ncommunity interests, or ‘the affairs of government[.J\"'® On June 12, 2015, the Public Access\nBureau sent a copy of the District's response to Mr. Morris,'' who submitted his letter of reply by\ne-mail on June 17, 2015.\"\nOn July 20, 2015, the Public Access Bureau properly extended the time in which\nto issue a binding opinion pursuant to section 9.5(f) of FOIA (5 ILCS 140/9.5() (West 2014)).?\n7\nANALYSIS\n\"All records in the custody or possession of a public body are presumed to be\nOpen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2014). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) provides that: \"Each\npublic body shall make available to any person for inspection or copying all public records,\nexcept as otherwise provided in Sections 7 and 8.5 of this Act.” The exemptions from disclosure\ncontained in section 7 of FOIA (5 ILCS 140/7 (West 2014)) are to be narrowly construed.\nLieber v. Board of Trustees of Southern Illinois University, 176 WI. 2d 401, 407 (1997).\nIt is axiomatic that FOIA's requirements to allow inspection and copying apply\nonly to public records. Although the District asserted two section 7 exemptions as its basis for\nwithholding the requested records, it also argued in the alternative that the physician employment\nLetter from Matthew Hartman, Assistant Attorney General, Public Access Bureau, to Derek S.\nJohnson, Sr., Business Development Officer/FOIA Officer, Franklin Hospital (May 29, 2015), at2 .\nLetter from Edwina Warner, Troutt, Popit & Warner, P.C., to Matthew Hartman, Asst. Attorney\nGeneral, Public Access Bureau (Iune 9, 2015), at 2.\n“Letter from Matthew Hartman, Assistant Attorney General, Public Access Bureau, to Rocky\nMorris (June 12, 2015). .\n21e tter from Rocky Mortis, to Matthew Hartman, Asst. Attorney General, Public Access Bureau,\nOffice of the Attorney General (June 16, 2015).\n“Letter from Assistant Attorney General Matthew Hartman to Rocky Morris and Edwina Warner,\nTroutt, Popit & Warner, P.C. Cluly 28, 2015).\n'\nMr. Rocky Morris\nMr. Derek S. Johnson, Sr.\nAugust 31, 2015\nPage 4\nagreements are not public records. This office will first address the District's argument that the\nphysicians’ compensation information iis nota \"publii c record.\n_ Sections 2(e) and 2, 5 of FOIA\nSection 2c) of FOIA (SILCS 140/2(c) (West 20149) defines “[p]ublic records\"\nas: ’ : . ;\nall records, reports, forms, writings, letters, memoranda, books,\npapers, maps, photographs, microfilms, cards, tapes, recordings,\nelectronic data processing records, electronic communications,\nrecorded information dnd all other documentary materials\npertaining to the transaction of public business, regardless of\nphysical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body.\nThe District's response explains that it is \"an Illinois Hospital District, [that] was\ncreated to provide health care to the residents of Franklin County, Iinois[.]'* Hospital districts\nare units of local government under the Illinois Constitution (1975 ILL Att'y Gen. Op. 59), and\ntherefore are \"public bodies\" for purposes of FOIA.) Although the District admits that its\nphysicians are employees of a public body,'° it argues that the physicians do not perform “public\nduties.\" The District has provided no authority to support the argument that a physician\nemployed by a public body does not perform public duties when treating patients, or that records\nreflecting the compensation of publicly employed physicians do not pertain to the transaction of\npublic business. To the contrary, because the Districti s a public body whose purpose is to\nprovide health care, it is logical to conclude that when providing care to residents of the District,\nphysicians are performing public duties. Further, the employment agreements of physicians\nengaged to carry out the mission of the District clearly fit within the definition of documentary\nmaterial prepared by, used by, and in the possession of the public body.\n“Letter from Edwina Warner, Trout, Popit & Warner, P.C., to Matthew Hartman, Asst. Attorney\nGeneral, Public Access Bureau (June 9, 2015), at 2.\n'SThe District's employment agreements refer to the District as “an Illinois governmental.\nmunicipality.” Contract for the purpose of physician employment, Lawrence Hollander, M.D—. Franklin Hospital\nDistrict (Apri! 1, 2014), at 1. :\nLetter from Edwina Warner, Troutt. Popit& Warmer, P.C., to Matthew Hartman, Asst. Attorney\nGeneral, Public Access Bureau (une 9, 2015), at 2.\nMr. Rocky Morris\nMr. Derek S. Johnson, Sr.\nAugust 31, 2015\nPage 5\nEven if the District's contention that the physicians’ duties do not “pertain to the\ntransaction of public business\" were correct, however, section 2.5 of FOIA (5 ILCS 140/2.5\n(West 2014)) provides that \"[a]!l records relating to the obligation, receipt, and use of public\nfunds of the State, units of local government, and school districts are public records subject to\ninspection and copying by the public.” (Emphasis added.) See also article VIII, section 1(c) of\nthe Illinois Constitution of 1970: “[R]ecords of the obligation, receipt and use of public funds of\nthe State, units of local government and school districts are public records available for\ninspection by the public according to law.\"\nIt is undisputed that the District's physicians are compensated for their services\nfrom District funds. Accordingly, under the plain language of section 2.5 of FOIA, records\ndocumenting the compensation of the physicians are records of a public body relating to its use\nof public funds and are therefore subject to inspection and copying under FOIA, unless otherwise\nexempted from disclosure. ‘\nSection 7(1)(b) of FOIA\ni\nThe District has asserted that the amounts of physicians’ compensation may be\nredacted from their employment agreements under section 7(1)(b), which exempts from\ndisclosure \"[p]rivate information, unless disclosure is required by another provision of this Act, a\nState or federal law or a court arder.” Section 2(c-5) of FOIA (5 ILCS 140/2¢-5) (West 2014))\ndefines ' ‘private information” as:\n{ Ujnique identifiers, including a person's social security number,\n\"driver's license number, employee identification number, biometric\nidentifiers, personalfi nancial information, passwords or other\naccess codes, medical records, home or personal telephone —\nnumbers, and personal,email addresses. Private information alse\nincludes home address and personal license plates, except as.\notherwise provided by law or when compiled without possibility of\nattribution to any person. (Emphasis added.)\nIn its response to the FOIA request, the District asserted that physicians’\ncompensation informationi s \"personal financial information” within the scope of the above\ndefinition,'” but did not provide additional details to support this argument. The amount of\ncompensation earned by an individual, standing alone, unlike a bank account number, does not\nconstitute a \"unique identifier\" that could be considered \"private information\" under this\ndefinition. Further, the compensation information relates to the District's use of public funds and\n, \"Letter from Derek S. Johnson, Sr., Business Development Officer/FOIA Officer, Franklin\nHospital, to Rocky Mortis (May 18, 2015).\na ae iE\nMr. Rocky Morris ;\nMr. DereSk, Johnson, Sr.\nAugust 31, 2015\nPage 6\ntherefore is expressly subject to disclosure pursuant to section 2.5 of FOIA. Accordingly, we\nconclude that the District has not sustained its burden of demonstrating by clear and convincing\nevidence that the: physicians’ compensation informationi s exempt from disclosure pursuant to\nsection 7(1)(b) of FOIA. ;\nThe District also asserted that the residential addresses of the physicians listedi n\nthe employment agreements are.exempt under section 7(1)(b).! ® This office has reviewed the\nunredacted agreements and concludes that four of the five addresses containedi n the agreements\nare home addresses that the District properly withheld under section 7(1)(b). However, the\naddress listed for Dr. Lawrence Hollander is a post office box number. Because a post office\nbox does not uniquely identify an individual or constitute a \"home address,” the District has not\nsustained its burden of demonstrating that the post office box number is exempt from disclosure\npursuant to section 7(1)(b) of FOIA. °\nSection 7(1)(c) of FOIA\nThe District also asserted section 7(1)(c) of FOIA as a basis for withholding\ncompensation informationi n the employment agreements. Section 7(1)(c) of FOIA exempts\nfrom inspection or copying:\nPersonal information contained within public records, the\n. disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to\nin writing by the individual subjects of the information.\n\"Unwarrantedi nvasion of personal privacy” means the disclosure\nof information thati s highly personal or objectionable to a.\nreasonable person andi n which the subject's right to privacy\noutweighs any legitimate public. interest in obtaining the\ninformation. The disclosure of information that bears on the\npublic duties ofp ublicyemployees and officials shall not be.\nconsidered an invasion of personal privacy. (Emphasis added.)\nThe District has asserted that the disclosure of the amount of compensation\nprovided would constitute an unwarrantedi nvasion of personal privacy because the physicians\n\"strongly object to disclosing their personafiln ancial information to the public[. y°? The District\n'\nSL etter from Edwina Warner, Troutt, Popit & Warner, P.C., to Matthew Hartman, AAsst.\nAttorney General, Pubiic Access Bureau (June 9, 2015), at 1.\nLetter from Edwina Warner, Troutt, Popit & Warner, P.c .. to Matthew Hartman, Asst. Attorney\nGeneral, Public Access Bureau (June 9, 2015), ar2.\nMr. Rocky Mortis .\nMr. Derek S. Johnson, Sr.\nAugust 31, 2015\nPage 7\nalso stated that disclosure of physician compensation is not in the public's interest because it\ncould \"hinder the District's ability to attract and maintain such qualified physicians, who may\neasily choose to work for other health facilities [that].are not public bodies.”\n; The District employs the physicians to provide medical services at a public\nhospital to residents of the District pursuant to their coritracts with the District. Because the\namount of compensation directly bears on the physicians’ public duties as employees of the\nDistrict, disclosure of this information is not an invasion of personal privacy under the plain\nlanguage of section 7(1)(c).\nThis office is mindful of the District's understandable concerns with respect to\nattracting physicians for employment! However, the public has a right to know the purposes for\nwhich public funds are expended, including the identity of those who receive the funds and the\namount of funds received. HL Att'y Gen. Pub. Acc. Op. No. 15-004, issued June 17, 2015, at 5.\nThus, even assuming that disclosure of the compensation amounts in question could be\nconsidéred an invasion of physicians’ personal privacy, in view of the strong countervailing\ninterest of the public in information concerning the use of public funds, the invasion of privacy\nwould not be \"unwarranted.\"\nve . FINDINGS AND CONCLUSIONS\n; . Having given due consideration to the arguments presented, the Public Access\nCounselor's review, and the applicable law, the Attorney General finds that:\n1) On May 11, 2015, Mr. Rocky Morris submitted a FOIA request to the Franklin\nHospital District seeking physician contracts or employment agreements, including incentives\nand bonuses paid, for five named physicians. ,\n2) On May 18, 2015, the District provided copies of the pertinent contracts to Mr.\nMorris but denied the request in part by redacting the physicians’ compensation information from\nthe contracts citing sections 7(1)(b) and 7(1)(c) ofF OIA, claiming that the information is highly\npersonal and confidential. The District further asserted that because the physicians do not\nperform \"public duties,” the compensation records are not \"public records\" subject to disclosure\nunder FOIA. :\n3) On May 26, 201 5, the Public Access Counselor receiveda Request for Review\nfrom Mr. Morris disputing the partial denial of his FOTA request. The Request for Review was\n2° etter from Edwina Warner, Troutt, Popit & Warner, P.c ., to Matthew Hartman, Asst. Attorney\nGeneral, Public Access Bureau Gune 9, 20711 5), at3 . :\nMr. Rocky Mortis -\nMr. Derek-S. Johnson, Sr.\nAugust 31, 2015\nPage 8\ntimely filed and otherwise complies with section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West.\n2014). -\n. 4) On May 29, 2015, the Public Access Bureau forwarded a copy of Mr. Morris’\nRequest for Review to the District and requested unredacted copies of the documents for our\nconfidential review; as well as an explanation of the District's basis for asserting that the redacted _\ninformation was exempt from disclosure.\n5) On June 9, 2015, the District sent a written response to this office, which\nincluded a redacted and an unredacted copy of the employment agreements for each of the\nphysicians.\n6) On July 20, 2015, the Public Access Bureau properly extended the time in\nwhich to issue a binding opinion pursuant to section 9.5(f) of FOIA, to August 31, 2015.\nTherefore, the Attorney General may properly iissue a binding opinion with respect to this matter.\n7) Section 2.5 of FOIA specifically provides that all records relating to the\nobligation, receipt, and use of public funds of units of State and local government are public\nrecords subject to inspection and copying by the public. The District is a unit of local\ngovernment and therefore is a public body, as defined in FOIA. The District compensates the\nphysicians in question from District funds. Therefore, the amount of compensation paid by the\nDistrict to its physicians is subject to disclosure, unless otherwise exempted.\n8) The amount of compensation paid by the District to its physicians does not\nconstitute a \"unique identifier\" including \"personal financial informatiotnha,\"t is exempt from\ndisclosure under section 7(1)(b) of FOIA. Therefore, the District may not properly withhold the\namount of compensation paid to its physicians under that section. However, the District properly\nwithheld residential addresses as private information under section 7(1)(b), with the exception of\none post office box number, which.is not a \"home address.\" ‘ :\n9) In addition, the District failed to meet its burden of demonstrating that the\ncompensation information is exempt from disclosure pursuant to section 7(1)(c) of FOTA.\nBecause the records directly relate to the District's use ofp ublic funds, they are therefore\nexpressly subject to disclosure pursuant to section 2.5 of FOIA and article VIII, section 1(c) of.\nthe Illinois Constitution of 1970. Moreover, because these records directly bear on the services\nthe physicians perform for.a public body, their disclosure would not be considered an\nunwarrantedi nvasion of privacy under the plain language of the exemption.\nTherefore, it is the opinion of the Attorney General that the District has\nimproperly denied, in part, Mr. Morris' Freedom of Information Act request in violation of the\nrequirements of the Act. Accordingtlhye, District is,directed to take immediate and appropriate\nMr. Rocky Morris\nMr. Derek S. Johnson, Sr.\nAugust 31, 2015\nPage 9.\naction to comply with this opinion by disclosing to Mr. Morris copies of the physicians'\nemployment contracts containing the compensation information, as a well ass the post office box\naddress that was improperly redacted.\nThis. opinion shall bee considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 [LCS 5/3-101\net seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Mr. Rocky Morris\nas defendants. See 5 ILCS 140/11.5 (West 2014).\ni Very truly yours,\ni\n' LISA MADIGAN\nATTORNEY GENERAL\ner cea\nBy:\nMichael J. Luke ;\nCounsel to the Attorney General\nce: Ms. Edwina Warner '\nTroutt, Popit & Warner, P.C. *\nP.O. Box 548,\nBenton, Hlinois 62812","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Rocky Morris requested employment contracts for several physicians at Franklin Hospital District to see their compensation and bonuses. The hospital provided the contracts but blacked out the pay information, claiming it was private. The Attorney General ruled that this compensation information is public and must be disclosed, concluding that the hospital violated FOIA by partially denying the request.","card_headline":"Physician employment contracts with compensation details","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":56,"orig_master_id":19258,"dup_master_id":19029,"dup_sha256":"fb31e07edf4975ba290ad3f03dcf2bd7305a85133b3588ff2f91114b6fd1b403","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2015,"date_issued":"2015-09-16","case_number":"2015 PAC 35861","request_numbers":null,"title":"Failure to Cite an Applicable Exception Before Closing a Meeting to the Public; Improper Discussion ofa Hiring Freeze in a Closed Meeting","filename":"PUBLIC ACCESS OPINION 15-007 (Request for Review - 2015 PAC 35861).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 15-007 (Request for Review - 2015 PAC 35861).pdf","word_count":3790,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a violation of the Open Meetings Act by the Knox County Board's Finance Committee during a closed meeting.","plain_summary":"The requester challenged a county board's finance committee for closing part of a meeting to discuss a hiring freeze and the elimination of an employee's position after citing only \"personnel\" as its reason. The Public Access Counselor held that a bare reference to \"personnel\" does not adequately disclose which Open Meetings Act exception authorizes a closed session, that discussing how eliminating a position would affect a specific employee fell within the personnel exception but that the broader hiring-freeze discussion did not qualify as a \"collective negotiating\" matter because the county was not then engaged in active bargaining with its unions. The county board was directed to disclose the closed-session minutes, subject to redacting one sentence naming a specific employee, and to comply with the Act's citation and recording requirements going forward.","holding":"The Finance Committee of the Knox County Board violated section 2(a) of the Open Meetings Act by failing to cite the exceptions for closing the meeting and by improperly discussing a hiring freeze in closed session.","legal_question":"Did the Knox County Board's Finance Committee violate the Open Meetings Act during its closed meeting?","disposition":"violation_found","primary_statute":["5 ILCS 120/2(a)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)"],"public_body":"Knox County Board Finance Committee","requesting_party":"Mr. Marty Hobe (The Register-Mail)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The committee improperly closed a meeting without citing legal exceptions and discussed a hiring freeze in private.","ocr_status":"ok","ocr_quality":90.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2015-Binding-PAC-Opinions/15-007.pdf","sha256":"d057dddd08feff969ad2b65d3e74108eb3a2e3b35319e5d46aad7e7b9cb2e8a4","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","hiring freeze","Open Meetings Act","transparency"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nSeptember 16, 2015\nPUBLIC ACCESS OPINION 15-007\n(Request for Review 2015 PAC 35861)\nOPEN MEETINGS ACT:\nFailure to Cite an Applicable Exception\nBefore Closing a Meeting to the Public;\nImproper Discussion ofa Hiring Freeze\nin a Closed Meeting\nMr. Marty Hobe\nGovernment Reporter\nThe Register-Mail\n[street address redacted for site publication -- see original PDF]\nThe Honorabie Brian Friedrich\nChairman, Knox County Board\n200 South Cherry Street\nGalesburg, Hlinois 61401-4992\nDear Mr. Hobe and Mr. Friedrich:\nThis is a binding opinion issued by the Attorney General pursuant to section\n3.5(e) of the Open Meetings Act (OMA) (5 ILCS 126/3.5(e) (West 2014), as amended by Public\nAct 99-402, effective August 19, 2015). For the reasons discussed below, this office concludes\nthat the Finance Committee (Committee) of the Knox County Board (Board) violated section\n2(a) of OMA (5 ILCS 126/2(a) (West 2014)) at its June 17, 2015, meeting by failing to cite the\nexceptions upon which it relied to enter into closed session and by improperly discussing a hiring\nfreeze in the closed session.\n500 South Second Street, Springfield, Hlinois 62706 + (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217} 782-1046\n100 West Randolph Street, Chicago, Hlincis 60601 + (312)814-3000 + TTY: (800) 964-3013 + Fax: (312} 814-3806\n601 South University Avenue, Suite 102, Carbondale, [inois 62901 * (618) 529-6400 * TTY: (877) $75-9339 + Fax: (6183) 529-6416 The response also stated that at its June 2015, meeting, the full\nBoard approved the hiring freeze and tabled a motion concerning the termination of the County\nemployee position. On July 17, 2015, this office forwarded a copy of the Mr. Erickson's\nresponse to Mr. Hobe.® He did not reply.\nOn July 21, 2015, this office sent a letter to the County Clerk requesting a copy of\nthe minutes of the open session and a written response identifying the specific section 2(c)\nexception or exceptions that the Committee publicly cited and identified as its basis for entering\ninto closed session on June 17, 2015. This office also requested clarification as to \"whether or\nnot the County was engaged in active collective bargaining negotiations at the time of the\nmeeting with the union of the employees who were discussed during the closed session.”” On\nAugust 7, 2015, Mr. Erickson furnished a copy of the open session minutes and an additional\nwritten response.* On August 17, 2015, this office forwarded a copy of Mr. Erickson's response\nto Mr. Hobe.” Mr. Hobe did not reply. On August 17, 2015, this office also extended the time\nwithin which to issue a binding opinion by 21 business days pursuant to section 3.5(e) of\nOMA.\n‘Letter from Scott G. Erickson, CCO, Knox County Clerk, to Steve Silverman, Public Access\nBureau, lilinois Attorney General's Office (July 6, 2015), at 1.\nSLetter from Scoit G. Erickson, CCO, Knox County Clerk, to Steve Silverman, Public Access\nBureau, lilinois Attorney General's Office (July 6, 2015), at 1.\n°Letter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, to Marty Hobe,\nThe Register-Mail (July 17, 2015).\n\"Letter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, to Scott G.\nErickson, Knox County Clerk (July 21, 2045).\n‘Letter from Scott G. Erickson, CCO, Knox County Clerk, to Steve Silverman, Public Access\nBureau, Illinois Attorney General's Office (August 7, 2015).\nLetter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, to Marty Hobe, The\nRegister-Mail (July 17, 2015).\n'°L etter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, to Marty Hobe,\nGovernment Reporter, The Register-Mail, and Scott G. Erickson, Knox County Clerk (August 17, 2015).\nMr. Marty Hobe\nThe Honorable Brian Friedrich\nSeptember 16, 2015\nPage 4\nANALYSIS\nOMA is intended \"to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2014). Section 2(a) of OMA\nprovides that \"[a]ll meetings of public bodies shall be open to the public unless excepted in\nsubsection (c) and closed in accordance with Section 2a.\" Such exceptions “are in derogation of\nthe requirement that public bodies meet in the open, and therefore, the exceptions are to be\nstrictly construed, extending only to subjects clearly within their scope.\" 5 ILCS 120/2(b) (West\n2014).\nSection 2a of OMA\nSection 2a of OMA (5 ILCS 120/2a (West 2014)) provides that \"[t]he vote of\neach member on the question of holding a meeting closed to the public and a citation to the\nspecific exception contained in Section 2 of this Act which authorizes the closing of the\nmeeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and\nentered into the minutes of the meeting.” (Emphasis added.) The Committee's response to this\noffice indicates that it entered into closed session pursuant to sections 2(c)(1) and 2(c)(2) of\nOMA which, as discussed below, permit a public body to discuss the \"appointment, employment,\ncompensation, discipline, performance, or dismissal of specific employees\" and “collective\nnegotiating matters{,]\" respectively. The open session minutes of the Committee's June 17, 2015,\nmeeting state: \"Member Friedrich moved and Member Pitman seconded to enter into\nexecutive session to discuss personnel. The motion passed unanimously.\"!' (Emphasis in\noriginal.)\n\"Personnel\" is defined as: “{clollectively, the people who work in a company,\norganization, or military force.\" Black's Law Dictionary (10th ed. 2014), available at Westlaw\nBLACKS. Notably, the word \"personnel\" does not appear in sections 2(c)(1) or 2(c)(2) of OMA,\nbut it does appear in two other exceptions. See 5 ILCS 120/2(c)(8) (West 2014) (\"Security\nprocedures and the use of personnel and equipment to respond to an actual, a threatened, or a\nreasonably potential danger to the safety of employees, students, staff, the public, or public\nproperty[ ]\"); 5 ILCS 120/2(c)(14) (West 2014) (\"Informant sources, the hiring or assignment of\nundercover personnel or equipment, or ongoing, prior or future criminal investigations, when\ndiscussed by a public body with criminal investigatory responsibilities.\"). A mere reference to\n\"personnel\" does not adequately identify any exception that authorizes a public body to close\npart ofa meeting. See HI. Att'y Gen. Pub. Acc. Op. No. 15-005, issued August 4, 2015, at 5.\nThe minutes do not indicate, nor has the Committee asserted, that it informed the public that it\n\"Knox County Board, Finance, Insurance, Treasurer, Judicial & Clerk Committees, Meeting, June\n17, 2015, Minutes 2.\nMr. Marty Hobe\nThe Honorable Brian Friedrich\nSeptember 16, 2015\nPage 5\nwould discuss either the appointment, employment, compensation, discipline, performance, or\ndismissal of specific employees or collective negotiations matters prior to closing the meeting.\nAccordingly, the Committee violated section 2a of OMA by failing to publicly disclose and\nrecord in the minutes that it entered into closed session pursuant to sections 2(c})(1) and 2(c)(2) of\nOMA.\nSection 2(c})(1) of OMA\nSection 2(c}(1) of OMA permits a public body to close a portion of a meeting to\ndiscuss \"[t]he appointment, employment, compensation, discipline, performance, or dismissal of\nspecific employees of the public body or legal counsel for the public body[.]” See fl Att'y Gen.\nPub. Acc. Op. No. 12-011, issued July 11, 2012, at 3 (“[Tyhe exception is intended to permit\npublic bodies to candidly discuss the relative merits of individual employees[.]\"}, see also Ul.\nAtt'y Gen. Op. No. 8-726, issued March 22, 1974, at 9 (\"This provision is intended to protect the\nidentity of prospective appointees or employees, and reputation of public employees\").\nMr. Erickson'‘s response to this office asserts, and the minutes of the closed\nsession confirm, that a portion of the Committee's June 17, 2015, closed session discussion\nconcerned \"the termination of [a County employee] position in the Regional Office of Education.\nThis position is paid for by the County[.]\"? Our review of this matter is hampered by the lack of\nthe required verbatim recording of the closed session. The available information, however,\nindicates that the Committee discussed the elimination of a particular County position as well as\nhow the elimination of that position would affect the employment of a specific employee. The\nelimination of a job or position — even one held by only a single employee - for budgetary or\nother reasons unrelated to the performance of the employee is a matter relating to budget and\nmanagement which does not carry implications for an individual employee's reputation. Thus, a\ndiscussion of eliminating a position itself which does not consider the performance of the\nemployee or whether a particular employee should occupy the position, is not within the scope of\nthe section 2(c)(1) exception. Although a public body may properly enter closed session to\nconsider whether to eliminate a position based on an evaluation of a specific employee's\nperformance, neither the closed session minutes nor the Committee’s responses to this office\nprovide any indication that the employee's performance was a factor in this instance. Therefore,\nonly the portion of the closed session discussion which focused on how the elimination of the\nposition would affect the specific employee who held the position was authorized by the section\n2(c)(1) exception.\n\\ etter from Scatt G. Erickson, CCO, Knox County Clerk, to Steve Silverman, Public Access\nBureau, Illinois Attorney General's Office July 6, 2015), at 1. i\nMr. Marty Hobe\nThe Honorable Brian Friedrich\nSeptember 16, 2015\nPage 6\nSection 2(c)(2) of OMA\nMr. Erickson's response to this office and the closed session minutes indicate that\nthe discussion during the remainder of the closed session concerned the possibility of imposing a\n. hiring freeze. The Committee's response stated that it relied on the section 2(c)(2) exception to\nclose that portion of the discussion. Section 2(c)(2)} permits a public body to close a meeting to\ndiscuss \"[c]ollective negotiating matters between the public body and its employees or their\nrepresentatives, or deliberations concerning salary schedules for one or more classes of\nemployees.\"\nThe collective negotiation exception reflects the General Assembly's\n\"recognition of the view that the very nature of meaningful collective bargaining requires that\ncertain phases of the negotiating process must be conducted privately.” (Emphasis added.) IIL.\nAtt'y Gen. Op. No. 80-024, issued August 12, 1980, at 10-11. Thus, Attorney General Fahner\nadvised that \"as a general rule * * *, a public body may meet privately to consider a collective\nnegotiating response[ ]\" during an active collective bargaining process. Hl. Att'y Gen. Op. No.\n80-024, at 10. Similarly, in Gosnell v. Hogan, 179 Ill. App. 3d 161, 175-76 (Sth Dist. 1989), the\nIllinois Appellate Court concluded that the section 2(c\\(2) exception permitted a school board to\nclose a meeting to discuss extending a term in a previous collective bargaining agreement with a\nteachers’ union to the then-existing agreement; a proposed amendment to a collective bargaining\nagreement after the teachers’ union threatened to file a grievance; and a request for mediation\nwith the teacher's union.\nMr. Erickson’s initial response to this office asserted that the Committee's\ndiscussion of the hiring freeze was authorized under section 2(c)(2) because \"the majority of the\nemployees in the employ of the County are covered under collective bargaining agreements with\ntheir respective Unions, [and] * * * discussion of this option in an open setting would present the\npotential for issues with said collective bargaining units and the County.\" However, Mr.\nErickson's supplemental response to this office conceded that the “County was not in active\nnegotiations with it[s] collective bargaining units at” the time of the meeting, “but [was]\npreparing for such contact if the situation did arise.\"'4 Therefore, the hiring freeze was not a\nmatter of \"collective negotiation” between the County and its employees or their union\nrepresentatives, but rather a unilateral proposal considered by the Committee and subsequently\n3 etter from Scott G. Erickson, CCO, Knox County Clerk, to Steve Silverman, Public Access\nBureau, Illinois Attorney General's Office July 6, 2015), at 1.\n‘Letter from Scott G. Erickson, CCO, Knox County Clerk, to Steve Silverman, Public Access\nBureau, Itlinois Attorney General's Office (August 7, 2015).\nMr. Marty Hobe\nThe Honorable Brian Friedrich\nSeptember 16, 2015\nPage 7\nacted upon by the Board.'* The section 2(¢\\(2} exception does not encompass a discussion of\nunilateral budgetary actions that would affect members of collective bargaining units outside of\nactive or imminent collective bargaining. Further, Mr. Erickson’s response to this office\nacknowledged that some of the employment positions to which the hiring freeze applies are not\ncovered by collective bargaining agreements. Accordingly, this office concludes that the\nCommittee's closed session discussion of the hiring freeze was not authorized by section 2(c)(2);\ntherefore, the Committee violated ‘section 2(a) of OMA by improperly closing the discussion to\nthe public.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments presented,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On June 17, 2015, the Knox County Board's Finance Committee closed a\n‘portion of its meeting to the public “to discuss personnel.\"\n2) On June 18, 2015, Mr. Marty Hobe submitted a Request for Review\nin which he alleged that the Committee violated OMA by discussing general personnel matters in\nthe closed session rather than discussing specific employees. Mr. Hobe's Request for Review\nwas timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5\nILCS 120/3.5(a} (West 2014), as amended by Public Act 99-402, effective August 19, 2015).\n3) On June 24, 2015, the Public Access Bureau sent a copy of the Request for\nReview to the Chairman of the Board and asked the Committee to respond to Mr. Hobe's\nallegations and to provide copies of the Committee’s June 17, 2015, agenda, open and closed\nsession minutes, and closed session verbatim recording for this office's review.\n4) On July 6, 2015, the Knox County Clerk, on behalf of the Committee,\nprovided a written response and a copy of the closed session minutes of the Committee's June 17,\n2015, meeting. The response stated that ihe Committee had relied on the section 2(c)(1)\nexception to discuss the termination of an employee and had discussed a hiring freeze pursuant\nto the section 2(c}(2) exception. The response also indicated that the Board subsequently\napproved the hiring freeze but tabled a motion concerning the termination of the employee. The\nresponse did not include a copy of the open session minutes or the verbatim recording of the\nclosed session portion of the meeting; the response stated that a verbatim recording does not\n5 Letter from Scott G. Erickson, CCO, Knox County Clerk, to Steve Silverman, Public Access\nBureau, Illinois Attorney General's Office (July 6, 2015), at 1.\nMr. Marty Hobe\nThe Honorable Brian Friedrich\nSeptember 16, 2015\nPage 8\nexist because the digital recorder used by the Committee malfunctioned. On July 17, 2015, the\nPublic Access Bureau forwarded a copy of the response to Mr. Hobe; he did not reply.\n5) On July 21, 2015, this office sent a letter to the County Clerk requesting a\ncopy of the Committee's open session minutes, a written response identifying the exception(s)\nthe Committee publicly cited when it entered closed session, and clarification as to whether the\nCounty was engaged in collective bargaining with its employees’ union at the time of the\nmeeting.\n6) On August 7, 2015, the County Clerk sent this office a copy of the open\nsession minutes and a written response stating that the County was not in active collective\nbargaining at the time of the meeting. The open session minutes indicated that the Committee\npublicly cited and identified the exception for “personnel” to close the meeting. On August 17,\n2015, the Public Access Bureau forwarded a copy of the response to Mr. Hobe; he did not reply.\n7) On August 17, 2015, this office extended the time within which to issue a\nbinding opinion by 21 business days, to September 16, 2015, pursuant to section 3.5(e} of OMA.\nTherefore, the Attorney General may properly issue a binding opinion with respect to this matter.\n8) Section 2(a} of OMA requires that all meetings of public bodies be open to the\npublic unless the subject of the meeting is covered by one of the limited exceptions enumerated\nin section 2(c). Section 2a of OMA provides that the \"vote of each member on the question of\nholding a meeting closed to the public and a citation to the specific exception contained in\nSection 2 of this Act which authorizes the closing of the meeting to the public shall be publicly\ndisclosed at the time of the vote and shall be recorded and entered into the minutes of the\nmeeting.”\n9) The reference to “personnel” in the Committee's motion fo close the meeting\nand the meeting minutes did not sufficiently disclose that the Committee was asserting section\n2(c)(1) and section 2(c)(2) as its bases for closing its discussion to the public, in violation of\nsection 2a of OMA. The Committee also violated OMA by failing to enter into its meeting\nminutes the specific exceptions authorizing the closing of the July 17, 2015, meeting.\n10) Our review of the pertinent materials provided by the County Clerk reflects\nthat during the Committee's June 17, 2015, closed session, the Committee discussed the\nelimination of a County employee position in the Regional Office of Education, the employment\nof a particular employee in that office, and a proposed countywide hiring freeze.\nMr. Marty Hobe\nThe Honorable Brian Friedrich\nSeptember 16, 2015\nPage 9\n11) Section 2(c)(1) of OMA permits a public body to close a meeting or a portion\nthereof to discuss employment-related topics such as the performance, discipline, or dismissal of\nspecific employees of the public body. The Committee's closed session discussion of how the\nelimination of a position would affect the employment of a specific employee was authorized by\nthe section 2(c\\(1} exception. The portion of the closed session discussion concerning the\nelimination of a County employee’s position in the Regional Office of Education for reasons\nunrelated to the employee's performance, however, was not authorized by the section 2(c}(1)\nexception.\n2) Because the County was not engaged in collective bargaining at the time of\nthe meeting, the hiring freeze did not a constitute a “[clollective negotiating matter] ] between\nthe public body and its employees or their representatives[.]\" 5 ILCS 120/2(c)(2) (West 2014).\nAccordingly, the Attorney General concludes that the Committee violated OMA by discussing in\nclosed session matters outside the scope of the section 2(c)(2) exception.\n13) These findings necessarily compel the further finding that the Committee\nviolated section 2(a} of OMA, because meetings of public bodies must be open to the public\nunless properly closed under section 2a.\nIn accordance with these findings of fact and conclusions of law, the Committee\nis directed to remedy these violations by disclosing to Mr. Habe the clased session minutes of its\nJune 17, 2015, meeting. The Committee may redact the last sentence of the third paragraph in\nthe body of the minutes that identifies a specific, named County employee because it relates to a\nmatter that was properly discussed in closed session. The Committee is also directed to conduct\nits future meetings in full compliance with OMA, including the use of properly functioning\nrecording equipment. As required by section 3.5(e) of OMA, the Committee shall either take\nnecessary action as soon as practical to comply with the directives of this opinion or shall initiate\nadministrative review under section 7.5 of OMA (5 ILCS 120/7.5 (West 2014)).\nMr. Marty Hobe\nThe Honorable Brian Friedrich\nSeptember 16, 2015\nPage 10\nThis opinion shall be considered a final decision oafn administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General ofI llinois and Mr.\nMarty Hobe as defendants. See 5 [LCS 120/7.5 (West 2014).\nVery truly yours,\n’ LISA MADIGAN\nATTORNEY GENERAL\nBy: Leelee\nMichael J. Luke\nCounsel to the Attorney General\nce: The Honorable Scott G. Erickson\nKnox County Clerk\nKnox County Courthouse\n200 South Cherry Street\nGalesburg, [Hinois 61401-4992","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Knox County Board's Finance Committee held a closed session on June 17, 2015, without publicly citing the specific legal exceptions that allowed them to close the meeting, as required by the Open Meetings Act. The Illinois Attorney General found that the committee also violated the Act by discussing a hiring freeze in the closed session, because that discussion did not fall within the exceptions they later claimed. The opinion does not order any specific future procedures or remedies.","card_headline":"A finance committee's closed meeting on a hiring freeze","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":57,"orig_master_id":19259,"dup_master_id":19030,"dup_sha256":"98e424c720a613e0741a8c3994f91181f23d2d68dd43c75f9af0c0e7b5193b66","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2015,"date_issued":"2015-09-28","case_number":"2015 PAC 35840","request_numbers":null,"title":"Disclosure of Surveillance Video Recordings","filename":"PUBLIC ACCESS OPINION 15-009 (Request for Review - 2015 PAC 35840).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 15-009 (Request for Review - 2015 PAC 35840).pdf","word_count":2963,"summary":"This document is a binding public access opinion regarding a Freedom of Information Act request for surveillance video recordings related to a fatal traffic accident. It concludes that the Illinois Department of Transportation violated FOIA by denying the request.","plain_summary":"The requester, a paralegal for the law firm representing a party in a fatal accident case, sought surveillance video from a state highway rest area showing the area near where a pedestrian was fatally struck by a truck, and the state transportation department withheld the video, arguing that disclosure would invade the privacy of the decedent's family. The Public Access Counselor held that while family members can have an independent privacy interest in graphic details of a relative's death, these videos did not depict the accident itself or contain graphic content, so the strong public interest in understanding the circumstances of a fatal traffic accident outweighed any privacy concern. The state transportation department was directed to provide the requester with copies of the videos.","holding":"The Illinois Department of Transportation violated FOIA by denying the request for surveillance videos.","legal_question":"Did the Illinois Department of Transportation violate the Freedom of Information Act by denying the request for surveillance videos?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Illinois Department of Transportation","requesting_party":"Ms. Judy Flanagan","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request sought surveillance video recordings of a fatal pedestrian versus tractor-trailer accident at a rest area.","ocr_status":"ok","ocr_quality":89.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2015-Binding-PAC-Opinions/15-009.pdf","sha256":"c74b39e2c8a7d55d7111f5ca635776ace71836b28f88d7998e3ec120c0971567","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["surveillance video","IDOT","fatal accident","FOIA denial"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nSeptember 28, 2015\nPUBLIC ACCESS OPINION 15-009\n(Request for Review 2015 PAC 35840)\nFREEDOM OF INFORMATION ACT:\nDisclosure of Surveillance Video Recordings\nMs. Judy Flanagan\nParalegal\nLashly & Baer, P.C.\n[street address redacted for site publication -- see original PDF]\nMr. Matthew D. Dougherty\nAssistant Chief Counsel\nActing FOIA Officer\nIllinois Department of Transportation\nOffice of the Chief Counsel, Room 313\n2300 South Dirksen Parkway\nSpringfield, Illinois 62764\nDear Ms. Flanagan and Mr. Dougherty:\nThis is a binding opinion issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9,5() (West 2014)). For the reasons discussed below, this\noffice concludes that the Nlinois Department of Transportation (IDOT) violated the requirements\nof FOIA by denying Ms. Judy Flanagan's request for surveillance videos related to a fatal traffic\naccident.\nBACKGROUND\nOn June 1, 2015, Ms. Flanagan submitted a FOIA request to IDOT stating:\n500 South Second Street, Springfield, Minois 62706 * (217) 782-1090 + TTY: (877) 844-5461 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Iincis 60601 * (312) 814-3000 + TTY: (800) 964-3013 * Fax: (312) 814-3806\n601 South University Avenue, Suite 102, Carbondale, Iinois 62901 * (618) 529-6400 + TTY: (877) 675-9339 + Fax: (618)529-6416 There is a public interest in the disclosure of information\nconceming the circumstances relating to a traffic fatality. Such information may also be relevant\nto the resolution of any legal rights or remedies arising from the accident. Accordingly, Ms.\nFlanagan's interest is aligned with the public interest in disclosure of the recording.\nThe third factor to be considered is the degree of invasion of the personal privacy\nof the decedent's family if the videos are disclosed. Without revealing details of the videos in\nquestion, which have been furnished to us for confidential review, we note that they do not\ndepict the accident itself or show the decedent after the accident occurred; the videos do not\ncontain graphic or gruesome details comparable to autopsy photographs. See Ill. Att'y Gen. Pub.\nAcc, Op. No. 10-003 (concluding that the disclosure of autopsy photographs of two public\nfigures would constitute a clearly unwarranted invasion of privacy for purposes of section\n70 )(e)). Accordingly, the degree of invasion of personal privacy is not significant.\nWith respect to the final factor, there does not appear to be any alternative means\nby which Ms. Flanagan can obtain copies of the videos except, perhaps, through judicial process.\nBased on our analysis of the four factors set out above, this office concludes that\nthe disclosure of the videos would not constitute a clearly unwarranted invasion of personal\nprivacy. There is a significant public interest in the disclosure of information that sheds light on\nthe circumstances surrounding a fatal traffic accident. Further, the videos do not contain graphic\nor gruesome details of the accident or depict the decedent after it occurred. Even assuming that\nthe disclosure of the videos would constitute an invasion of the privacy of the decedent's\nsurviving family members, IDOT has not presented clear and convincing evidence from which\nwe could conclude that the family’s right to privacy outweighs the public's interest in disclosure\nof the video recordings. In other words, the invasion of the family’s privacy would not be\n\"clearly unwarranted.” Accordingly, we conclude that IDOT has not sustained its burden of\ndemonstrating that the videos are exempt from disclosure pursuant to section 7(1)(c) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1} On June 1, 2015, Ms. Judy Flanagan submitted a FOIA request to IDOT\nseeking copies of surveillance videos for a specific rest area at which a fatal traffic accident\noccurred on May 27, 2015.\n“Iilinois Department of Transportation surveillance video of Rend Lake Rest Area, (May 27,\n2015), Video CD (on fiie with the office}, 4:36:00-5:03:40.\nMs. Judy Flanagan\nMr. Matthew D. Dougherty\nSeptember 28, 2015\nPage 7\n2) On June 16, 2015, IDOT denied Ms. Flanagan's request, citing as its basis\nsection 7(1)(c) of FOIA.\n3) On June 17, 2015, the Public Access Bureau received Ms. Flanagan’s Request\nfor Review of the denial of her FOIA request.\n4) By letter dated June 19, 2015, and transmitted via e-mail on June 22, 2015, the\nPublic Access Bureau provided a copy of the Request for Review to IDOT and asked it to\nprovide copies of responsive records for this office's confidential review, as well as a detailed\nexplanation of the legal and factual bases for its assertion that the video recordings are exempt\nfrom disclosure under section 7(1(c) of FOIA.\n5) By letter dated July 1, 2015, IDOT provided a written response reiterating its\nassertion that the responsive records are exempt from disclosure in their entireties pursuant to\nsection 7(1)(c) of FOIA. On August 4, 2015, this office received copies of the responsive\nrecords from IDOT.\n6) On August 21, 2015, the Public Access Bureau properly extended the time in\nwhich to issue a binding opinion pursuant to section 9.5(f) of FOIA, to September 28, 2015.\nTherefore, the Attorney General may properly issue a binding opinion with respect to this matter.\n7) Section 7(1)(c) of FOIA exempts from inspection and copying “[p]ersonal\ninformation contained within public records, the disclosure of which would constitute a clearly\nunwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the\nindividual subjects of the information.” Section 7(1)(c) defines “unwarranted invasion of\npersonal privacy” as \"the disclosure of information that is highly personal or objectionable to a\nreasonable person and in which the subject's right to privacy outweighs any legitimate public\ninterest in obtaining the information.”\n8) A decedent's right to privacy does not ordinarily survive beyond his or her\ndeath. Close family members, however, may have independent privacy inferests in the\ndisclosure of records concerning the decedent. With respect to these video recordings, however,\nwe conclude that the public interest in the disclosure of the videos, which do not contain graphic\nor gruesome details, clearly outweighs any privacy rights of the decedent's family members.\nIDOT has failed to meet its burden of demonstrating by clear and convincing evidence that the\nrecords are exempt from disclosure pursuant to section 7(1)(c) of FOTA.\nFor the reasons stated above, it is the opinion of the Attorney General that IDOT\nimproperly denied Ms. Flanagan's Freedom of Information Act request in violation of the\nMs. Judy Flanagan\nMr. Matthew D. Dougherty\nSeptember 28, 2015\nPage 8\nrequirements of the FOIA. Accordingly, IDOT is directed to take immediate action to comply\nwith this binding opimion by providing Ms. Flanagan with the requested videos.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filinga\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Ms. Judy Flanagan\nas defendants. See 5 ILCS 140/11.5 (West 2014).\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A paralegal requested surveillance footage from a rest area following a fatal traffic accident, but the Illinois Department of Transportation (IDOT) refused to release it. The Attorney General's office determined that IDOT failed to prove the records were exempt from disclosure and ordered the agency to provide the videos to the requester.","card_headline":"Surveillance video of a fatal rest-area accident","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":58,"orig_master_id":19261,"dup_master_id":19031,"dup_sha256":"49b2a40ca041e2acad375db08be82fe51921e9928bdd4ed9801cbbafbed1ff20","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2015,"date_issued":"2015-10-21","case_number":"2015 PAC 36285","request_numbers":null,"title":"Disclosure of General Information Concerning Outside Counsel Representing State Agencies","filename":"PUBLIC ACCESS OPINION 15-010 (Request for Review - 2015 PAC 36285).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 15-010 (Request for Review - 2015 PAC 36285).pdf","word_count":4814,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request made by Mr. Mick Dumke for information about outside counsel representing state agencies.","plain_summary":"The requester, a journalist, sought lists showing which outside law firms the state had retained and the general nature of their work, and the governor's office withheld the lists, asserting attorney-client privilege and attorney work product. The Public Access Counselor held that lists identifying law firms, billing rates, and the general subject matter of representation are the type of basic information courts have held is not privileged, that the rates paid are independently subject to disclosure as records of the state's use of public funds, and that the lists reflected no legal advice, mental impressions, or litigation strategy that would qualify as work product. The governor's office was directed to disclose the withheld lists and search for and compile any other responsive records about its use of outside counsel.","holding":"The Office of the Governor violated the requirements of FOIA by denying Mr. Mick Dumke's request.","legal_question":"Did the Office of the Governor violate the Freedom of Information Act by denying a request for information concerning outside counsel?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Office of the Governor","requesting_party":"Mr. Mick Dumke","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"outside counsel","subject_description":"The request sought a list of outside legal counsel employed by the State of Illinois and the nature of their representation.","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2015-Binding-PAC-Opinions/15-010.pdf","sha256":"55cf7336b1aec3cc1c09ea266677ceccbb28e9595dfa06677ec7277c6af3094a","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["outside counsel","state agencies","public records","government transparency"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nOctober 21, 2015\nPUBLIC ACCESS OPINION 15-010\n(Request for Review 2015 PAC 36285)\nFREEDOM OF INFORMATION ACT:\nDisclosure of General Information Concerning\nOutside Counsel Representing State Agencies\nMr. Mick Dumke\nSenior Writer\nChicago Reader\n[street address redacted for site publication -- see original PDF]\nMs. Christina MeClernon\nAssistant General Counsel]\nFreedom of Information Act Officer\nOffice of the Governor, State of Illinois\n100 West Randolph Street, Suite 16-100\nChicago, Illinois 60601\nDear Mr, Dumke and Ms, McClernon:\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(£) (West 2014)). For the reasons\ndiscussed below, this office concludes that the Office of the Governor (Governor's Office)\nviolated the requirements of FOIA by denying Mr. Mick Dumke's request for general\ninformation concerning outside counsel employed by the State.\nBACKGROUND\nOn June 15, 2015, Mr. Dumke, on behalf of the Chicago Reader, submitted a\nFOIA request to the Governor's Office seeking \"[a] list or database, in electronic format, of\n500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 * TTY: (877) 844-546] ° Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Ilinois 60601 « (312) 814-3000 * TTY: (800) 964-3013 + Fax: (312} 814-3806\n601 South University Avenue, Suite 102, Carbondale, Illinois 62901 + (618) 529-6400 + TTY: (877) 675-9339 + Fax: (618)529-6416 «b=\nMr. Mick Dumke\nMs. Christina MeClernon\nOctober 21, 2015\nPage 2\noutside counsel used by the [S}tate of Illinois in fiscal years 2014 and 2015 to date (or calendar\nyears 2013, 2014, and 2015 to date)[,]” including “the department or agency for which the work\nwas done and the nature or description of the work.”' On June 29, 2015.7 the Governor's Office\nresponded that it \"performed a search and found documents responsive to [Mr. Dumke's]\nrequest[,]\" but withheld those records pursuant to section 70m) of FOIA (5 ILCS 140/7(1)(m)\n(West 2014)), which exempts from disclosure certain communications between a public body\nand an attorney representing it? Specifically, the Governor's Office asserted:\nThe withheld documents consist of “communications between a\npublic body and an attorney” and “would not be subject to\ndiscovery in litigation.” An attorney representing the public body\nprepared the withheld documents in the course of that\nrepresentation, and thus the documents are exempted from\ndisclosure as attorney work product. This attorney also\ncommunicated the withheld information to the public body for the\npurpose of furnishing legal advice. The withheld documents are\nthus exempted as attorney-client privileged.\"\nOn July 10, 2015, Mr. Dumke submitted this Request for Review contesting the\nGovernor's Office's denial of his request. He contended that \"records showing the expenditure of\npublic funds are not protected by attorney-client privilegef |\" and that section 7(1)(m) “is meant\nto protect records involving legal strategy or confidential discussions of lawsuits or criminal\nmatters--not data about the use of public funds. \"\n‘E-mail from Mick Dumke to Donovan Borvan, Associate General Counsel, Freedom of\nInformation Officer, Office of the Winois Governor (June 15, 2015).\n>This office has not been provided with any information indicating that the Governor's Office\nproperly extended the time for compliance with Mr. Dumke’s FOIA request in accordance with section 3(e) of FOIA\n(5 ILCS 140/3(e) (West 2014)). Because Mr. Dumke has not raised thisi ssue in his request for review, however, we\nwill not address this potentiali ssue.\n>Letter from Christina MeClernon, Assistant General Counsel/Freedom of Information Act\nOfficer, Office of Governor Bruce Rauner, State of [lHnois, to Mick Dumke (June 29, 2015).\n‘Letter from Christina McClernon, Assistant General Counsel/Preedom of Information Act\nOfficer, Office of Governor Bruce Rauner, State of Illinois, te Mick Dumke (June 29, 201 »).\n°E-mail from Mick Dumke, Senior Writer, to Public Access Counselor, Office of the Illinois\nAttorney General (July 10, 2015).\n.\nMr. Mick Dumke ;\nMs. Christina MeClernon\nOctober 21, 2015\nPage 3\nOn July 21, 2015, this office forwarded a copy of the Request for Review to the\nGovernor's Office and asked it to provide, for this office's confidential review, copies of the\nrecords that it had ascertained were responsive to Mr. Dumke's request, together with a detailed\nexplanation of the factual and legal bases it relied upon to withhold them. On July 30, 2015, the\nGovernor's Office's provided the Public Access Bureau with a written response to its inquiry, as\nwell as copies of the records it withheld, which contain information concerning the retention of\noutside counsel.’\nAs an initial matter, in its response, the Governor's Office questioned whether the\nrecords that it possessed were responsive to the FOIA request because it “does not maintain a\nmasier list or a database of all outside counsel.\" Rather, the Governor's Office “identified four\npartial and short lists of outside counsel/,]\" which \"do not describe every relationship with\noutside counsel.\"® The Governor's Office further stated that the lists were created by \"General\n[C]ounsel at various [S]tate agencies\" for an attorneyi n the Governor's Office, “who then edited\nand supplied them to Office of the Attorney General * * * in its role as litigation counsel for the\nGovernor's Office and its executive branch agencies.\"? Ina telephone conversation with an\n‘Assistant Attorney Generali n the Public Access Bureau, an Associate General Counsel for the\nGovernor's Office clarified that thel ists were prepared in response to a request by the Office of\nthe Attorney Genera? for a list of all Special Assistant Attorneys General for whom the\nGovernor's Office would be seeking reappointment.-\nThe Governor’ s Office maintained that its denial was proper under section 7(1)(m)\nbecause one of its attorneys \"solicited and provided these records for the purpose of the Attorney\nGeneral's representation of these state agencies[ |\" and because the withheld records \"contain\nnotes written by counsel describing the type of legal work done and matters discussed between\nSLetter from Shari L. ‘West, Assistant Attorney General, Public Access Bureau, to Christina\nMcClemon, Assistant General Counsel/Freedom of Information Officer, Office of Governor Bruce Rauner, State of-\nMlinois (July 21 » 2015).\n:\n\"Letter fom Christina McClernon, Assistant General Counsel, FOIA Officer, Office of Govemor\nBruce Rauner, State of Hiinois, to Shari L. West, Assistant Attomey General, Public Access Bureau Guy 30, 2015).\nSLetter from Christina’M cClemon, Assistant General Counsel, FOLA Officer, Office of Governor\nBruce Rauner, State of Hinois, to Shari L. West, Assistant Attomey General, Public Access Bureau (July 30, 2015),\nat 1-2.\n“Letter from Christina MeClemon, Assistant General Counsel, FOIA Officer, Office of Governor\nBruce Rauner, State of Ilinois, to Shari L. West, Assistant Attorney General, Public Access Bureau (July 30, 2015),\nat 1-2.\nMr. Mick Dumke\nMs. Christina McClernen\nOctober 21, 2015\nPage 4\nan attorney and client.\"' The response added that the \"Governor's Office and relevant state\nagencies intended that these lists remain confidential. wl\nOn July 31, 2015, this office forwarded a copy of the Governor's Office's response\nletter to Mr. Dumke and offered him the opportunity to reply.’? On August 10, 2015, Mr.\nDumke replied that creating the lists was \"a routine administrative\" process involving \"basic\ninformation about [S]tate operations[,]\" rather than \"a communication involving a legal matter or\ndiscussion of strategy” that could be subject to the attorey-client privilege.°\nANALYSIS\n\"Iti s a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS\n140/1 (West 2014). Section 1.2 of FOJA (5 ILCS 140/1.2 (West 2014)) provides that “[ajl\nrecords in the custody or possession of a public body are presumed to be open to inspection or\ncopying. Any public body that asserts that a recordis exempt from disclosure has the burden of\nproving by clear and convincing evidence that it is exempt.” Additionally, section 3{a) of FOIA\n(5 ILCS 140/3(a) (West 2014)) provides that “[eJach public body shall make available to any\nperson for inspection or copying all public records, except as otherwise provided in Sections 7\nand 8.5 of this Act.\" The exemptions from disclosure are io be narrowly construed. Lieber v.\nBoard of Trustees of Southern [linois University, 176 MM. 2d 401, 407 (1997).\nSection 7(1)(m) of FOIA\n_ Section 70m) of FOIA exempts from disclosure:\n' etter from Christina McClernon, Assistant Generah Counsel, FOIA Officer, Office of Governor\nBruce Rauner, State of Minois, tot Shari L. West, Assistant Atemey General, Public Access Bureau (July 30, 2015),\nat 2. .\n\"etter from Christina MeClernon, Assistant General Counsel, FOIA Officer, Office of Governor\nBruce Rauner, State of !llinois, te Shari L. West, Assistant Attorney General, Public Access Bureau Guly 30, 2015),\nat 2. : :\n. Letter from Shari L. West, Assistant ‘Attomey General, Public Access Bureau, to Mick Dumke,\nSenior Writer, Chicago Reader (uly 31, 2015)..\n3B -mail from Mick Dumke, Senior Writer, to Shari L. West, Assistant Attorney General, Public\nAccess Bureau, Office of the Illinois Attorney General (August 10, 2015).\nMr. Mick Dumke\nMs. Christina McClernen\nOctober 21, 2015 .\nPage 5\nCommunications between a public body and an attorney\n* * * representing the public body that-would not be subject te\n. discovery in litigation, and materials prepared or compiled by or\nfor a public bodyi n anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.]\nSection 7(1)(m) is applicable, among other things, to communications protected by the attorney-\nclient privilege. People ex rel. Ulrich v. Stukel, 294 Il. App. 3d 193, 201 (ist Dist. 1997). The\nattorney-client privilege applies to communications:\n(1) where legal advice of any kind is sought, (2) froma\nprofessional legal advisori n his capacity as such, (3) the\ncommunications relating to that purpose, (4) madei n confidence,\n(5) by. the client, (6) are permanently protected, (7) from disclosure\nby himself or the legal advisor, (8) except the protection be -\nwaived. Illinois Education Ass'n v. Illinois State Board of\nEducation, 204 Ill, 2d 456, 467 (2003).\nSee also In re General Instrument Corp. Securities Litigation, 190 F.R.D. $27; 531 (N.D. Ill.\n2000) (\"To be privileged, the documents must.not only exhibit attorney involvement, but must\ninvolve 'a legal adviser acting in his capacity as such.” (quoting United States v. Evans, 113 F.3d\n1457, 1461 (7th Cir. 1997)). The section 7(1)(m) exemption must \"be construed and applied\nnarrowly. Thisi s so notwithstanding the countervailing policy favoring confidentiality between\nattorneys and clients.\" Hlinois Education Ass'n, 204 Ill. 2d at 470.\nThe Governor's Office cited Hlineis Education Ass‘n to support its assertion that\nthe records are exempt from disclosure under section 70)Gn) of FOIA;\nThe attorney client privilege may apply to material submitted by a\n- public body to the Attorney Generali n a case where the public\nbodyi s seeking the opinion.of the Attorney General. Where a\nboard submits letters drafted by its legal counsel; which were\nintended to remain confidential, to the Attorney General in secking\nthe opinion, attorney-client priviH lege will apply to those\ndocuments[. ye)\n\"4 etter from Christina McClernon, Assistant General Counsel, FOIA Officer, Office of Governor\nBruce Rauner, State of Minois, to Shari L. West, Assistant Attomey General, Public Access Bureau (July 30, 2015),\nat 2.\nMr. Mick Dumke\nMs. Christina McClernon .\nOctober 21, 2015\nPage 6\nThe Illinois Education Ass'n case, however, is inappositet o this situation. In Ulinois Education\nAss'n, the Illinois Supreme Court analyzed whether FOIA required the Illinois State Board of\nEducation (Board) to disclosé material it had provided to the Office of the Attomey General\npertaining to its request for an Attorney General opinion under section 4 of the Attormey General\nAct (15 ILCS.205/4 (West 2000). HHnois Education Ass'n, 204 Ill. 2d at 458. The Court stated\nthat in order to sustain its burden to withhold the material, \"the Board was required to establish\nboth that: (1) the Attorney General was ‘representing’ the Board; and (2) the communications\nwould not be ‘subject to discovery in litigation.\"” Wnois Education Ass'n, 204 HA. 2d at 464.\nNoting that the Office of the Attorney General is tasked with advising the Governor's Office and\nother State agencies, the court found that the Board had demonstrated that the Office of the\nAttorney General was \"representing\" the Board, for._purposes of what is now the section 7(1)(m)\nexemption,’® when conducting its opinion writing function. Minois Education Ass'n, 204 Ml. 2d\nat 464; see also 15 ILCS 205/4 (West 2000) (the duties of the Office of the Attorney General\ninclude: \"To consult with and advise the governor and other state officers, and give, when\n‘ requested, written opinions upen all legal or constitutional questions relating to.the duties of such\nofficers respectively.\"). However, because the Board did not adequately demonstrate that the\ncommunications at issue were of a confidential nature, the court remanded the case for further\nproceedings, \"caution{ing] the circuit court” to consider that \"in meeting its burden, the public\nbody may not simply treat the words ‘attorney-client privilege’ or ‘legal advice’ as some talisman,\nthe mere utterance of which magically. casts a spell of secrecy over the documents at issue.\"\nIllinois Education Ass'n, 204 Hl. 2d at 470.\nMoreover, a public body that wishes. to withhold records under section 7(1}(m)\n\"can meet its burden only by providing some objective indicia that the exemption is applicable\nunder the circumstances.” (Emphasisi n original.) J/nois Education Ass'n, 204 Ul..2d at 470,\nsee also Clarke v. American Commerce National Bank, 974 F.2d 127, 130 (9th Cir. 1992):\n; Not all communications between attorney and client-are,\nprivileged. Our decisions have recognizedt hat the identity of the\nclient, the amount of the fee, the identification of payment by case\n\"file name, and the general purpose of the work performed are\n_usually not protected from disclosure by the attorney-client\nprivilege. [Citations.] However, correspondence, bills, ledgers,\nstatements, and time records which also reveal the motive of the\nclienti n seeking representation, litigation strategy, or the specific\nSat the time of Hinois Education Ass‘n., the exemption for communications that would not be\nsubject te discovery iin litigation was found iin section 700) of FOIA, See 5 ILCS 140/% Da) (West 2000).\"\nMr. Mick Dumke\nMs. Christina McClernon\nOctober 21, 2015\nPage 7\nnature of the services provided, such as researching particular areas\nof law, fall within the privilege. Clarke, 974 F.2d at 129.\nThis office has reviewed the lists withheld by the Governor's Office, which\ngenerally identify: the agency represented; the compensating agency; the hourly rate or flat rate\n(as applicable); the names and addresses of the lawfi rms and/or the names of the attorneys\ninvolved; and either the general subject matter of the representation or the court, case name, and\n‘case number of the matters for which outside counsel were to be appointed. In other words, the\nrecords contain precisely the type of information that the court in Clarke v.. American Commerce\nNational Bank concluded was not privileged.\nThe Governor's Office also cited People ex rel. Ulrich v. Stukel for the assertion\n. that \"where attorney-client billing records contain explanaiions for legal fees and indicate the\ntype of legal work done or matters discussed between an attorney and client and could reveal the\nsubstance of confidential communications, attorney-client privilege will protect disclosure of\nresponsive records.\"'® In Ulrich, the plaintiff challenged the denial of his request for accounting\nstatements reflecting payments to law firms by the University of Illinois related to an identified\nlaw suit. Ulrich, 294 Hl. App. 3d at 197. Noting that \"[i]t is well-recognized that information —\nregarding a client's fees generally is not a ‘confidential communication’ between an attorney and\n\" client; and thus is not protected by the attorney client privilege[,]\" the court held that there was\nno \"colorable legal basis\" for the University to withhold accounting statements reflecting “the\nname [of] the payee law firm\" and the \"amount and the date of each payment.\" Ulrich, 294 Ill.\nApp. 3d at 203-04, The court did acknowledge, however, that \"[c]ertain types of billing records\nmay contain. explanations for legal fees and may indicate the type of work done or matters\n- discussed between the. attorney and client. As such, they could reveal the substance. of\nconfidential attorney-client discussions, and be subject to valid claims of attorney-client\nprivilege[.}\" Ulrich, 294 II. App. 3d at 201. |\nIn the current circumstances, to the extent that the withheld records set forth the\nrates paid to outside counsel, article VIII, section i(c) of the Illinois Constitution of 1970\nprovides that \"[rjeporis and records of the obligation, receipt and use of public funds of the State,\nunits of local government and school districts are public records available for inspection by the\npublic according to law.\" Similarly, section 2. $ of FOIA ‘cS ILCS 140/2.5 (West 2014) provides\nthat. \"[a}ll records relating to the obligation, receipt, and use of public.funds of the State, units of\nlocal government, and school districts are public records subject to inspection and copying by the\npublic.” Thus, the rates paid to outside counsel do not constitute privileged attomey-client .\ncommunications and are expressly subject to disclosure under FOIA.\n‘5 etter from Christina MéClernon, Assistant General Counsel, FOIA Officer, Office of Governor\nBruce Rauner, State of Illingis, to Shari L. West, Assistant Attorney General, Public Access Bureau Galy 30, 2015),\nat 2. - .\nMr. Mick Dumke\nMs. Christina McClernon\nOctober 21, 2015 :\nPage 8\nMoreover, the records in question are lists.containing only general information\nconcerning legal representation of State agencies and rates of pay. The lists do not reveal legal\nadvice or include any discussion of whether to appoint outside counsel or the motive for seeking\nrepresentation. ‘The records also do not reveal any specific details regarding the nature of the\nservices provided, or otherwise disclose the substance of work performed or matters discussed\nbetween attorneys and clients. Thus, the Gevernor's Office has not demonstrated that any\nportion of the withheld records constitute privileged attorney-client communications within the\nscope of section 7(1}(m) of FOIA.\nThe Governor's Office also argued that section 7(1)(m) exempts the withheld\nrecords from disclosure pursuant to the “work product” doctrine. The parameters of “work\nproduct\" are set out in Hlinois Supreme Court Rule 201(b)(2), which provides that material\nprepared \"by or for a party in preparation for triali s subject to discovery only ifi t.does not\n_ contain or disclose the theories, mentali mpressions, or litigation plans of the party's attorney.”\n' - Attorney work producti s limited to records that \"reveal the shaping process by which the\nattorney has arranged the available evidence\" for tial. Monier v. Chamberlain, 35 11.24 351,\n359-60 (1966). In contrast, the outside counsel lists at issue in this matter do not contain any\nfindings or recommendations related to legal advice, much less theories, mental impressions, or\nlitigation plans., The lists merely set out general information about outside counsel and the\nmatters to which they were to be appointed... Because these lists do not reveal any theories,\nmental impressions, or litigation plans, they are not \"work product.” ,\nAccordingly, we conclude that the Governor's Office has not sustained its burden\nof demonstrating by clear and convincing evidence that the withheld lists are exempt from\ndisclosure.pursuant to section 7(1)(m)} of F OIA.\nCompleteness of Response\njn its response to this office the Governor's Office noted that the lists do not\ndescribe every relationship with outside counsel and stated that it \"does not maintain a master list\nor database of all outside counsel.”\" 7 The Governor's Office stated that it “may be able to.\nprovide the underlying contracts reflectedi n this list, but it [is] simply a fact that to the extent a\nlist exists, theG overnor's Office cannot disclose it under section 7(4 (im). \"18 The Governor's\n\"|e tter from Christina McClernon, Assistant General Counsel, FOIA Officer, Office of Governor\nBruce Rauner, State of Winois, to Shari L. West, Assistant Attorney General, Public Access Bureau Guly:3 0, 2015),\nat 2.\n81 etter from Christina MeClernon, Assistant General Counsel, FOIA ‘Officer, Office of Governor\nBruce Rauner, Siate of Mlinois, to Shari L. West, Assistanitt Attorney General, Public’‘ Access Bureau Guly 30, 2015),\natl. :\nMr. Mick Dumke\nMs. Christina McClernon\nOctober 21, 2915\nPage 9\nOffice also stated that \"[i]t is possible that other information regarding billing by outside counsel\nto state agencies, or other records regarding the same, would exist and be public records\nresponsive to a future FOIA request.”'? This response implies that the Governor's Office does\nnot believe that FOIA requires it to compile and provide Mr. Dumke with any responsive\ninformation in its possession or under its control related to outside counsel that is not reflected in\nthe lists that were withheld. That belief is incorrect. To the extent the Governor's Office\npossesses or controls records that contain information regarding outside counsel used by the\nState that is responsive to Mr. Dumke’s request, FOLA obligates the Governor's Office to review\nthose records and compile and provide al] of the responsive information to Mr. Dumke.\n. Although a public body is not required to generate new records in response to a\nFOIA request (see Kenyon vy. Garreis, 184 Ill. App. 3d 28, 32 (4th Dist. 1989); see also Heinrich\nv, White, 2012 IL App (2d) 110564, (10, 975 N.E.2d 726, 730 (2012) (“[A] request for records\nnot yet created is invalid”), simply extracting information from existing public records does not\n_ constitute the creation of a new record for purposes of FOIA. Both Hlinois and federal courts\nhave rejected claims that the compilation of information in a public body's possession into a\ndifferent format.to respond to a FOIA request entails the creation of a new record,\nFor example,.in Hamer v. Lentz, 132 Ul, 2d 49, 56 (1989), the [Hlinois Supreme\nCourt considered whether a public body was obligated under FOIA to create a computer program\nto piece together information and to produce the result and concluded that it was, stating: \"In\nsum, the * * * information is maintained by defendants in the ordinary course of business, is\n. nonexempt, and thus must be disclosed. . Disclosure of the information in no way involves the\ncreation of a new record.” Lentz, 132 UL. 2d at $7. : :\nSimilarly, in Disabled Officer's Ass'n v. Rumsfeld, 428 F. Supp. 454, 455 (D.D.C.\n1977), the Federal district court rejected the United States Department of Defense's assertion that\nit did not possess a record responsive to a request for the names and addresses of retired service\n- members with disabilities because no single list containing that information existed. The\n. Department of Defense argued that \"FOIA applies only to documents in existence and that the\n.. FOJA cannot be used by the plaintiff to force defendants to compile a record.” Rumsfeld, 428F.\n~ Supp. at 455. The court rejected that argument, concluding: a :\n? |etter from Christina McClernon, Assistant General Counsel, FOIA Officer, Office of Governor\nBruce Rauner, State of Hlingis, to Shari L. West, Assistant Attorney General, Public Access Bureau (July 30, 2015),\nat 2.\nMr. Mick Dumke\nMs. Christina McClernon\nOctober 21, 2015\nPage 10\nPlaintiff is not attempting to use the FOIA to force defendants to\ncreate a record which they do not already have, and its request is\none for an existing record within the meaning of the Act, * * *\n[The] defendants have stated that the Department of Defense has\npersonnel and financial records pertaining to retired disabled\nofficers, and plaintiff is only requesting them to disclose a limited\nportion of, or amount of information from these-files, the names\nand addresses of the retired disabled officers. The fact that\ndefendants may have te search numerous records to comply with\nthe request and that the net result of complying with the request\nwill be a document the agency did not previously possess is not\nunusual in FOIA cases nor does this preclude the applicability of\nthe Act. (Emphasis added.) Rumsfeld, 428 F. Supp. at 456.\nAccordingly, to the extent that the Governor's Office possesses or controls\nadditional responsive information in records that it maintains that it has not previously identified\nor provided for this office's review, FOIA obligates the Governor's Office to search for, compile,\nand provide that information to Mr. Dumke. For example, if the Governor's Office possesses or\ncontrols contracts for outside counsel that include the information Mr. Dumke seeks, the .\nGovernor's Office is required to review the contracts and compile and provide Mr. Dumke with\nthe information. that he seeks,\n, FINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to ‘the arguments submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n; 1) On June 15, 2015, Mr. Mick Dumke, on behalf of the Chicago Reader,\nsubmitted a F OIA request to the Governor's Office seeking copies of lists of outside counsel,\n\"including the agencies represented and a descriptioonf the nature of the work, for calendar years\n2013 through 2015 to date or fiscal years. 2014 and 2015 to date.\n2) On June 29, 2015, the Governor's Office denied Mr. Dumke's request pursuant\nto section 7(1}(m) of FOIA. .\n. 3) On July 10, 2015, Mr. Dumke submitted a Request for Review of the denial of\nhis FOIA request to. the Office of the Attorney. General’s Public Access Bureau. Mr. Dumke's\nRequest for Review was timely filed and otherwise complies with the requirements of section\n9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2014)).\nMr. Mick Dumke\nMs. Christina McClernon\nOctober 21, 2015\nPage 11\n4) On July 21, 2015, the Public Access Bureau sent a copy of the Request for\nReview to the Governor's Office and asked it to provide copies of the outside counsel lists for\nthis office's confidential review, together with an explanation of the legal and factual bases for\nwithholding the records under section 7(1)(m) of FOIA. ,\n5) On July 30, 2015, the Governor's Office furnished the records to this.office\nand responded that it had properly withheld the outside counsel lists pursuant to section 7(1)(m) °\nof FOIA. :\n6) On July 31, 2015, a copy of the Governor's Office’s response was forwarded to\nMr. Dumke for his review and comment. On August 10, 2015, Mr. Dumke replied that section\n7(1)(m) is inapplicable to the lists because they do not reveal privileged attorney-client\ncommunications.\n‘T) On September 3, 2015, the Public Access Bureau properly extended the time\n- within-which to issue a binding opinion pursuant to section 9.5(f) of FOTA, to October 21, 2015,\n‘Therefore, the Attorney General may properly issue a binding opinion with respect to this matter.\n&) The Governor's Office has failed to demonstrate by clear and convincing\nevidence that the outside counsel lists are protected attorney-client communications or work\nproduct within the scope of section 7(1)(m). The lists do not contain confidential legal advice or\ntheories, mental impressions, of litigation plans. Rather, the lists contain only general\ninformation about the nature of legal services performed for public bodies.\n. 9) The-outside counsel lists detail the use of public funds of the State. Records\nconcerning the use of public funds by the State are expressly subject to inspection and copying\nunder the Hlinois Constitution of 1970 and section 2.5 of FOIA. — ..\n10) To the extent that the Governor's Office possesses additional information that\nMr. Dumke requested concerning outside counsel which is not reflected in the existing lists, that\ninformation is responsive to the request and subject to disclosure. Compiling information which\nis already in the possession of the Governor's Office in order to respond to Mr. Dumke's request\nwould not constitute the creation of a new record.\nFor the reasons stated above, it is the opinion of the Attorney General that the\nGovernor's Office improperly denied Mr. Dumke's Freedom of Information Act request in\nviolation of the requirements of FOIA. Accordingly, the Governor's Office is directed to take\nimmediate action to comply with this binding opinion by providing Mr. Dumke with the\nwithheld lists and any other information in its possession or under its contro! identifying outside\ncounsel used by the State in fiscal years.2014 and 2015 to the date of Mr. Dumke’s request, June\nMr. Mick Dumke\nMs. Christina McClernon\nOctober 21, 2015\nPage 12\n15, 2015, or- calendar years 2013 through 201 5 to the date of the rre quest, including the\ndepartment or agency for which the work was performed, and the general nature of the\nrepresentation.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law, 735 ILCS 5/3-101\net seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Mr. Mick Dumke as\ndetendants. See § ILCS 140/11.5 (West 2014).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested a list of outside law firms hired by the State of Illinois and the nature of their work. The Governor's Office denied the request, but the Attorney General ruled that this information is public and must be disclosed. The Governor's Office was ordered to provide the requested records to the reporter.","card_headline":"A list of outside legal counsel and their representation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":59,"orig_master_id":19260,"dup_master_id":19032,"dup_sha256":"ea927dfeedde2a75d9efbd404e4ade764f03381eb64d95d8e31c69a4c913d8b6","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2015,"date_issued":"2015-09-22","case_number":"2015 PAC 35747","request_numbers":null,"title":"Disclosure of the Governor's Calendar","filename":"PUBLIC ACCESS OPINION 15-008 (Request for Review - 2015 PAC 35747).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 15-008 (Request for Review - 2015 PAC 35747).pdf","word_count":7677,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a FOIA request for the Governor's calendar. It concludes that the Governor's Office improperly redacted information from the requested documents.","plain_summary":"The requester, a journalist, sought the governor's daily appointment calendar showing meetings and attendees, and the governor's office redacted the names of meeting attendees, arguing the calendar was a personal scheduling tool and that disclosure would reveal deliberative and privileged legal strategy. The Public Access Counselor held that because the calendar was maintained by staff, used to facilitate scheduling, and accessible to senior officials, it was a public record documenting the office's business rather than a private convenience, and that the governor's office had not shown with specific facts that disclosing attendees' identities would expose deliberative reasoning or privileged legal communications, distinguishing cases involving far more detailed or security-sensitive schedules. The governor's office was also found to have missed FOIA's response deadline and was directed to disclose the calendar entries, redacting only personal telephone numbers.","holding":"The Office of the Governor violated FOIA by improperly redacting information.","legal_question":"Did the Office of the Governor comply with the Freedom of Information Act in responding to the FOIA request?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(f)","7(1)(m)"],"public_body":"Office of the Governor","requesting_party":"Mr. Bruce Rushton (Illinois Times)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"public records","subject_description":"The request sought the Governor's calendar, including dates, times, and names of meeting attendees.","ocr_status":"ok","ocr_quality":89.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2015-Binding-PAC-Opinions/15-008.pdf","sha256":"99057e53b4b3ebe4ad451877aa7c9d1a3e2380c300c3910465cb9cc96ca375d8","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["Governor","calendar","public records","FOIA","redaction"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nSeptember 22, 2015\nPUBLIC ACCESS OPINION 15-008\n(Request for Review 2015 PAC 35747)\nFREEDOM OF INFORMATION ACT:\nDisclosure of the Governor's Calendar\ni\nMr. Bruce Rushton\nStaff Writer, /Jinois Times\n[street address redacted for site publication -- see original PDF]\nMs. Christina McClernon °\nAssistant General Counsel/FOIA Officer\nOffice of the Governor\n100 West Randolph Street, Suite 16-100\nChicago, Illinois 60601\nDear Mr. Rushton and Ms. McClernon:\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons\ndiscussed below, this office concludes that the Office of the Governor (Governor's Office)\nviolated the requirements of FOIA by improperly redacting information responsive to Mr. Bruce\nRushton's FOIA request.\nBACKGROUND\nOn May 15, 2015, Mr. Rushton, on behalf of the J//ineis Times, submitted a FOIA\nrequest to the Governor's Office seeking documents showing \"Gov. Bruce Rauner's appointments\nfrom April 1, 2015 to May 14, 2015. The records * * * should include the times and dates of any\nand all meetings and functions attended by the governor as well as, in the event of meetings, the\n:\n500 South Second Street, Springfield, Ulinois 62706 » (217) 782-1090 + TTY: (877) 844-5461 * Fax: (217} 782-7046\n[00 West Randotph Street, Chicago, Hlinois 60601 * (912) 814-3000 * TTY: (200) 964-3013 * Fax: (312} 814-3806\n601 South University Avenue, Suite 102, Carbondale, Nlincis 62901 * (618) 529-6400 + TTY: (877) 675-9399 « Fax: (618) 520.6416\nMr. Bruce Rushton .\nMs. Christina McClernon\nSeptember 22, 2015\nPage 2\nnames and titles of meeting attendees.\"! On June 1, 2015, the Governor's Office provided Mr.\nRushton with a copy of the Governor's April calendar but redacted therefrom certain information\nciting sections 7(1)(f and 7(1)(m) of FOIA G ILCS 140/70), Gm) (West 2014))? The e-mail,\nto which the records were attached, stated that the May calendar would take additional days to\nproduce.’ On June 11, 2015; this office received Mr. Rushton’s Request for Reviewi n which he\ncontested the basis for redacting the names of meeting attendees and the completeness of the\nGovernor's Office's response with respect to the May calendar.*\nOn June 16, 2015, this office sent a copy of Mr. Rushton's Request for Review to\nthe Governor's Office and asked it to provide unredacted copies of the responsive records for our\nconfidential review, together with detailed information concerning how the Governor's calendar\nis maintained and used. We also asked the Governor's Office to provide a detailed explanation\nfor the asserted exemptions and to address the allegation that it did not provide a complete\nresponse within the statutorily prescribed time periods.’ On July 15, 2015, the Governor's Office\nprovided Mr. Rushton with a redacted copy of the Governor's calendar covering the May 1 to\nMay 14, 2015, time period.’ The Governor's Office provided this office with redacted copies of\nall of the responsive records that had been produced to Mr. Rushton, together with its written\nresponse,’ A copy of the Governor's Office’s response was forwarded to Mr. Rushton on July 16,\n2015; this office received Mr. Rushton's reply to the Governor's Office's response on July 17,\n‘E-mail from Bruce Rushton, Staff Writer, //linois Times, to Custodian of Records, Governor's\nOffice (May 15, 2015).\n*Letter from Donovan Borvan, Associate General Counsel/Freedom of Information Act Officer,\nOffice of Governor Bruce Rauner, to Bruce Rushton (June 1, 2015).\n3E-mail from Donovan Borvan, Associate General Counsel, Office of Governor Bruce Rauner, to\nBruce Rushton (June 1}, 2615).\n4E-mail from Bruce Rushton, Staff Writer, /nois Times, to Public Access (June 11, 2015).\nSLetter from Josh Jones, Supervising Attorney, Public Access Bureau, to Donovan Borvan, FOIA\nOfficer, Office of the Governor (lune 16, 2015).\nSLetter from Christina MeClernon, Assistant General Counsel/Freedom of Information Act\nOfficer, Office of Governor Bruce Rauner, to Bruce Rushton (uly 15, 2015).\n\"Letter from Christina McClemon, Assistant General Counsel/Freedom of Information Act\nOfficer, Office of Governor Bruce Rauner, to Josh Jones, Supervising Attorney, Public Access Bureau Gly 15,\n2015).\nMr. Bruce Rushton .\nMs. Christina McClernon ©\nSeptember 22, 2015\nPage 3\n2015.8 On July 20, 2015, the Governor's Office provided this office with unredacted copies of\nthe responsive records.”\nOn August 6, 2015, this office properly extended the time in which to issue a\nbinding opinion by 30 business days, to September 22, 2015, pursuant to section 9.5(f) of FOIA.\nANALYSIS\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.” 5 ILCS 140/1.2 (West 2014). A public body “has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2014). When denying any portion of a request pursuant to an exemption in\nsection 7 of FOIA (3 ILCS. 140/7 (West 2014), as amended by Public Act 99-298, effective\nAugust 6, 2015), a public body “shall specify the exemption claimed to authorize the denial and\nthe specific reasons for the denial, including a detailed factual basis and a citation to\nsupporting legal authority.\" (Emphasis added.) 5 ILCS 140/9 (West 2014).\nTimeliness of Response\nPursuant to section 3(d) of FOIA (5 ILCS 140/3(d) (West 2014), “[elach public\nbody shall, promptly, either comply with or deny a request for public records within 5 business\ndays after its receipt of the request, unless the time for response is properly extended under\nsubsection (e) of this Section.\" Section 3(e) (5 ILCS 140/3(e) (West 2014)) enumerates seven\ncircumstances in which a public body may extend the response period by an additional five\nbusiness days, and further provides: \"The person making a request and the public body may\nagree in writing to extend the time for compliance for a period to be determined by the parties.\"\nIn responding to this office, the Governor's Office did not dispute that it\ncompleted its response to Mr. Rushton's May 15, 2015, FOIA request on July 15, 2015. There is\nno allegation that the Governor's Office and Mr. Rushton reached a written agreement to extend\nthe time for compliance with the request. Accordingly, the Governor's Office's response did not\ncomply with FOIA’s statutorily required time for response.\n5E-mail from Bruce Rushton, Staff Writer, /Hnois Times, to Public Access (une 17, 2015).\n°E-mail from Christina M. McClernon, Assistant General Counsel/FOIA Officer, Office of\nGovemor Bruce Rauner, to Joshua Jones (July 20, 2015).\nMr. Bruce Rushton\nMs. Christina McClernon\nSeptember 22, 2015\nPage 4\nPublie Records\nSection 2c) of FOIA (5 ILCS 140/2(c) (West 2014)) defines \"public records\" to\ninclude: :\nall records, reports, forms, writings, letters, memoranda, books,\npapers, maps, photographs, microfilms, cards, tapes, recordings,\nelectronic data processing records, electronic communications,\nrecorded information and all other documentary materials\npertaining to the transaction of public business, regardless of\nphysical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body.\nThe Governor's Office initially argues that the redacted calendars it “produced in\nresponse to [Mr. Rushton's] request are not ‘public records’ for purposes of FOIA.\"”” In support\nof this argument, the Governor's Office has cited five Federal cases and two cases from other\nstates. The Governor's Office has not, however, cited any Illinois cases. Consequently, we will\naddress the issue first under the recognized principles of statutory construction.\nRecords pertaining to the affairs of government, the acts of public officials, and\nthe expenditures of public funds are public records which are to be made available to any person\nwho submits a request to inspect them. People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 204\n(1\" Dist. 1997). In City of Champaign v. Madigan, 2013 IL App (4th) 120662, 38, 992 N.E.2d\n629, 638 (2013), the appellate court stated that \"to qualify as a ‘public record’ under [section 2(c)\nof] FOIA, a communication must (1) ‘pertain[ ] to the transaction of public business’ and have\neither been (2) prepared by, (3) prepared for, (4) used by (5) received by, (6) possessed by, or (7)\ncontrolled by a public body.\" Accordingly, \"to qualify as a public record a communication must\nfirst pertain to ‘business or community interests as opposed to private affairs.\" City of\nChampaign, 2013 IL App (4th) 120662, 931, 992 N.E.2d at 637 (quoting Merriam—Webster's\nCollegiate Dictionary 941 (10th ed. 2000)).\nThe Governor's Office argues that the Governor's calendar is not a publie record\nbecause:\n°Fe tter from Christina McClernon, Assistant General Counsel/Freedom of Information Act\nOfficer, Office of Governor Bruce Rauner, to Josh Jones, Supervising Attorney, Public Access Bureau (July 15,\n2015), at 2.\nMr. Bruce Rushton\nMs. Christina MeClernon .\nSeptember 22, 2015\nPage 5\n[T]he Governor's calendar is maintained by his personal assistant\nand is used solely for his [the Governor's] convenience in\nmanaging his schedule. Only senior staff members have access to\nGovernor Rauner's calendar. This includes the Governor's chief of\nstaff, his deputy chief of staff, his general counsel, and senior\nmembers of his Communications team. The Governor's personal\nassistant, Holly Griff, also has access to his calendar, She prepares\nand maintains the calendar, and she is the only person who can\nadd, edit, of delete entries on his calendar. Ms. Griffis on the\nState payroll[.] * * * The calendar is not provided or distributed to\nsenior staff’ They can access the calendar via the State's Microsoft\nOutlook email system; although they can view entries on the\ncalendar, they cannot edit the entries. The calendar is not\ncirculated within the Governor's Office.\nE\n* * * The calendars are used to organize the Governor's time and\nfacilitate scheduling. The Governor can view his calendar for\nreminders of upcoming meetings. This is meant as a personal aid\nfor the Governor and, to a limited extent, for senior staff members,\nwho only use the calendar to determine the Governor's availability.\neee\nWhen there are events on the Govemor's calendar that pertain to a\npress conference, speech, or other public engagement where the\nGovernor will appear, the Communications team will separately\nprepare a more public calendar of these events, which they make\navailable to staff upon request. No other records are kept for staff\nto keep track of the Governor's schedule. ay\nThis explanation from the Governor's Office indicates that the calendar is\nprepared and maintained by a State employee, accessible to senior staff of the Governor's Office\nthrough the State's email system, and used to organize the Governor's time, facilitate scheduling\nand allow senior staff to determine his availability, Based on this description, it is undisputed\nthat the Governor's calendar was prepared by, prepared for, used by, possessed by, and\ncontrolled by the Governor's Office. Although the Governor's Office argues that the Governor's\n\"Letter from Christina McClernon, Assistant General Counsel/Freedom of Information Act\nOfficer, Office of Governor Bruce Rauner, to Josh Jones, Supervising Attorney, Public Access Bureau (July 15,\n2015), at 3-4,\nMr. Bruce Rushton ;\nMs. Christina McClernon .\nSeptember 22, 2015 :\nPage 6\n:\ncalendar is maintained solely for his convenience, the description that the Governor's office\nprovided makes clear that the calendar is also \"used to * * * facilitate scheduling” and \"to a\nlimited extent, [to allow] senior staff members * * * to determine the Governor's availability.\"\nThe Governor's Office further states that, except for separate calendars that the Communications\nteam may prepare for certain public engagements, \"[n]o other records are kept for staff to keep\ntrack of the Governor's schedule.\" This information provided by the Governor's Office\ndemonstrates that the calendar is used to conduct public business by facilitating the day-to-day\noperations of the Governor's Office. Consistent with that explanation, this office's review of the\nredacted entries indicates that they all appear to pertain to the business of the State, rather than\nthe personal affairs or private business interests of the Governor. Because the Governor's\ncalendar was prepared and is maintained by the Governor's Office and pertains to public\nbusiness, it is a public record of the Governor's Office for purposes of the Illinois FOIA.\nWhile this determination that the Governor's calendar is a public record under\nIllinois's FOIA is dispositive of the issue for purposes of this review, we note that the Supreme\nCourt of Vermont reached the same conclusion concerning its governor's scheduling records in\nhighly analogous circumstances. In Herald Ass'n, Inc. v. Dean, 174 Vt. 350, 816 A.2d 469 (Vt.\n2002), a media requester sought Vermont Governor Howard Dean's daily schedules, which\n\"include[d] a variety of public and private events, including conferences, meetings, and\ndescriptive information relating to the events, often including a description of the policy question\nor issue to be discussed at a particular meeting.” Herald Ass‘n, 174 Vt. at 352, 816 A.2d at 472.\nMuch like Governor Rauner's calendar, Governor Dean's daily calendar was an integral and\nessential part of the daily function of the Governor's office. It facilitated the business of the\nGovernor's Office by structuring Governor Dean's schedule and allowing staff to plan\naccordingly. Herald Ass'n, 174 Vt. at 352-3, 816 A.2d at 472. Under section 317(b) of\nVermont's Access to Public Records Act (Vt. Stat. Ann. tit. 1, § 317(b) (West 2002)), a record\n\"produced or acquired in the course of agency business” is a public record. Because the\nrequested appointment records facilitated the day-to-day functioning of the Vermont Governor's\noffice, the Vermont Supreme Court held that they were public records subject to disclosure.\nHerald Ass'n, 174 Vt. at 354, 816 A.2d at 473.\nMoreover, the Governor's calendar would also be considered a public record\nunder the reasoning of the Federal court decisions cited by the Governor's Office. In Bureau of\nNational Affairs, Inc. vy. United States Department of Justice, 742 F.2d 1484 (D.C. Cir. 1984), the\nDepartment of Justice (DOJ) denied a request for records of appointments and meetings\ninvolving William Baxter, Assistant Attorney General for Antitrust, asserting that they were not\n\"agency records\" subject to disclosure under the Federal FOIA. Bureau of National Affairs, 742\nF.2d at 1487. Mr. Baxter had two types of appointment records: desk appointment calendars\nthat he and his secretary maintained, which \"included personal appointments wholly unrelated to\nthe business of the Antitrust Division and did not always reflect changes in appointments or\nMr. Bruce Rushton\nMs. Christina McClernon\nSeptember 22, 2015\nPage 7\ncancellations of meetingsf,]\" and daily agendas that were \"distributed to top staff within the\nAntitrust Division so that they would know his schedule on a given day.\" Bureau of National\nAffairs, 742 F.2d at 1487. The court analyzed the \"creation, maintenance, and use\" of both sets\nof documents to determine whether they were attributable to DOJ and thus constituted \"agency\nrecords,\" or, conversely, whether they were an \"employee's record[s] that happen[ed] to be\nlocated physically within an agency.”\"? Bureau of National Affairs, 742 F.2d at 1492-93. The\ncourt held that the daily agendas were agency records because: \"[t]hey were created for the\nexpress purpose of facilitating the daily activities of the Antitrust Division’; \"they were\ncirculated to the staff for a business purpose\"; and they \"were not created for Mr. Baxter's\npersonal convenience, but for the convenience of his staff in their conduct of official business.”\nBureau of National Affairs, 742 F.2d at 1495. In contrast, the court held that the desk\nappointment calendars were not agency records. The court summarized its reasoning as follows:\nFirst, [the desk appointment calendars] were not distributed to\nother employees, but were retained solely for the convenience of\nthe individual officials. Second, the daily agendas were created by\nMr. Baxter's secretary for the express purpose of informing other\nstaff of Mr. Baxter's whereabouts during the course of a business\nday so that they could determine Mr. Baxter's availability for\nmeetings. Thus the daily agendas were created for the purpose of\nconducting agency business. In contrast, the [desk] appointment\ncalendars were created for the personal convenience of individual\nofficials so that they could organize both their personal and\nbusiness appointments. (Emphasis in original.) Bureau of\nNationa! Affairs, 742 F.2d at 1496.\nThe Governor's Office has also relied on Bloomberg, LP. v. United States\nSecurities & Exchange Comm'n, 357 F. Supp. 2d 156 (D.D.C. 2004). In Bloomberg, the\n? This office notes that because the Federal FOIA does not define “agency records,\" Federal courts\nuse a \"totality of the circumstances\" analysis to determine whether records are subject to the requirements of the\nFederal FOIA. See, ¢.g., ExxonMobil Corp. v. Department af Commerce, 828 F. Supp. 2d 97, 106 (D.D.C. 2011)\n(quoting Burka v. U.S. Department of Health and Human Services, 87 F. 3d 508, 515 (D.C. Cir. 1996)):\nTo determine whether an agency exercises sufficient control over a document to\nrender it an \"agency record,\" four factors must be balanced under a totality of\nthe circumstances test: “(1} the intent of the document's creator to retain or\nrelinquish control over the records; (2) the ability of the agency to use and\ndispose of the record as it sees fit; (3) the extent to which agency personnel have\nread or relied upon the document: and (4) the degree to which the document was\nintegrated into the agency's record system or files.”\nf\nMr. Bruce Rushton\nMs. Christina MeClernon ,\nSeptember 22, 2015\nPage 8\no\nSecurities and Exchange Commission (SEC) denied a request for SEC Chairman Harvey Pitt's\nappointment calendar, asserting that it was a personal calendar rather than an agency record\nsubject to FOIA. Bloomberg, 357 F. Supp. 2d at 159. The court held that Chairman Pitt's\nappointment calendar was not an agency record subject to FOIA because:\nFirst, like the calendar in [Bureau ofN ational Affairs], only\nChairman Pitt's personal assistant, his Chief of Staff, and Deputy\nChief of Staff accessed the calendar, and then only to determine his\navailability. Second, as in [Bureau ofN ational Affairs], Chairman\nPitt's calendar was created for his own personal use, not for the\npurpose of creating an official record of his schedule. Bloomberg,\n357 F. Supp. 2d at 164.\ni\nIn this matter, Mr. Rushton requested documents showing the Governor's\n“appointments from April 1, 2015 to May 14, 2015.\" He further requested that the documents\n\"include the times and dates of any and all meetings and functions attended by the governor as\nwell as, in the event of meetings, the names and titles of meeting attendees.\" The Governor's\nOffice has identified the Governor's calendar as the only responsive document. As the only\nrecord of his appointments, the Governor's calendar may actually serve the purposes of both\ntypes of appointment records in Bureau of National Affairs. But based on the Governor's\nOffice's description of the calendar and on our review, the Governor's calendar is more akin to\nthe daily agendas that were found to be agency records in Bureau of National Affairs, being\ncreated to \"inform[ ] other staff of Mr. Baxter's whereabouts during the course of a business day\nso that they could determine Mr. Baxter's availability for meetings,\" than to the desk\nappointment calendars in Bureau of National Affairs and appointment calendars in Bloomberg\nthat were created solely for personal convenience.\nAs to whether Governor Rauner's calendar has been “circulated” within the\nGovernor's Office, the recent D.C. Circuit Court case the Governor's Office cited is instructive.\nIn Consumer Federation of America v. Department of Agriculture, 455 F.3d 283, 285 (D.C, Cir.\n2006), the plaintiff filed suit to obtain the calendars of six United States Department of\nAgriculture (USDA) officials. In accordance with Bureau of National Affairs, in deciding\nwhether the calendars were public records, the court focused on the manner in which the\ncalendars were used, rather than the subjective intentions of the personnel who created them,\n\"because the Supreme Court has rejected reliance upon the latter.” Consumer Federation, 455\nF.3d at 285 n.11 (citing United States Department of Justice v. Tax Analysts, 492 U.S. 136, 147,\n109 S. Ct. 2841, 2849 (1989)), Like Mr. Baxter's daily agendas in Bureau of National Affairs\nand Governor Rauner's calendar here, the court found that the USDA officials’ calendars were\nused for scheduling purposes. Consumer Federation, 455 F.3d at 291. As to whether the\nofficials' calendars were distributed within the agency, USDA claimed that the calendars were\nMr. Bruce Rushton\nMs. Christina McClernon '\nSeptember 22, 2015\nPage 9\nnot distributed to senior staff and secretaries \"but instead simply made available on the\nrecipients' computers.” Consumer Federation, 455 F. 3d at 291-92. The court rejected the\nsuggested distinction, stating:\n[T]here does not appear to be any practical difference between the\nformer practice of distributing information in printed form on hard\ncopies and the modern practice of allowing others access through\nnetwork computers. In any meaningful sense, the USDA calendars\nwere electronically \"distributed\" to the listed recipients and were\nused by them to schedule agency meetings and prevent conflicts,\nConsumer Federation, 455 F.3d at 292.\nAdditionally, the court contrasted the USDA officials’ calendars with the desk appointment\ncalendar at issue in Bureau of National Affairs:\n[T]he fact that access to Baxter's desk calendars required obtaining\nentry into Baxter's or his secretary's personal areas (the desks on\nwhich the calendars sat), and that such access was only episodic,\nreinforced the conclusion that Baxter retained tight control over the\n. calendars and that their principal use was personal. Allowing\nothers to have routine computer access to a calendar, however, is\n_more like distributing hard copies than it is like permitting\noccasional glances at a document on a desk. In allowing computer\naccess, the official surrenders personal control over the document\nand indicates that it will be used by others to plan their own\nworkdays. Consumer Federation, 455 F.3d at 292 n.16,\nAccordingly, the court held that the USDA failed to sustain its burden of demonstrating that the\ncalendars were not agency records. Consumer Federation, 455 F.3d at 293.\nThe distribution analysis of Consumer Federation is directly applicable to the\ncurrent circumstances, The Governor's Office has explained that the Governor and his personal\nassistant, chief of staff, deputy chief of staff, general counsel, and an unspecified number of\nsenior members of his Communications team all have access to the calendar in the State's\nMicrosoft Outlook e-mail system. The Governor's Office interprets Consumer Federation as\n“holding that calendars that were not distributed to other employees, among other factors, were\nnot 'agency records’ and thus were not subject to the Federal Freedom of Information Act ]. ws\n1 etter from Christina McClernon, Assistant General Counsel/Freedom of Information Act\nOfficer, Office of Governor Bruce Rauner, to Josh Jones, Supervising Attorney, Public Access Bureau July 15,\n2015), at 2-3.\nMr. Bruce Rushton\nMs. Christina McClernon .\nSeptember 22, 2015\nPage 10\nAlthough the court in Consumer Federation may have described the holding in Bureau of\nNational Affairs concerning Mr. Baxter's desk appointment calendar in that manner, the court in\nConsumer Federation held that calendars that were \"distributed\" in the same manner that\nGovernor Rauner's calendar is distributed were agency records.\nThe other Federal cases the Governor's Office cited do not compel a different\nconclusion. In Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999), the court\ndid not hold that appointment calendars are not agency records; rather, the court discussed the\n\"agency records” analysis in Bureau of National Affairs before vacating the district court's ruling\nthat certain agency employees’ notes did not constitute agency records and remanding the case\nfor further development of the record. Grand Central, 166 F.3d at 480-81. Additionally, in\nJudicial Watch, Inc. v. United States Department of Commerce, 337 F. Supp. 2d 146 (D. DC.\n2004), the court, consistent with Bureau of National Affairs, held that the plaintiff was \"not\nentitled to release of personal information contained within the Secretary's calendars and\nschedules.\" Judicial Watch, 337 F. Supp. 2d at 177. Notably, the court also ruled that “daily\nagendas or other schedules that do circulate[ ]” to other agency employees “are agency records.\"\nJudicial Watch, 337 F. Supp. 2d at 177.\nWith respect to the cases from other states, in City of Philadelphia v. Philadelphia\nInquirer, 32 A.3d 456 (Pa. Commw. 2012), the Pennsylvania appellate court held that the\ncalendars of Philadelphia's mayor and the members of the city council were exempt from\ndisclosure under the \"working papers\" exception to Pennsylvania's Right-to-Know law (65 P.S. §\n67.708(12) (West 2012)), which applies to \"[nJotes and working papers prepared by or for a\npublic official or agency erployee used solely for that official's or employee's own personal use,\nincluding telephone message slips, routing slips and other materials that do not have an official\npurpose.\" The court expressly relied on affidavits from the mayor and city council members\nstating that their calendars existed solely for their personal convenience. Philadelphia Inquirer,\n52 A.3d at 461. Unlike Pennsylvania's Right-to-Know law, the Illinois FOIA does not contain a\n\"working papers\" exception. Further, based on the information provided by the Governor's\nOffice, Governor Rauner's calendar does not exist solely for his personal convenience. Thus,\nPhiladelphia Inquirer is inapposite. Moreover, Office of Governor v. Scolforo, 65 A.3d 1095\n(Pa. Commw. 2013) constitutes more recent and relevant precedent from that court. There, the\ncourt held that the governor's office had failed to sustain its burden to justify redacting entries\nfrom the governor's calendar under the deliberative process exemption. Scolforo, 65 A.3d at\n1104.\nLastly, in Jnternational Union, United Automobile, Aerospace & Agricultural\nImplement Workers of America v. Voinevich, 100 Ohio App. 3d 372, 375, 654 N.E.2d 139, 141\n(Ohio Ct. App. 1995), the relator sought a writ of mandamus compelling disclosure of the\ngovernor of Ohio's calendar and appointment books, which required the relator to demonstrate\nMr. Bruce Rushton\nMs. Christina McClernon\nSeptember 22, 2015 ;\nPage 11\nthat the Governor was “under a clear legal duty” to disclose them. The relator failed to provide\nevidence “that the requested items serve to document either the organization, functions, policies,\ndecisions, procedures, operations, or other activities of respondent's office” and did not assert\n\"that other members of [the Governor's] office had access to or used his personal calendars or\nappointment books for any official purpose.” International Union, 654 N.E.2d at 143, 100 Ohio\nApp. 3d at 377. Thus, under the procedural posture of that case, the Ohio Court of Appeals was\nrequired to accept as true the Governor's assertions that his personal calendars and appointment\nbooks were maintained solely by him for his own personal convenience and did not serve to\ndocument the official functions or activities of the Governor's Office. /nternational Union, 654\nN.E.2d at 143, 100 Ohio App. 3d at 377-78.\nConversely, under the Illinois FOIA, the Governor's Office has the burden of\ndemonstrating by clear and convincing evidence that the Governor's calendar does not constitute\na public record. The facts in this record establish that the Governor's calendar is maintained by\nhis personal assistant — who is a State employee — and is used for scheduling official meetings\nand other governmental events. Thus, the calendar pertains to the transaction of public business.\nMoreover, it is clear under,the most recent precedent to which the Governor's Office cited\n(Consumer Federation) that the Governor's calendar is \"circulated\" within the Governor's Office.\nAccordingly, the Federal cases and other state cases cited by the Governor's Office do not\ncompel a conclusion other than that the calendar is a public record.\nSafety Concerns\nCiting Times Mirror Co. v. Superior Court of Sacramento County, 53 Cal. 3d\n1325, 813 P.2d 240, 283 Cal. Rptr. 893 (Cal. 1991), the Governor's Office asserts that disclosing\ndetails of the Governor's calendar constitutes a security concern that outweighs any public\ninterest in the information.'* In that California Supreme Court case, the Governor's Office\nacknowledged that the Governor's schedule was a public record because it pertained to the\ntransaction of public business, but claimed that disclosing it would pose a security risk. The\ncourt decided the case on the basis of the deliberative process exemption under California law,\nbut noted that the Governor's schedules \"set forth in exhaustive detail the particulars of the\nGovernor's meetings and travel: time and location of arrivals and departures; traveling\ncompanions; hotel accommodations; and ground transportation\" and stated that “it is plausible to\nbelieve that an individual intent on doing harm could use such information to discern activity\npatterns of the Governor and identify areas of particular vulnerability.\" Times Mirror, 53 Cal. 3d\nat 1346, 813 P.2d at 253, 283 Cal. Rptr. at 906.\n1 etter from Christina McClernon, Assistant General Counsel/Freedom of Information Act\nOfficer, Office of Governor Bruce Rauner, to Josh Jones, Supervising Attorney, Public Access Bureau (Iuly 15,\n2015), at 4.\nMr. Bruce Rushton\nMs. Christina McClernon\nSeptember 22, 2015\nPage 12\nBased on our review of the Governor's calendar, it does not contain the level of\ndetail found in the calendar in Times Mirror. In Times Mirror, the Governor's calendar\ndocumented \"whether and when family members and traveling companions will be with him,\nthe particular aircraft or other means of transportation to be used, names of pilots and drivers,\nairport gate departures, specific hotel accommodations, [and] automobile and other ground\narrangements.” Times Mirror, 53 Cal. 3d at 1331, 813 P.2d at 242, 283 Cal. Rptr. at 895.\nGovernor Rauner’s calendar does not provide information concerning traveling companions,\nmodes of transportation, or overnight accommodations. Thus, the calendar does not appear to\ncontain information that could facilitate barm by ill-intentioned individuals. See Herald Ass'n,\n174 Vt. at 354, 816 A.2d at 473 (concluding that there was no showing that disclosure of the\nrequested information would pose a security risk in that it did not include “travel details and\npersonal information included in the Governor's schedule that might impact the Governor's\nsafety, such as airline flight information and hotel accommodations, and his personal family\ncommitments.\") The Governor's calendar predominantly consists of information regarding\nappointments: names of individuals and groups, and telephone numbers or meeting locations as\napplicable. The Governor's Office has not provided facts demonstrating that disclosing those\nnames, telephone numbers, or meeting locations from past appointments would pose a security\nrisk to the Governor. Therefore, the Governor's Office's has not met its burden to demonstrate\nthat the security exemption is applicable to the redactions in the calendar.\nSection 7(1)(f) of FOIA.\nSection 7(1}(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public bedy.\" The\nsection 7(1)(f) exemption applies to “inter- and intra-agency predecisional and deliberative\nmateria “ Harwood v. McDonough, 344 Hl. App. 3d 242, 247 (1st Dist. 2003). Section 7(1)(f)\ns \"intended to protect the communications process and encourage frank and open discussion\namong agency employees before a final decisioni s made.\" Harwood, 344 Ill. App. 3d at 248.\nSection 7(1)(f) does not exempt from disclosure purely factual material. See Ill. Att'y Gen. Pub.\nAce. Op. No. 13-015, issued September 24, 2013, at 7. Rather, “[o]nly those portions of a\npredecisional document that reflect the give and take of the deliberative process may be\nwithheld.\" Kalven vy. City of Chicago, 2013 IL App (ist) 121846, (24, 7 N.E.3d 741, 748 (2013)\n(quoting Public Citizen, inc. v. Office of Management & Budget, 598 F.3d 865, 876 (D.C. Cir.\n2010)). Further, a public body that asserts the deliberative process exemption “has the burden of\nestablishing what deliberative process is involved, and the role played by the documentsi n issue\nin the course of that process.” Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854,\n868 (D.C. Cir 19890).\nMr. Bruce Rushton\nMs. Christina McClernon\nSeptember 22, 2015\nPage 13\nAs a threshold matter, the Governor's Office did not provide facts that would\nsupport the argument that disclosure of the redacted entries would reveal predecisional\ndeliberative material. Section 9 of FOIA unequivocally requires a public body to provide a\ndetailed factual basis in order to sustain its burden of demonstrating by clear and convincing\nevidence that information is exempt from disclosure. The Governor's Office has not identified\nany deliberative processes'associated with the calendar or established that disclosure of the\nredacted information could expose any such process. Under similar circumstances in Herald\nAss'n, the court found that Governor Dean's claim that disclosure of his schedules would\ninterfere with his deliberative processes “lack[ed] the specificity necessary to determine whether\nthe * * * calendar entries are exempt from public disclosure.\" Herald Ass'n, 174 Vt. at 358, 816\nA.2d at 476; see also Scolforo, 65 A.3d at 1103-04 (because the governor's office did not provide\nsufficient facts for a reviewing body “to ascertain how disclosure of the [redacted] entries would\nreflect the internal deliberations on those subjects[,]\" the governor's office was required to\ndisclose those entries). Likewise, here, in the absence of a detailed factual basis for the\napplicability of the exemption, this office unable to conclude that the Governor's Office has\nsustained its burden to withhold information pursuant to section 7(1)() of FOIA.\nTo support the assertion of the section 7(1)(£) exemption, the Governor's Office\nrelies on the Times Mirror court's analysis of a prior version of the deliberative process\nexemption found in the Federal FOIA. Exemption 5 of the Federal FOTA (5 U.S.C. § 552(6)(5)\n(West 1998)), commonly recognized as addressing the deliberative process privilege, permitted\nan agency to withhold \"inter-agency or intra-agency memorandums or letters which would not be\navailable by law to a party ‘other than an agency in litigation with the agency.” The Governor's\nOffice argued that:\nThe court in Times Mirror explained \"[dlisclosing the identity of\npersons with whom the Governor has met and consulted is the\nfunctional equivalent of revealing the substance or direction of the\nGovernor's judgment and mental processes; such information\nwould indicate which interests or individuals he deemed to be of\nsignificance with respect to critical issues of the moment. The\nintrusion into the deliberative process is patent.\" [Citation.] This\nreality is clear by examining Governor Rauner’s calendar. Its\nentries reveal the identities of people with whom he has met and\nconsulted and thus can be read to determine the substance and\ndirection of his judgment and mental processes.\"\nSetter fom Christina McClernon, Assistant General Counsel/Freedom of Information Act\nOfficer, Office of Governor Bruce Rauner, to Josh Jones, Supervising Attorney, Public Access Bureau (July 15,\n2015), at 4-5.\nMr. Bruce Rushton\nMs. Christina McClernon\nSeptember 22, 2015 :\nPage 14\n>\nHowever, Times Mirror is distinguishable in several key respects. First, the\nTimes Mirror court discussed the Federal deliberative process exemption in the process of\nidentifying relevant public interests as part of its overall analysis of a provision of the California\nPublic Records Act (Cal. Gov. Code, § 6255 (West 1998)). The California law provision at issue\nprovided a \"'catchall' exemption that permits the government agency to withhold a record if it\ncan demonstrate that [citation] 'on the facts of a particular case the public interest served by not\nmaking the record public clearly outweighs the public interest served by disclosure of the\nrecord.\" (Emphasis in original.} Times Mirror, 53 Cal. 3d at 1338, 813 P.2d at 247-48, 283 Cal.\nRptr. at 901. The Hlinois FOIA does not contain such a \"catchall exemption.” To the contrary,\n\"as long as the particular request is not barred under the Act's exemptions, the purpose of the\nrequestor in making his request is irrelevant.\". People ex rel. Ulrich v. Stukel, 294 Il. App. 3d at\n204 (1* Dist. 1997). Additionally, unlike Governor Rauner's calendar, the calendar at issue in\nTimes Mirror contained an \"exhaustive\" level of detail. Times Mirror, 53 Cal. 3d at 1330, 813\nP.2d at 242, 283 Cal. Rptr.at 895. Moreover, the size of the request in Times Mirror, which\nsought five years of calendars and schedules, was crucial to the court's holding that the “catchall\nexemption” applied. Times Mirror, 53 Cal. 3d at 1345, 813 P.2d at 252, 283 Cal. Rptr. at 905\n(\"{W]hatever merit disclosure might otherwise warrant in principle is simply crushed under the\nmassive weight of the Times's request in this case].] * * * We are not persuaded that any\nidentifiable public interest supports such a wholesale production of documents.\" (Emphasis\nadded.)) The court expressly clarified that a narrower request could necessitate disclosure of\nappointment records under that state’s Public Records Act:\nLest there be any misunderstanding, however, we caution\nthat our holding does not render inviolate the Governor's calendars\nand schedules or other records of the Governor's office. There may\nbe cases where the public interest in certain specific information\ncontained in one or more of the Governor's calendars is more\ncompellintghe, specific request more focused, and the extent of\nthe requested disclosure more limited; then, the court might\nproperly conclude that the public interest in nondisclosure does not\nclearly outweigh the public interest in disclosure, whatever the\nincidental impact on the deliberative process. Times Mirror, 53\nCal. 3d at 1345, 813 P.2d at 253, 283 Cal. Rptr. at 906. _\nThus, Times Mirror does not support the conclusion that the deliberative process\nexemption automatically exempts calendar entries irom disclosure. Rather, the case suggests\nthat in the presence of state statutory language similar to that found in California's \"catch-all\"\nexemption, a determination must be undertaken regarding whether the disclosure of records, or\ninformation contained therein, would expose an officer's or agency's decision making process so\nas to discourage candid internal discussions, thereby undermining the officer or agency's ability\nMr. Bruce Rushton ;\nMs. Christina McClernon\nSeptember 22, 2015\nPage 15\n,\nto perform its governmental function (Times Mirror, 53 Cal. 3d at 1342, 813 P.2d at 250, 283\nCal. Rptr. at 903). Further, the public body's interest in nondisclosure must be weighed against\nthe public interest in disclosure. As previously discussed, the [linois FOIA does not contain\nstatutory language similar to that found in the California’s “catch-all exemption.\" Accordingly,\nTimes Mirror involved both a different legal standard and dissimilar facts.\nBecause the Governor's Office did not provide a detailed factual basis for its\nredaction of information from the Governor's calendar, the Governor's Office's reliance on Times\nMirror fails to sustain its burden to withhold information pursuant to section 7(1)().\nSection 7(1)(m) of FOIA\nSection 7(1}(m) of FOIA exempts from disclosure:\nt\nCommunications between a public body and an attorney\n* * * representing the public body that would not be subject to\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body! ]\nSection 71) exempts from disclosure, among other things, communications\nprotected by the attorney-client privilege. People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193,\n201 (1st Dist. 1997). Under Illinois law, a party asserting that a communication to an attorney is\nprotected by the attorney-client privilege must show that: “(1) a statement originated in\nconfidence that it would not be disclosed; (2) it was made to an attorney acting in his legal\ncapacity for the purpose of securing legal advice or services; and (3) it remained confidential.”\nCangelosi v. Capasso, 366 Ill. App. 3d 225, 228 (2nd Dist. 2006); see also People v. Radojcic,\n2013 IL 114197, 40, 998 N.E.2d 1212, 1221-22 (2013) (\"[TThe modern view is that the\nprivilege is a two-way street, protecting both the client's communications to the attorney and the\nattorney's advice to the client.\"). A public body that withholds records under section 7(1)(m)\n“can meet its burden only by providing some objective indicia that the exemption is applicable\nunder the circumstances.” (Emphasis in original.) [inois Education Ass’n v. Hlinois State\nBoard of Education, 204 lll. 2d 456, 470 (2003).\nIn support of its reliance on section 7(1\\m), the Governor's Office argued that:\n\"Many of [the] entries that the Governor's Office redacted included meetings attended by the\nGovernor's legal counsel. In the same manner that revealing the identity of persons with whom\nMr. Bruce Rushton :\nMs. Christina McClernon\nSeptember 22, 2015\nPage 16\n7\nthe Governhoars met would also reveal his judgment and mental process, it would also reveal\nhis legal strategies.”'\nUnder Illincis law, however, the mere presence of an attorney in a meeting is\ninsufficient to justify the assertion of section 7(1)(m). A public body that asserts section 7(1)(m)\nto withhold information must provide objective indicia establishing that the disclosure of the\ninformation would reveal a communication that invelved seeking or obtaining legal advice and\nthat remained confidential; in other words, the Governor's Office was required to demonstrate\nthat the redacted information “could reveal the substance of confidential attorney-client\ndiscussions.\" Ulrich, 294 lll. App. 3d at 201. The Governor's Office did not provide this\nobjective indicia, and therefore has not met its burden of demonstrating that section 7(1)(m)\napplies. Based on our review, disclosure of the redacted entries would not reveal that privileged\ncommunications were involved or, more specifically, the substance of any confidential attorney-\nclient discussions. Accordingly, the Governor's Office has not met its burden to redact the\ninformation from the Governor's calendar pursuant to section 7(1)(m).\nFor the reasons discussed above, we direct the Governor's Office to provide Mr.\nRushton with unredacted copies of the responsive calendar sections, subject only to the redaction\nof home or personal telephone numbers pursuant to section 7(1}(b) of FOIA (5 ILCS 140/7(1)(b)\n(West 2014)). ‘\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On May 15, 2015, Mr. Bruce Rushton, on behalf of Mlinois Times, submitted a\nFOIA request to the Governor's Office seeking documents showing Governor Bruce Rauner's\nappointments from April 1, 2015, to May 14, 2015, including the times and dates of all meetings\nand functions he attended and the names and titles of meeting attendees.\n2) On June 1, 2015, the Governor's Office provided Mr. Rushton with a copy of\nthe April calendar but redacted information concerning meeting attendees citing as its basis\nsections 7(1)(f) and 7(1)(m) of FOIA.\n. ‘1 etter from Christina McClernon, Assistant General Counsel/Freedom of Information Act\nOfficer, Office of Governor Bruce Rauner, to Josh Jones, Supervising Attorney, Public Access Bureau (July 15,\n2015), at 5.\nMr. Bruce Rushton :\nMs. Christina McClernon ,\nSeptember 22, 2015\nPage 17\n3) On June 11, 2015, Mr. Rushton submitted a Request for Review disputing the\npartial denial of his request. The Request for Review was timely filed and otherwise complies\nwith section 9.5(a) of FOIA (5 ILCS 140/9,5(a) (West 2014).\n4) On June 16, 2015, the Public Access Bureau sent a copy of Mr. Rushton's\nRequest for Review to the Governor's Office and asked it to provide unredacted copies of the\nresponsive records for this office's confidential review, together with detailed information\nconcerning how the Governor's calendar is maintained and used. We also asked the Governor's\nOffice to provide a detailed explanation for redacting information and to address the allegation\nthat it did not provide a complete response within the requisite response time.\n5) On July i §, 2015, the Governor's Office provided Mr. Rushton with the May\ncalendar entries but redacted certain information citing sections 7(1)(f and 7(1)(m) of FOIA and\nprovided this office with copies of the redacted records. The Governor's Office also provided\nthis office with a written response arguing that its redactions were proper and that the Governor's\ncalendar is not a public record subject to the requirements of FOIA. On July 20, 2015, the\nGovernor's Office provided this office with unredacted copies of the responsive records.\n6) On August 6, 2015, the Public Access Bureau properly extended the time in\nwhich to issue a binding opinion by 30 business days, to September 22, 2015, pursuant to section\n9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with\nrespect to this matter.\n7) The Governor's Office did not dispute that it failed to issue a complete\nresponse to Mr. Rushton's May 15, 2015, request until July 15, 2015. Accordingly, the\nGovernor's Office's delayed response to the request violated section 3(d) of FOLA.\n8) To qualify as a \"public record” under section 2(c) of FOIA, a communication\nmust (1) pertain[ ] to the transaction of public business and have either been (2) prepared by, (3)\nprepared for, (4) used by (5) received by, (6) possessed by, or (7) controlled by a public body.\nThe Governor's calendar was prepared by, prepared for, used by, and is in the possession and\ncontrol of the Governor's Office and is used to facilitate public business. Therefore, the\nGovernor's calendar is a public record for purposes of FOIA. All of the redacted entries appear\nto pertain to public business, as opposed to private affairs or private business interests.\n9) The Governor's Office failed to demonstrate by clear and convincing evidence\nthat any portion of the responsive records is exempt from disclosure under either section 7(1)(f)\nor section 7(1)(m) of FOTA.\nMr. Bruce Rushton :\nMs. Christina McCiernon\nSeptember 22, 2015\nPage 18\nTherefore, it is the opinion of the Attorney General that the Governor's Office has\nimproperly denied, in part, Mr. Rushton's Freedom of Information Act request in violation of the\nrequirements of the Act. Accordingly, the Governor's Office is directed to take immediate and\nappropriate action to comply with this opinion by disclosing the requested records to Mr.\nRushton, subject only to the redaction of home or personal telephone numbers pursuant to\nsection 7(1}(b) of FOIA.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Mr, Bruce Rushton\nas defendants. See 5 ILCS 140/11.5 (West 2014).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\na ae\nBy:\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested the Governor's calendar to see his meetings and attendees. The Governor's Office redacted much of this information, claiming it was exempt from disclosure. The Attorney General concluded that the Governor's Office violated FOIA by improperly redacting information.","card_headline":"The Governor's calendar with meeting details","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":60,"orig_master_id":19262,"dup_master_id":19033,"dup_sha256":"bdcf203582cd76b74f34a79cbceb9d98424fee87ab750b2f523e3efb6def4f98","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2015,"date_issued":"2015-11-09","case_number":"2015 PAC 36548","request_numbers":null,"title":"Failure to Timely Respond to FOIA Request Precludes Denial as Unduly Burdensome; Disclosure of Certified Payroll Records","filename":"PUBLIC ACCESS OPINION 15-011 (Request for Review - 2015 PAC 36548).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 15-011 (Request for Review - 2015 PAC 36548).pdf","word_count":3630,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a FOIA request made by Mr. Tim Ryan for certified payroll records from the Illinois Department of Transportation, which was denied as unduly burdensome.","plain_summary":"The requester sought certified payroll records for state highway construction projects in a county, and the state transportation department denied the request as unduly burdensome, citing the labor involved in redacting the hundreds of pages of records. The Public Access Counselor held that the department's denial came after FOIA's five-business-day response deadline had already passed, which by itself barred it from claiming undue burden, and separately concluded that because the legislature specifically made certified payroll records public and defined exactly what information must be redacted from them, the burden of that redaction did not outweigh the strong public interest in disclosure. The state transportation department was directed to produce the certified payroll records, redacting only the specific categories of information the statute allows.","holding":"The Illinois Department of Transportation violated FOIA by denying the request.","legal_question":"Did the Illinois Department of Transportation violate the Freedom of Information Act by denying the FOIA request as unduly burdensome?","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/2.10"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7"],"public_body":"Illinois Department of Transportation","requesting_party":"Mr. Tim Ryan","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought certified payroll records for construction projects awarded within Christian County.","ocr_status":"ok","ocr_quality":89.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2015-Binding-PAC-Opinions/15-011.pdf","sha256":"4604f0c89b38bad805412353e653aab00ff2cc9be82f42e6f96dab223c42ee27","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["certified payroll","unduly burdensome","timely response","IDOT"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nNovember 9, 2015\nPUBLIC ACCESS OPINION 15-011\n(Request for Review 2015 PAC 36548)\nFREEDOM OF INFORMATION ACT:\nFailure to Timely Respond to FOIA Request\nPrecludes Denial as Unduly Burdensome;\nDisclosure of Certified Payroll Records\nMr. Tim Ryan\nIL LECET, Market Representative\n[street address redacted for site publication -- see original PDF]\nMr. Matthew Dougherty\nAssistant Chief Counsel/Acting FOIA Officer\nIllinois Department of Transportation\n2300 South Dirksen Parkway\nSpringfield, llinois 62764\nDear Mr. Ryan and Mr. Dougherty:\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom ofI nformation Act (FOTA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons\ndiscussed below, this office concludes that the Ilinois Department of Transportation (IDOT)\nviolated the requirements of FOIA by its denial of Mr. Tim Ryan's June 22, 2015, FOIA request\nfor copies of certified payroll records.\nBACKGROUND\nOn June 22, 2015, Mr. Ryan, on behalf of the Illinois Laborers-Employers\nCooperation and Education Trust (IL LECET), submitted a FOIA request to IDOT seeking\ncopies of \"[aJll certified payrells for projects awarded within Christian County from June\n500 South Second Street, Springfield, Winois 62706 + (217) 782-1090 + TTY: (877) 844-5461 ¢ Fax: (217} 782-7046\n100 West Randolph Street, Chicago, Hlinois 60601 * (312}814-3000 + TTY: (G00) 964-3013 * Fax: (312) 814-3806\n601 South University Avenue, Suite 102, Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (B77) 675-9339 « Fax: (618) 529-6416\nMr. Tim Ryan\nMr. Matthew Dougherty\nNovember 9, 2015\nPage 2\n2014 to Present.” (Emphasis in original.) On July 22, 2015, IDOT responded to Mr. Ryan that\nit had received his request on July 11, 2015, but that compliance with the request as submitted\nwould be unduly burdensome because \"fulfilling this request would take a substantial number of\nlabor hours and produce thousands of pages of records.\" Pursuant to section 3(g) of FOIA (5\nILCS 140/3(g) (West 2014)), IDOT offered Mr. Ryan an opportunity to narrow his request by\nsuggesting that he: (1) request certified payroll records by individual contract number; (2)\nrequest certified payrolis for only two contracts at a time; and (3) make the modified requests\nonce per week.\nOn July 28, 2015, the Public Access Bureau received Mr. Ryan's Request for\nReview of IDOT's denial of his FOIA request.’ On July 30, 2015, the Public Access Bureau\nforwarded a copy of Mr. Ryan's Request for Review to IDOT and asked it to provide this office\nwith \"representative samples of the records responsive to Mr. Ryan's request along with a\ndetailed summary for the applicability of section 3(g) of FOIA.\"* This office also asked IDOT to\nprovide \"an approximate count of the number of pages of responsive records as well as an\napproximate accounting of the amount of time to collect, review, and redact those pages of\nrecords[,]\" and an explanation of the extent of \"the potential interruption to IDOT's operations if\nit were required to collect and provide the requested records to Mr. Ryan.\"*\nOn August 10, 2015, this office received IDOT's written response together with\none representative sample of a certified transcript of payroll consisting of 32 pages.° [DOT\n‘Letter from Tim Ryan, IL LECET, Market Representative, to FOIA Officer, [inois Department\nof Transportation (June 22, 2015).\n\"Letter from Matthew Dougherty, Acting Freedom of Information Officer, Hlincis Department of\nTransportation, to Tim Ryan, IL LECET July 22, 2015).\n*E-mail from Tim Ryan, LiUna! Midwest Region, to Ms. [Sarah] Pratt, Public Access (July 28,\n2015).\n“Letter from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, to Matthew\nDougherty, Assistant Chief Counsel/Acting FOIA Officer, Illinois Depaorf tTrmanspeortnatiotn (July 30, 2015), at\n2.\nLetter from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, to Matthew\nDougherty, Assistant Chief Counsel and Acting FOIA Officer, Illinois Department of Transportation July 30,\n2015), at 2. :\n°E-mail from Matthew Dougherty, Acting FOIA Officer, Assistant Chief Counsel, to Shannon\nBarnaby (August 10, 20145).\nMr. Tim Ryan\nMr. Matthew Dougherty\nNovember 9, 2015\nPage 3\n‘indicated in its written response that the provided record represented one of the 15 projects that\nare responsive to Mr. Ryan’s request.’ IDOT’s written response further stated, in pertinent part:\nThe CTPs [Certified Transcripts of Payroll] are required to be\nmaintained by the contractor(s) who have contracted with the\nDepartment to complete a construction project for IDOT[.]\n** * The CTP requirement stems from the Illinois Prevailing\nWage Act. The payrolls are kept and certified in order to ensure\ncompliance with that Act. The CTPs are also used for, in part,\ntracking compliance with Disadvantaged Business Enterprise\n(\"DBE\") employment diversity goals. Therefore, the CTPs contain\nthe work hours, name, partial social security number, and in some\ncases, the racial background and ethnicity of contractor employees.\n* OK OK\nThe need to identify exempt data and then redact this information,\nline by line, page by page, is very labor intensive, and is a\nsignificant reason that responding to Mr. Ryan's request, as\nwritten, would create an undue burden on the operations of IDOT.\n* OR OF\nThe CTP records for a single project, depending on how many\nweeks the project has been active and how many employees are\nworking on the project, are often over one hundred pages, or\nmultiple hundreds of pages,\"\nIDOT's written response only was forwarded to Mr. Ryan on August 10, 2015.”\nhe did not reply. On September 22, 2015, this office properly extended the time within which to\nissue a binding opinion by 30 business days pursuant to section 9.5(f of FOIA.\"\n7E-mail from Matthew Dougherty, Acting FOLA Officer, Assistant Chief Counsel, to Shannon\nBarnaby (August 10, 2015), at 1.\n*E-mail from Matthew Dougherty, Acting FOIA Officer, Assistant Chief Counsel, to Shannon\nBarnaby (August 10, 2015), at 7.\n*Letter from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, to Tim Ryan,\nIL LECET, Market Representative (August 10, 2015).\nLetter from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, to Tim Ryan,\nIL LECET, Market Representative, and Matthew Dougherty, Assistant Chief Counsel /Acting FOIA Officer, Hlinois\nDepartment of Transportation (September 22, 2015).\nMr. Tim Ryan\nMr. Matthew Dougherty\nNovember 9, 2015\nPage 4\nANALYSIS\nFOIA requires that \"[e]ach public body shall make available to any person for\ninspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of\nthis Act.\" 5 ILCS 140/3(a) (West 2014). The limited exceptions to access to public records are\nto be construed narrowly. See 5 ILCS 140/1 (West 2014). Further, all public records in the\npossession or custody of a public body \"are presumed to be open to inspection or copying.\" 5\nILCS 140/1.2 (West 2014); see also Southern Illinoisan v. Illinois Dept. of Public Health, 218\nIll. 2d 390, 415 (2006).\nSections 3(d) and 3(g) of FOIA\nIDOT classified Mr. Ryan's request as unduly burdensome pursuant to section\n3(g) of FOIA, which provides, in pertinent part:\nRequests calling for all records falling within a category\nshall be complied with unless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information. Before invoking\nthis exemption, the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions. If any public body\nresponds to a categorical request by stating that compliance would\nunduly burden its operation and the conditions described above are\nmet, it shall do so in writing, specifying the reasons why it would\nbe unduly burdensome and the extent to which compliance will so\nburden the operations of the public body. Suck a response shall\nbe treated as a denial of the request for information. (Emphasis\nadded.) ;\nSection 3(d) of FOIA (5 ILCS 140/3(d) (West 2014)), however, provides that:\nEach public body shall, promptly, either comply with or\ndeny a request for public records within 5 business days after its\nreceipt of the request, unless the time for response is properly\nextended under subsection (e) of this Section. Denial shall be in\nwriting as provided in Section 9 of this Act. Failure to comply\nwith a written request, extend the time for response, or deny a\nrequest within 5 business days after its receipt shall be considered\nMr. Tim Ryan\nMr. Matthew Dougherty\nNovember 9, 2015\nPage 5\na denial of the request. A public body that fails to respond to a\nrequest within the requisite periods in this Section but thereafter\nprovides the requester with copies of the requested public records\nmay not impose a fee for such copies. 4 public body that fails to\nrespond to a request received may not treat the request as unduly\nburdensome under subsection (g). (Eraphasis added.)\nThus, asserting that a FOIA request is unduly burdensome and denying it unless the requester\nagrees 10 narrow if is a permissible response, but only if the public body made that response\nwithin the timeframes provided by FOIA. Further, if a public body extends the time for\nresponding to a request pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2014)),'' then\nthe public body must \"notify the person making the request of the reasons for the extension and\nthe date by which the response will be forthcoming.” 5 ILCS 140/3() (West 2014).\nMr. Ryan submitted his FOIA request to IDOT in a letter dated June 22, 2015.\nIDOT’s response to the request indicates that it received the request on July 11,2015. IDOT’s\nletter denying the request as unduly burdensome is dated July 22, 2015, more than five business\ndays after [DOT acknowledges receiving Mr. Ryan's request. This office has been provided with\nnothing indicating that IDOT properly extended the time for response as provided for in sections\n3(e) and 3(f) of FOIA (5 ILCS 140/3(f) (West 2014)). Moreover, Mr. Ryan has stated that he did\nnot receive any notification that IDOT was extending the time for responding.” Therefore,\nbecause IDOT failed either to respond or to extend the time for responding to Mr. Ryan's request\nwithin 5 business days after its receipt, IDOT is precluded by section 3(d) of FOIA from treating\nthe request as unduly burdensome. Accordingly, IDOT must respond to the FOIA request in its\nentirety as submitted.\nThis office notes, however, that IDOT's response asserting 3(g) and inviting Mr.\nRyan to narrow his request would have been permissible had it been issued within the applicable\nperiod. IDOT explained that review and redaction of hundreds of pages of documents would be\nnecessary to fulfill the request, and provided specific suggestions for how to make the request\nmore manageable. The letter appears to be an attempt to find a less burdensome method of\nproviding copies of the records, rather than to avoid furnishing them. As provided in section 3(e)\nof FOIA (5 ILCS 140/3(e) (West 2014)) a requester and a public body may agree in writing to\nextend the time for compliance. Public bodies and requesters are free to negotiate the scope of a\nrequest and the time period for compliance, which often provides the most convenient and\n\"Section 3(e) of FOIA enumerates seven reasons for which a public body may extend the time for\nresponding to a request by an additional 5 business days.\n“2B mail from Tim Ryan, LIUNA! Midwest Region, to Shannon Barnaby (September 3, 2015).\nMr. Tim Ryan\nMr. Matthew Dougherty\nNovember 9, 2015\nPage 6\nexpedient result for both parties. As a result, IDOT's attempt to negotiate the scope of the\nrequest and the time period for compliance with Mr. Ryan was permissible.\nIn this instance, however, Mr. Ryan declined to modify his request and, instead,\nsubmitted a Request for Review explaining that \"[w]e feel that the amount of paperwork that we\nare requesting is not burdensomef.}\"\"\" Although IDOT's late response precludes it from treating\nthe request as unduly burdensome, to provide guidance in this area, we have elected to address\nthe issue of whether section 3(g} would allow IDOT to deny this request unless it was narrowed\non the basis that the burden of compliance outweighs the public interest in disclosure of the\nrecords. Illinois courts have employed a balancing test in determining whether the public\ninterest in disclosure of requested records outweighs the burden that compliance would impose\non a public body. In National Ass'n of Criminal Defense Lawyers v. Chicago Police\nDepartment, 399 Il. App. 3d 1 (ist Dist. 2010), the [inois Appellate Court analyzed whether\nthe production of records concerning a study on eyewitness identification procedures would pose\nan undue burden on the Chicago Police Department (CPD). Counsel for CPD estimated that\nredacting the responsive records would take 150 hours, equating to 20 personnel days. National\nAss'n, 399 UL. App. 3d at 14. The court found that there was a vital public interest in examining\neyewitness identification procedures. National Ass'n, 399 Il. App. 3d at 17. Moreover, the\ncourt found that the request was \"specifically target[ed]\" and that “the information requested\n[was] essential to a meaningful review of” the study on eyewitness identification procedures,\ndistinguishing it from requests that require extensive review of extraneous materials. National\nAss'n, 399 I. App. 3d at 17 (\"A request that is overly broad and requires the public body to\nlocate, review, redact and artange for inspection a vast quantity of material that is largely\nunnecessary to the appellants’ purpose constitutes an undue burden.”). The court concluded that\nthe burden of identifying and redacting the responsive records, although significant, did not\noutweigh the public interest in disclosure of the records. National Ass’n, 399 IL. App. 3d at 17.\nIn contrast, in Shehadeh v. Madigan, 2013 IL App (4th) 120742, 996 N.E.2d 1243\n(2013), the court weighed the public interest against the burden of compliance but concluded that\na request was unduly burdensome. In that case, the requester sought any and all records that\ncould be used for guidance on complying with FOIA. The Attorney General’s Office responded\nthat compliance with the request as written would be unduly burdensome because its search\nidentified 9,200 potentially responsive files. Shehadeh, 2013 IL App (th) 120742, (5, 996\nN.E.2d at 1245. The Attorney General's Office invited the requester to narrow his request to\nmore manageable proportions, but he declined to do so. Shehadeh, 2013 IL App (4th) 120742,\n415-6, 996 N.E.2d at 1245. The court found the request to be “patently broad on its face, as it\nsought any publication or record that would or could be used by any public body to comply with\nIilinois's FOIA provisions.” (Emphasis in original.) Shehadeh, 2013 IL App (4th) 120742, 28,\n“E-mail from Tim Ryan, LiUna! Midwest Region, to Ms. [Sarah] Pratt, Public Access (uly 28,\n2015).\nMr. Tim Ryan\nMr. Matthew Dougherty\nNovember 9, 2015\nPage 7\n996 N.E.2d at 1248. Additionally, the court found that the requester failed to identify a public\ninterest that outweighed the burden of compliance on the Attorney General's Office. Shehadeh,\n2013 IL App (4th) 120742, 435, 996 N_E.2d at 1249. Thus, the court concluded that the\nAttorney General's Office did not violate FOIA by denying the request as unduly burdensome.\nShehadeh, 2013 IL App (4th) 120742, 935, 996 N.E.2d at 1249.\nIDOT's response to this office asserts that compliance with Mr. Ryan's request\nwould create an undue burden on IDOT's operations because it would need \"to identify exempt\ndata and then redact this information, line by line, page by page[.]\"!* While IDOT would be -\nrequired to redact certain information, the General Assembly has specifically defined certified\npayroll records as public records that are subject to inspection and copying by statute. Section\n2.10 of FOIA (5 ILCS 140/2.10 (West 2014)) provides:\nPayrolls. Certified payroll records submitted to a public\nbody under Section 5({a)(2) of the Prevailing Wage Act are public\nrecords subject to inspection and copying in accordance with the\nprovisions of this Act; except that contractors’ employees’\naddresses, telephone numbers, and social security numbers must be\nredacted by the public body prior to disclosure.\nClearly, the General Assembly recognized that there would be a need to redact certain\ninformation from certified payroll records, but nonetheless expressly provided that these records\nare subject to disclosure. Further, the General Assembly did not provide an extended period for\nthe records’ production. Enactment of this provision reflects the significant public interest in\ndisclosure of these records.\nIDOT acknowledges in its response to this office that the certified payroll records\nin question were submitted to IDOT pursuant to the Prevailing Wage Act (820 ILCS 130/0.01\n(West 2014))'° and are therefore subject to section 2.10 of FOIA. Further, the specific\ninformation that may properly be redacted from the records is expressly described by statute. .\nUnlike information that might be exempt as preliminary under section 7(1)() of FOIA (5 ILCS\n140/7(1)(f) (West 2014), as amended by Public Act 99-298, effective August 6, 2015) or\nattorney-client privileged information that is exempt under section 7(1)(m) (5 ILCS 140/7(1)(m)\n(West 2014), as amended by Public Act 99-298, effective August 6, 2015), addresses, telephone\n“E-mail from Matthew Dougherty, Acting FOIA Officer Assistant Chief Counsel to Ms. Barnaby\n(August 10, 2015).\n'SE_mail from Matthew Dougherty, Acting FOIA Officer Assistant Chief Counsel to Ms. Barnaby\n(August 10, 2015),\nMr. Tim Ryan\nMr. Matthew Dougherty\nNovember 9, 2015\nPage 8\nnumbers, and social security numbers are readily identifiable. Accordingly, compliance with the\nrequest should not require specialized review of the records by IDOT.\nThis office recognizes that the need for IDOT to review hundreds of pages of certified\npayroll records, in order to redact information pursuant to section 2.10 and to determine whether any other\nportions of those records are exempt from disclosure, will impose a burden upon IDOT. That does not\nmean, however, that compliance with the request would be “unduly burdensome,” for purposes of section\n3(g) of FOIA. Compliance with any FOIA request imposes some administrative burden on a public body.\nThe issue is whether the public interest in disclosure justifies the burden. Here, in light of the strong public\ninterest in disclosure as established by the specific inclusion in FOIA of section 2.10, this office finds that\nthe production of the certified payroll records responsive to Mr. Ryan's request would not so burden the\noperations of IDOT's office as to outweigh the public interest in their dissemination.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) Ina letter dated June 22, 2015, Mr. Tim Ryan, on behalf of IL LECET,\nsubmitted a FOIA request to IDOT seeking copies of all “certified payrolls for projects awarded\nwithin Christian County from June 2014 to Present.\"\n2) On July 22, 2015, IDOT denied Mr. Ryan's request pursuant to section 3(g) of\nFOIA, stating that Mr. Ryan's request was unduly burdensome because it “would take a\nsubstantial number of labor hours and produce thousands of pages of records.\" IDOT's response\nindicated that it had received Mr. Ryan's request on July 11, 2015.\n3) On July 28, 2015, Mr. Ryan submitted a Request for Review to the Public\nAccess Counselor that was received on the same date, in which he disputed the denial of his\nFOIA request. The Request for Review was timely filed and otherwise complies with section\n9.5(a) of FOIA (5 ILCS 140/9_5(a) (West 2014).\n4) On July 30, 2015, the Public Access Bureau forwarded a copy of Mr. Ryan's\nRequest for Review to IDOT and requested a written explanation of the factual and legal bases\nfor its assertion of section 3{g) of FOIA, together with a representative sample of the records\nresponsive to Mr. Ryan’s request for this office’s confidential review.\n5) On August 10, 2015, IDOT sent a written response to this office, which\nincluded a sample of one representative certified transcript payroll record.\nMr. Tim Ryan\nMr. Matthew Dougherty\nNovember 9, 2015\nPage 9\n6) Pursuant to section 9.5(/) of FOIA, on September 22, 2015, this office\nproperly extended the time in which to issue a binding opinion by 30 business days to November\n9, 2015. Therefore, the Attorney General may properly issue a binding opinion with respect to\nthis matter. ,\n7) Because IDOT failed to respond to Mr. Ryan's FOIA request within 5 business\ndays after its receipt, IDOT is precluded from asserting that the request is unduly burdensome\nunder section 3(g) of FOLA.\n8) Even assuming that IDOT’s response was timely, however, the burden of\ncompliance on IDOT's operations would be outweighed by the significant public interest in the\ndissemination of certified payroll records, as reflected by the General Assembly's enactment of\nsection 2.10 of FOIA, which expressly requires the disclosure of these records.\nTherefore, it is the opinion of the Attorney General that IDOT improperly denied\nMr. Ryan's Freedom of Information Act request in violation of the requirements of the Act.\nAccordingly, IDOT is directed to take immediate action to comply with this binding opinion by\ndisclosing the requested certified payroll records, subject only to permissible redactions under\nsection 2.10 and section 7 of FOIA (5 ILCS 140/7 (West 2014), as amended by Public Act 99-\n298, effective August 6, 2015).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS $/3-101\net seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Mr. Tim Ryan as\ndefendants. See 5 ILCS 140/11.5 (West 2014).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nBy:\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Tim Ryan requested certified payroll records from the Illinois Department of Transportation (IDOT), but IDOT denied the request claiming it was too burdensome to fulfill. The Attorney General ruled that because IDOT failed to respond to the request within the legal timeframe, they lost the right to claim it was burdensome. IDOT was ordered to provide the requested records.","card_headline":"Certified payroll records for county construction projects","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":61,"orig_master_id":19034,"dup_master_id":19263,"dup_sha256":"aa24c53aa08fe13d954743412c9f8ac755eb074d582d1cc6729d54126c20d600","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2015,"date_issued":"2015-09-11","case_number":"2015 PAC 37849","request_numbers":null,"title":"Failure to Respond to FOIA Request; Extension of the Response Period","filename":"PUBLIC ACCESS OPINION 15-012 (Request for Review - 2015 PAC 37849).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 15-012 (Request for Review - 2015 PAC 37849).pdf","word_count":2380,"summary":"Chicago State University failed to comply with, deny, or otherwise respond appropriately to a FOIA request submitted by Ms. Kathy McConnell . CSU violated section 3(d) of FOIA (5.5(f) of the Freedom of Information Act (FOIA) Request for Review to the Public Access Bureau alleges that CSU had failed to produce the requested records .","plain_summary":"The requester, a labor union representative, sought records concerning which employment positions were included in or excluded from collective bargaining agreements, and the university neither complied with, denied, nor properly extended the deadline for the request within the required five business days. The Public Access Counselor held that the university's eventual partial response, sent only after the requester followed up for months, did not cure its initial failure to timely respond, and that a public body cannot unilaterally and indefinitely extend its response time even where the requester agreed to one extension. The university was directed to produce the remaining responsive records, subject only to permissible redactions of private information.","holding":"Chicago State University violated section 3(d) of FOIA by failing to respond to the requester's FOIA request within the statutory timeframe.","legal_question":"Whether Chicago State University violated section 3(d) of FOIA by failing to respond to a FOIA request, and what the consequences are for such a failure regarding fees and burden claims.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/3(f), 5 ILCS 140/7(1), 735 ILCS 5/3, 5 ILCS 140/11, 5 ILCS 140/2","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(b)","public_body":"Chicago State University","requesting_party":"McConnell","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"FOIA response failure","subject_description":"The failure of a public body to provide any response to a submitted Freedom of Information Act request.","ocr_status":"ok","ocr_quality":88.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2015-Binding-PAC-Opinions/15-012.pdf","sha256":"24cc0561d077bc51095e97b4861e018374ff7dc3697eb0d486498f9341f1fc34","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","copying fees","unduly burdensome"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL : STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL December 14, 2015 PUBLIC ACCESS OPINION 15-012 (Request for Review 2015 PAC 37849) } FREEDOM OF INFORMATION ACT: Failure to Respond to FOIA Request; Extension of the Response Period | t t Ms. Kathy McConnell ' Ms. Sarah Leah Tarlow Director of Programming . Field Service Director University Professionals of Illinois - Illinois Federation of Teachers Local 4100 11 East Adams, Suite 1106 11 East Adams, Suite 1106 : Chicago, Illinois 60603-6303 Chicago, Illinois 60603 : Ms. Robin M. Hawkins Associate Vice President & Senior Associate General Counsel , Chicago State University 9501 South King Drive/ADM 318. Chicago, Ilinois 60628-1598 Dear Ms. McConnell, Ms. Tarlow, and Ms. Hawkins: _ This is a binding opinion issued by the Attomey General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons discussed below, this office concludes that Chicago State University (CSU) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2014)) by failing to comply with, deny, or otherwise respond appropriately to a FOIA request submitted by Ms. Kathy McConnell. ' ? ' 500 South Second Street, Springfield, UHno ‘ is 62706 * (217) 782-1090 * TTY: (877) 844-5461 + Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondale, Illinois 62901 * (618) 529-6400 » TTY: (877) 675-9339 + Fax: (618) 529-6416 eco Ms. Kathy McConnell Ms. Sarah Leah Tarlow Ms. Robin M. Hawkins December 14, 2015 Page 2 _ BACKGROUND On September 11, 2015, Ms. McConnell, on behalf of University Professionals of Illinois, submitted a FOIA request to CSU via an e-mail to Ms. Robin M. Hawkins, CSU's FOIA Officer, seeking copies of \"all the records pertaining to all positions presently included and excludedi n collective bargaining agreements for the period beginning of the 2015 - 2016 academic year.\"' Ms. McConnell sent the same FOIA request to CSU by certified mail on September 14, 2015, and the return receipt was signed on September 17, 2015.” The request indicated that the records sought by Ms. McConnell included 16 specific categories of information related to CSU's employees. On September 25, 2015, Ms. McConnell sent a follow- up e-mail to Ms. Hawkinsi n which Ms., McConnell stated that she had not received a response to her September 11, 2015, FOIA request.” On October 5, 2015, Ms. Sarah Leah Tarlow, on behalf’ of the Illinois Federation of Teachers,’ submitted a Request for Review to the Public Access Bureau alleging that CSU had failed to produce the requested records or otherwise respond to Ms. McConnell's FOIA request? On October 8, 2015, the Public Access Bureau forwarded a copy of the Request for Review to CSU and asked CSU to notify this office whether it had received and responded to Ms. McConnell's FOIA request; if it had not yet responded, this office asked CSU to respond to Ms. McConnell and to provide a copy ofi ts response to this office. No response was received from CSU. On November 3, 2015, an Assistant Attorney Generali n the Public Access Bureau sent an e-mail to Ms, Hawkins inguiring about the status of CSU's response to this office and to ‘E-mail from Kathy McConnell, UPI, Local 4100, Director of Programming, University Professionals of Illinois, to [Robin} Hawking (September 11, 2015). ' 28.mail from Sarah Leah Tarlow, Field Service Director, Illinois Federation of Teachers, to [Sarah] Pratt, Public Access (October 5, 2015). 3E-mail from Kathy McConnell, UPI, Local 4100, Director of Programming, University Professionals of Illinois, to [Robin] Hawkins (September 25, 2015). “University Professionals of Tilinois, Local 4100, is an affiliate of the Illinois Federation of Teachers. See University Professionals of Illinois, Local 4100, IFT, AFT, AFL-CIO, http:/Avww.upilocal4 100.org (last visited November 13, 2015). : 3E-mail from Sarah Leah Tarlow, Field Service Director, Illinois Federation of Teachers, to [Sarah] Pratt, Public Access (October 5, 2015). ‘Letter from Steve Silvernian, Assistant Bureau Chief, Public Access Bureau, to Robin Hawkins, Associate Vice President & Senior Associate General Counsel, Chicago State University (October 8, 2015). Ms. Kathy McConnell Ms. Sarah Leah Tarlow Ms. Robin M. Hawkins December 14, 2015 Page 3 the FOIA request.’ On November 11, 2015, CSU sent this office an e-mail with a copy ofa response letter to Ms. McConnell attached.’ The letter to Ms. McConnell indicates that CSU had received the FOIA request on September 17, 2015, and was providing salary information for union members, but also states that CSU \"will require additional time to comply with all of the remaining items included in your request.” On November 11, 2015, Ms. Tarlow responded on behalf of McConnell by agreeing to \"extend the due date and expect to receive the outstanding information by the close of business on Wednesday, November 25, 2015.\" On November 30, 2015, Ms. Tarlow sent a follow-up e-mail to CSU stating: “We did not receive the information we requested by November 25\", Unfortunately this leaves us no choice but to pursue this matter further with the Attomey General's Office.\"\"’ In a telephone conversation with an Assistant Attorney General on December i1, 20 15, Ms. Tarlow confirmed that CSU had not provided any additional response or records. ; ; , i ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2014}. Under section 1.2 of FOIA ( ILCS 140/1.2 (West 2014)), “[a]ll records in the custody or possession of a public. body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shail, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly ‘ \"E-mail from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney General, to [Robin] Hawkins (November 3, 2015). ®E-mail from Veronica Seates, Executive Assistant to the Vice President and General Counsel, Labor and Legal Affairs, Chicago State University, to [Steve] Silverman (November 11, 2015). \"Letter from Robin M. Hawkins, Associate Vice President & Senior Associate General Counsel, Chicago State University, to Kathy McConnell, Director of Programming, UPI, Local 4100 (November 11, 2015). '0G.mail from Sarah Leah Tarlow, Field Service Director, [llinois Federation of Teachers, to Robin Hawkins (November 11, 2015). : , Ug mail from Sarah Tarlow to Robin Hawkins (November 30, 2015). ' ‘ Ms. Kathy McConnell , Ms. Sarah Leah Tarlow Ms. Robin M. Hawkins December 14, 2015 Page 4 extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee.for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). If a public body extends the time for responding to a request by 5 business days for any of the seven reasons enumerated in section 3(e) of FOIA (5 ILCS 140/3(e) (West 2014)), the public body must “notify the person making the request of the reasons for the extension and the date by which the response will be forthcoming.\" 5 ILCS 140/3(f) (West 2014). Alternatively, the \"person making a request and the public body may agree in writing to extend the time for compliance for a period to be determined by the parties.\" (Emphasis added.) 5 ILCS 140/3(e)} (West 2014). , The facts are undisputed that CSU did not, within 5 business days of receiving the request, comply with Ms. McConnell's request, deny the request in writing, or provide notice to the requester that it was extending the time for response pursuant to section 3(e) of FOIA. Moreover, section 3(e) does not authorize a public body to unilaterally and indefinitely extend its time for responding to a FOIA request. Thus, CSU's November 11, 2015, response to Ms. McConnell failed to comply with the requisite procedures for extending the response period. Accordingly, by failing to issue a timely response to Ms. McConnell’s September 11, 2015, FOIA request, CSU violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: . 1) On September 11, 201 5, Ms. Kathy McConnell, on behalf of University Professionals of Illinois, submitted a FOIA request to CSU seeking copies of various records concerning employment positions. CSU acknowledged receipt of the FOIA request on September 17, 2015. CSU did not, within 5 business days after receipt, comply with the FOIA request, extend the time for its response pursuant to section 3(e) of FOIA, or deny the request in whole or in part, as is required by section 3(d) of FOIA. Ms. Kathy McConnell Ms. Sarah Leah Tarlow Ms. Robin M. Hawkins December 14, 2015 Page 5 2) On October 5, 2015, Ms. Sarah Leah Tarlow, on behalf of the [inois Federation of Teachers, whichi s affiliated with University Professionals of Illinois, asked the Public Access Counselor to review CSU's denial of the FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5S ILCS 140/9.5(a) (West 2014)). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. _ 3) On October 8, 2015, the Public Access Bureau forwarded a copy of Ms. Tarlow's Request for Review to CSU, together with a letter asking CSU to advise this office whether it had received and responded to Ms. McConnell's September 11, 2015, FOIA request. CSU did not respond or otherwise provide the Public Access Counselor with an explanation of its reasons for failing to respond to the FOIA request. , 4) On November 3, 2015, this office sent CSU an e-mail inquiring about the status of CSU's response to this office and to the FOIA request. 5) On November 11, 2015, CSU sent Ms. McConnell salary information concerning union members together with a letter stating that it required additional time to compile the remaining records responsive to her FOIA request. On November 1}, 2015, Ms. Tarlow responded on behalf of Ms. McConnell by agreeing to extend the time for CSU to complete its response to the FOIA request until November 25, 2015. However, CSU did not provide any additional response. , 6) The failure of CSU to comply with the FOIA request, extend the time for its response pursuant to section 3(¢) of FOIA, or deny the request in whole or in part, within 5 business days after receiving the request, violated the requirements of section 3(d) of FOIA. 7) In order to extend the period for responding to a FOIA request beyond an additional 5 business days, a public body and a requester must agree to the extension in writing. Ms. Tarlow agreedi n writing to extend CSU's time to complete its response until November 25, 2015, but did not receive any additional responsive records. FOIA does not authorize a public body to unilaterally and indefinitely extend the time for responding to a FOIA request. Therefore, it is the opinion of the Attorney General that CSU has violated section 3(d) of FOIA by failing to respond to-Ms. McConnell's request for public records as required by the Act. Accordingly, while CSU provided certain records ta Ms. McConnell on November 1 1\", the university is hereby directed to take immediate and appropriate action to comply with this binding opinion by providing Ms. McConnell with all remaining records responsivteo her Ms. Kathy McConnell Ms. Sarah Leah Tarlow ne Ms. Robin M. Hawkins December 14, 2015 Page 6 September 11, 2015, FOIA request, subject only to permissible redactions, if any, of “private information'\"? under section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2014), as amended by Public Act 99-298, effective August'6, 2015).\" This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Kathy McConnell and Ms. Sarah Leah Tarlow as defendants. See 5 ILCS 140/11.5 (West 2014), Sincerely, , LISA MADIGAN ; ATTORNEY GENERAL ; a a ; Michael J. Luke Counsel to the Attorney General ' A fl ° Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2014)) defines \"private information\" as: unique identifiers, including @ person's social security nurnber, driver's license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person. ' ° Because CSU did not comply with the statutory requirements for responding to Ms. McConnell's FOIA request, CSU is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 146/3(d) (West 2014)) (\"A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g).\"). . :","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Ms. Kathy McConnell requested public records from Chicago State University, but the University did not respond within the required five business days. The Attorney General's office ruled that the University violated section 3(d) of FOIA by failing to comply with, deny, or properly extend the response period for the request. The opinion notes that under FOIA, a public body that fails to respond within the statutory timeframe may not charge fees for copies provided thereafter and may not treat the request as unduly burdensome, but the opinion itself does not impose those penalties.","card_headline":"A university's failure to respond to a FOIA request","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":62,"orig_master_id":19035,"dup_master_id":19264,"dup_sha256":"ab4513cf6144e1d95d4f9766e78b531994d49cce1121fd7cdf53d4ea7c134999","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2015,"date_issued":"2015-12-15","case_number":"2015 PAC 37664","request_numbers":null,"title":"Failure to Respond to FOIA Requests Robert E. Bionaz, Ph.D. 8720 South Utica Avenue Evergreen Park, [Hinois 60805","filename":"PUBLIC ACCESS OPINION 15-013 (Request for Review - 2015 PAC 37664).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 15-013 (Request for Review - 2015 PAC 37664).pdf","word_count":1813,"summary":"Attorney General Lisa Madigan issued binding opinion on behalf of Dr. Robert E. Bionaz, Ph.D. The opinion concludes that Chicago State University (CSU) violated section 3(d) of FOIA by failing to comply with, deny, or otherwise appropriately respond to a FOIA request . CSU's FOIA Officer has not responded to the request .","plain_summary":"The requester, a university professor, sought certain records the university is required to maintain, and the university never responded at all, ignoring the Public Access Bureau's follow-up letters as well. The Public Access Counselor held that the university's total silence constituted a denial under FOIA, violating the requirement to comply, extend, or deny within five business days. The university was directed to produce all responsive records, subject only to permissible redactions of private information, and to issue a proper written denial for any records it withholds.","holding":"Chicago State University violated section 3(d) of FOIA by failing to respond to the requester's FOIA request within the statutory time limits.","legal_question":"Whether a public body violates section 3(d) of FOIA by failing to provide any response to a FOIA request within the statutory time period.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3, 5 ILCS 140/1, 5 ILCS 140/3(e), 6 ILCS 140/7(1), 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(b)","public_body":"Chicago State University","requesting_party":"Bionaz and Ms. Hawkins","pac_outcome":"UNCLEAR","pac_law_type":"FOIA","subject_category":"FOIA response","subject_description":"The request sought records maintained by the university pursuant to sections 3.5(a)(1) through 3.5(a)(4) of FOIA regarding the university's FOIA compliance procedures.","ocr_status":"ok","ocr_quality":89.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2015-Binding-PAC-Opinions/15-013.pdf","sha256":"146ba49f4000dc595362e53de77d94e74bd65716822f751941febb9865fdc288","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","fees","unduly burdensome"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS , Lisa Madigan ATTORNEY GENERAL December 15, 2015 PUBLIC ACCESS OPINION 15-013 (Request for Review 2015 PAC 37664) FREEDOM OF INFORMATION ACT: Failure to Respond to FOIA Requests Robert E. Bionaz, Ph.D. 8720 South Utica Avenue Evergreen Park, [Hinois 60805 Ms. Robin M. Hawkins Associate Vice President & Senior Associate General Counsel Chicago State University Office of Labor & Legal Affairs 9501 South King Drive/ADM 318 Chicago, Ilinois 60628-1598 Dear Dr. Bionaz and Ms. Hawkins: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5() (West 2014)). For the reasons discussed below, this office concludes that Chicago State University (CSU) violated section 3(d) of FOIA (5 ILCS 140/3(d} (West 2014)) by failing to comply with, deny, or otherwise appropriately respond to a FOIA request submitted by Dr. Robert E. Bionaz. BACKGROUND On September 15, 2015, Dr. Bionaz submitted a FOIA request to CSU via an e- mail to Ms. Robin M. Hawkins, CSU's FOIA Officer, seeking copies of records maintained pursuant to sections 3.5(a)(1), 3.5(a)(2), 3.5(a\\(3), and 3.5(a)(4) of FOIA (5 ILCS 140/3.5(a)(1), 500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 * TTY: (877) 844-546] * Fax: (217} 782-7046 100 West Randoiph Street, Chicago, Illinois 60601 + (312) 814-3000 * ¥: (800) 964-3013 + Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondale, Hlmois 62901 + (618) 529-4400 * TTY: (877) 675-9339 + Fax: (618) 529-6416 <= Dr. Robert E. Bionaz Ms. Robin M. Hawkins December 15, 2015 Page 2 (a)(2), (a)(3), (a)(4) (West 2014)) since July 31, 2073. 1 On September 23, 2015, Dr. Bionaz submitted a Request for Review to the Public Access Bureau alleging that CSU had failed to produce the requested records or otherwise respond to his FOIA request.’ On October 1, 2015, the Public Access Bureau forwarded a copy of the Requést for Review to CSU and asked CSU to notify this office whether it had received and responded to Dr. Bionaz’s FOIA request; if it had not-yet responded, this office asked CSU to respond to Dr. Bionaz and to provide a copy ofi ts response to this office? No response was received from CSU. On October 27, 2015, an Assistant Attorney General with the Public Access Bureau left a voicemail message for Ms. Hawkins seeking the status of CSU's response to this office's October 1, 2015, inquiry; Ms. Hawkins did not respond. On October 29, 2015, this office sent Ms. Hawkins a second letter noting that CSU had not responded to this office's October 1, 2015, letter, and specifically stating that “if we de not receive a response within 7 business days, we may proceed to resolve this matter based on the available information.” (Emphasisi n original.) On November 20, 2015, this office properly extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. As of the date of this binding opinion, this office has not received a written response from CSU, nor any confirmation that it has responded to Dr. Bionaz's FOIA request. ANALYSIS \"Iti s a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2014). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2014)), “[a]ll recordsiin the custody or possession of a public body are presumed to be open to inspection or copying.” Section 3(a) of FOIA G ILCS 140/3(a) (West 2014)) provides that \"[e]ach public body shall ‘E-mail from Robert E. Bionaz, Associate Professor of History, Chicago State University, to Robin M, Hawkins, Esq. (September b, 2015). ?E-mail from Robert E. Bionaz, Ph.D., to Public Access Counselor (September 23, 2015). “Letter from Shari L. West, Assistant Attorney General, Public Access Bureau, Office of the Attomey General, to Robin Hawkins, Associate General Counsel and FOIA Officer, Chicago State University (October 1, 2015). ‘Letter from Shari L. West, Assistant-Attomey General, Public Access Bureau, Office of the Attorney General, to Robin M: Hawkins, Esq., Associate Vice President & Senior Associate General Counsel, Chicago State University (October 29,.2015), at 2. SLetter from Shari L. West, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Robert E. Bionaz, Associate Professor of History, Chicago State University, and Robin M. Hawkins, Esq., Associate Vice President & Senior Associate General Counsel, ‘Chicago State University (November 20, 2015). Dr. Robert E. Bionaz Ms. Robin M. Hawkins December 15, 2015 Page 3 make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.” Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). The facts are undisputed that CSU did not: comply with Dr. Bionaz's request, extend the time for response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2014)); or deny the request in writing within 5 business days after September1 5, 2015, the date of CSU's receipt of the request. CSU's failure to comply with the requisite procedures constitutes a denial of the request. Accordingly, by failing to respond to Dr. Bionaz's September 15, 2015, FOIA request, CSU violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS| After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attomey General finds that: 1) On September 15, 2015, Dr. Robert E. Bionaz submitted a FOIA request to Chicago State University seeking copies of records generated pursuant to sections 3.5(aX(1), 3.5(a\\(2),3 .5(ay(3), and 3.5(a)(4) of FOIA. CSU did not, within 5 business days after receipt: comply with the FOIA request; extend the time for its response pursuant to section 3(e} of FOTA; or deny the request in whole or in part, as is requirebdy section 3(d) of FOIA. 2) On September 23, 20 1 5, Dr. Bionaz asked the Public Access Counselor to review CSU's denial of the FOIA request. The Request for Review was timely filed and otherwise complies with the requirementso f section 9.5(a) of FOIA (5 IL cS 140/9.5(a) (West 2014)). . 3) On October 1, 201 5, the Public Access Bureau forwarded a copy of Dr. Bionaz's Request for Review to CSU's FOIA Officer, together with a letter asking CSU to advise Dr. Robert E. Bionaz’ Ms. Robin M. Hawkins December 15, 2015, Page 44 this office whether it had received and responded to Dr. Bionaz's September 15, 2015, FOIA request. CSU did not respond to this office's inquiry. 4) On October 29, 2015, this office sent CSU's FOIA Officer a second letter, stating that if CSU did not respond to this office within 7 business days, the Request for Review would be resolved based on the available information. : 5) On November 20, 2015, the Public Access Bureau properly extended the time in which to issue a binding opinion pursuant to section 9.5(f) of FOIA, to January 6, 2016. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 6) To date, this office has received no confirmation that CSU has responded to Dr. Bionaz's FOIA request, nor has CSU responded to this office's inquiries. _ 7) The failure of CSU to comply with the FOIA request, extend the time for its response pursuant to section 3(¢) of FOIA, or deny the request in whole or in part, within 5 business days after receiving the request, violated the requirements of section 3(d) of FOIA. Therefore, it is the opinion of the Attorney General that CSU bas violated section . 3(d) of FOIA by failing to respond to_Dr. Bionaz's request for public records as required by the Act. Accordingly, CSU is hereby directed to take immediate and appropriate action to comply with this opinion by providing Dr. Bionaz with all records. responsive to his September 15, 2015, FOIA request, subject only to permissibler edactions, if any, of “private information”® under section 7(1)(b) of FOIA 6 ILCS 140/7(1)(b) (West 2014), as amended by Public Act 99-298, effective August 6, 2015).’ If CSU determines that any portion of the responsive recordsi s _ exempt from disclosure under section 7(1)(b), CSU is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2014)). *Section 2e-5) of FOIA ([56] a cs 140/2(c-5) (West 2014)) defines3 “private information\" as unique identifiers, including a person's social security number, driver's license number, employee identification number, biometric identifiers, personal _ financial information, passwords or other access codes, medica! records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person. \"Because CSU did not comply with the statutory requirements for responding to Dr. Bionaz's FOIA request, CSU is precluded froin treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3¢d) (West 2014)) (’A public body that fails to respond to a request within the requisite periods 'in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public bedy that fails to respond to a request received may not treat the request as.unduly burdensome under subsection (g}.\"). : Dr.-Robert E. Bionaz Ms. Robin M. Hawkins December 15, 2015 Page 5 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Dr. Robert E. Bionaz as defendants. See 5 ILCS 140/11.5 (West 2014). : Sincerely, © LISA MADIGAN ATTORNEY GENERAL By: Michael J. Luke Counsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Dr. Robert E. Bionaz requested public records from Chicago State University, but the university never responded to his request. The Attorney General's office ruled that the university broke the law by ignoring the request. Because they failed to respond, the university is now legally prohibited from charging the requester any fees for the records or claiming the request was too burdensome to fulfill.","card_headline":"A university's FOIA compliance procedures records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":63,"orig_master_id":19266,"dup_master_id":19036,"dup_sha256":"6723beff1abaf7aa33c691c06a07479389b1dc335f63582a9fc77ccea425e0de","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2015,"date_issued":"2015-12-15","case_number":"2015 PAC 37249","request_numbers":null,"title":"Duty to Disclose Public Records in the Possession of a Public Body","filename":"PUBLIC ACCESS OPINION 15-014 (Request for Review - 2015 PAC 37249).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 15-014 (Request for Review - 2015 PAC 37249).pdf","word_count":3341,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request made by Mr. M. Kevin Flynn to the City of Danville, which was found to have improperly withheld public records.","plain_summary":"The requester sought minutes, notes, and communications from a city-organized housing task force, and the city government refused to produce them, arguing the task force itself was not a public body subject to FOIA. The Public Access Counselor held that it did not need to resolve whether the task force itself was a public body, because the records at issue were in the city government's own possession and pertained to the transaction of city business — the task force had been organized and coordinated by a city department using city staff and resources to develop the city's five-year housing strategy — making them public records of the city regardless of the task force's own status. The city government was directed to produce the records, subject only to permissible redactions under FOIA's other exemptions.","holding":"The City of Danville violated FOIA by improperly withholding records.","legal_question":"Did the City of Danville violate the Freedom of Information Act by withholding records requested by Mr. Flynn?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Danville","requesting_party":"Mr. M. Kevin Flynn","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"public records","subject_description":"The request sought meeting notices, minutes, and communications related to the Danville Housing Task Force.","ocr_status":"ok","ocr_quality":89.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2015-Binding-PAC-Opinions/15-014.pdf","sha256":"0940091f07c0b6e9e68bb900feb1e6ab8d36bc38bea1ad0c271db5211c47a6e9","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["public records","FOIA request","City of Danville","task force records"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nAVTORNEY GENERAL\nDecember 15, 2015\nPUBLIC ACCESS OPINION 15-014\n(Request for Review 2015 PAC 37249)\nFREEDOM OF INFORMATION ACT:\nDuty to Disclose Public Records in\nthe Possession of a Public Body-\nMr. M. Kevin Flynn\n* 707 North Vermilion\n[street address redacted for site publication -- see original PDF]\nMr. David B. Wesner\nCorporation Counsel\nCity of Danville\n17 West Main Street\nDanville, flinois 61832\nDear Mr. Flynn and Mr. Wesner:\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons\ndiscussed below, this office concludes that the City of Danville (City) violated the requirements\nof FOIA by improperly withholding records responsive to Mr. M. Kevin. Flynn's FOIA request\nrelating to the Danville Housing Task Force.\nBACKGROUND\nOn August 31, 2015, Mr. Flynn submitted a FOIA request to the City asking it to:\n1. Please provide all meeting times, locations and meeting\nnotices for the Danville Housing Task Force that completed\nthe July 24, 2015 report.\n500 South Second Street, Springfield, Iincis 62706 » (217) 782-1090 + TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, WHinois 60601 + (312)814-3000 + TTY: (800) 964-3013 * Fax: (312) 814-3806\n601 South University Avenue, Suite 102, Carbondale, [linois 62901 + (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416\nMr. M. Kevin Flynn\nMr. David B. Wesner\nDecember 15, 2015\nPage 2\n2. Provide copies of all minutes, notes and documents created\nduring the meetings.\n3. Provide all communication, electronic or otherwise,\nbetween any member of said task force and any city of\nDanville employee, city staff or elected official\nThe same day, the City responded to Mr. Flynn that “Corporation Counsel Wesner has stated that\nthe Housing Task Force is not a Public Body and therefore not subject to FOIA.\"* The City did\nnot furnish Mr. Flynn with the requested records.\nOn September 1, 2015, Mr. Flynn submitted a Request for Review to the Public\nAccess Counselor contesting the denial.’ Mr. Flynn enclosed a copy of a memorandum from the\nCity of Danville, Engineering and Urban Services Department to the Danville City Council\nMembers dated July 22, 2015, prefacing the Danville Housing Task Force's Housing Strategy\nReport for the City of Danville, IL (Report). The first paragraph of the memorandum provides:\nAs a result of long-voiced concerns regarding housing in Danville,\n18 community members were asked to participate in a citywide\nHousing Task Force (HTF) for the purpose of identifying issues,\nand developing policies and strategies for meeting citywide\nhousing goals. With the assistance of city staff, we have\nextensively reviewed existing data associated with our\nneighborhoods, our public housing authority, and our city's\npolicies. This document is not intended to be a comprehensive\nhousing analysis; rather, it is a conglomeration of current issues,\ngoals, and recommendations to alleviate said issues.)\n\"FOIA request from M. Kevin Flynn to City of Danville, [linois (August 31, 2015).\n\"Facsimile from Megan Mudd, Deputy City Clerk, City of Danville, to M. Kevin Flynn (August\n31, 2015).\nRequest for Review from M. Kevin Flynn to Public Access Counselor (September 1, 2015). Mr.\nFlynn's submission also alleged violations of the Open Meetings Act (OMA) (5 ILCS 120/1 ef seg. (West 2014))\nwhich were processed as a separate Request for Review (see Ill. Att'y Gen. PAC Reg. Rev. Ltr. 37250, issued\nSeptember 22, 2015).\n‘Memorandum from City of Danville, Engineering and Urban Services Department, to Danville\nCity Council Members (July 22, 2015).\nMr. M. Kevin Flynn\nMr. David B. Wesner\nDecember 15, 2015\nPage 3\nMr. Flynn also enclosed a copy of the cover sheet of the Report, dated July 24, 2015, entitled\n\"Housing Strategy Report For the City of Danville, IL.\"° Further, Mr. Flynn enclosed a page of\nthe Report that lists the Housing Task Force members, which includes four members of the\nDanville City staff: the DATS (Danville Area Transportation Study) Director, the City of\nDanville Planner; the City of Danville Urban Services Manager; and the City of Danville\nEngineering & Urban Services Director. The Housing Task Force also includes fifteen\n\"Community Representatives\"; among those are two City aldermen, the City of Danville\nDirector of Public Works, and two members of the Danville Housing Authority.®\nOn September 15, 2015, this office sent a copy of the Request for Review to the\nCity and asked it to provide this office with copies of the responsive records in its possession for\nour confidential review. This office also requested a detailed explanation of the City's legal and\nfactual bases for withholding the records.’ On September 24, 2015, the City provided a written\nresponse Stating its position that the Housing Task Force is not a public body and enclosing a\ncopy of the full Report. The City did not, however, provide copies of the records on September\n24, 2015, because the records had just been made available to the City’s Corporation Counsel and\nrequired review.? On that date, this office sent a copy of the City's response to Mr. Flynn;’ he\ndid not submit a reply.\nOn September 29, 2015, the City provided this office with copies of the records\nresponsive to parts ] and 2 of Mr. Flynn's request and asked for clarification of whether part 3\nincluded only communications specifically related to the Housing Task Force.'° On October 2,\n2015, after conferring with Mr. Flynn, an Assistant Attorney General in the Public Access\nBureau advised the City that part 3 of the request was limited to communications related to the\n°The Report has been made publicly available on the internet. See http./Avww.news-\ngazette.com/sites/all/files/pdf/20 | $/09/04/Housing_Task_Force_Report-_FINAL_07-24-15.pdf (last visited\nNovember 5, 2015).\n‘Danville Housing Task Force, Report (July 24, 2015), at 1.\n\"Letter from Joshua M. Jones, Supervising Attorney, Public Access Bureau, Office of the Attorney\nGeneral, to Dave Wesner, Corporation Counsel, City of Danville (September 15, 2015).\nSLetter from David B. Wesner, Corporation Counsel, City of Danville, to Joshua Jones, Public\nAccess Bureau (September 24, 2015).\n‘Letter from Joshua M. Jones, Supervising Attorney, Public Access Bureau, Office of the Attorney\nGeneral to M. Kevin Flynn (September 24, 2015).\nE-mail from David Wesner, Corporation Counsel, City of Danville, to Joshua Jones (September\n29, 2015).\nMr. M. Kevin Flynn\nMr. David B. Wesner\nDecember 15, 2015\nPage 4\nHousing Task Force.'' On October 28, 2015, this office properly extended the time in which to\nissue a binding opinion by 30 business days, to December 15, 2015, pursuant to section 9.5(f) of\nFOIA.” On October 30, 2015, this office received from the City copies of records responsive to\npart 3 of Mr. Flynn's request.\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS\n140/1 (West 2014). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) provides that \"[e]ach\npublic body shall make available to any person for inspection or copying all public records,\nexcept as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 2(c) of FOIA ( ILCS\n140/2(c) (West 2014), as amended by Public Act 99-78, effective July 20, 2015) defines \"public\nrecords\" to include:\nail records, reports, forms, writings, letters, memoranda, books,\npapers, maps, photographs, microfilms, cards, tapes, recordings,\nelectronic data processing records, electronic communications,\nrecorded information and all other documentary materials\npertaining to the transaction ofp ublic business, regardless of\nphysical form or characteristics, having been prepared by or for,\nor having been er being used by, received by, in the pessession\nof, or under the coniral af any public body. (Emphasis added.)\nIn support of its argument that “the records sought are not those of a public\nbody{,]” the City's Corporation Counsel asserted:\nThe Housing Task Force was a group of individuals who met\nvoluntarily in an effort to provide thoughts and input to certain city\nstaff members concerning an issue that they were working on. The\nDanville City Council did not create this group, nor did they\nappoint any individual to the group. The Mayor of Danville did\nnot create this group, nor did he appoint any individual to the\ngroup. Less than one-third of the group was City employees. And,\n“E-mail from Joshua Jones, Supervising Attorney, Public Access Bureau, to [David] Wesner\n(October 2, 2015).\n\"1 etter from Joshua Jones, Supervising Attorney, Public Access Bureau, to M. Kevin Flynn, and\nDave Wesner, Corporation Counsel, City of Danville (October 28, 2015).\nMr. M. Kevin Flynn\nMr. David B. Wesner\nDecember 15, 2015\nPage 5\nno single City department was represented in the group. In City of\nChampaign v. Madigan, 992 N.E.2d 629, 372 lL Dec. 787 (4°\nDist. 2013), the court held that a single alderman was not a public\nbody for purposes of the Act. Only if a document was possessed\nby a quorum of aldermen would the document be held to be in the\npossession of a public body. Clearly, the Fourth District Appellate\nCourt reasoned that a single individual could not be said to make\nup a “public body\" for purposes of the Act. Therefore, a single\nemployee could not be considered a “public body\". The court in\nCity of Champaign went on to hold that the definition of \"public\nbody” within the Act does not include individual members of the\nbodies described in the definition. The court focused on the\n“body” and not on the individuals. While this group had several\ncity employees take part in the meetings, | don't believe that\ntransforms the group in to a “public body\" for purposes of the Act.\nThe definition of “public body\" in the Act also does not make\nreference to City departments as being considered a “public body”\nfor purposes of the Act. The Act and City of Champaign also do\nnot indicate or suggest that by having members of the general\npublic meet with staff that that transforms it into a \"public\nbody.°U7)\nMr. Flynn submitted his FOIA request to the City, which is a public body subject\nto the requirements of FOIA.\"* Accordingly, the issue to be resolved here is whether the City,\nwhich is a \"public body,” improperly withheld records in its possession that pertain to the\ntransaction of City business. It is not necessary to address whether the Housing Task Force is a\npublic body for purposes of FOIA, and this opinion will make no findings with respect to that\nissue. :\nIn its response, the City relied on the City of Champaign decision. That decision is\nnot applicable here, however. In City of Champaign, a reporter sought copies of electronic\ncommunications exchanged between members of a city council during city council meetings,\nincluding messages from both their city-issued devices and accounts and their personal devices\nand accounts. City of Champaign, 2013 IL App (4th) 120662, (4, 992 N.E.2d at 631. The city\n‘|e tter from David B. Wesner, Corporation Counsel, City of Danville, to Joshua Jones,\nSupervising Attorney, Public Access Bureau (September 24, 2015), at 1-2.\n“~Dublic body’ means all legislative, executive, administrative, or advisory bodies of * * * cities,\nvillages [and] incorporated towns * * * .” 5 ILCS 140/2 (2014), as amended by Public Act 99-78, effective July 20,\n2015.\nMr. M. Kevin Flynn\nMr. David B. Wesner\nDecember 15, 2015\nPage 6\nargued that the communications on privately-owned electronic devices were not “public records\"\nbecause individual city council members do not constitute public bodies. City of Champaign,\n2013 IL App (4th) 120662, (30, 992 N.E.2d at 636. The court stated that to qualify as a “public\nrecord\" for purposes of FOIA, a record \"must first pertain to ‘business or community interests as\nopposed to private affairs’ and then must have “been either (1) prepared by a public body, (2)\nprepared for a public body, (3) used by a public body, (4) received by a public body, (5)\npossessed by a public body, or (6) controlled by a public body.\" City of Champaign, 2013 IL\nApp (4th) 120662, 32, 992 N.E.2d at 637 (quoting Merriam—Webster's Collegiate Dictionary\n941 (10th ed. 2600)). Thus, the court had to look further to determine whether the\ncommunications of individual council members were records of the \"public body” when those\nrecords were not physically in the possession of the city but were contained on the city officials’\npersonally owned devices. In reaching its decision, the court did not question the principle that a\nrecord in the possession of a public body that pertains to the transaction of public business is a\npublic record subject to disclosure pursuant to FOLA.\nHere, the Introduction to the Report (which has been released to the public and\nmay, therefore, be referred to in this opinion without violating confidentiality requirements)\nstates that the Housing Task Force was initiated when \"the City of Danville Engineering &\nUrban Services Department gathered a diverse group of community stakeholders in order to\ndiscuss how to best address the City’s housing issues while affirmatively furthering fair\nhousing.\"\"> It further provides:\nTogether, these goals, objectives and recommendations are\nintended to comprise the City’s housing strategy for the 2015-2020\nplanning period, and will guide daily decision-making by City\nofficials and staff, while equipping citizens with the awareness of\nthe housing programs that the City will be initiating to meet its\noverall housing goals.\n* * * The recommendations will be reviewed periodically and\nprioritized, where necessary, to reflect funding limitations and the\nCity’s objectives,\nThe Report then analyzes City conditions and data before arriving at recommendations:\nDanville Housing Task Force, Report (July 24, 2015), at 3.\n“Danville Housing Task Force, Report, (uly 24, 2015), at 3.\nMr. M. Kevin Flynn\nMr. David B. Wesner\nDecember 15, 2015\nPage 7\n* * * Many of the recommendations in this report are general and\nwill require more work before being implemented. Some work\nwill be delegated to City staff: other items will require the\ninvolvement of other individuals and entities represented on the\nHousing Task Force. Instead of relying solely on City staff to see\nthe recommendations of this report to implementation, the hope is\nthe Housing Task Force can be reconvened approximately every\n2 months to evaluate, refine and monitor implementation of this\nreport,!!7)\nThus, the Housing Task Force was organized by a City department to assist that\ndepartment in planning the City's five-year housing strategy.'® The City's Corporation Counsel\nhas confirmed that the City's DATS Director coordinated the Housing Task Force using City\nresources during business hours. Based on these facts, it is clear that records relating to the\nactivities of City officials and employees who convened the Housing Task Force and who\ncontinue to work on its objectives pertain to the transaction of public business of the City. The\nCity acknowledged that it possesses numerous records relating to the Housing Task Force and\nhas provided copies of those records for our review.\nBecause the records requested by Mr. Flynn pertain to public business of the City\nand are in the City's possession, they are public records subject to disclosure under FOIA, unless\nan exemption in section 7 of FOIA (5 ILCS 140/7 (West 2014), as amended by Public Act 99-\n298, effective August 6, 2015) applies. Accordingly, this office concludes that the City failed to\ncomply with FOIA by denying Mr. Flynn's August 31, 2015, request for records relating to the\nDanville Housing Task Force.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On August 31, 2015, Mr. M. Kevin Flynn submitted a three-part FOIA request\nto the City seeking documents concerning the Danville Housing Task Force.\n\" Danville Housing Task Force, Report (July 24, 2015), at 12.\n'’See MOVE!Danville, PLANNING ENGINEERING DEVELOPMENT, City of Danville,\nhttp://www. cityofdanville-cus.org/projehctmtsl (last visited November 5, 2015) (listing the Housing Task Force as a\nproject of the Department of Engineering & Urban Services), We note that article 11 of the Iinois Municipal Code\n(65 ILCS 5/1 1-1-1 ef seq. (West 2014)) provides for cities to conduct planning, zoning, and urban rehabilitation\nefforts (Divisions 11-15.3) as well as govern public works, buildings, and property (Divisions 61-152).\nMr. M. Kevin Flynn\nMr. David B. Wesner\nDecember 15, 2015\nPage 8\n2) On that same date, the City denied the request stating that the Housing Task\nForce is not a public body subject to FOIA.\n3) On September 1, 2015, Mr. Flynn submitted a Request for Review disputing\nthe denial of his request. The Request for Review was timely filed and otherwise complies with\nsection 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2014)).\n4) On September 15, 2015, the Public Access Bureau sent a copy of Mr. Flynn's\nRequest for Review to the City and asked it to provide copies of the responsive records for this\noffice's confidential review, together with a detailed explanation of the City's legal and factual\nbases for withholding them.\n5) On September 24, 2015, the City provided this office with a written response\nstating its position that the withheld records are not subject to disclosure because the Housing\nTask Force is not a public body. The City also provided this office with a copy of the Housing\nTask Force's Report. On September 29, 2015, the City provided this office with copies of\nrecords responsive to parts 1 and 2 of Mr. Flynn's request. On October 30, 2015, the City\nprovided this office with copies of records responsive to part 3 of Mr. Flynn's request.\n6) On October 28, 2015, the Public Access Bureau properly extended the time in\nwhich to issue a binding opinion by 30 business days, to December 15, 2015, pursuant to section\n9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with\nrespect to this matter.\n7) Under section 2(c) of FOIA, a record that (a) has either been prepared by,\nprepared for, used by, received by, or is in the possession or contro! of a public body, and (b)\nwhich pertains to the transaction of public business is a \"public record” that is subject to\ndisclosure under FOIA. Because the records requested by Mr. Flynn pertain to public business\nof the City and are in the City's possession, they are public records subject to disclosure under\nFOIA.\n8) The City has not asserted that the responsive records are exempt from\ninspection or copying in whole or in part pursuant to section 7 of FOIA.\nTherefore, it is the opinion of the Attorney General that the City of Danville\nimproperly denied Mr. Flynn's Freedom of Information Act request in its entirety in violation of\nthe requirements of the Act. Accordingly, the City is directed to take immediate and appropriate\naction to comply with this opinion by disclosing the requested records to Mr. Flynn, subject only\nto permissible redactions pursuant to exemptions contained in section 7 of FOIA. Ifthe City\nMr. M. Kevin Flynn\nMr. David B. Wesner\nDecember 15, 2015\nPage 9\nwithholds or redacts any portion of the records, it must issue a written denial! that provides a\n“detailed factual basis for the application of any exemption claimed,” and otherwise complies\nwith the requirements of section 9 of FOIA (5 ILCS 140/9 (West 2014)). Ifthe City issues such\na denial for a portion of the records and Mr. Flynn believes that the City has not properly\ncomphied with FOJA, he can submit a Request for Review to this office.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 [LCS 5/3-101\nef seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Mr. M. Kevin Flynn\nas defendants. See 5 JLCS 140/11.5 (West 2014).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\n*\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Flynn requested records from the City of Danville regarding the Danville Housing Task Force, but the City denied the request. The Illinois Attorney General's office reviewed the case and found that the City did not provide a valid legal reason for withholding the documents. The City was ordered to disclose the requested records to Mr. Flynn.","card_headline":"Records of the Danville Housing Task Force","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":64,"orig_master_id":19037,"dup_master_id":19267,"dup_sha256":"de1dcfc35b3dfc549c69a2816a99a9cc47f8be72011c892b13a72413b4cc11c5","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2016,"date_issued":"2016-01-14","case_number":"2015 PAC 38674","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 16-001 (Request for Review - 2015 PAC 38674).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 16-001 (Request for Review - 2015 PAC 38674).pdf","word_count":1629,"summary":"A binding opinion issued by the Attorney General . The Chicago Police Department violated FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mick Dumke . CPD's Office of Legal Affairs responded that it was determined that this response is still open under FOIA 15-6519 .","plain_summary":"The requester, a journalist, sought worksheets and communications concerning police intelligence-gathering on First Amendment-related activities and groups including Black Lives Matter and Ferguson-related protests, and the police department never substantively responded, telling the Public Access Bureau months later only that the request remained \"open.\" The Public Access Counselor held that the police department's prolonged silence constituted a denial under FOIA, violating the requirement to comply, extend, or deny within five business days. The police department was directed to produce all responsive records, subject only to permissible redactions, and to issue a proper written denial for any records it withholds.","holding":"The Chicago Police Department violated section 3(d) of FOIA by failing to respond to the requester's FOIA request within the statutory time limits.","legal_question":"Whether a public body violates FOIA by failing to provide any response to a request for public records within the statutory time limits set forth in section 3(d).","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/3","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Chicago","requesting_party":"Dumke and Mr. Price","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"FOIA response","subject_description":"The request sought records related to First Amendment worksheets and communications from the Crime Prevention Information Center.","ocr_status":"ok","ocr_quality":88.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-001.pdf","sha256":"473e03a77a79f4edc5fe0ed0ddc12dde94378dcc751d8846cfa993770dc3f24c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","police records","statutory deadline"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL January 14, 2016 PUBLIC ACCESS OPINION 16-001 (Request for Review 2015 PAC 38674) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Mick Dumke Staff Reporter ‘ Chicago Sun-Times 350 North Orleans Street, 10th Floor Chicago, Ulinois 60654 Mr. Ralph Price General Counsel Chicago Police Department 3510 South Michigan Avenue Chicago, Mlinois 60653-1620 Dear Mr. Dumke and Mr. Price: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons discussed below, this office concludes that the Chicago Police Department (CPD) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2014)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Mick Dumke. BACKGROUND On November 2, 2015, Mr. Dumke, on behalf of the Chicago Sun-Times, submitted a two-part FOIA request to CPD seeking: }--All First Amendment-related worksheets generated from August 2014 through October 2014, 500 South Second Street, Springfield, Hinois 62706* (217) 7B2-1090© TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Hlinais 6060! + (312) 814-3000+ TTY: (800) 964-3013 * Fax: (312) 814-3806 : 601 South University Avenue, Suite 102, Carbondale, Ilinois 62901 * (618) 529-6400* TTY: (877) 675-9339 + Fax: (618) 529-6 416 ‘<=aD~ Mr. Mick Dumke Mr. Ralph Price January 14, 2016 Page 2 2--Emails, Open Source Intelligence (OSINT), and other ‘communications issued by the Crime Prevention Information Center (CPIC) from August to October 2014 regarding the Revolutionary Communist Party, Ferguson; the National Moment of Silence; and/or Black Lives Matter.) On November 18, 2015, Mr. Dumke submitted a Request for Review to the Public Access Bureau alleging that CPD had failed to produce the requested records or otherwise respond to his FOIA request On November 23, 2015, the Public Access Bureau forwarded a copy of the Request for Review to CPD and asked CPD to advise this office whether it had received and responded to Mr. Dumke's FOJA request; ifi t had not yet responded fo Mr. Dumke, this office asked CPD to do so and to provide a copy ofi ts response.’ On December 10, 2015, the Public Access Bureau sent a second letter to CPD stating that CPD was obligated under section 9.5(c) of FOIA (5 ILCS 140/9.5(c) (West 20149) to advise this office whether it had received and responded to Mr. Dumke's request.?_ On December 17, 2015, CPD's Office of Legal Affairs responded that \"[alfter consultation with the Department's FOIA Unit, it was determined that this response is still open under FOIA 15-6519 and the response should be forthcoming. \"5 As of the date of this binding opinion, this office has not received any confirmation that CPD has responded to Mr. Dumke's FOJA request. ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOLA].\" 5 ILCS 140/1 (West 2014). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2014), “[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" 'FOIA request from Mick Dumke, Staff Reporter, [Chicago Sun-Times), to FOIA Officer, Chicago Police Department (November 2, 2015). °E-mail from Mick Dumke to Public Access Bureau, Office of the Illinois Attorney General (November 18, 2015). >Letter from Josh Jones, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Ralph Price, General Counsel, Chicago Police Department (November 23, 2015). ‘Letter from Josh Jones, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Ralph Price, General Counsel, Chicago Police Department (December 10, 2015). >Letter from Ryan Nelligan, Office of Legal Affairs, Department of Police, City of Chicago, to Office of the Attorney General, Josh Jones, Assistant Attorney General (December 17, 2015). Mr. Mick Dumke Mr. Ralph Price January 14, 2016 Page 3 Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) provides that “[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d} of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). The facts are undisputed that CPD did not, within 5 business days after CPD's receipt thereof, comply with Mr. Dumke's request, extend the time for response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2014)), or deny the request in writing. CPD's failure to comply with the requisite procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On November 2, 2015, Mr. Mick Dumke, on behaolff the Chicago Sun-Times, submitted a FOIA request to the Chicago Police Department seeking copies of: (1) \"[a]}ll First Amendment-related worksheets generated from August 2014 through October 2014\"; and (2) \"[e]-mails, Open Source Intelligence * * *, and other communications issued by the Crime Prevention Information Center * * * from August to October 2014 regarding the Revolutionary Communist Party; Ferguson; the National Moment of Silence: and/or Black Lives Matter.\" CPD did not, within 5 business days after receipt, comply with the FOIA request, extend the time for its response pursuant to section 3(e) of FOIA, or deny the request in whole or in part. as is required by section 3(d) of FOIA. Pursuant to section 3(d) of FOIA. the failure to do so constituted a denial of the FOIA request. Mr. Mick Dumke Mr. Ralph Price January 14, 2016 Page 4 2) On November 18, 2015, Mr. Dumke asked the Public Access Counselor to review CPD's denial of his FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of Section 9.5(a) of FOLA (5 ILCS 140/9.5(a) (West 2014)). Therefore, the Public Access Counselor may properly issue a binding opinion with respect to this matter. 3) On November 23, 2015, the Public Access Bureau forwarded a copy of Mr. Dumke's Request for Review to CPD, together with a letter asking CPD to advise this office whether it had received and responded to Mr. Dumke's November 2, 2015, FOIA request. CPD did not respond to this inquiry. 4) On December 10, 2015, this office sent CPD a second letter, stating that CPD is obligated under FOIA to advise this office whether it had received and responded to Mr. Dumke's request. On December 17, 2015, CPD’s Office of Legal Affairs responded that CPD's FOIA Unit was processing the request. To date, this office has received no confirmation that CPD has responded to Mr. Dumke’s request. Therefore, it is the opinion of the Attormey General that CPD has violated section 3(d) of FOIA by failing, within 5 business days after receiving Mr. Dumke's November 2, 2015, FOIA request, to provide the requested records, to extend the time for its response pursuant to section 3(e) of FOIA, or to deny the request in whole or in part. Accordingly, CPD is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Dumke with all records responsive to his November 2, 2015, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2014), as amended by Public Acts 99-298, effective August 6, 2015; 99-346, effective January 1, 2016). If CPD determines that any portion of the responsive records is exempt from disclosure under section 7, CPD is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2014). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within “Because CPD did not comply with the statutory requirements for responding to Mr. Dumke's FOIA request, CPD is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3{d) (West 2014) (\"A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g).”). Mr. Mick Dumke Mr. Ralph Price January 14, 2016 Page 5 35 days of the date of this decision naming the Attorney General of Ulinois and Mr. Mick Dumke as defendants. See 5 TLCS 140/11.5 (West 2014). Sincerely, LISA MADIGAN ATTORNEY GENERAL Michael J. Luke Counsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested records from the Chicago Police Department, but the department failed to respond to the request at all. The Attorney General's office ruled that this silence violated the law. As a penalty for failing to respond, the police department is now prohibited from charging the reporter for copies of the records or claiming that the request was too burdensome to fulfill.","card_headline":"First Amendment worksheets from a police department","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":65,"orig_master_id":19265,"dup_master_id":19038,"dup_sha256":"9140ad8a18a20e89b4e2f8057d3a4598edf9b32f21440f92d354259b463089b4","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2015,"date_issued":"2015-12-29","case_number":"2015 PAC 37506","request_numbers":null,"title":"Governor's Office of Management and Budget violated FOIA by withholding training materials under 7(1)(f)","filename":"PUBLIC ACCESS OPINION 15-015 (Request for Review - 2015 PAC 37506).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 15-015 (Request for Review - 2015 PAC 37506).pdf","word_count":3621,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a FOIA request made by Mr. Greg Will for training materials from the Governor's Office of Management and Budget, which was partially denied.","plain_summary":"The requester, a labor union representative, sought records concerning services provided by an outside budget consultant to a state budget agency, and the agency withheld a PowerPoint presentation the consultant had used to train agency budget analysts, arguing it reflected predecisional deliberations about the state budget. The Public Access Counselor held that the presentation was not exempt because it consisted of finalized policy guidance and general principles given to analysts as training material, rather than the give-and-take of an actual deliberative process over a specific budget, distinguishing training materials, which memorialize decisions already made, from genuinely predecisional drafts. The agency was directed to provide the requester with the PowerPoint presentation.","holding":"The Governor's Office of Management and Budget violated FOIA by improperly denying a portion of the FOIA request.","legal_question":"Did the Governor's Office of Management and Budget properly deny a portion of the FOIA request?","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(f)"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Governor's Office of Management and Budget","requesting_party":"Mr. Greg Will","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"A PowerPoint presentation created by outside budget consultants used to train GOMB analysts, withheld under the deliberative process exemption.","ocr_status":"ok","ocr_quality":89.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2015-Binding-PAC-Opinions/15-015.pdf","sha256":"393b766c63653d7514bc244152ee3dbae3539ed238d2624cdaf922c700b462b3","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["deliberative process exemption","training materials","predecisional records","budget consultants","PowerPoint disclosure"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL,\nDecember 29, 2015\nPUBLIC ACCESS OPINION 15-015\n(Request for Review 2015 PAC 37506)\nFREEDOM OF {NFORMATION ACT:\nDisclosure of Training Materials\nMr. Greg Will\nSEIU Healthcare [L-IN\n[street address redacted for site publication -- see original PDF]\nMr. Curt Clemons-Maosby\nFOIA Officer\nGovernor's Office of Management and Budget\n401 South Spring Street\n603 Stratton Building\nSpringfield, Ulinois 62706\nDear Mr. Will and Mr. Clemons-Masby:\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5()\nof the Freedom of Information Act (FOTA) (5 ILCS 140/9.5(8) (West 2014)). For the reasons\ndiscussed below, this office concludes that the Governor's Office of Management and Budget\n(GOMB) violated the requirements of FOIA by improperly denying a portion of Mr. Greg Will's\nAugust 31, 2015, FOIA request.\nBACKGROUND\nOn August 31, 2015, Mr. Will, on behalf of Service Employees International\nUnion Healthcare Illinois-Indiana, submitted a FOIA request via e-mail to GOMB seeking\nvarious records concerning services provided by \"Arduin Associates Inc[.], Arduin, Laffer &\nMoore, or Donna Arduin{.]\"! On September 9, 2015, GOMB provided certain records but\n‘E-mail from Greg Will, SEIU Healtheare IL-IN, to Curt Clemons-Mosby (August 31, 2015).\n500 South Second Street, Springfield, Minois 62706 * (217) 782-1090 + TTY: (877) 944-3461 > Pax: (217) 782-7046\n100 West Randolph Street, Chicago, Hiinois 60601 * (312) 814-2000 + TTY: (800) 964-3013 * Fax: (312) 814-3806\n601 South University Avenue, Suite 102, Carbondale, Iineis 62901 + (618) 529-6400 + TTY: (877) 675-9339 + Fax: (618) 529-6416\nMr. Greg Will\nMr. Curt Clemons-Mosby\nDecember 29, 2015\nPage 2\nwithheld a “power point deck in which budget policy is described[,]” citing as its basis for the\ndenial section 7(1)(f) of FOIA (5 ILCS 140/711) (West 2014), as amended by Public Act 99-\n298, effective August 6, 2015).° On September 16, 2015, this office received Mr. Will's Request\nfor Review challenging GOMB's denial of the Microsoft PowerPoint records?\nOn September 22, 2015, this office sent a copy of Mr. Will's Request for Review\nto GOMB and asked it to provide copies of the responsive records for our confidential review,\ntogether with a detailed explanation of the factual and legal bases for its assertion of the section\n7(1)(f) exemption.* On September 30, 2015, this office received a copy of the PowerPoint\npresentation together with GOMB's written response.” This office forwarded a copy of GOMB's\nwritten response to Mr. Will on October 1, 2015° and received Mr. Will's reply to GOMB's\nresponse on October 14, 2015,’ On November 13, 201 5, this office properly extended the time\nin which to issue a binding opinion by 30 business days, to December 29, 2015, pursuant to\nsection 9.5(f} of FOIAS\nANALYSIS\n“It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with [FOIA].” 5 ILCS\n140/1 (West 2014). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) provides that \"“feJach\n\"Letter from Curt Clemons-Mosby, Freedom of Information Act Officer, Governor's Office of\nManagement and Budget, to Greg Will, SEIU Healthcare IL-IN (September 9, 2015), at 2.\n3B-mail from Greg Will, SEIU Healthcare IL-IN, to Public Access Counselor (September 16,\n2015).\n‘Letter from Neil P. Olson, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Curt Clemons-Mosby, FOIA Officer, Governor's Office of Management and Budget\n(September 22, 2015), at 1.\nSLetter from Curt Clemons-Mosby, Freedom of Information Act Officer, Governor's Office of\nManagement and Budget, to Neil Olson, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (September 30, 2015).\nSLetter from Ivan O. Taylor, Jr., Legal Fellow, Public Access Bureau, Office of the Attorney\nGeneral, to Greg Will, SEIU Healthcare IL-IN (October I, 2015).\n7B-mail from Greg Will, SEIU Healthcare IL-IN, to Ivan Taylor (October 14, 2015).\n‘Letter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Greg Will, SENU Healthcare IL-IN, and Curt Clemons-Mosby, FOIA Officer, Governor's\nOffice of Management and Budget (November 13, 2015).\nMr. Greg Will\nMr. Curt Clemons-Mosby\nDecember 29, 2015\nPage 3\npublic body shall make available to any person for inspection or copying all public records,\nexcept as otherwise provided in Sections 7 and 8.5 of this Act.\" A public body “has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2014).\nSection 7(1)(f) of FOIA, which was asserted by GOMB, exempts from disclosure\n\"[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions\nare expressed, or policies or actions are formulated, except that a specific record or relevant\nportion of a record shall not be exempt when the record is publicly cited and identified by the\nhead of the public body.” The section 7(1)(f) exemption applies to “inter- and intra-agency\npredecisional and deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247\n(st Dist. 2003). Section 7(1)(f) is “intended to protect the communications process and\nencourage frank and open discussion among agency employees before a final decision is made.\"\nHarwood, 344 Ill. App. 3d at 248. Section 7(1)(f does not, however, exempt from disclosure\npurely factual material. See TH. Att'y Gen. Pub. Acc. Op. No. 13-015, issued September 24,\n2013, at 7. Rather, “fo]nly those portions of a predecisional document that reflect the give and\ntake of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL App (ist)\n121846, 924, 7 N.E.3d 741, 748 (2013) (quoting Public Citizen, Inc. v. Office of Management &\nBudget, 598 F.3d 865, 876 (D.C. Cir. 2010)). Further, a public body that asserts the deliberative\nprocess exemption \"has the burden of establishing what deliberative process is involved, and the\nrole played by the documents in issue in the course of that process.” Coastal States Gas Corp. v.\nDepartment of Energy, 617 F.2d 854, 868 (D.C. Cir 1980).\nBased upon our review, the PowerPoint presentation reflects general\nconsiderations for budget making and conceptual principles concerning the role of government,\nas well as directives about how to apply those principles and to communicate with the involved\nparties. In its response to this office, GOMB states that it informed Mr. Will that \"a PowerPoint\nslide deck produced by Ms. Arduin[ ] was being withheld as exempt from disclosure under 5\nILCS 140/7(1)(f), as it contained the description of budget policy.” GOMB then relies on the\nplain language of section 7(1)(f} to support its assertion that \"this PowerPoint presentation is\nexempt because it is a record ‘in which opinions are expressed, or policies or actions are\nformulated.\"\"'® The response by GOMB further states:\n*Letter from Curt Clemons-Mosby, Freedom of Information Act Officer, Governor's Office of\nManagement and Budget, to Neil Olson, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Ilinois (September 30, 2015), at 2.\n°L etter from Curt Clemons-Mosby, Freedom of Information Act Officer, Governor's Office of\nManagement and Budget, to Nei] Olson, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (September 30, 2015), at 2. :\nMr. Greg Will\nMr. Curt Clemons-Mosby\nDecember 29, 2015\nPage 4\nThe withheld PowerPoint was presented to GOMB analysts as\ntraining material on preparing for their role in the Fiscal Year 2017\nbudget development process. Throughout the PowerPoint\npresentation, Ms. Arduin expresses opinions and provides\nrecommendations to the analysts on how best to go about their\nvital role of gathering and analyzing budget information.\nDeveloping a budget is the chief job responsibility of GOMB\nanalysts; this responsibility necessarily involves deliberation and\nplanning. Opinions and suggestions on how analysis go about the\nprocess of gathering and analyzing information are at their core\nfundamental to the formulation of budgetary policy. Different\nmethods of gathering and analyzing information by analysts will,\nin the end, result in very different final budget presentations.\"\nGOMB's response also asserts that \"all records in its possession reflecting the internal\ndiscussions, deliberations, preliminary proposals, calculations, and assumptions utilized to\nproduce the Budget Books are preliminary and deliberative, and as such are exempt from\ndisclosure under FOIA's Section 7(1\\(f) Pre-Decisional Exemption.\"” ,\nIn his reply to that response, Mr. Will asserts that \"[d]escribing policy and\ntraining staff are different from the deliberative process in which policy is formulated. Just\nbecause GOMB staff, once trained, eventually have to interact with the budgetary policies\ndescribed in this document does not mean the document is part of a deliberative process.\"\"?\nAs an initial matter, we should note that Ms. Arduin, who produced the\nPowerPoint presentation, was serving as a budget consultant to the Governor's Office. The\nsection 7(1)(f} exemption encompasses “communications between government agencies and\noutside consultants whose analyses and recommendations ‘played essentially the same part in an\nagency's process of deliberation as documents prepared [internal citation] by agency personnel\nmight have done.” Harwood, 344 Ill. App. 3d at 248, quoting Department of the Interior v.\nKlamath Water Users Protective Ass'n, 532 U.S. 1, 10, 121 S.Ct. 1060, 1067 (2001). Thus, in\n“Letter from Curt Clemons-Mosby, Freedom of Information Act Officer, Governor's Office of\nManagement and Budget, to Neil Olson, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (September 30, 2015), at 2.\n\"21e tter from Curt Clemons-Mosby, Freedom of Information Act Officer, Governor's Office of\nManagement and Budget, to Neil Glson, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (September 30, 2015), at 3.\n'S6-mail from Greg Will SEIU Healthcare IL-IN, to Ivan Taylor (October 14, 2015).\nMr. Greg Will\nMr. Curt Clemons-Mosby\nDecember 29, 2015\nPage 5\nHarwoed the court concluded that a report prepared by an outside consultant for a State agency\nfell within the scope of section 7(1}(f) partly because the consultant did \"not represent an interest\nof its own, or the interest of any other client,\" when it advised the agency. Harwood, 344 Ill.\nApp. 3d at 248, quoting Klamath Water Users Protective Ass'n. 532 US. at 11,121 S.Ct. at\n1067. Likewise, there is no indication that Ms. Arduin represented any interests other than those\nof the Governor's Office in connection with the records at issue. Therefore, our determination in\nthis matter hinges on the issue of whether the withheld PowerPoint presentation constitutes\nexempt pre-decisional deliberative material.\nIn American Immigration Council v. United States Department of Homeland\nSecurity, 905 F. Supp. 2d 206, 218 (D.D.C. 2012), a federal district court considered whether\nfive versions of PowerPoint slides used by the U.S. Citizenship and Immigration Services\n(USCIS) to train agency employees to interact with private attorneys were properly withheld\nunder the deliberative process exemption (Exemption 5) in the Federal FOIA (5 U.S.C.\n§552(b)(5) (2010)).'* At the outset, the court stated that for the deliberative process exemption\nto apply:\na record must meet two requirements. First, it must be\npredecisional — i.¢., “antecedent to the adoption of an agency\npolicy.” [Citations.] * * * Second, a record must be deliberative —\nie., \"a direct part of the deliberative process in that it makes\nrecommendations or expresses opinions on legal or policy\nmatters.\" [Citation.] American Immigration Council, 905 F. Supp.\n2d at 217-18.\nThe court specifically noted that [a] document that does nothing more than explain an existing\npolicy cannot be considered deliberative.\"\" American Immigration Council, 905 F. Supp. 2d at\n218, quoting Public Citizen, Inc. v. Office of Management & Budget, 598 F.3d 865, 876 (D.C.\nCir, 2010). The court further explained that the deliberative process exemption \"‘calls for\ndisclosure of all opinions and interpretations which embody the agency's effective law and\npolicy, and the withholding of all papers which reflect the agency's group thinking in the process\nof working out its policy and determining what its law shall be.\" American Immigration Council,\n905 F. Supp. 2d at 218, quoting Sears, Roebuck& Co., 421 U.S.132, 153, 95 S.Ct.1504, 1517-18\n(1975). Because the training materials reflected the agency's established policy rather than its\ndeliberations, the court held that the deliberative process exemption did not apply: “These\ntraining slides are neither predecisional nor deliberative. A training is not a step in making a\n“Exemption 5 of the Federal FOIA (5 U.S.C. § 552(b)(5) (2010) permitted an agency to\nwithhold “inter-agency or intra-ageney memorandums or letters which would not be available by law to a party\nother than an agency in litigation with the avency.”\nMr. Greg Will\nMr. Curt Clemons-Mosby\nDecember 29, 2015\nPage 6\ndecision; it is a way to disseminate a decision already made. Indeed, by teaching USCIS\nemployees to go forth and apply the information in the slides, USCIS entrenched its policies.\"\nAmerican Immigration Council, 905 F. Supp.2d at 218.\nSimilarly, in Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d\n246, 254 (D.D.C. 2005), the United States Department of Justice cited — among other provisions\n~ Exemption 5 to deny an advocacy group's request for a draft of a training manual on the\nprosecution of federal election offenses. In addition to emphasizing that the training manual had\nbeen shared with non-Justice Department attorneys during a symposium, the court concluded\nthat the training manual was not predecisional deliberative material because it \"had been adopted\nas guidance.\" Leadership Conference on Civil Rights, 404 F. Supp. 2d at 255. The court further\nexplained:\nThe 2004 manual was not distributed to the symposium attendees\nto generate suggestions, additional input or recommendations\nbefore adoption of a final 7th Edition of the manual. Rather, the\ntraining manual was distributed as updated guidance for the\nattendees. Furthermore, defendants have proffered no evidence\nthat the 2004 training manual was not provided as guidance, to\nthose attending the symposium. Leadership Conference on Civil\nRights, 404 F. Supp. 2d at 255.\nMoreover, the court ruled that the draft of the training manual was a “final\nproduct[,]\" and that the “Justice Department established the finality of the 2004 training manual\nwhen they decided to use it to train federal prosecutors for the 2004 national election.”\nLeadership Conference on Civil Rights, 404 F. Supp. 2d at 256; see also Stokes v. Brennan, 476\nF.2d 699, 703 (Sth Cir. 1973) (concluding that \"it would be a perversion of the Act to classify\"\ntraining materials used to train inspectors for the Occupational Safety and Health Administration\nas exempt from disclosure under Exemption 5, which \"was not defined as an exception to’\ncompelled disclosure in order to authorize an agency to throw a protective blanket over any type\nof information it might choose by the expedient of casting it in the form of an internal\nmemorandum.”).\nOur courts have determined that because Illinois’ FOIA statute is based on the\nfederal FOIA statute, decisions construing similar provisions of the federal Act, while not\ncontrolling, may provide helpful and relevant precedents in construing the State Act. See, e.g.,\nMargolis v. Director, ll. Department of Revenue, 180 I. App. 3d 1084, 1087 (1st Dist. 1989).\nIn the absence of reported Illinois cases relating to the disclosure of training materials under\nFOIA, the analysis and reasoning of these federal cases is persuasive.\nMr. Greg Will\nMr. Curt Clemons-Mosby\nDecember 29, 2015\nPage 7\nGOMB's response to this office acknowledged that the PowerPoint presentation at\nissue \"contained the description of budget policy[ ]\" and was “presented to GOMB analysts as\ntraining material on preparing for their role in the Fiscal Year 2017 budget development\nprocess.\"'> While GOMB's response to this office also describes in detail the back-and-forth\ncollaborative process that takes place as a budget is being crafted, the PowerPoint presentation\ndoes not reflect any of the \"internal deliberations and discussions, iterations of proposals,\ncalculations, and assumptions that combine to ultimately produce the Budget Book.\"'6 Instead,\nas noted above, the PowerPoint slides largely consisted of general policy considerations for\nbudget making and conceptual principles concerning the role of government, as well as\ndirectives to the budget analysts about how to apply those principles and to communicate with\nthe involved parties. The presentation does not reflect the give and take of any deliberative\nprocess concerning the formulation of a specific budget, or any deliberative process between Ms.\nArduin, who conducted the training, and the budget analysts who attended. Rather, the training\nmaterials constitute straightforward policy directives and guidance for budget analysts to use\nwhen they are participating in formulating budgets. In short, the PowerPoint itself is not a draft\nor predecisional ~ any decisions that may have been made with respect to what policies and\ninformation would be provided to budget analysts to help them prepare for their role in the\nbudget process were finalized and memorialized in the slides that were presented as guidance to\nthem. Additionally, the PowerPoint presentation is not deliberative — it explains the\nconsiderations and policies that should guide the budget analysts in their role rather than\nreflecting the process of working out which policies and considerations should guide the\nanalysts.\nAs the courts explained in American Immigration Council and Leadership\nConference on Civil Rights, when records are used for training purposes they constitute final\ndecisions rather than predecisional deliberative materials. GOMB has not cited any authority for\nits assertion that these training materials are exempt from disclosure under section TAD of\nFOIA. Accordingly, this office concludes that GOMB has not sustained its burden of\ndemonstrating by clear and convincing evidence that the PowerPoint slides at issue in this matter\nare exempt from disclosure pursuant to section 7(1)(f) of FOIA.\n5)e tter from Curt Clemons-Mosby, Freedom of Information Act Officer, Governor's Office of\nManagement and Budget, to Neil Olson, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (September 30, 2015), at 2.\n\"Letter from Curt Clemons-Mosby, Freedom of Information Act Officer, Governor's Office of\nManagement and Budget, to Neil Olson, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Hlinois (September 30, 2015), at 3.\nMr. Greg Will\nMr. Curt Clemons-Mosby\nDecember 29, 2015\nPage 8\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On August 31, 2015, Mr. Greg Will, on behaolff Service Employees\nInternational Union Healthcare Illinois-Indiana, submitted a FOLA request to the Governor's\nOffice of Management and Budget seeking various records concerning services provided by\nArduin Associates Inc., Arduin, Laffer & Moore, or Donna Arduin.\n2) On September 9, 2015, GOMB provided certain records to Mr. Will but\nwithheld a Microsoft PowerPoint presentation, citing section 7(1)(f) of FOTA as its basis\ntherefor.\n3) On September 16, 2015, the Public Access Bureau received Mr. Will's\nRequest for Review disputing the denial of the PowerPoint records. The Request for Review\nwas timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (6)\nILCS 140/9.5(a) (West 2014)).\n4) On September 22, 2015, this office sent a copy of Mr. Will's Request for\nReview to GOMB and asked it to provide copies of the responsive records for this office's\nconfidential review, together with a detailed explanation of the factual and legal bases for its\nassertion of the section 7(1)(f} exemption.\n5) On September 30, 2015, this office received a copy of the PowerPoint\npresentation together with GOMB’s written response.\n6) This office forwarded a copy of GOMB's written response to Mr. Will on\nOctober 1, 2015 and received his reply to GOMB's response on October 14, 2015.\n7) On November 13, 2015, this office properly extended the time in which to\nissue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. Therefore, the\nAttorney General may properly issue a binding opinion with respect to this matter.\n8) Section 7(1)(6 of FOIA exempts from disclosure “[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.”\nMr. Greg Will\nMr. Curt Clemons-Mosby\nDecember 29, 2015\nPage 9\n9) GOMB has failed to demonstrate by clear and convincing evidence that the\nPowerPoint presentation is exempt from disclosure pursuant to section 7(1)(f) of FOIA. The\npolicy directives and guidance reflected in the presentation constitute training materials that were\npresented to budget analysts for use in preparing for their role in the process of formulating\nbudgets. The PowerPoint presentation is not a draft of training materials; it is the final\npresentation given to the budget analysts. Additionally, it does not reflect a deliberative process\nabout what policy directives and guidance should be given to the budget analysts to assist them\nin creating a budget. Similarly, it does not reflect the deliberative give and take of crafting a\nbudget itself. As a result, the PowerPoint presentation was neither predecisional nor deliberative\nim nature.\nTherefore, it is the opinion of the Attorney General that GOMB has improperly\ndenied, in part, Mr. Will's Freedom of Information Act request in violation of the requirements\nof the Act. Accordingly, GOMB is directed to take immediate and appropriate action to comply\nwith this opinion by providing the requested PowerPoint presentation to Mr. Will.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seg. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of [inois and Mr. Greg Will as\ndefendants. See 5 ILCS 140/11.5 (West 2014).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\n.\nLatent?Y enven\nBy:\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under FOIA's exemption for predecisional and deliberative materials, a record is only protected if it actually reflects the give-and-take of policy formulation before a final decision is made. Here, the withheld PowerPoint presentation was created by outside consultants to help analysts understand budgeting concepts generally, rather than to deliberate over or recommend a specific budget decision, so it did not qualify as predecisional or deliberative. Because the exemption did not apply to this factual, instructional content, the agency could not rely on it to withhold the record, and disclosure was required.","card_headline":"Budget presentation for staff training","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":66,"orig_master_id":19039,"dup_master_id":19269,"dup_sha256":"c72b15824054d0c04baffaf47211c0efa84c1137e6a70dfadecf451342cc294d","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2016,"date_issued":"2016-03-25","case_number":"2016 PAC 39853","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 16-003 (Request for Review - 2016 PAC 39853).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 16-003 (Request for Review - 2016 PAC 39853).pdf","word_count":2113,"summary":"Attorney General Lisa Madigan: Harvey School District 152 failed to respond to Marlon Conway's FOIA request . Attorney General: District failed to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Marlon .","plain_summary":"The requester sought a range of personnel-related records, including a principal and social worker's emails and phone/text records, hiring-system data, and old interview reports, and the school district properly notified him it was extending its response time but then never actually responded, even after two follow-up inquiries from the Public Access Bureau. The Public Access Counselor held that failing to respond within the extended period, like failing to respond at all, constitutes a denial under FOIA. The school district was directed to produce all responsive records, subject only to permissible redactions, and to issue a proper written denial for any records it withholds.","holding":"A public body that obtains a section 3(e) extension but fails to respond within the extended deadline is deemed to have denied the request under section 3(f) of FOIA, and thereafter may not treat the request as unduly burdensome or charge copying fees for the records eventually produced.","legal_question":"Did Harvey School District 152 violate section 3(f) of FOIA by failing to respond to a request for public records?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(f), 5 ILCS 140/3, 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(d), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":[],"public_body":"Sirlena Thomas FOIA Officer Harvey School District","requesting_party":"Conway and Ms. Thomas","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"FOIA response","subject_description":"The requester sought various district emails, cellular records, and employment-related documents.","ocr_status":"ok","ocr_quality":88.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-003.pdf","sha256":"fcfa4e3b18727be5880107904bfdad1514f114f59f5b32fb98ccc3eea67cb530","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","school district","public records"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL | STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL March 25, 2016 PUBLIC ACCESS OPINION 16-003 (Request for Review 2016 PAC 39853) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Marlon Conway 931] South Wabash Avenue ' Chicago, Illinois 60619 Ms. Sirlena Thomas FOIA Officer Harvey School District 152 16001 Lincoln Avenue Harvey, Illinois 60424 Dear Mr. Conway and Ms. Thomas:, This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOJA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons discussed below, this office concludes that Harvey School District 152 (District) violated section 3(f) of FOIA (5 ILCS 140/3(f) (West 2014)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Marlon Conway. BACKGROUND On December 10, 2015, Mr. Conway, submitted a four-part FOIA request to the District seeking: District emails Michael Allen, Principal 500 South Second Street, Springfield, Hlinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 * (312)814-3000 * TTY: (800) 964-3013 © Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondale, INlinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 +* Fax: (618) 529-6416 ‘Gp Mr. Marlon Conway Ms. Sirlena Thomas March 25, 2016 Page 2 Keesha Buchannan, Social Worker Period of request: August 1, 2015 to November 25, 2015 A a eSPSO District cellular calls and text messages of Michael Allen, Principal Keesha Buchannan, Social Worker Period of request: August 1, 2015 to November 25, 2015 a FS De a A a PH Applitrack use dates, employment requests, positions sought for employment etc. made by Michael Allen Period of request: April 1, 2007 to May 31, 2014 hteadeta tak eteteneteettenton tacks hedukudetuteloaturtentekunten’ Employment Applicant Interview Reports for Lowell- Longfellow School Conducted by Principal Marlon Conway Period of request: September 1, 2007 to June 1, 201 yf (Emphasis in original.) On December 18, 2015, the District sent an e-mail to Mr. Conway with an attached letter stating that it had received his FOIA request on December 11, 2015, and that it was extending the time period for its response by 5 additional business days pursuant to section 3 of FOIA (5 ILCS 140/3 (West 2014)) to December 29, 201 5.” The District's letter contained check marks in front of four of seven reasons listed on the letter, asserting that the \"reasons for the delay\" were: (2) The request requires the collection of a large number of records; 'E-mail from Marlon Conway to Sirlena Thomas, Ralph H. Lowenstein, and Betsy Pawlicki {Harvey Public Schools District Number 152] (December 10, 2015). *Letter from Sirlena Thomas, District Freedom of Information Officer, Harvey Public Schools District Number 152, to Marlon Conway (December 18, 2015). Mr. Marion Conway Ms. Sirlena Thomas March 25, 2016 Page 3 (3) The request is categorical in nature and requires an extensive search; (5) The requested records require examination by a person competent to determine which, if any, are exempt under Section 7 of the Act; (6) It would unduly burden or interfere with the operations of the public body to fill the request within the initial five (5) business daysf.}\"! On January 27, 2016, Mr. Conway submitted a Request for Review to the Public Access Bureau alleging that the District had failed to respond to his FOIA request.“ On February 1, 2016, the Public Access Bureau forwarded a copy of the Request for Review to the District and asked the District to notify this office whether it had received and responded to Mr. Conway's FOIA request; if it had not yet responded to Mr. Conway, this office asked the District to do so and to provide a copy of its response to this office.° The District did not respond to the letter from this office. On February 18, 2016, the Public Access Bureau sent the District a second copy of the February 1, 2016, letter and requested that it advise this office of the status of its response to Mr. Conway's FOIA request.® As of the date of this binding opinion, this office has not received any confirmation or indication that the District has responded to Mr. Conway's FOIA request. ‘Letter from Sirlena Thomas, District Freedom of Information Officer, Harvey Public Schools District Number 152, to Marlon Conway (December 18, 2015). “E-mail from Marlon Conway to Public Access Bureau, Office of the Illinois Attorney General (January 27, 2016). *Letter from Matthew Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General to Sirlena Thomas, FOIA Officer, Harvey School] District 152 (February 1, 2016). *E-mail from Jodi Cames, Paralegal, Office of the Attorney General, Public Access Bureau, to {Sirlena] Thomas, [FOIA Officer], [Harvey Public Schools District Number 152] (February 18, 2016). Mr. Marlon Conway Ms. Sirlena Thomas March 25, 2016 Page 4 ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2014). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2014)), \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) provides that \"[eJach public body shall make available to any person for inspectioonr copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOTA (5 ILCS 140/3(d) (West 2014)) provides that “each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section.\" Pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2014)), a public body may extend the time for its response \"for not more than 5 business days from the original due date\" for any of the seven enumerated reasons in that section. Section 3(f) of FOIA further provides that: When additional time is required for any of the above reasons, the public body shall, within 5 business days after receipt of the request, notify the person making the request of the reasons for extension and the date by which the response will be forthcoming. Failure to respond within the time permitted for extension shall be considered a denial of the request. A public body that fails to respond to a request within the time permitted for extension but thereafter provides the requester with copies of the requested public records may not impose a fee for those copies. A public body that requests an extension and subsequently fails to respond to the request may not treat the request as unduly burdensome under subsection (g). The facts are undisputed that the District extended the time for response pursuant to section 3(e) of FOIA. Although the District properly sent notification of the extension within 5 business days after its receipt of the request, the District erroneously extended the time by six business days, to December 29, 2015, rather than five business days, to December 28, 2015. The District properly accounted for December 25, 2015, as a non-business day, but still extended the time for response by six business days. More importantly, however, the District did not respond within the time permitted for the extension, and as of the date of this binding opinion has not responded to Mr. Conway's FOIA request or to the Public Access Bureau. The District's failure to respond within the time permitted by the extension constitutes a dental of the request, and a violation of section 3(f) of FOIA. Mr. Marlon Conway Ms. Sirlena Thomas March 25, 2016 Page 5 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On December 10, 2015, Mr. Marlon Conway submitted a FOIA request to the District seeking copies of all e-mails, cellular telephone calls and text messages of Michael Allen and Keesha Buchannan from August 1, 2015, to November 25, 2015, all Applitrak information made by Michael Allen from April 1, 2007, to May 31, 2014, and all employment applicant interview reports for Lowell-Longfellow School conducted by Mr. Conway from September 1, 2007, to June 1, 2011. | 2) On December 18, 2015, the District e-mailed a letter to Mr. Conway informing him that it had received his FOTA request on December 11, 2015, and that it was extending the time for its response by 5 business days, pursuant to section 30f FOIA, to December 29, 2015. The District did not subsequently respond to Mr. Conway's FOIA request. 3) On January 27, 2016, Mr. Conway asked the Public Access Counselor to review the District's denial of his FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOTA (5 ILCS 140/9.5(a) (West 2014)). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 4) On February 1, 2016, the Public Access Bureau forwarded a copy of Mr. Conway's Request for Review to the District, together with a letter asking the District to advise this office whether it had received and responded to Mr. Conway's December 10, 2015, FOIA request. The District did not respond to this office's inquiry. 5) On February 18, 2015, this office sent the District an e-mail, asking that the District advise this office of the status of the District's response to Mr. Conway's December 10, 2015, FOIA request. 6) To date, this office has received no confirmation or indication that the District has responded to Mr. Conway's request. Mr. Marlon Conway Ms. Sirlena Thomas March 25, 2016 Page 6 Therefore, it is the opinion of the Attorney General that the District has violated section 3(f) of FOIA by failing to respond to Mr. Conway's request for public records within the time permitted by the extension authorized by the Act. Accordingly, the District is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Conway with all records responsive to his December 10, 2015, FOIA request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2014), as amended by Public Acts 99-298, effective August 6, 2015; 99-346, effective January |, 2016).’ If the District determines that any portion of the responsive records is exempt from disclosure under section 7, the District is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2014)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Marlon Conway as defendants. See 5 ILCS 140/11.5 (West 2014). Sincerely, _ LISA MADIGAN ATTORNEY GENERAL By: Michael J. Luke Counsel to the Attorney General \"Because the District did not comply with the statutory requirements for responding to Mr. Conway's FOIA request, the District is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(f) (West 2014) (\"A public body that fails to respond to a request within the time permitted for extension but thereafter provides the requester with copies of the requested public records may not impose a fee for those copies. A public body that requests an extension and subsequently fails to respond to the request may not treat the request as unduly burdensome under subsection (g).\"). CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 16-003) upon: Mr. Marlon Conway 9311 South Wabash Avenue Chicago, Illinois 60619 marlonconway@yahoo.com Ms. Sirlena Thomas FOIA Officer Harvey School District 152 ' 16001 Lincoln Avenue + Harvey, Illinois 60424 sthomas@harvey152.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by -causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on March 25, 2016. SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor 500 South Second Street Springfield, Ilinois 62706 (217) 785-5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"This binding opinion addresses whether Harvey School District 152 violated section 3(f) of FOIA (5 ILCS 140/3(f)) by failing to respond to a FOIA request within the time permitted after invoking a section 3(e) extension. The Attorney General held that the District violated section 3(f): although it timely notified the requester of a 5-business-day extension, it miscalculated the deadline and then never responded at all, which under section 3(f) is deemed a denial of the request. The opinion establishes that a public body which requests an extension but then fails to respond within the extended period is deemed to have denied the request, may not later claim the request was unduly burdensome, and may not charge copying fees if records are eventually produced. The public body involved was a school district responding to a request for emails, phone/text records, employment system data, and interview reports.","card_headline":"School district emails, cell records, and employment documents","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":67,"orig_master_id":19268,"dup_master_id":19040,"dup_sha256":"47ff344d066ae463e6ee114001a5ebea3851a9ca4179bb8c983fee0354b55666","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2016,"date_issued":"2016-02-10","case_number":"2015 PAC 38303","request_numbers":null,"title":"Disclosure of Post-mortem Photographs to the Executor of the Decedent's Estate","filename":"PUBLIC ACCESS OPINION 16-002 (Request for Review - 2015 PAC 38303).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 16-002 (Request for Review - 2015 PAC 38303).pdf","word_count":3031,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request for post-mortem photographs by the executor of a decedent's estate.","plain_summary":"The requester, the father and estate executor of a woman who had died, sought crime-scene and autopsy photographs related to her death, and a state police agency withheld the photographs entirely, citing prior guidance that such graphic images may be withheld to protect surviving family members' privacy. The Public Access Counselor held that this privacy exemption exists specifically to protect the interests of surviving family members against disclosure to outsiders, and does not apply when the requester is himself the closest surviving family member consenting to receive images concerning his own child — the exemption's purpose does not extend to withholding a family member's own relative's images from that family member. The state police agency was directed to provide the requester with copies of the photographs, though this did not require providing them to the public at large.","holding":"The Illinois State Police violated FOIA by improperly withholding post-mortem photographs.","legal_question":"Did the Illinois State Police violate the Freedom of Information Act by withholding post-mortem photographs?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"Illinois State Police","requesting_party":"Mr. Larry Young","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request involved access to crime scene and autopsy photographs related to a death investigation.","ocr_status":"ok","ocr_quality":89.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-002.pdf","sha256":"133f74f9c23f9844ec980c912ac9ceef40e1f4af4d18089aeaedb182577828e8","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","autopsy photos","estate executor","privacy exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nFebruary 10, 2016\nPUBLIC ACCESS OPINION 16-002\n(Request for Review 2015 PAC 38303)\nFREEDOM OF INFORMATION ACT:\nDisclosure of Post-mortem Photographs\nto the Executor of the Decedent's Estate\nMr. Larry Young\n[street address redacted for site publication -- see original PDF]\nMaster Sergeant Kerry Sutton\nLegal Counsel\nIinois State Police\n801 South Seventh Street, Suite 1000-S\nSpringfield, [linois 62703\nDear Mr. Young and Master Sergeant Sutton:\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons\ndiscussed below, this office concludes that the Illinois State Police (SP) violated FOIA by\nimproperly withholding post-mortem photographs requested by the decedent's father and\nexecutor of her estate.\nBACKGROUND\nOn August 12, 2015, Mr. Larry Young submitted a FOIA request to ISP seeking\nrecords pertaining to the death of his daughter, Molly Young. Among other things, the FOIA\n500 South Second Street, Springfield, Hlinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 6060) * (312) 814-3000 * TTY: (800) 964-3013 * Fax: 312) 814-3806\n601! South University Avenue, Suite 102, Carbondale, [linois 62901 * (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416\nMr. Larry Young\nMaster Sergeant Kerry Sutton\nFebruary 10, 2016\nPage 2\nrequest sought \"{a]li crime scene photographs, autopsy photographs, images and trajectory\ndiagram{s].”\"\nOn September 30, 2015, ISP responded to Mr. Young's August 12, 2015, FOIA\nrequest by providing certain information, but redacted or withheld portions of the responsive\nrecords pursuant to sections TOY\\(by and 7(1)(c) of FOIA (5 ILCS 140/71 )cb), (1)(c) (West\n2014), as amended by Public Act 99-298, effective August 6, 2015)7 ISP withheld the autopsy\nphotographs and crime scene photographs in their entireties.*\nOn October 26, 2015, Mr. Young submitted a Request for Review to the Public\nAccess Bureau asserting, in part, that “[a]s father and executor of Molly's estate [he is] the only\nrequestor that has the legal right to all the crime scene photos/videos and autopsy photos/videos\nincluding the graphic photos.\" On November 4, 2015, the Public Access Bureau forwarded a\ncopy of the Request for Review to ISP and asked ISP to provide a detailed explanation of its\nlegal and factual bases for withholding those records.® ISP did not receive this office's\n’November 4, 2015, correspondence, and a copy of the letter was forwarded to ISP on November\n18, 2015.7 On November 36, 2015, ISP responded and stated, in pertinent part:\n'FOLA request from Larry Young to Lieutenant Steve Lyddon, Illinois State Police, Freedom of\nInformation Officer (August 12, 2015). As both Mr. Young and ISP used the term “crime scene” to refer to the\nscene of Ms. Young's death, this office uses that term in this opinion without implying any conclusion by this office\nas to the circumstances of Ms. Young's death. The Public Access Counselor's authority to resolve disputes is limited\nto alleged violations of FOLA and the Open Meetings Act (5 ILCS 120/] ef seg. (West 2014)). See 15 ILCS\n205/7(c)(3) (West 2014).\n*1SP's assertion of section 7(1)(b) applied to redactions in other records provided to Mr. Young\nthat are not at issue in this opinion.\n*Letter from Aaron Harris, Esq., FOLA Officer, [linois State Police, to Larry Young (September\n30, 2015).\n“in response to a previous Request for Review, this office had determined that [SP failed to sustain\nits burden of demonstrating that Mr. Young was not entitled to those records and directed ISP to provide them to\nhim. Il. Att'y Gen. PAC Req. Rev. Ltr. 28651, issued June 29, 2015. ISP did not comply with that non-binding\ndetermination.\n‘Letter from Larry Young to Josh Jones, Public Access Bureau, Office of the Attorney General\n(October 26, 2015).\nSLetter from Josh Jones, Supervising Attorney, Public Access Bureau, Office of the Attorney\nGeneral, to Master Sergeant Kerry Sutton, Legal Counsel, [inois State Police (November 4, 2015).\n\"E-mail exchange between Josh Jones, Supervising Attorney, Public Access Bureau, Office of the\nAttorney General, and Master Sergeant Kerry Sutton, Legal Counsel, Illinois State Police (November 18, 2015).\nMr. Larry Young\nMaster Sergeant Kerry Sutton\nFebruary 10, 2016\nPage 3\n18) * * * Graphic photos of the crime scene and autopsy are\nexempt per the AG's opinions found in the Law Enforcement\nFOIA guide provided by the Public Access Counselor's office.\nThose opinions state:\n* Graphic photographs and descriptions of alleged offenses,\nsuch as sex crimes, may frequently be withheld under\n7(i\\Mc). See 2010 PAC 7791 (IL. Att'y Gen. PAC Pre-\nAuth. al7791, issued June 29, 2010, at 2) and 2010 PAC\n9091 and 9164 (IL Att'y Gen, PAC Pre-Auth. al9091, 9164\nissued August 23, 2010, at 2)\no Graphic photographs of the deceased's body during\nan autopsy may be withheld under section 7(1)(c).\nSee 2010 PAC 8890 and 9217 (IIL. Att'y Gen Pub.\nAcc. Op. No. 10-003, issued October 22, 2010, at\n1.\nAdditionally, please see United States Supreme court case\n\"National Archives and Records Administration v. Favish et al.,\n$41 US 157 (2004).\"8)\nOn December 4, 2015, this office forwarded a copy of ISP's response to Mr.\nYoung.” On December 14, 2015, Mr. Young replied by citing this office's previous\ndetermination, in an earlier Request for Review, that ISP had improperly withheld the crime\nscene and autopsy photographs from him.'° By telephone on February 3, 2016, Mr. Young\ninformed the Public Access Bureau that he wished to narrow the scope of this Request for\nReview to ISP's denial of the crime scene photographs and autopsy photographs.\nSLetter from Master Sergeant Kerry Sutton, Legal Counsel, Mlinois State Police, to Josh Jones,\n[Supervising Attorney, Public Access Bureau,] Office of the Attorney General (November 30, 2015), at 2.\n°Letter from Josh Jones, Supervising Attorney, Public Access Bureau, Office of the Attorney\nGeneral, to Larry Young (December 4, 2015).\n‘Letter from Larry Young to Josh Jones, Supervising Attorney, Public Access Bureau, Illinois\nAttorney General's Office (December 14, 2015), at 2. See foomote 4 above.\n\"Telephone conversation between Larry Young and Josh Jones, Supervising Attorney, Public\nAccess Bureau, Illinois Attorney General's Office (February 3, 2016). Mr. Young's Request for Review had\noriginally raised questions about records other than the crime scene photographs and autopsy photographs.\nMr. Larry Young\nMaster Sergeant Kerry Sutton\nFebruary 10, 2016\nPage 4\nOn December 28, 2015, this office properly extended the time in which to issue a\nbinding opinion by 30 business days, to February 10, 2016, pursuant to section 9.5() of FOIA. 2\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS\n140/1 (West 2014). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) provides that \"{eJach\npublic body shall make available to any person for inspection or copying all public records,\nexcept as otherwise provided in Sections 7 and 8.5 of this Act.\" A public body “has the burden\nof proving by clear and convincing evidence” that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2014).\nSection 7(1}{c) of FOIA exempts from disclosure:\nPersonal information contained within public records, the\ndisclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, uniess the disclosure is consented to\nin writing by the individual subjects of the information.\n\"Unwarranted invasion of personal privacy” means the disclosure\nof information that is highly personal or objectionable to a\nreasonable person and in which the subject's right to privacy\noutweighs any legitimate public interest in obtaining the\ninformation. The disclosure of information that bears on the public\nduties of public employees and officials shall not be considered an\ninvasion of personal privacy. (Emphasis added.)\nA public body's assertion that the release of information would constitute an unwarranted\ninvasion of personal privacy is evaluated on a case-by-case basis. Chicago Journeymen ;\nPlumbers' Local Union 130, U_A. v. Department of Public Health, 327 Ul. App. 3d 192, 196 (1st\nDist. 2001). The phrase “clearly unwarranted invasion of personal privacy” evinces a strict\nstandard to claim the exemption, and the burden is on the public body having charge of the\nrecords to prove that standard has been met. Schessler v. Department of Conservation, 256 II.\nApp. 3d 198, 202 (4th Dist. 1994).\nBecause an individual's personal privacy interest ceases to exist upon death, Ms.\nYoung does not have a privacy interest in the withheld photographs. See Ill. Att'y Gen. Pub.\n1 etter from Josh Jones, Supervising Attorney, Public Access Bureau, Office of the Attorney\nGeneral, to Larry Young, and Master Sergeant Kerry Sutton, Legal Counsel, lilinois State Police (December 28,\n2015).\nMr. Larry Young\nMaster Sergeant Kerry Sutton\nFebruary 10, 2016\nPage 5\nAcc. Op. No. 12-012, issued August 14, 2012, at 9. The binding opinion ISP cited in its\nresponse to this office, however, concluded “that a decedent's surviving family members do\npossess a separate personal privacy interest in ‘their close relative's death-scene images’ and\nsimilar records.\" HL Att'y Gen. Pub. Acc. Op. No. 10-003, issued October 22, 2010, at 5-6\n(citing National Archives and Records Administration v. Favish, 541 U.S. 187,170, 1248.Ct.\n1571, 1579 (2004)).\nIn National Archives, the United States Supreme Court analyzed whether the\nFederal FOIA's personal privacy exemption”? permitted a public body to withhold from a non-\nfamily member the death scene images of President Clinton's deputy counsel, Mr. Vincent\nFoster, who was officially determined to have committed suicide. Mr. Foster's surviving family\nmembers objected to disclosure of the photographs. National Archives, 541 U.S. at 160-61, 166\n124 S. Ct. at 1574, 1577-78. The Court noted:\nThe family does not invoke Exemption 7(C) on behalf of Vincent\nFoster in its capacity as his next friend for fear that the pictures\nmay reveal private information about Foster to the detriment of his\nown posthumous reputation or some other interest personal to him.\nIf that were the case, a different set of considerations would\ncontrol. Foster's relatives instead invoke their own right and\ninterest to personal privacy. They seek to be shielded by the\nexemption to secure their own refuge from a sensation-seeking\nculture for their own peace of mind and tranquility, not for the sake\nof the deceased. National Archives, 541 U.S. at 166, 124 S. Ct. at\n1877.\nIn light of the applicable precedents, the Court \"conclude[d] from Congress‘ use of the term\n‘personal privacy’ that it intended to permit family members to assert their own privacy rights\nagainst public intrusions long deemed impermissible under the common law and in our cultural\ntraditions.\" National Archives, 541 U.S. at 167, 124 S. Ct. at 1578. Thus, the Court held \"that\nFOIA recognizes surviving family members’ right to personal privacy with respect to their close\nrelative's death-scene images.\" National Archives, 541 U.S. at 170, 124 S. Ct. at 1579. Because\nthe requester did not demonstrate that the public interest in disclosure of the photographs\noutweighed the objecting family members’ privacy interests, the Court held that providing him\nwith the responsive photographs would constitute an unwarranted invasion of the objecting\nfamily members’ personal privacy. National Archives, 541 U.S. at 174-75, 124 S. Ct. at 1581-82.\n35 U.S.C. § $52(bK7C) (2002). The exemption allowed federal government agencies to\nwithhold \"records or information compiled for law enforcement purposes[ ]\" if their production “could reasonably\nbe expected to constitute an unwarranted invasion of personal privacy[.]”\nMr. Larry Young\nMaster Sergeant Kerry Sutton\nFebruary 10, 2016\nPage 6\nSimilarly, in IH. Att'y Gen. Pub. Acc. Op. No. 10-003, at 1-2, the requesters who\nsought autopsy and other post-mortem images were not related to the decedents. Further, the\nsurviving family members in the matters addressed by the binding opinion also strongly objected\nto disclosure of the post-mortem photographs of the decedents.'* Based on those objections, the\nAttorney General concluded that the public body \"sustained its burden of demonstrating that the\nrelease of the post-mortem photographs of the bodies of [the decedents] would constitute a\nclearly unwarranted invasion of the surviving family members’ personal privacy.” [lL Att'y Gen\nPub. Acc. Op. No. 10-003, issued October 22, 2010, at ins\nin contrast, Mr. Young has expressly requested copies of the photographs of his\ndaughter. Ms. Young was not married, and Mr. Young has been appointed as the executor of her\nestate.'° The circumstances here are therefore distinctly different from those addressed in\nNational Archives and IU. Att'y Gen. Pub. Ace. Op. No. 10-003, both of which concerned\nrequests by non-family members. Clearly, an individual may consent to the disclosure of\ninformation in which he or she has a personal privacy interest. ISP has not articulated a legal\nrationale that justifies withholding personal information concerning Ms. Young from her father,\nincluding her death-scene and autopsy photographs. Accordingly, this office concludes that ISP\nhas not sustained its burden of demonstrating by clear and convincing evidence that the\nresponsive photographs are exempt from disclosure to Mr. Young.”\nfa\n“E-mail from Richard Velazquez, Special Counsel to the President, Office of the President, Cook\nCounty Board of Commissioners, to Matthew C. Rogina, [Assistant Attorney General, Public Access Bureau, Office\nof the Attorney General} (September 15, 2010).\n'SNone of the Public Access Counselor's pre-authorization letters that ISP cited in its response to\nthis office involved a FOIA request seeking information concerning one of the requester's own family members.\ninstead, all of the requests were submitted by third parties who did not assert that they had the consent of the\nsurviving family members to obtain personal information concerning the decedents.\nOn February 28, 2015, Mr. Young provided this office with a document filed with the Circuit\nCourt of the First Judicial Circuit on October 25, 2012, which states that he had been appointed Independent\nAdministrator of his daughter's estate, Letters of Office - Decedent's Estate, In the Matter of the Estate of Molly\nMarie Young, Deceased, No. 12-P-88 (Circuit Court, Jackson County }. Under the law, “[t]he executor or the\nadministrator with the will annexed shall administer all the testate and intestate estate of the decedent.\" 755 [LCS\n5/6-15 (West 2014).\n\"This office notes that providing personal information concerning Ms. Young to the requester\ndoes not mean that ISP must provide the same information to other requesters who are unrelated to Ms. Young. Mr.\nYoung has consented to the disclosure of personal information concerning his daughter to him, not to others. Mr.\nYoung has requested that !SP not release further personal information concerning Ms. Young to the general public.\nMr. Larry Young\nMaster Sergeant Kerry Sutton\nFebruary ]0, 2016\nPage 7\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On August 12, 2015, Mr. Larry Young submitted a FOIA request to the\nIllinois State Police seeking records relating to the death of his daughter, Molly Young. Among\nother things, the request sought “fa]ll crime scene photographs, [and] autopsy photographs”\nrelating to Ms. Young's death.\n2) On September 30, 2015, ISP denied the request for those photographs, citing\nsection 7(1)(c) of FOIA, which exempts from disclosure \"[pJersonal information contained within\npublic records, the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy|.]\" Section 7(1)(c) defines \"unwarranted invasion of personal privacy\" as \"the\ndisclosure of information that is highly personal or objectionable to a reasonable person and in\nwhich the subject's right to privacy outweighs any legitimate public interest in obtaining the\ninformation.\"\n3) On October 29, 2015, the Public Access Bureau received Mr. Young's October\n26, 2015, Request for Review letter in which he disputed the denial of his request for those\nphotographs. The Request for Review was timely filed and otherwise complies with the\nrequirements of section 9.5(a) of FOIA (5 ILCS 140/9.5{a) (West 2014).\n4) On November 4, 2015, and November 18, 2015, the Public Access Bureau\nsent a copy of Mr. Young's Request for Review to ISP and asked it to provide a detailed\nexplanation of the legal and factual bases for withholding those photographs. On November 30,\n2015, the ISP responded to this office.\n5) This office forwarded a copy of ISP's response to Mr. Young on December 4,\n2015. On December 18, 2015, by a letter dated December 14, 2015, this office received Mr.\nYoung's reply to ISP's response.\n6) On December 28, 2015, this office properly extended the time in which to\nissue a binding opinion by 30 business days pursuant to section 9.5(f) of FOLA. Therefore, the\nAttorney General may properly issue a binding opinion with respect to this matter.\n7) ISP has failed to demonstrate by clear and convincing evidence that the\nphotographs in question are exempt from disclosure to Mr. Young pursuant to section 7(1)(c) of\nFOIA. In these circumstances, Mr. Young, as the father of the decedent and the executor of her\nestate, has consented through his FOLA request to the disclosure to him of personal information\nMr. Larry Young\nMaster Sergeant Kerry Sutton\nFebruary 10, 2016\nPage 8\nconcerning his daughter. He has therefore waived his personal privacy interest in withholding\nthe photographs from dissemination to him. ISP has not articulated a legal rationale that would\njustify withholding personal information concerning Molly Young from her father, including her\ndeath-scene and autopsy photographs.\nTherefore, it is the opinion of the Attorney General that ISP improperly denied\nMr. Young's Freedom of Information Act request for crime scene photographs and autopsy\nphotographs in violation of the requirements of the Act. Accordingly, ISP is directed to take\nimmediate and appropriate action to comply with this opinion by providing Mr. Young with\ncopies of those photographs.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seg. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days of the date of this decision naming the Attorney General of Illinois and Mr. Larry Young\nas defendants. See 5 [LCS 140/11.5 (West 2014).\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\nMichael J. Luke\nCounsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Larry Young requested crime scene and autopsy photos of his deceased daughter from the Illinois State Police. The police denied the request, citing privacy concerns, but the Attorney General ruled that the police could not withhold these personal records from the executor of the estate. The police were ordered to release the photographs to Mr. Young.","card_headline":"Crime scene and autopsy photographs of a death investigation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":68,"orig_master_id":19271,"dup_master_id":19041,"dup_sha256":"e462558864e22797b9b6994e7a0a801769a6a34cf49f2b3213fc166d90eecc45","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2016,"date_issued":"2016-06-27","case_number":"2016 PAC 41880","request_numbers":null,"title":"Duty to Respond to FOIA Requests; Duty To Provide Timely Notification ofExtension For Responding to FOIA Requests","filename":"PUBLIC ACCESS OPINION 16-004 (Request for Review - 2016 PAC 41880).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 16-004 (Request for Review - 2016 PAC 41880).pdf","word_count":2447,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act (FOIA) request submitted by Mr. Dan Mihalopoulos to the Chicago Police Department.","plain_summary":"The requester, a journalist, sought current and historical police staffing levels by district and all personnel transfer orders since an earlier request, and the police department sent an extension notice after the five-business-day deadline had already passed, then never substantively responded despite the requester's repeated follow-ups. The Public Access Counselor held that an extension notice sent after the statutory deadline does not validly extend the response period, so the department's prolonged silence constituted a denial under FOIA. The police department was directed to produce all responsive records, subject only to permissible redactions, and to issue a proper written denial for any records it withholds.","holding":"The Chicago Police Department violated section 3(d) of FOIA by failing to appropriately respond to the FOIA request.","legal_question":"Did the Chicago Police Department comply with the requirements of the Freedom of Information Act in responding to the FOIA request?","disposition":"violation_found","primary_statute":"5 ILCS 140, 5 ILCS 140/3(d), 5 ILCS 140/3, 5 ILCS 140, 5 ILCS 140/3(a), 5 ILCS 140/9, 5 ILCS 140/9(a), 735 ILCS 5","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Police Department","requesting_party":"Mihalopoulos and Mr. Price","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"FOIA response","subject_description":"The request sought district-by-district sworn Chicago Police Department staffing levels broken down by rank.","ocr_status":"ok","ocr_quality":89.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-004.pdf","sha256":"874fa0d1534e715e9523cb81880d52df741f63db3cc5783497d98cfd32e7f8bd","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA response","police staffing","deadlines","fee waiver"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"4> 4. oc ti Da ; ea.:,, . Ihw is- 0wOF OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEYGENERAL. June 27, 2016 PUBLIC ACCESS OPINION 16-004 Request for Review 2016 PAC 41880) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests; Duty To Provide Timely Notification ofExtension For Responding to FOIA Requests Mr. Dan Mihalopoulos StaffReporter Chicago Sun-Times 350 North Orleans 10th Floor Chicago, Illinois 60654 Mr. Ralph Price General Counsel Chicago Police Department 3510 South Michigan Avenue Chicago, Illinois 60653 Dear Mr. Mihalopoulos and Mr. Price: This is a binding opinion issued by the Attorney General pursuant to section 9.5( f) ofthe Freedom of Information Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2014)). For the reasons discussed below, this office concludes that the Chicago Police Department( CPD) violated section 3( d) of FOIA ( 5 ILCS 140/3(d) ( West 2014)) by failing to comply with, deny in whole or in part, properly extend the time for response, or otherwise appropriately respond to a FOIA request submitted by Mr. Dan Mihalopoulos. 500 South Second Street, Springfield, Illinois 62706 • ( 217) 782-1090 • TTY:(877) 844-5461 • Fax:( 217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • YFY:(800) 964-3013 • Fax:( 312) 814-3806 1001 EastMain, Carbondale, Illinois 62901 • ( 618) 529-6400 • ' 1\" 1'Y:(877) 675-9339 • Fax:( 618) 529-6416 0— Mr. Dan Mihalopoulos Mr. Ralph Price June 27, 2016 Page 2 BACKGROUND On April 5, 2016, Mr. Mihalopoulos, on behalfofthe Chicago Sun-Times, submitted a three-part FOIA request to CPD seeking: The district-by-district sworn CPD staffing levels as oftoday. This should include a district- by-district breakdown of staffing levels by rank. The district- by-district sworn CPD staffing levels as of Jan. 1, 2015 or the closest date to Jan. 1, 2015 for which that information is available. This should include a district- by-district breakdown of staffing levels by rank. All personnel orders issued by the department since the time of our last Freedom ofInformation Act requestfor those records, which was filed Jan. 24, 2014. The information on the orders should include, but may not be limited to, the names ofpolice officers who are being transferred, their star numbers, their employee numbers, the name ofthe units that officers were transferred from, and the name ofthe units that they are being transferred to. These records also include the names ofpolice officers who were resigning, who were going on leaves ofabsence or who were hired by the CPD.h1 On April 20, 2016, CPD sent an e- mail to Mr. Mihalopoulos with an attached letter dated April 13, 2016, stating that it had received his FOIA request dated April 5, 2016, and that it was extending the time period for its response by 5 business days pursuant to section 3( e) ofFOIA (5 ILCS 140/3( e) ( West 2014)). 2 CPD's letter referenced section 3( e)( ii) of FOIA (5 3 ILCS 140/ 3( e)( ii) (West 2014)) by indicating that the basis for the extension was that \"the E-mail from Dan Mihalopoulos, StaffReporter, Chicago Sun-Times, to Freedom of Information Officer, Chicago Police Department( April 5, 2016). 2Letter from P.O. Rodriguez# I2243, Freedom ofInformation Officer, Chicago Police Department, to Dan Mihalopoulos, StaffReporter, [ Chicago Sun-Times] (April 13, 2016). Section 3(e)( ii) ofFOIA, which is one ofseven enumerated reasons for which a public body may unilaterally extend the time for response by 5 business days, authorizes such an extension when \" the request requires the collection ofa substantial numberofspecified records[.]\" Mr. Dan Mihalopoulos Mr. Ralph Price June 27, 2016 Page 3 request may require the collection ofa substantial number of specified records, ifany exist[.] i4 On April 22, 2016, Mr. Mihalopoulos sent an e-mail to CPD stating: \" I don't understand this. You already took one five-day extension. The letter you sent me on April 20 was dated 13. So we have passed 10 business days. Please let me know when the documents will be ready. i5 On April 25, 2016, CPD's FOIA Officer replied by e-mail, stating that he was waiting for records from another department and that he would update Mr. Mihalopoulos on April 29, 2016.6 On May 5, 2016, Mr. Mihalopoulos sent an e-mail to CPD asking about the status ofCPD's response to his FOIA request.' On May 11, 2016, CPD replied by e-mail requesting that Mr. Mihalopoulos grant it an extension of an additional week to respond to his FOIA request. 8 On May 11, 2016, Mr. Mihalopoulos responded by requesting a specific date on which the records would be provided, adding that he would deny CPD's request for an extension ifthe requested date was not provided.9 The CPD responded to Mr. Mihalopoulos later that same day, but did not specify a date by which Mr. Mihalopoulos would receive the records responsive to his request. In an e-mail dated May 12, 2016, Mr. Mihalopoulos submitted a Request for Review to the Public Access Bureau alleging that CPD had failed to provide a specific date that it would provide the requested records or otherwise properly respond to his FOIA request.' Letter from P.O. Rodriguez# I2243, Freedom of Information Officer, Chicago Police Department, to Dan Mihalopoulos, Staff Reporter, [ Chicago Sun- Times] ( April 13, 2016). 5E-mail from Dan Mihalopoulos, [ Staff Reporter, Chicago Sun-Times], to FOIA [ Officer, Chicago Police Department]( April 22, 2016). E-mail from [ FOIA Officer, Chicago Police Department], to [Dan Mihalopoulos, Staff Reporter, Chicago Sun-Times] ( April 25, 2016). E-mail from Dan Mihalopoulos, [ StaffReporter, Chicago Sun- Times], to FOIA [ Officer, Chicago Police Department] ( May 5, 2016). E-mail from [ FOIA Officer, Chicago Police Department], to[ Dan Mihalopoulos, Staff Reporter, Chicago Sun- Times] ( May 11, 2016). 9E-mail from Dan Mihalopoulos, [ Staff Reporter, Chicago Sun-Times], to Officer Rodriguez, Chicago Police Department] ( May 11, 2016). 10E- mail from FOIA [ Officer, Chicago Police Department], to Dan Mihalopoulos, [ Staff Reporter, Chicago Sun-Times] ( May 11, 2016). 11E- mail from Dan Mihalopoulos, [ Staff Reporter], Chicago Sun-Times to Public Access( May 12, 2016). Mr. Dan Mihalopoulos Mr. Ralph Price June 27, 2016 Page 4 On May 17, 2016, the Public Access Bureau forwarded a copy ofthe Request for Review to CPD and asked CPD to notify this office whether it had responded to Mr. Mihalopoulos' FOIA request; if it had not yet responded to Mr. Mihalopoulos, this office asked CPD to do so and to provide a copy ofits response to this office.12 On May 18, 2016, CPD's Office ofLegal Affairs responded that \"[ a]fter consultation with the Department's FOIA Unit, it was determined that this request isstill open under FOIA P046225 and the response should be forthcoming.\" 13 As ofthe date ofthis binding opinion, this office has not received any confirmation or indication that the CPD has responded to Mr. Mihalopoulos' FOIA request. ANALYSIS It is a fundamental obligation ofgovernment to operate openly and provide public records as expediently and efficiently as possible in compliance with [ FOIA].\" 5 ILCS, 140/1 ( West 2014). Under section 1. 2 of FOIA (5 ILCS 140/ 1. 2 ( West 2014)), \"[ a] ll records in the custody or possession ofa public body are presumed to be open to inspection or copying.\" Section 3( a) ofFOIA (5 ILCS 140/3(a) ( West 2014)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 ofthis Act.\" Section 3( d) ofFOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection ( e) ofthis Section. Denial shall be in writing as provided in Section 9 ofthis Act. Failure to comply with a written response, extend the time for resp [...] more than 5 business days from the original due date\" for any of the seven Letter from Matthew Hartman, Assistant Attorney General, Public Access Bureau, Office ofthe Attorney General to Ralph Price, General Counsel, Chicago Police Department( May 17, 2016). Letter from Ryan Nelligan, Office ofLegal Affairs, Department ofPolice, Chicago Police Department to Office ofthe Attorney General, Matt Hartman, Assistant Attorney General ( May 18, 2016). Mr. Dan Mihalopoulos Mr. Ralph Price June 27, 2016 Page 5 enumerated reasons in that section. Section 3( f) ofFOIA (5 ILCS 140/3( f) (West 2014)) states: When additional time is required for any ofthe above reasons, the public body shall, within 5 business days after receipt ofthe request, notify theperson making the request ofthe reasons for extension and the date by which the response will beforthcoming.\" ( Emphasis added.) CPD's letter dated April 13, 2016, stated that itwas extending the time for response pursuant to section 3( e) of FOIA. The available information indicates, however, that CPD did not notify Mr. Mihalopoulos ofthe basis for the extension until it forwarded the letter to him on April 20, 2016, which was eleven business days after CPD received his request. Because CPD' s notification to Mr. Mihalopoulos ofthe extension was untimely, the period for response was not properly extended. The facts are undisputed that CPD did not, within 5 business days of CPD' s receipt thereof, comply with Mr. Mihalopoulos' request, properly extend the time period for response pursuant to section 3( e) ofFOIA, or deny the request in writing. As oftoday's date CPD still has not substantively responded to Mr. Mihalopoulos' FOIA request. CPD's failure to comply with the requisite procedures violated sections 3( a) and 3( d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor' s review, and the applicable law, the Attorney General finds that: 1) On April 5, 2016, Mr. Dan Mihalopoulos, on behalf ofthe Chicago Sun- Times, submitted a FOIA request to the Chicago Police Department seeking records of current district-by-district staffing levels, district-by-district staffing levels on January 1, 2015, and all personnel orders issued by CPD since January 24, 2014. 2) On April 20, 2016, CPD e-mailed a letter dated April 13, 2016, to Mr. Mihalopoulos informing him that it had received his April 5, 2016, FOIA request, and that it was extending the time for its response by 5 business days pursuant to section 3( e) ofFOIA. CPD's notification ofextension to Mr. Mihalopoulos was sent more than 5 business days after it received his FOIA request. CPD did not, within 5 business days after receipt, comply with the FOIA request, properly extend the time for response pursuant to section 3( e) ofFOIA, or deny the request in whole or in part, as required by section 3(d) of FOIA. Pursuant to section 3( d) of FOIA, the failure to do so constituted a denial ofthe request. 3) On May 12, 2016, Mr. Mihalopoulos asked the Public Access Counselor to review CPD' s denial ofhis FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5( a) of FOIA ( 5 ILCS 140/9.5( a) ( West 2014)). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. Mr. Dan Mihalopoulos Mr. Ralph Price June 27, 2016 Page 6 4) On May 17, 2016, the Public Access Bureau forwarded acopy of Mr. Mihalopoulos' Request for Review to CPD, together with a letter asking CPD to advise this office whether it had responded to Mr. Mihalopoulos' April 5, 2016, FOIA request. 5) On May 18, 2015, CPD' s Office ofLegal Affairs responded that CPUs FOIA Unit was processing the request. To date, this office has received no confirmation or indication that CPD has provided any records responsive to Mr. Mihalopoulos' request. Therefore, it is the opinion ofthe Attorney General that CPD has violated sections 3( a) and 3( d) of FOIA by failing, within five business days after receiving Mr. Mihalopoulos' April 5, 2016, FOIA request, to provide the requested records, to properly extend the time for its response pursuant to section 3(e) of FOIA, or to deny the request in whole or in part. Accordingly, CPD is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Mihalopoulos with all records responsive to his April 5, 2016, request, subject only to permissible redactions, if any, under section 7 ofFOIA ( 5 ILCS 140/ 7 . West 2014), as amended by Public Acts 99- 298, effective August 6, 2015; 99-346, effective January 1, 2016). 14 If CPD determines that any portion of the responsive records is exempt from disclosure under section 7, CPD is directed to issue a written denial that fully complies with the requirements ofsection 9(a) ofFOIA (5 ILCS 140/9(a) ( West 2014)). This opinion shall be considered a final decision of an administrative agency for the purposes ofadministrative review under the Administrative Review Law. 735 ILCS 5/ 3- 101 et seq. ( West 2014). An aggrieved party may obtain judicial review ofthe decision by filing a complaint for administrative review with the Circuit Court ofCook or Sangamon County within 35 days ofthe date ofthis decision naming the Attorney General ofIllinois and Mr. Dan Mihalopoulos as defendants. See 5 ILCS 140/ 11. 5 ( West 2014). Sincerely, LISA MADIGAN ATTORNEY GENERAL By: Michael J. Luke Counsel to the Attorney General 10Because CPD didnot comply with the statutory requirements for responding to Mr. Mihalopoulos' FOIA request, CPD is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/ 3( d)( West 2014))(\" A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies ofthe requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may nottreat the request as unduly burdensome under subsection( g).\"). CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion ( Public Access Opinion 16-004) upon: Mr. Dan Mihalopoulos Staff Reporter Chicago Sun-Times 350 North Orleans 10th Floor Chicago, Illinois 60654 dmihalopoulos@suntimes.com Mr. Ralph Price General Counsel Chicago Police Department 3510 South Michigan Avenue Chicago, Illinois 60653 pacola(&,chicagopolice.org by causing a true copy thereofto be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on June 27, 2016. SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor 500 South Second Street Springfield, Illinois 62706 217) 785- 5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter from the Chicago Sun-Times requested police staffing records from the Chicago Police Department. The Department sent an extension letter but did so 11 business days after receiving the request, which was untimely under FOIA. The Illinois Attorney General ruled that the Department violated section 3(d) of the Freedom of Information Act by failing to comply with, deny, or properly extend the time for response within the required 5 business days.","card_headline":"Police staffing levels by district and rank","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":69,"orig_master_id":19042,"dup_master_id":19270,"dup_sha256":"41e32d2e04a4f8d23d7caafca3bd92f8b5a528340207a6868670cffbabe1e6c3","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2016,"date_issued":"2016-07-26","case_number":"2016 PAC 41381","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 16-005 (Request for Review - 2016 PAC 41381).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 16-005 (Request for Review - 2016 PAC 41381).pdf","word_count":2193,"summary":"The Village of Dixmoor (Village) violated section 3(d) of FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Cynthia J. Mossuto . The Attorney General issued a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act .","plain_summary":"The requester sought a range of village financial records, including employee and elected officials' salaries, contractor payments, legal fees, and money owed to the village by elected officials, and the village government never responded at all, ignoring two follow-up inquiries from the Public Access Bureau. The Public Access Counselor held that the village's total silence constituted a denial under FOIA, violating the requirement to comply, extend, or deny within five business days. The village government was directed to produce all responsive records, subject only to permissible redactions, and to issue a proper written denial for any records it withholds.","holding":"The Village of Dixmoor violated section 3(d) of FOIA by failing to comply with, deny, or otherwise respond to the requester's FOIA request.","legal_question":"Whether a public body violates section 3(d) of FOIA by failing to provide any response to a written request for public records.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/3, 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Dixmoor","requesting_party":"Mossuto and Ms. Darden","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"duty to respond","subject_description":"The request sought records concerning Village employee positions, salaries, and contractor information.","ocr_status":"ok","ocr_quality":90.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-005.pdf","sha256":"3b2018feeb17a86d93be627d61feffd1f38c81cdd4982b705834035f42f88309","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","public records","government transparency"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan AUTORNEY GENERAL July 26, 2016 PUBLIC ACCESS OPINION 16-005 (Request for Review 2016 PAC 41381) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Ms. Cynthia J. Mossuto 14115 South Western, #338 Blue Island, Illinois 60406 The Honorable Juanita Darden Village Clerk/FOIA Officer Village of Dixmoor 170 West 145th Street Dixmoor, Illinois 60426 Dear Ms. Mossuto and Ms. Darden: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons discussed below, this office concludes that the Village of Dixmoor (Village) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2014)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Ms. Cynthia J. Mossuto. BACKGROUND On March 16, 2016, Ms. Mossuto submitted a seven-part FOIA request to the Village seeking: 1. Positions of all employees] of the Village of Dixmoor. 500 South Second Street. Springfield, Mlinais 62706 © (217) 782-1090 © “FUN: (877) 844-546) © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Iinois 60601 © (312) 814-3000 © “PLY: (800) 964-3013 © Fux: (312) 814-3806 601 South University Avenue, Suite 102. Carbondale, Hlingis 62901 © (618) 529-6400 © “TTY: (877) 675-9339 © Fax: (618) 529-6416 Ms. Cynthia J. Mossuto The Honorable Juanita Darden July 26, 2016 Page 2 2. Salaries of all positions for all positions of all employee(s] of the Village of Dixmoor. ° 3. Salaries of all elected officials of the Village of Dixmoor. 4. All names and license numbers of all contractors; including independent contractors who have done any kind of work for the Village of Dixmoor and received payment from the Village of Dixmoor. All billing and payments made to contractors, including independent contractors made by the Village of Dixmoor; dating January 1, 2014 through and including January 31, 2016. 5. All billing from legislative counsel and attorney fees from Delgado Group; billing and fees dated July 1, 2015 through and including January 31, 2016. 6. Any monies owed to the Village by any elected official; including Village President; and any Village Trustee; January 1, 2010 through and including January 31, 2016. 7. Salary of Public Works Superintendent Hubert Darden, and hours worked per week for the Village of Dixmoor by Hubert Darden.\" In a letter dated April 8, 2016, and received by the Public Access Bureau on April 15, 2016, Ms. Mossuto submitted a Request for Review alleging that the Village had failed to respond to her FOIA request.” As required by section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2014)), Ms. Mossuto provided this office with a copy of the FOIA request she submitted to the Village in support of her Request for Review. The FOIA request submitted by Ms. Mossuto bears a \"received\" stamp that has been initialed and dated March 16, 2016. Ms. Mossuto confirmed in a telephone conversation with this office that her FOIA request was stamped as received by the Village Clerk's Office when she hand-delivered it to the Village. On April 18, 2016, the Public Access Bureau forwarded a copy of the Request for Review to the Village and asked the Village to advise this office whether it had responded to Ms. ‘FOIA request from Cynthia J. Mossuto to Village of Dixmoor (March 16, 2016). \"Letter from Cynthia J. Mossuto to Illinois Attorney General, Attn: Steve Silverman (April 8, 2016). Ms. Cynthia J. Mossuto The Honorable Juanita Darden July 26, 2016 Page 3 Mossuto's FOIA request; ifi t had not yet responded to Ms. Mossuto, this office asked the Village to do so and to provide this office with a copy of its response.? The Village did not respond to the Public Access Bureau's April 18, 2016, correspondence. On May 6, 2016, the Public Access Bureau sent an e-mail to the Village Clerk, who serves as the Village's FOIA Officer, inquiring regarding the status of the Village's response. Copies of the Request for Review and this office's April 18, 2016, letter were attached.* The Village did not respond to the Public Access Bureau's May 6, 2016, e-mail. On May 16, 2016, the Public Access Bureau sent a second letter to the Village noting that the Village was obligated under section 9.5(c) of FOIA (5 ILCS 140/9. 5(c) (West 2014)) to advise this office whether it had responded to Ms. Mossuto's request.’ As of the date of this binding opinion, this office has not received confirmation that the Village has responded in any way to Ms. Mossuto's FOTA request. Pursuant to section 9.5(f) of FOIA, on June 14, 2016, this office properly extended the time in which to issue a binding opinion by 30 business days, to July 27, 2016.° ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2014). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2014)), \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its ‘Letter from Josh Jones, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Juanita Darden, Village Clerk/FOIA Officer, Village of Dixmoor (April 18, 2016). ‘E-mail from Josh Jones, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to [Juanita] Darden (May 6, 2016). *Letter from Josh Jones, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Juanita Darden, Village Clerk/FOIA Officer, Village of Dixmoor (May 16, 2016). ‘Letter from Josh Jones, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Cynthia J. Mossuto and Juanita Darden, Village Clerk/FOIA Officer, Village of Dixmoor (June 14, 2016). Ms. Cynthia J. Mossuto The Honorable Juanita Darden July 26, 2016 Page 4 receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g).17) The Village has not disputed that it failed, within 5 business days after its receipt of Ms. Mossuto's FOIA request, to comply with her request, to extend the time for its response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2014)), to notify Ms. Mossuto that the Village was treating the request as a voluminous request in accordance with section 3.6 of FOIA, or to deny the request in writing. The Village's failure to comply with the requisite procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On March 16, 2016, Ms. Cynthia J. Mossuto submitted a seven-part FOTA request to the Village of Dixmoor seeking copies of records pertaining to Village salaries, payments to contractors, legal fees, and other Village expenditures. The Village did not, within 5 business days after receipt of her FOIA request, comply with the request, extend the time for its response pursuant to section 3(e) of FOIA, notify Ms. Mossuto that the Village was treating the request as a voluminous request in accordance with section 3.6 of FOIA, or deny the request in whole or in part, as is required by section 3(d) of FOIA. Pursuant to section 3(d) of FOIA, the failure to do so constituted a denial of the FOIA request. 2) On April 8, 2016, Ms. Mossuto asked the Public Access Counselor and the Public Access Bureau to review the Village's denial of her FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2014)). \"See also 5 ILCS 140/3.6 (West 2014) (\"Notwithstanding any provision of this Act to the contrary, a public body shall respond to a voluminous request within 5 business days after receipt.\"). Ms. Cynthia J. Mossuto The Honorable Juanita Darden July 26, 2016 Page 5 3) On April 18, 2016, the Public Access Bureau forwarded a copy of Ms. Mossuto's Request for Review to the Village, together with a letter asking the Village to advise this office whether it had responded to Ms. Mossuto's March 16, 2016, FOIA request. The Village did not respond to that inquiry. | 4) On May 6, 2016, this office sent the Village's FOIA Officer an e-mail inquiring regarding the status of the Village's response to Ms. Mossuto's request. The FOTA Officer did not respond to that inquiry. 5) On May 16, 2016, this office sent the Village a second letter, reminding the Village that it is obligated under section 9.5(c) of FOIA to advise this office whether it has responded to Ms. Mossuto's request, To date, this office has received no confirmation or indication, official or otherwise, that the Village has responded to Ms. Mossuto's request. 6) On June 14, 2016, the Public Access Bureau properly extended the time period in which to issue a binding opinion to July 27, 2016. Accordingly, the Attorney General may issue a binding opinion with respect to this matter. Therefore, it is the opinion of the Attorney General that the Village has violated section 3(d) of FOIA by failing, within 5 business days after receiving Ms. Mossuto's March 16, 2016, FOIA request, to provide the requested records, to extend the time for its response pursuant to section 3(e) of FOIA, to notify Ms. Mossuto that the Village was treating the request as a voluminous request in accordance with section 3.6 of FOIA, or to deny the request in whole or in part. Accordingly, the Village is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. Mossuto with all records responsive to her March 16, 2016, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2015 Supp.)).® If the Village determines that any portion of the responsive records is exempt from disclosure under section 7, the Village is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2014)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a *Because the Village did not comply with the statutory requirements for responding to Ms. Mossuto's FOIA request, the Village is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d) (West 2014) (\"A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g).\"). Ms. Cynthia J. Mossuto The Honorable Juanita Darden July 26, 2016 Page 6 complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Cynthia J. Mossuto as defendants. See 5 [LCS 140/11.5 (West 2014). Sincerely, LISA MADIGAN ATTORNEY GENERAL By: Litetme€l),, i en Michael J, Luke Counsel to the Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 16-005) upon: Ms. Cynthia J. Mossuto 14115 South Western, #338 Blue Island, Illinois 60406 The Honorable Juanita Darden Village Clerk/FOIA Officer Village of Dixmoor 170 West 145\" Street Dixmoor, Illinois 60426 clerk@villageofdixmoor.org by causing a true copy thereof to be sent electronically to the address as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mai) at Springfield, Illinois on July 26, 2016. SARAH L. P . Public Access Counselor SARAH L. PRATT Public Access Counselor $00 South Second Street Springfield, Illinois 62706 (217) 785-5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Cynthia J. Mossuto requested public records from the Village of Dixmoor regarding employee salaries and contractor information, but the Village never responded to her request. The Illinois Attorney General ruled that the Village broke the law by ignoring the request entirely. Under FOIA, public bodies are legally required to respond to requests within a specific timeframe.","card_headline":"Employee positions, salaries, and contractor records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":70,"orig_master_id":19272,"dup_master_id":19043,"dup_sha256":"123d83bd12a7b2dc80d43d3412e63442afd429e6dd4622c61e253a0f835cc6d7","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2016,"date_issued":"2016-09-13","case_number":"2016 PAC 42395","request_numbers":null,"title":"Discussion of Legal Matters ° Under the Exception for Pending, Probable, or Imminent Litigation","filename":"PUBLIC ACCESS OPINION 16-007 (Request for Review - 2016 PAC 42395).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 16-007 (Request for Review - 2016 PAC 42395).pdf","word_count":4167,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a complaint about the Village of Lisle's Board of Trustees violating the Open Meetings Act during a closed meeting.","plain_summary":"The requester challenged a village government's board for closing part of a meeting to discuss \"pending/imminent litigation\" over a bond sale, after she had publicly stated during the same meeting that her group was not pursuing any lawsuit. The Public Access Counselor held that the board's closed-session minutes never recorded a specific basis for finding litigation probable or imminent as the Open Meetings Act requires, and that the board's stated concern about other, unspecified possible legal challenges to the bond sale did not amount to reasonable grounds to believe a lawsuit was more likely than not or close at hand — the mere possibility that opponents might sue is not enough to invoke the litigation exception. The village government was directed to disclose the closed-session recording concerning the bond sale and to bring future meetings into compliance.","holding":"The Board of Trustees of the Village of Lisle violated section 2(a) of the Open Meetings Act.","legal_question":"Did the Board of Trustees of the Village of Lisle violate the Open Meetings Act during its June 6, 2016 meeting?","disposition":"violation_found","primary_statute":["5 ILCS 120/2(a)","5 ILCS 120/2(c)(11)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(11)"],"public_body":"Village of Lisle Board of Trustees","requesting_party":"Ms. Carolyn Bartelli","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board improperly discussed the mere possibility of litigation in a closed session without meeting the threshold for 'pending, probable, or imminent' litigation.","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-007.pdf","sha256":"3ec5d5a820dead4f7944bdc114daeca304de6b3911ee474d22dafabf5ab8f891","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","litigation exception","Open Meetings Act","Village of Lisle"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"\"OFFICE OF THE ATTORNEY GENERAL\n_ STATE OF ILLINOIS ©\nLisa Madigan\nATTORNEY GENERAL\nSeptember 13, 2016\nPUBLIC ACCESS OPINION 16-007\n(Request for Review 2016 PAC 42395)\nOPEN MEETINGS ACT:\nDiscussion of Legal Matters °\nUnder the Exception for Pending,\nProbable, or Imminent Litigation\nMs. Carolyn Bartelli\n[street address redacted for site publication -- see original PDF]\nThe Honorable Joseph Broda\nMayor ,\nVillage of Lisle\n925 Burlington Avenue\nLisle, Illinois 60532\nDear Ms. Bartelli and Mayor Broda:\n. \\. {\n; This iisa4 binding opinion issued by the Attorney General pursuant to section\n3. 5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.S(e) (West 2015 Supp.)). For the\nreasons discussed below, this office concludes that the Board of Trustees of the Village of Lisle\n(Board) violated section 2a} of OMA (5 ILCS 120/2(a) (West 2015 Supp.)) at its June 6, 2016,\nmeeting by: (1) closing a portion of the meeting to discuss \"Pending/Imminent Litigation\"\nwithout recording or entering into the closed session minutes its basis for finding that litigation\nwas probable or imminent; and (2) discussing the mere possibility that opponents of a bond sale\nmight seek an injunction or initiate other legal action against the Board without reasonable\ngrounds to believe that a lawsuit was more likely than not to be instituted or that such an\noccurrence. was close at hand. ’\n° t\n500 South Second Street, Springfield, Hinois 62706 © (217) 782-1090 © “I°T'Y: (877) 844.5461 © Pax: (217} 782-7046\n100 West Randolph Street, Chicago, Hiinois 60601 © (312) 814-3000 © ‘I'I'Y: (800) 964-3013 © Fax: (312) 814-3806\n1001 East Main, Carbondale, Hlinois 62901 * (618) 529-6400 « TTY: (877) 675-9339 * Pax: (618) 529-6416 ED\ni\nMs. Carolyn Bartelli\nThe Honorable Joseph Broda\nSeptember 13, 2016\nPage 2\nBACKGROUND |\nOn June’ 14, 2016, Ms. Carolyn Bartell subimitted a Request for Review to the\nPubiic Access Counselor alleging that the Board violated OMA during its June 6, 2016, meeting\nby improperly discussing certain subjects ii n closeds ession pursuant to the exception for\n\"Pending/Imminent Litigation.” Ms. Bartelli explained that after the Board's attorney.\nannounced at a May 31, 2016, special meeting that he had determined that “no valid petition had\nbeen submitted for a backdoor referendum[ ]\"? concerning the sale ofc értain bonds, \"some\ncitizens in the group who had circulated petitions [seeking a referendum on the bond issue]\nmentioned that the Village attorney had left the citizen group with no other choice but to file a\nlawsuit.\"> She stated, however, that the bond sale was cancelled before the June 6, 2016,\nmeeting, and added:\nAt the June 6, 2016 meeting, | made it very clear that the group\n[which had circulated petitions seeking the referendum] would not\nbe taking any legal action against the Village regarding the petition\ndispute as we did not want the residents of the village to foot the\nVillage's additional legal costs when the Board could simply put\nthe referendum on the ballot voluntarily.\nWith no known pending or imminent litigation, the Board still\nwent into closed session. | am concerned that the discussion held\nin closed session was with regard to the bond sale and the validity\nof the petitions for a backdoor referendum and exceeded the scope\nof the exemption to the Open Meetings Act. :\n1E-mail from Carolyn Bartelli to the Public Access Counselor, Office of the Hlinois Attorney\nGeneral (June 14, 2016).\nSection 30) of the Local Government Debt Reform Act (30 ILCS 350/3(0) (West 2014)) defines\na “(bJackdoor referenduma”:\nthe submission of a public question to the voters of a governmental unit,\ninitiated by a petition of voters, residents or property owners of such\ngovernmental unit, to determine whether an action by the governing body of\nsuch governmental unit shall be effective, adopted or rejected,\n3E-mail from Carolyn Bartelli to the Public Access Counselor, Office of the Illinois Attorney\nGeneral (June 14, 2016).\n4E-mail from Carolyn Barielli to the Public Access Counselor, Office of the Hlinois Attorney\nGeneral (June 14, 2016).\nMs. Carolyn Bartelli\nThe Honorable Joseph Broda\nSeptember 13, 2016\nPage 3\nOn June 22, 2016, the Public Access Bureau sent a copy ‘of the Request for\nReview to the Village's Mayor and asked the Board to provide a written response to the\nallegationi n the Request for Review together with copies of the verbatim recording of the closed\nsession portion of the June 6, 2016, meeting and the meeting minutes or draft minutes.) Ina\nletter dated July 15, 2016, counsel for the Village of Lisle furnished those materials and asserted\nin his written response that the Board properly entered closed session to discuss a \"possible\ninjunction and other legal action that had been threatened to overturn the Village Board's\ndecision to refinance certain bonds.\"* On July 20, 2016, this office sent a copy of that response\nto Ms. Bartelli.? On July 25, 2016, Ms. Barteili submitted a reply to the Village's response and\ncontended that the Board was not authorized to enter closed session to discuss \"possible\"\nlitigation that was not imminent or probable? :\nOn August 12, 2016, this office extended the time within which to issue a\nbinding opinion by 21 business days pursuant to section 3.5(e) of OMA.”\nANALYSIS\nOMaA is intended “to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2014). Section 2(a) of OMA\nprovides that \"[a]il meetings of public bodies shall be open to the public unless excepted in\nsubsection (c) and closed in accordance with Section 2a.” Such exceptions “are in derogation of\nthe requirement that public bodies meet in the open, and therefore, the exceptions are to be\nstrictly construed, extending only to subjects clearly within their scope.\" (Emphasis added.)\n5 ILCS 120/2(b) (West 2015 Supp.).\nSection 2(c)(11) of OMA GILCS 120/2(e)(1 1) (West 2015 Supp.)) permits a\npublic body to enter into closed session to discuss \"[l]itigation, when an action against, affecting\nor on behalf of the particular public body has been filed andi s pending before a court or\n‘\nSLetter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to the Honorable Joseph Broda, Mayor, Village of Lisle (June 22, 2016).\n‘Letter from Robert K. Bush, Ancel Glink Diamond Bush DiCianni & Krathefer, to Steve\nSilverman, Assistant Bureau Chief, Public Access Bureau (July 15, 2016), at 2.\n,\n7Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Carolyn Bartelli July 20, 2016).\n8B mail from Carolyn Bartelli to Steve Silverman (July 25, 2016). c\n®Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral to Carolyn Bartelli and The Honorable Joseph Broda, Mayor, Village of Lisle (August 12, 2016).\nMs. Carolyn Bartelli ~\nThe Honorable Joseph Broda\nSeptember 13, 2016\nPage 4\nadministrative tribunal, or when the public bodfiyn ds that an action is probable or imminent, in\nwhich case the basis for the finding shall be recorded and entered into the minutes of the closed\nmeeting.” In Henry v. Anderson, 356 lll. App. 3d 952, 953 (4th Dist. 2005), the Illinois\nAppellate Court analyzed this exception in considering whether a school board viclated OMA by\nannouncing that it was closing a meeting to discuss \"potential\" litigation without making a\nfinding that litigation was \"probable\" or \"imminent.\" During the meeting, the school board\napproved an agenda that referred to an executive session for \"potential litigation,” but then cited\n\"a contested litigation matter\" in the subsequent motion to enter closed session. (Emphasis in\noriginal.) Henry, 356 Il. App. 3d at 954. The court characterized the section 2(c)(11) exception\nas \"a forked path[:}\" '\nIf the litigation has been filed and is pending, the public, body need\nonly announce that in the proposed closed meeting, it will discuss\nlitigation that has been filed and is pending. If the litigation has not\nyet been filed, the public body must (1) find that the litigation is\nprobable or imminent and (2) record and enter into the minutes the\nbasis for that finding. Evidently, the legislature intended ta\nprevent public bodies from using the distant possibility of\nlitigation as a pretextf or closing their meetings to the public.\n(Emphasis added.) Henry, 356 Ill. App. 3d at 956-57.\nThe court then concluded that the school board violated OMA by entering closed session without\nclarifying whether the \"litigation\" to be discussed was pending or “by failing to state, on the\nrecord, (1) a finding that litigation was probable or imminent and (2) a basis for such a finding.”\nHenry, 356 Il. App. 3d at 957.\nAttorney General Hartigan analyzed an earlier but substantively identical version\nof section 2(c)(11) of OMAi n connection with a city council's closed session discussion related\nto the possibility of litigation'i n the event that a proposed annexation was approved. Ill. Att'y\nGen. Op. No. 83-026, issued December 23, 1983.'° Based on judicial definitions of \"probable\"\nand \"imminent,\" he stated that \"[flor litigation to be probable or imminent, warranting the\n‘At the time of the issuance of opinion No. 83-026, section 2 of OMA excepted from the open\nmeeting requirements:\nmeetings held to discuss litigation when an action against or on behalf of the\nparticular public body has been filed-and is pending in a court or administrative\ntribunal, or when, the public body finds that such an action is probable or\nimminent, in which case the basis for such a finding shall be recorded and\nentered into the minutes of the closed meeting in accordance with Section 2.06.\nIll Rev. Stat. 1981, ch. 102, par. 42(h). :\nMs. Carolyn Bartelli ;\nThe Honorable Joseph Broda\nSeptember 13, 2016\nPage 5 :\nclosing of a meeting, there must be reasonable grounds to believe that a lawsuit is more likely\nthan not to be instituted or that such an occurrence is close at hand.\" Ill. Att'y Gen. Op. No. 83-\n026, at 10. Indeed, “{t]he fact that the public body may become a party to judicial proceedings\nbecause of the action it takes.does not permit it to utilize the litigation exception to conduct its\ndeliberations in closed sessions.\" (Emphasis added.) Ill. Att'y Gen. Op. No. 83-026, at 12.\nBecause it was undisputed that an attorney who represented annexation opponents declared that\nlitigation was not being contemplated and because litigation over the annexation could not be\nprobable or imminent until the city council approved the annexation, Attorney General Hartigan\nconcluded that the city council improperly entered closed session under the litigation exception.\nIll. Att'y Gen. Op. No. 83-026, at 11-13. Further, he opined that \"if the possibility of a lawsuit\nover the annexation\" influenced the city council's decision on whether to annex the property, that\n“matter should have been discussed in an open meeting since it goes to the merits of the question\nrather than to the litigation itself. * * * [T]he only matters which may lawfully be discussed at\nthe closed meeting are the strategies, posture, theories, and consequences of the litigation\nitself.\" (Emphasis added.) Ill. Att'y Gen. Op. No. 83-026, at 13-14.\nHere, the meeting at issue followed a May 31, 2016, special meeting during which\nseveral members of the public addressed the Board concerning a proposed resolution to issue\nnew bonds for the Benedictine Sports Complex Facilities.'! After the Village attorney advised\nthat a petition seeking a referendum on the bond issue was inadequate,'? Ms. Bartelli stated that\nthe Board was \"ignoring the residents who hoped to have a voice in the process[,]\" and that \"the\nVillagei s forcing a lawsuit and it may be the course of action they have to take.\" _The Board\nthen held a roll call vote and approved the resolution to issue bonds.'*\nThe agenda of the Board's June 6, 2016, regular meeting listed an executive\nsession for \"Pending/Imminent Litigation.\" During the public comment portion of that\nmeeting, Ms. Bartelli addressed the Board to clarify that her group did not want the Village to\nincur additional icgal expenses that would have to be paid by Village taxpayers and therefore\nt\n“Village of Lisle Board of Trustees, Special Meeting, May 31, 2016, Minutes 2-4.\n? Village of Lisle Board of Trustees, Special Meeting, May 31,2016, Minute3s.\n3Village of Lisle Board of Trustees, Special Meeting, May 31, 2016, Minutes 4.\n“Village of Lisle Board of Trustees, Special Meeting, May 31, 2016, Minutes 4-5. .\n8Village of Lisle Board of Trustees, Regular Meeting, Agenda ttem VIIL A., Pending/Imminent\nLitigation (June 6, 2016).\n’\n,\nMs. Carolyn Bartelli\nThe Honorable Joseph Broda\nSeptember 13, 2016\nPage 6\nwas \"not proceeding with a lawsuit. So I wanted to make it clear that if this is in fact the pending\nor imminent litigation, therei s-none on our part. \"l6 Following public comment, the Board\napproved a motion to enter closed session \"to discuss pending, imminent litigation. wa\nIn her Request for Review, Ms. Bartelli contended that the Board entered into\nclosed session despite \"no known pending or imminent litigation[.]\"'* The Board's response to\nthis office stated, in pertinent part:\nThe Village Board's discussion in closed session was limited to a\ndiscussion of a possible injunction and other legal action that had\nbeen threatened to overturn the Village Board's decision to\nrefinance certain bonds. The Village Board did not rely on threats\nmade by the citizen's group at the May 31, 2016 meeting to go\ninto closed session. Instead, the Village Board relied on the\nfollowing to support its reasons for going into closed session:\n1 t\nDuring the course of the closed session it was specifically\ncommented upon that the Board was not there to consider any\nalleged threat made by Ms. Bartelli. Rather, the Board had serious\nconcerns about other challenges which might be brought formally\nagainst the Village to stop the sale of bonds to refinance certain\nVillage debt. The Village had adopted bond ordinances which —\ncalled for the issuancoef alternate revenue bonds. Under Illinois\nlaw, thei ssuance of alternative revenue bonds are subject to a\nbackdoor referendum. A number of residents had submitted papers|\nwith signatures to the Village Clerk. There were and are a number\nof reasons why these papers failed to meet the thresholds sufficient\nto constitute a valid petition seeking a referendum _on the alternate\nrevenue bonds; * * * Bond Counsel,C hapman and Cutler, has\nexpressed Significant concerns over even these substantively :\nflawed papers sufficientt o give the Village the opinion it could not\nauthorize the sale of the refunding bonds until and unless the\nVillage of Lisle Board of Trustees Meeting, Regular Meeting, June 6, 2016, Video File,\navailable at https://www.youtube.com/watch?v=MkPfeka9tumreJ=FynouRtuM.b&e, (32:53-33:03).\n\"Village of Lisle Board of Trustees Meeting, Regular Meeting, June 6, 2016, Video File,\navailable at bttps:/;www. youtube.com/watch?v=MkPk9mJ FnaRM& feature=youtu.be, (35:50-3165):.\nBE-mail from Carolyn Bartelli to the Public Access Counselor, Office of the Illinois Attorney\nGeneral (June 14, 2016).\nMs. Carolyn Bartelli\nThe Honorable Joseph Broda -\nSeptember 13, 2016-\nPage 7\npotential for litigation over the referendum petitions was resolved.\nThis was the topic for which we went into closed session, which\nwas identified in the closed session and which was the primary\nsubject of the closed session conversation. (Emphasis added.)\nThis office has reviewed the minutes and the verbatim recording of the Board's\nJune 6, 2016, closed session discussion. In its closed session minutes, the Board used the generic\nterm \"Probable/Imminent Litigation” to reference the section 2(c)(11) exception. © The Board\ndid not record or enter into the closed session minutes a specific basis for finding that litigation\nwas probable or imminent, which is required by section 2(c)(11).\nThe majority of the closed session discussion concerned the possibility that\nlitigation would be filed by opponents of the bond sale.?! In its response to this office, the Board\ndescribed the closed session discussion as concerning \"a possible injunction and other legal\naction that had been threatened to overturn the Village Board's decision to refinance certain\nbonds.\" Although Ms. Bartelli had suggested that such litigation might-be filed when she\naddressed the Board at its May 31, 2016, special meeting, she expressly stated during the public\ncomment portion of the subsequent June 6, 2016, meeting ~ before the Board entered closed\nsession — that litigation was not being contemplated and would not be filed. The Board's\nresponse to this office notes that \"[d]uring the course of the closed session it was specifically\ncommented upon that the Board was not there to consider any alleged threat made by Ms.\nBartelli.\"”? Instead, the Board stated that it \"had serious concerns about other challenges which\nmight be brought formally against the Village to stop the sale of bonds to refinance certain\nVillage debt.\" The Board alse stated that its bond counsel expressed concerns over “the potential\nfor litigation over the referendum petitions.\"\nLetter from Robert K. Bush, Ancel Glink Diamond Bush DiCianni & Krathefer, to Steve\nSilverman, Assistant Bureau Chief, Public Access Bureau (July 15, 2016), at 2.\nVillage of Lisle Board of Trustees, Meeting, June 6, 2016, Executive Session Minutes, |\n:\n2IThe June 6, 2016, agenda and the Board's motion to close the meeting included \"pending,\" as\nwell as \"probable or imminent\" litigation. A very brief portion of the closed session discussion concerned a\nseparate, earlier Request for Review pending before the Public Access Counselor, Because Ms. Bartelli expressed\nconcern only with regard to the Board's reliance on the earlier statements of the group ofc itizens who circulated\npetitions for a backdoor referendum, we have limited this office's review to the specific iissue set out in Ms.\nBartelli's June 14, 2016, correspondence. ,\n221 etter from Robert K. Bush, Ancel Glink Diamond Bush DiCianni & Krathefer, to Steve -\nSilverman, Assistant Bureau Chief, Public Access Bureau (July 15, 2016), at 2.\n23Letter from Robert K. Bush, Ancel Glink Diamond Bush DiCianni & Krathefer, to Steve\nSilverman, Assistant Bureau Chief, Public Access Bureau (July 15, 2016), at 2.\nMs. Carolyn Bartelli ;\nThe Honorable Joseph Broda\nSeptember 13,2016 . ~\nPage 8\nWithout further detail, however, the Board has not identified any facts\ndemonstrating that it had reasonable grounds to believe that litigation to stop the bond sale or\nover the referendum petitions was \"probable\" or \"imminent\" at the time of the June 6, 2016,\nmeeting. Narrowly-construed, as OMA requires it to be, the section 2(c)(1 1) exception does not\npermit a public body to enter closed session to discuss the possibility of litigation merely because\nit has taken action that generated public opposition, such as a backdoor referendum effort. In the\nabsence of reasonable, specifically identified grounds to believe that litigation was close at hand\nor more likely than not to ensue, the mere possibility that a lawsuit might be filed does not\nconstitute \"probable\" or \"imminent\" litigation within the scope of section 2(c}(11) of OMA.\nMoreover, the minutes of the June 6, 2016, meeting indicate that although the bonds had been\nexpected to be auctioned earlier in the day, the \"sale did not happen, the Board and Bond\nCounsel have postponed the sale to ensure everything was in proper order.\"** The decision by\nbond counsel to hold off on approving the issuance of bonds until “potential” litigation was\nresolved does not change this analysis. Accordingly, this office concludes that the Board's\nclosed session discussion concerning the possibility of future litigation violated section 2(a) of\nOMA. ‘\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments presented,\nthe. Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n; , i) On June 6, 2016, the Village of Lisle Board of Trustees closed a portion of its\nmeeting to the public to discuss “Pending/Imminent Litigation.\"\n2) On June 14, 2016, Ms. Carolyn Bartelli submitteda Request for Review to the\nPublic Access Counselor alleging that the Board's June 6, 2016, closed session discussion was\nimproper because the discussion did not involve either pending or imminent litigation. .\n, i\n3) On June 22, 2016, the Public Access Bureau sent a copy of the Request for\nReview to the Village's Mayor and asked the Board to provide a written response to the\nallegation in the Request for Review together with copies. of the verbatim recording of the closed\nsession portion of the June 6, 2016, meeting and the meeting minutes or draft minutes.\n4) By letter dated July 15, 2016, counsel for the Village of Lisle furnished the\nrequested materials and asserted in his written response that the Board properly entered into\nclosed session to discuss a \"possible injunction and other legal action that had been threatened to\noverturn the Village Board's decision to refinance certain bonds.\" ©\n*Village of Lisle Board of Trustees, Regular Meeting, June 6, 2016, Minutes 6.\nMs. Carolyn Bartelli\nThe Honorable Joseph Broda:\nSeptember 13, 2016 ,\nPage 9\n5) On July 20, 2016, this office sent a copy of that response to Ms. Bartelli. On\nJuly 25, 2016, Ms. Bartelli submitted a reply contending that the Board was not authorized to\nenter closed session to discuss \"possible\" litigation that was neither probable nor imminent.\n6) On August 12, 2016, this office extended the time within which to issue a\nbinding opinion by 21 business days, to September 13, 2016, pursuant to section 3.5(e) of OMA.\nTherefore, the Attorney General may properly issue a binding opinion with respect to this matter.\n7) Section 2(a) of OMA requires that all meetings of public bodies be open to the\npublic unless the subject of the meeting is covered by one of the limited exceptions enumerated\nin section 2(c). Section 2(c)(11} permits a public body to close a portion of a meeting to discuss\n\"[l]itigation, when an action against, affecting or on behalf of the particular public body has been\nfiled and is pending before a court or administrative tribunal, or when the public body finds that\nan action is probable or imminent, in which case the basis for the finding shall be recorded and\nentered into the minutes of the closed meeting.\"\n8) If there is no litigation pending, then a public body must have reasonable\ngrounds to believe that litigation is more likely than not to be instituted or that such an\noccurrence is close at handi n order to properly discuss a matier in a closed meeting pursuant to\nsection 2(c)(11} of OMA.\n9) At the time.of June 6, 2016, meeting, the Board did not have reasonable\ngrounds to find that an injunction or other legal action related to the Board's decision to issue\nnew bonds for the Benedictine Sports Complex Facilities was probable or imminent.\nAccordingly, the Board violated section 2(a) of OMA by discussing the mere possibility of _\nlitigation in a closed session, . ;\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to remedy this violation by disclosing to Ms. Bartelli arid making publicly available that\nportion of the closed session verbatim recording ofi ts June 6,.2016, meeting related to the bond\nsale. The Boardi s also directed to conducti ts future meetings in full compliance with OMA. As\nrequired by section 3.5(e) of OMA, the Board shall either take necessary action as soon as\npractical to comply with the directives of this opinion or shall initiate administrative review\nunder section 7.5 of OMA. 5 ILCS 120/7. 5 (West 2014). .\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2014). An aggrieved party may obtain judicial|r eview of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nMs. Carolyn Bartelli :\nThe Honorable Joseph Broda\nSeptember 13, 2016\nPage 10 ©\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Ms.\nCarolyn Bartelli as defendants. See 5 ILCS 120/7.5 (West 2014).\nVery truly yours,\nLISA MADIGAN\n_ ATTORNEY GENERAL |\nBy: lab\nMichael J. Luke\nCounsel to the Attorney General\nce: Mr. Robert K. Bush .\nAncel, Glink, Diamond, '\nBush, DiCianni & Krathefer, P.C.\n140 South Dearborn Street, Suite 600\nChicago, Illinois 60603\nCERTIFICATE OF SERVICE\nSarah L. Pratt, Public Access Counselor, hereby certifies that she has served a\ncopy of the foregoing Binding Opinion (Public Access Opinion 16-007) upon:\nMs. Carolyn Bartelli\n5224 Riverview Drive\nLisle, Illinois 60532\ncarolyn_bartelli@yahoo.com\nThe Honorable Joseph Broda\nMayor\nVillage of Lisle\n; 925 Burlington Avenue\n' Lisle, Illinois 60532 ,\njbroda@villageoflisle.org\nMr. Robert K. Bush\nAncel, Glink, Diamond,\nBush, DiCianni & Krathefer, P.C.\n140 South Dearborn Street, Suite 600\nChicago, [linois 60603\nrbush@ancelglink.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Springfield, Illinois on September 13, 2016.\nSARAH L. PRATT\nPublic Access Counselor\nSARAH L. PRATT\nPublic Access Counselor\n500 South Second Street\nSpringfield, Illinois 62706\n(217) 785-5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Village of Lisle Board of Trustees held a closed-door meeting to discuss potential legal action regarding a bond sale. The Attorney General found this was illegal because the Board did not have a reasonable belief that a lawsuit was actually imminent, and they failed to properly record their reasons for closing the meeting. This means the Board must ensure they only close meetings for specific, well-founded legal threats and properly document their decisions to do so.","card_headline":"Closed-session discussion of possible litigation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":71,"orig_master_id":19044,"dup_master_id":19277,"dup_sha256":"e6684de03b9eb5f4b83ffeb307418cfb65e2d905e7ce4041f6c802ec543e06ee","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2016,"date_issued":"2016-08-09","case_number":"2016 PAC 41657","request_numbers":null,"title":"Disclosure of E-Mails from Public Employees’ Personal E-Mail Accounts Pertaining to Transaction of Public Business; Duty to Conduct Reasonable Search for Responsive Records","filename":"PUBLIC ACCESS OPINION 16-006 (Request for Review - 2016 PAC 41657).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 16-006 (Request for Review - 2016 PAC 41657).pdf","word_count":2421,"summary":"Attorney General Lisa Madigan: Chicago Police Department violated the requirements of FOIA by failing to conduct an adequate search for all e-mails responsive to a January 28, 2016, FOIA request submitted by Ms. Courtney Yager of Cable News Network, Inc. (CNN)","plain_summary":"The requester, a news organization, sought emails from named police officers' work and personal accounts relating to a fatal police shooting, and the police department produced dozens of official-account emails but never sought records from officers' personal accounts and searched using only a single term. The Public Access Counselor held that personal-account emails documenting public business are public records the department cannot decline to search for, and that limiting the search to one proper name was not reasonably calculated to locate all responsive records given other likely references to the incident. The police department was directed to search personal accounts and expand its search terms, then produce any additional responsive records.","holding":"The Chicago Police Department violated FOIA by failing to conduct an adequate search for responsive records, including those held in personal e-mail accounts used for public business.","legal_question":"Whether a public body violates FOIA by failing to conduct an adequate search for responsive records, including those contained in personal e-mail accounts used to conduct public business.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(1), 5 ILCS 140/3(a), 5 ILCS 140/2(c), 5 ILCS 140/2(a), 5 ILCS 140/1, 5 ILCS 140/7, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":"7(1)(c)","public_body":"Chicago Police Department","requesting_party":"Shenkman and Ms. Valente","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"police records","subject_description":"The request sought emails from official and personal accounts of CPD officers regarding the Laquan McDonald case.","ocr_status":"ok","ocr_quality":89,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-006.pdf","sha256":"99a3640d55ffde925fd0989095583abdaa6722a7bf56da252393c9b908f76fe5","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police records","personal email","search adequacy","public business"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF TLLINOIS Lisa Madigan NPVORNEY GENERAL August 9, 2016 PUBLIC ACCESS OPINION 16-006 (Request for Review 2016 PAC 41657) FREEDOM OF INFORMATION ACT: Disclosure of E-Mails from Public Employees’ Personal E-Mail Accounts Pertaining to Transaction of Public Business; Duty to Conduct Reasonable Search for Responsive Records Mr. Drew Shenkman Counsel, CNN One CNN Center Atlanta, Georgia 30303 Ms. Charise Valente General Counsel Chicago Police Department Office of Legal Affairs 3510 South Michigan, 5th Floor Chicago, Illinois 60653 Dear Mr. Shenkman and Ms. Valente: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons discussed below, this office concludes that the Chicago Police Department (CPD) violated the requirements of FOIA by failing to conduct an adequate search for all e-mails responsive to a January 28, 2016, FOIA request submitted by Ms. Courtney Yager of Cable News Network, Inc. (CNN). 500 South Sceond Street, Springfield, INinois 62706 © (217) 782-1090 © “I’'T'Y¥: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Hlinois 60601 © (312) 814-3000 © “TTY: (800) 964-3013 © Fax: (312) 814-3806 401 South University Avenue, Suite 102, Carbondile, Illinois 62901 © (618) 529-6400 © ‘TTY: (877) 675-9339 © Fax: (618) 529-6416 Mr. Drew Shenkman Ms. Charise Valente August 9, 2016 Page 2 BACKGROUND On January 28, 2016, Ms. Yager, on behalf of CNN, submitted a FOIA request to CPD seeking “all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed” for 12 named CPD officers! for the date ranges of October 19 through October 24, 2014, and November 19 through November 29, 201572 On February 5, 2016, Ms. Yager agreed to extend the deadline for responding to her request for e-mails to March 4, 2016. On April 19, 2016, CPD sent a series of e-mails with attachments totaling over 500 pages to Ms. Yager in response to her request.’ CPD's response did not cite any exemptions or provide any explanation of the records provided. On April 28, 2016, Mr. Drew Shenkman, Counsel for CNN, filed a Request for Review with the Public Access Counselor and the Public Access Bureau alleging that the records that CNN had received from CPD, although voluminous, were unresponsive to CNN's FOIA request: Upon receipt, Ms. Yager contacted the Department's FOIA officer * * * and noted the lack of any responsive records to which she was told over the phone that the records provided were all of the records found in their search. Thus, we must deem our request to have been denied, in clear violation of FOIA. Indeed, it appears to us that the Department may not have even conducted an adequate search for such records, since not a single responsive email was actually produced.!°! 'Officer Jason Van Dyke, Officer Joseph Walsh, Officer Janet Mondragon, Officer Dora Fontaine, Officer Daphne Sebastian, Officer Ricardo Viramontes, Officer Thomas Gaffney, Officer Joseph Mcelligott, Officer Leticia Velez, Officer Arturo Bacerra, Deputy Chief David McNaughton, and Detective David March. ?On October 20, 2014, Laquan McDonald was shot and killed by Chicago Police Officer Jason Van Dyke. The shooting was recorded on video by a CPD dashboard camera. A civil action was filed in Cook County Circuit Court related to the release of the video. Smith v. Chicago Police Department, Docket No. 2015 CH 11780 (Circuit Court, Cook County). On November 19, 2015, the circuit court ordered the release of the video recording on or before November 25, 2015. Memorandum Opinion and Order, Smith v. Chicago Police Department, Docket No. 2015 CH 11780, slip op. at 18 (Circuit Court, Cook County). CPD publicly released the video recording on November 24, 2015. *E-mail from Courtney Yager, Producer, CNN, to Chicago Police Department, Attn: Freedom of Information Officer (January 28, 2016). “E-mail from foia@chicagopolice.org to Courtney Yager (April 19, 2016). °E-mail from Drew Shenkman, Counsel, CNN, to Public Access [Bureau] (April 28, 2016). Mr. Drew Shenkman Ms. Charise Valente August 9, 2016 Page 3 On May 5, 2016, the Public Access Bureau sent a copy of the Request for Review to CPD and asked it to provide a detailed description of the processing of Ms. Yager's FOIA request and the measures taken by CPD to search for responsive records, including a description of the specific recordkeeping systems that were searched, the method of that search, and the specific individuals who were consulted.® On June 1, 2016, CPD submitted a written response to this office.’ CPD explained that it had searched the CPD e-mail system for the 12 named officers for the requested time periods and the search resulted in 47 e-mails. CPD described some of the responsive e-mails as being \"News Clips\" produced by CPD's Office of News Affairs that contained references to Laquan McDonald. According to CPD, 24 of the other e- mails were 12 identical copies of two CPD office-wide e-mails sent on November 24, 2015, and November 25, 2015, regarding the release of the dashboard camera video.* CPD provided this office with copies of the records in both redacted and un-redacted forms.” The Public Access Bureau forwarded a copy of CPD's response to Mr. Shenkman on June 2, 2016.'° On June 9, 2016, Mr. Shenkman replied to CPD's response. With respect to CPD's search for records on personal e-mail accounts, Mr. Shenkman contended: [i]t appears that the Department only searched for emails on the officers’ city-issued email address, and not on any other platforms or devices, including personal email accounts. Even if the Department does not retain control over personal email or devices, it still has a duty to request copies of such communications that °Letter from Neil P. Olson, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Ralph Price, General Counsel, Chicago Police Department (May 5, 2016). \"Letter from Ryan Nelligan, Office of Legal Affairs, Department of Police, City of Chicago, to Office of the Attorney General, Neil Olson, Assistant Attorney General, (June 1, 2016). *Letter from Ryan Nelligan, Office of Legal Affairs, Department of Police, City of Chicago, to Office of the Attorney General, Neil Olson, Assistant Attorney General (June 1, 2016). *CPD asserted that it made some limited redactions to the records under sections 7(1)(b) and 7(1)(c) of FOIA (5 ILCS 140/7(1)(b), (1)(c) (West 2015 Supp.)). In an e-mail to the Public Access Bureau on July 28, 2016, Mr. Shenkman confirmed that he was not seeking review of those redactions. Therefore, this office does not address the redactions in this binding opinion. “Letter from Neil P. Olson, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Drew Shenkman, Counsel, CNN (June 2, 2016). Mr. Drew Shenkman Ms. Charise Valente August 9, 2016 Page 4 relate to the officer's public service role and/or in the performance of their government function,!!! Mr. Shenkman also questioned the adequacy of CPD's search for responsive records: Regardless of the email accounts and devices actually searched, it is entirely unclear to us the search terms and/or parameters the Department actually undertook in conducting its search. Obviously, the search terms used, and the review procedures utilized that would identify highly-relevant documents that might not be found using a search term, are crucial to obtaining CNN's satisfaction that the Department has engaged in a fulsome search responsive to CNN's FOIA request.!\"! On June 10, 2016, the Public Access Bureau sent CPDa letter requesting additional information about the measures taken by CPD to search for responsive records.'? The letter requested that CPD \"describe the methods used to search CPD e-mail accounts, andin _ particular, which search terms were used[ ]\" [...] of that account). Under the requirements of FOIA, CPD may not decline to search for e-mails contained on personal accounts. In addition, with respect to the search of the CPD e-mail accounts, CPD limited its search to any message containing the term \"Laquan McDonald.\" This search term, however, does not account for other references to Mr. McDonald that might have been used in e-mail communications by CPD officers. At the time of the shooting in October 2014, Mr. McDonald's name may not have been widely known, but there may have been references to the incident either by the involved officer, the incident number, the incident's location, or a physical description of Mr. McDonald. In addition, both Mr. McDonald's first and last names may have been spelled differently in some e-mails. Under the circumstances, the use of a full proper name as the single search term was not reasonably calculated to discover all relevant records. Therefore, this office also concludes that CPD has failed to demonstrate that it conducted an adequate search of CPD e-mail accounts. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the available information, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On January 28, 2016, Ms. Courtney Yager, on behalf of CNN, submitted a FOIA request to CPD seeking \"all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed\" for 12 named CPD officers for the date ranges of October 19 through October 24, 2014, and November 19 through November 29, 2015. 2) On April 19, 2016, CPD furnished records to Ms. Yager that it deemed responsive to her request. 3) On April 28, 2016, Mr. Drew Shenkman, Counsel for CNN, filed a Request for Review with the Public Access Counselor and the Public Access Bureau alleging that CPD had not conducted an adequate search for responsive records. Mr. Shenkman’'s Request for Mr. Drew Shenkman Ms. Charise Valente August 9, 2016 Page 12 Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2014)). 4) On May 5, 2016, the Public Access Bureau forwarded a copy of the Request for Review to CPD and asked it to provide a detailed description of the handling of Ms. Yager's request and the measures taken by CPD to search for responsive records, including a description of the specific recordkeeping systems that were searched, the method of that search, and the specific individuals who were consulted. 5) On June 1, 2016, CPD responded that it had searched the CPD e-mail accounts for the 12 named officers during the two specified time periods. 6) On June 10, 2016, the Public Access Bureau sent CPD a letter requesting additional information about the measures taken by CPD to search for responsive records. The letter requested that CPD \"describe the methods used to search CPD e-mail accounts, and in particular, which search terms were used\" and address whether CPD \"conducted a search of personal email accounts to discover emails in which CPD business was discussed.\" 7) On July 19, 2016, CPD submitted a supplemental response to this office. CPD stated that it had not conducted a search of personal e-mail accounts for responsive records because e-mails on those accounts are not \"public records\" as defined in section 2(c) of FOIA. It also described its search of CPD e-mail accounts as using the term \"Laquan McDonald\" and provided records documenting that search. 8) On June 27, 2016, the Public Access Bureau properly extended the time in which to issue a binding opinion by 30 business days, to August 9, 2016, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 9) The e-mails pertaining to the transaction of public business on the personal e- mail accounts of public employees, such as the CPD officers, are \"public records\" as defined in section 2(c) of FOIA. 10) CPD has not demonstrated that it conducted a reasonably adequate search for all responsive records because it did not seek to obtain responsive records from the personal e- mail accounts of the named CPD officers. 11) Further, CPD has not demonstrated that it conducted a reasonably adequate search for all responsive records because it limited its search of CPD e-mail accounts to a single proper name. Mr. Drew Shenkman Ms. Charise Valente August 9, 2016 Page 13 Therefore, it is the opinion of the Attorney General that CPD's response to Ms. Yager's Freedom of Information Act request violated the requirements of the Act. Accordingly, CPD is directed to take immediate and appropriate action to comply with this opinion by conducting a search of the personal e-mail accounts of the 12 named CPD officers. As described above, CPD may initially conduct this search by asking the 12 CPD officers whether they maintain any records responsive to the request, and, if so, by requiring the officers to provide copies of the records to CPD's FOIA Officer. CPD is also directed to expand the scope of its search of CPD e-mail accounts to include other search terms, such as alternate name spellings, the name of the involved officers, the incident number, the location of the incident, and a physical description of Mr. McDonald. Thereafter, CPD is directed to furnish Ms. Yager with any additional responsive records, subject to appropriate redactions under section 7 of FOIA (5 ILCS 140/7 (West 2015 Supp.)). This opinion shall be considered a final decision of an administrative agency for ' the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Courtney Yager as defendants. See 5 ILCS 140/11.5 (West 2014). Very truly yours, LISA MADIGAN ATTORNEY GENERAL how S42. Michael J. Luke | Counsel to the Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 16-006) upon: Mr. Drew Shenkman Counsel, CNN One CNN Center Atlanta, Georgia 30303 drew.shenkman@lturner.com Ms. Charise Valente General Counsel Chicago Police Department 3510 South Michigan Avenue Chicago, Illinois 60653 pacola@chicagopolice.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on August 9, 2016. acdA. Catt: SARAH L. PRAT~T~ Public Access Counselor SARAH L. PRATT Public Access Counselor 500 South Second Street Springfield, Illinois 62706 (217) 785-5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"CNN requested emails from the Chicago Police Department regarding the Laquan McDonald case, specifically asking for emails from both official and personal accounts used by officers. The Attorney General found that the police department failed to perform a thorough enough search to find all the requested records. This means public bodies must search personal accounts if those accounts were used to conduct official government business.","card_headline":"Police officers' personal emails about a case","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":72,"orig_master_id":19274,"dup_master_id":19045,"dup_sha256":"ee78cac8bf794cc52ba542f728e1d2625569fd5c45e3d909ce3e22b99f70097f","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2016,"date_issued":"2016-11-01","case_number":"2016 PAC 43069","request_numbers":null,"title":"Improper Denial of a Request for Records as Unduly Burdensome","filename":"PUBLIC ACCESS OPINION 16-008 (Request for Review - 2016 PAC 43069).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 16-008 (Request for Review - 2016 PAC 43069).pdf","word_count":3922,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request made by Ms. Mary Drumm to the City of Collinsville, which was denied as unduly burdensome.","plain_summary":"The requester sought emails between the city manager and a private planning firm over a one-month period, and the city government responded by asking her to narrow the request so that responding would no longer be unduly burdensome, which the Public Access Counselor held functioned as a denial under the unduly-burdensome provision regardless of the city's stated intent. The Public Access Counselor concluded that the city government's showing -- that reviewing roughly 174 pages would take a few hours of two employees' time -- did not amount to clear and convincing evidence that the burden of compliance outweighed the public interest in the narrowly targeted request. The city government was directed to produce the requested emails.","holding":"The City of Collinsville violated FOIA by improperly denying Ms. Mary Drumm’s request as unduly burdensome.","legal_question":"Did the City of Collinsville improperly deny a FOIA request as unduly burdensome?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Collinsville","requesting_party":"Ms. Mary Drumm","pac_outcome":"Improperly denied request","pac_law_type":null,"subject_category":"unduly burdensome","subject_description":"The request sought digital copies of emails between a city official and planning consultants over a one-month period.","ocr_status":"ok","ocr_quality":90.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-008.pdf","sha256":"920c4999f9824da47ffe888e8a6106c3e0fac9ca8671647acd555f6beb10d5ec","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["unduly burdensome","FOIA request","email records","denial of records"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nNovember 1, 2016\nPUBLIC ACCESS OPINION 16-008\n(Request for Review 2016 PAC 43069)\nFREEDOM OF INFORMATION ACT:\nImproper Denial of a Request for Records\nas Unduly Burdensome\nMs. Mary Drumm\n[street address redacted for site publication -- see original PDF]\nMs. Kim Wasser\nAdministrative Coordinator/City Clerk\nFreedom of Information Officer\nCity of Collinsville\n125 South Center Street\nCollinsville, Hlinois 62234\nDear Ms. Drumm and Ms. Wasser:\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5() (West 2014)). For the reasons\ndiscussed below, this office concludes that the City of Collinsville (City) violated FOIA by\nimproperly denying Ms. Mary Drumm’s request as unduly burdensome.\nBACKGROUND\nOn July 12, 2016, Ms. Drumm submitted a FOIA request! to the City seeking\n‘The request was submitted via e-mail at 10:26 p.m. on July 12, 2016, therefore the City\nconsidered the e-mail received on July 13, 2016.\n500 South Second Street, Springfield, Hinois 62706 * (217) 782-1090 * TTY: (877) 844-3461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Hlincis 60601 » (312) 814-3000 + TTY: (800) 964-3013 + Fax: (312) 814-3806\n601 South University Avenue, Suite 102, Carbondale, [inois 62901 * (618) 529-6400 » TTY: (877) 675-9339 + Fax: (618) 529-6416 -<=p=\nMs. Mary Drumm\nMs. Kim Wasser\nNovember 1, 2016\nPage 2\n\"digital copies of emails between Mitch Bair! and PGAV planners”! from June 1 through July\n1[,] 2016.\"4 On July 20, 2016, the City's FOIA Officer responded by stating that she was “of the\nopinion the request is broad and consequently could be unduly burdensome in that there are over\n50 emails consisting of over 100 pages plus numerous pages of attachments.\"’ The City's\nresponse stated that \"[e]Jach individual page would need to be retrieved by our IT personnel and\nreviewed by the FOIA Officer to determine if such information is exempt under 5 ILCS 140/7 in\nwhole or in part, and redactions may be necessary.” The City requested that Ms. Drumm narrow\nher FOIA request by July 27, 2016, \"so that it would no longer be unduly burdensome and/or\ninterfere with operations.\"” .\nOn July 21, 2016, Ms. Drumm submitted a Request for Review to the Public\nAccess Bureau contesting the City's denial of her FOIA request as unduly burdensome.* On July\n25, 2016, the Public Access Bureau forwarded a copy of the Request for Review to the City and\nasked the City to provide a detailed explanation of its assertion that Ms. Drumm's request was\nunduly burdensome under section 3(g) of FOIA (5 ILCS 140/3(g) (West 2014)).?\n?Mitch Bair is the City Manager of Collinsville. See City of Collinsville,\nhttp://www.collinsvilleil.org/Departments/citymanager.htm (last visited October 28, 2016).\n3'PGAV Planners is a private firm that specializes in urban planning, architecture, and destination\nconsulting with governmental and private entities. See PGAV PLANNERS,\nhttp://www. pgavplanners.com/about/overview/ (last visited October 28, 2016).\n‘E-mail from Mary Drumm to Kimberly Wasser (July 12, 2016).\nSLetter from Kim Wasser, Freedom of Information Officer, Office of the City Clerk, City of\nCollinsville, to Mary Drumm (July 20, 2016).\nSLetter from Kim Wasser, Freedom of Information Officer, Office of the City Clerk, City of\nCollinsville, to Mary Drumm (uly 20, 2616),\n\"Letter from Kim Wasser, Freedom of Information Officer, Office of the City Clerk, City of\nCollinsville, to Mary Drumm (uly 20, 2016).\n5£-mail from Mary Drumm to Public Access [Bureau, Office of the Attorney General] (July 21,\n2016).\n°Letter from Matthew Hartman, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Kim Wasser, Administrative Coordinator/City Clerk, Freedom of Information Officer, City of\nCollinsville (July 25, 2016).\nMs. Mary Drumm\nMs. Kim Wasser\nNovember 1, 2016\nPage 3\nOn August 1, 2016, the City responded by stating that it “did not deny nor intend\nfor the responsive letter to Ms. Drumm to imply a denial of [the] request[ed] documents.\"\"® The\nCity asserted that its July 20, 2016, response sought to narrow the scope of Ms. Drumm's request\nby obtaining \"a clarification of the requested documents” because “a subject matter was not listed\nin the initial FOIA request.”'! The City further stated that it \"located 50 individual emails\nconsisting of 77 pages and several attachments within the emails consisting of approximately 97\npages for an overail total of 174 pages that are responsive to Ms. Drumm's request.\"\"? In order to\nprovide Ms. Drumm with copies of the 50 e-mails, the City stated that its information technology\n(IT) employee would have to run a report through the City's e-mail archival system, review the e-\nmails produced by the report to remove any duplicates, and print copies of the e-mails and\nattachments.'? The City explained that:\nOnce printed, the documents are presented to the FOIA\nOfficer for review to determine if it is exempt from disclosure in\nwhole or in part, and to determine if redaction of exempted\ninformation is appropriate. The City has only one employee who\nis available to review and determine whether documents or\ninformation are exempt and/or entitled to redactions. Requiring\nthe FOIA Officer to review approximately 174 pages of documents\nburdens the operations of the City because the FOIA Officer also\nhas duties as a City Clerk and Administrative Coordinator!)\nLetter from Kim Wasser, Administrative Coordinator/City Clerk, Freedom of Information\nOfficer, Office of the City Clerk, City of Collinsville, to Matthew Hartman, Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General (August 1, 2016), at 1.\n''Te tter from Kim Wasser, Administrative Coordinator/City Clerk, Freedom of Information\nOfficer, Office of the City Clerk, City of Collinsville, to Matthew Hartman, Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General (August 1, 2016), at 1.\n21e tter from Kim Wasser, Administrative Coordinator/City Clerk, Freedom of Information\nOfficer, Office of the City Clerk, City of Collinsville, to Matthew Hartman, Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General (August 1, 2016), at 1.\nSetter from Kim Wasser, Administrative Coordinator/City Clerk, Freedom of Information\nOfficer, Office of the City Clerk, City of Collinsville, to Matthew Hartman, Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General (August 1, 2016), at 2.\n“Letter from Kim Wasser, Administrative Coordinator/City Clerk, Freedom of Information\nOfficer, Office of the City Clerk, City of Collinsville, to Matthew Hartman, Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General (August 1, 2016), at 2.\nMs. Mary Drumm\nMs. Kim Wasser\nNovember 1, 2016\nPage 4\nThe City asserted that Ms. Drumm's request was an unduly burdensome request because \"[t]he\nentire process of retrieving and review[ing] such documents could take several hours by two City\nemployees[.}\"\"\nOn August 1, 2016, this office forwarded a copy of the City's response to Ms.\nDrumm.'® On August 4, 2016, Ms. Drumm replied by stating that she did \"not believe that the\nrequest is unduly burdensome as it may take an hour or two rather than a few minutes for the\nCity to fulfill [her] request.\"!”\nOn September 15, 2016, the Public Access Bureau properly extended the time\nwithin which to issue a binding opinion by 30 business days pursuant to section 9.5(f of FOIA.\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS\n140/1 (West 2014). All public records in the possession or custody of a public body “are\npresumed to be open to inspection or copying.” 5 ILCS 140/1.2 (West 2014); see also Southern\nIlinoisan y. Illinois Dep't. of Public Health, 218 Il. 2d 390, 415 (2006). Section 3(a) of FOIA\n(5 ILCS 140/3(a) (West 2014)) provides that \"[e]ach public body shall make available to any\nperson for inspection or copying all public-records, except as otherwise provided in Sections 7\nand 8.5 of this Act.\" The limited exceptions to access to public records are to be construed\nnarrowly. See 5 ILCS 140/1 (West 2014).\nSections 3(d) and 3(g) of FOIA\nThe City asserted that in its July 20, 2016, letter, it did not deny or intend to deny\nMs. Drumm's request for e-mails. Instead, the City stated that its letter asked Ms. Drumm to\nnarrow her request to a specific subject in order to clarify which e-mails she was seeking.\nSection 3(d) of FOIA (5 ILCS 140/3(d) (West 2014) states:\n‘SLetter from Kim Wasser, Administrative Coordinator/City Clerk, Freedom of Information\nOfficer, Office of the City Clerk, City of Collinsville, to Matthew Hartman, Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General (August 1, 2016), at 2.\n6]e tter from Matthew Hartman, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Mary Drumm (August 1, 2016),\n\"E-mail from Mary Drumm to Jodi Carnes, [Paralegal, Public Access Bureau, Office of the\nAttorney General] (August 4, 2016).\nMs. Mary Drumm\nMs. Kim Wasser\nNovember 1, 2016\nPage 5\nEach public body shall, promptly, either comply with or\ndeny a request for public records within 5 business days after its\nreceipt of the request, unless the time for response is properly\nextended under subsection (e) of this Section. Denial shall be in\nwriting as provided in Section 9 of this Act. Failure to comply\nwith a written request, extend the time for response, or deny a\nrequest within 5 business days after its receipt shall be considered\na denial of the request.\nSection 3(g) of FOIA further provides, in pertinent part:\nRequests calling for all records falling within a category\nshall be complied with unless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information. Before invoking\nthis exemption, the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions. If any public body\nresponds to a categorical request by stating that compliance would\nunduly burden its operation and the conditions described above are\nmet, it shall do so in writing, specifying the reasons why it would\nbe unduly burdensome and the extent to which compliance will so\nburden the operations of the public body. Such a response shall\nbe treated as a denial of the requestf or information. (Emphasis\nadded.)\nSection 3(d) requires that in responding to a FOIA request, a public body must\neither comply with the request, deny it, or extend the time for response under section 3(e). In its\nresponse to Ms. Drumm, the City did not comply with the request or extend the time for\nresponse. Instead, the City explained to Ms. Drumm the burden of responding to her FOIA\nrequest and asked that she narrow the request \"so that it would no longer be unduly burdensome\nand/or interfere with operations.\"'* Under section 3{g}, when a public body responds to a request\nby stating that compliance would unduly burden its operation and asking a requester to narrow\nthe request, that response \"shall be treated as a denial of the request for information.\" Asa\nresult, although the City has explained that it did not intend to deny Ms. Drumm's request, by\nasking her to narrow it \"so it would no longer be unduly burdensome,\" the City’s response\n'8Letter from Kim Wasser, Freedom of Information Officer, Office of the City Clerk, City of\nCollinsville, to Mary Drumm (July 20, 2016).\nMs. Mary Drumm\nMs. Kim Wasser\nNovember 1, 2016\nPage 6\nconstitutes a denial of the request under the plain language of section 3(g) of FOIA. Ms. Drumm\nchose not to narrow the request and sought review of the denial with the Public Access Bureau.\nIn considering whether a public body has properly determined complying with a\nFOIA request would be unduly burdensome, Illinois courts have employed a balancing test to\ndetermine whether the public interest in disclosure of the requested records outweighs the burden\nof compliance on the public body under section 3(g). In National Ass’n of Criminal Defense\nLawyers v. Chicago Police Department, 399 IU. App. 3d 1, 15 (ist Dist. 2010), the appellate\ncourt explained that \"[i]n order for the exemption to apply, compliance must be unduly\nburdensome, there must be no way to narrow the request, and the burden on the public body\nmust outweigh the public interest in the information.” The court in National Ass'n analyzed\nwhether the production of records concerning a study on eyewitness identification procedures\nwould pose an undue burden to the Chicago Police Department (CPD). Counsel for CPD\nestimated that redacting the responsive records would take 150 hours, equating to 20 personnel\ndays. National Ass'n, 399 Ill. App. 3d at 14. The court found that there was a significant public\ninterest in disclosing records concerning examining eyewitness identification procedures.\nNational Ass'n, 399 Ul. App. 3d at 15. Moreover, the court found that the request was\n\"specifically target[ed]\" and that “the information requested [was] essential to a meaningful\nreview of\" the study on eyewitness identification procedures, distinguishing requests which\nnecessitate extensive review of extraneous materials: \"A request that is overly broad and\nrequires the public body to locate, review, redact and arrange for inspection [of] a vast quantity\nof material that is largely unnecessary to the appellants’ purpose constitutes an undue burden.\"\nNational Ass'n, 399 lll. App. 3d at 17, citing American Federation of Gov't Employees, Local\n2782 v. United Staies Dep't of Commerce, 907 F. 2d 203, 208-09 (D.C. Cir. 1990). The court\nconcluded that the burden of identifying and redacting the responsive records, although\nsignificant, did not outweigh the vital publicin terest in1 disclosure of the records. National Ass'n,\n399 Ill. App. 3d at 17.\nIn contrast, in Shehadeh v. Madigan, 2013 IL App (4th) 120742, 996 N.E.2d 1243\n(2013), the court concluded that the burden of compliance with a request outweighed the public\ninterest in disclosure of the records. In that case, the requester sought any and all records that\ncould be used for guidance on complying with FOIA. The Attorney General's Office responded\nthat compliance with the request as submitted would be unduly burdensome because its search\nidentified 9,200 potentially responsive files that would have to be reviewed manually to confirm\nwhether the records were responsive to the request, and then the responsive records would have\nto be reviewed again for permissible redactions. Shehadeh, 2013 IL App (4th) 120742, 95, 996\nN.E.2d at 1245. The court found the request to be \"patently broad on its face, as it sought any\npublication or record that would or could be used by any public body to comply with Illinois's\nFOIA provisions.\" (Emphasis in original.) Shehadeh, 2013 IL App (4th) 120742, 28, 996\nN.E.2d at 1248. The court also found that the requester failed to identify a public interest that\nMs. Mary Drumm\nMs. Kim Wasser\nNovember 1, 2016\nPage 7\noutweighed the burden of compliance on the Attorney General's Office. Shehadeh, 2013 IL App\n(Ath) 120742, 935, 996 N.E.2d at 1249. Thus, the court concluded that the Attorney General's\nOffice did not violate FOLA by denying the request as unduly burdensome. Shehadeh, 2013 IL\nApp (4th) 120742, 935, 996 N.E.2d at 1249.\nAs discussed above, the City's response to this office stated that compliance with\nMs. Drumm's request would require several hours to retrieve and review the approximately 174\npages of responsive documents for potentially exempt information. The City asserted that\ncomplying with the request would unduly burden the operations of the City because it “has one\nemployee who handles all IT issues for the entire City[,]\" and because “the FOTA Officer also\nhas duties as a City Clerk and Administrative Coordinator.\"!? However, the General Assembly\nhas determined that “compliance with the requirements of this Act is a primary duty of public\nbodies to the people of this Statef.]\" 5 ILCS 140/1 (West 2014). The City's response to this\noffice did not demonstrate a clear and convincing basis for its assertion that requiring the IT\nemployee and FOIA officer to devote several hours to reviewing the pertinent records would so\nburden its operations as to outweigh the public interest in the disclosure of those records.\nMs. Drumm's request sought all e-mails between Mr. Mitch Bair and PGAV\nPlanners from June 1, 2016, through July 1, 2016. Mr. Bair, as the city manager, is the chief\nadministrative officer of the City who \"supervises all departments and the day-to-day operations\nof the City, ensuring that all laws and ordinances are enforced. He is responsible for making\nrecommendations to the City Council regarding City operations and policies, and reviews the\noverall operations of the City with a focus on long term objectives regarding the City's future.020\nAs previously noted, PGAV Planners is a private firm that specializes in urban planning,\narchitecture, and destination consulting with governmental and private entities. On March 25,\n2016, PGAY Planners prepared for the City a revised Tax Increment Financing District proposal\nfor the Southwest Corridors Redevelopment Project Area,”! and on April 20, 2016, PGAV\nPlanners drafted for the City a Business District Plan for the Southwest Corridors Business\n“Letter from Kim Wasser, Administrative Coordinator/City Clerk, Freedom of Information _\nOfficer, Office of the City Clerk, City of Collinsville, to Matthew Hartman, Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General (August 1, 2016), at 2.\nCity of Collinsville, http://www.collinsvilleil org/Departments/citymanager.htm (last visited\nOctober 28, 2016).\n21WS Corridors TIF Plan — Revised, PGAV Planners Tax Increment Financing and\nRedevelopment Plan & Project, Southwest Corridors Redevelopment Project Area (March 25, 2016),\nhttp://www.collinsvilleil.org/sw-corridors-tif.\nMs. Mary Drumm\nMs. Kim Wasser\nNovember |, 2016\nPage 8\nDistrict.” There is a significant public interest in the disclosure of communications between the\nchief administrative officer of the City and the private firm that has been actively assisting the\nCity with several redevelopment projects.\nIt may be noted that the retrieval and review of approximately 174 pages of\ndocuments will impose a burden upon the City's operations. Compliance with any FOIA request\nentails an administrative burden, but \"[t]he issue is whether the public interest in disclosure\njustifies the burden.” Ill. Att'y Gen. Pub. Ace. Op. No. 15-011, issued November 9, 2015, at 8.\nIn these circumstances, the City has not demonstrated that compliance with Ms. Drumm's request\nwould be \"unduly burdensome,\" for purposes of asserting section 3(g) of FOIA. Given the\nstrong public interest in the disclosure of communications between a City administrator and the\nprivate firm hired to assist with redevelopment projects, coupled with the fact that the City did\nnot demonstrate with specificity how the process of retrieving and reviewing these records would\nconstitute a significant burden on its operations, this office finds that City has not shown that\ncompliance with Ms. Drumm's request would so burden the operations of the City as to outweigh\nthe public interest in the disclosure of the requested records. Accordingly, this office concludes\nthat the City of Collinsville violated FOIA by improperly denying Ms. Drumm's request as\nunduly burdensome.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On July 12, 2016, Ms. Mary Drumm submitted a FOIA request to the City of\nCollinsville seeking \"digital copies of emails between Mitch Bair and PGAV planners from June\n1 through July 1[,] 2016.”\n2) On July 20, 2016, the City responded to Ms. Drumm's FOIA request by\nasserting that compliance with her request could be unduly burdensome. The City also requested\nthat Ms. Drumm narrow her FOIA request so that it would no longer be unduly burdensome.\n3) On July 21, 2016, Ms. Drumm submitted a Request for Review letter to the\nPublic Access Bureau, in which she disputed the denial of her FOIA request. Ms. Drumm's\nRequest for Review was timely filed and otherwise complies with the requirements of section\n9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2014)).\n22015 SW Corridors BD Plan, PGAY Planners, Business District Plan, Southwest Corridors\nBusiness District (April 20, 2016), http://www.collinsvilleil.org/sw-corridors-tif.\nMs. Mary Drumm\nMs. Kim Wasser\nNovember 1, 2016\nPage 9\n4) On July 25, 2016, the Public Access Bureau forwarded a copy of the Request\nfor Review to the City and asked it to provide a detailed explanation for the City's assertion that\ncompliance with Ms. Drumm's request could be unduly burdensome.\n5) On August 1, 2016, the City responded that it had not denied Ms. Drumm's\nrequest, but only asked Ms. Drumm to narrow her request so the City could obtain clarification\nabout which records were being requested. The City also stated that compliance with the\nrequest, without further narrowing by Ms. Drumm, would be unduly burdensome because the\nCity would have to review approximately 174 pages of responsive records for possible\nredactions.\n6) Pursuant to section 9.5(f) of FOIA, this office properly extended the time for\nissuing a binding opinion by 30 business days to November 1, 2016. Therefore, the Attorney\nGeneral may properly issue a binding opinion with respect to this matter.\n7) In responding to Ms. Drumm’'s FOIA request, the City did not comply with it\nor extend the time for response within 5 business days after its receipt. Instead, the City\nresponded by asking Ms. Drumm to narrow her request so that it would not unduly burden its\noperations. Under section 3(g) of FOIA, the City's response constituted a denial of Ms.\nDrumm's request as unduly burdensome.\n8) The City has not demonstrated by clear and convincing evidence that the\nburden of compliance with Ms. Drumm's request on the City's operations would outweigh the\nsignificant public interest in the communications of the city manager with the private firm\nassisting with redevelopment projects in the City.\nTherefore, it is the opinion of the Attorney General that the City's response to Ms.\nDrumm's Freedom of Information Act request violated the requirements of FOIA. Accordingly,\nthe City is directed to take immediate and appropriate action to comply with this opinion by\nproviding the requested e-mails, subject to appropriate redactions under section 7 of FOIA (5\nILCS 140/7 (West 2015 Supp.)).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seg. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a\nMs. Mary Drumm\nMs. Kim Wasser\nNovember 1, 2016\nPage 10\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Mary Drumm as\ndefendants, See 5 ILCS 140/11.5 (West 2014)..\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nCetne lene ph ea\nByy\nMichael J. Luke\nCounsel to the Attorney General\nCERTIFICATE OF SERVICE\nSarah L. Pratt, Public Access Counselor, hereby certifies that she has served a\ncopy of the foregoing Binding Opinion (Public Access Opinion 16-008) upon: —\nMs. Mary Drumm\n116 Kingsbury Court\nCollinsville, Ilinois 62234\nm.drumm-pta@sbcglobal net\nMs. Kim Wasser\nAdministrative Coordinator/City Clerk\nFreedom of Information Officer\nCity of Collinsville\n125 South Center Street\nCollinsville, Hlinois 62234\nkwasser@collinsvilleilor;\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Springfield, Illinois on November 1, 2016.\npA Z. att\nSARAH L. PRATT\nPublic Access Counselor\nSARAH L, PRATT\nPublic Access Counselor\n500 South Second Street\nSpringfield, Illinois 62706\n(217) 785-5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Ms. Mary Drumm requested emails between a city official and a planning firm, but the City of Collinsville responded by asking her to narrow the request, stating it would be unduly burdensome. The Illinois Attorney General's office issued a binding opinion concluding that the City violated FOIA by improperly denying the request as unduly burdensome.","card_headline":"Emails between a city official and planning consultants","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":73,"orig_master_id":19046,"dup_master_id":19273,"dup_sha256":"f759889e9806da8390ab308b10f0bd0b971593fa8ab5b895cfd7ebff9c707ab6","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2016,"date_issued":"2016-11-14","case_number":"2016 PAC 43297","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 16-010 (Request for Review - 2016 PAC 43297).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 16-010 (Request for Review - 2016 PAC 43297).pdf","word_count":2049,"summary":"Chicago Sun-Times reporter Lauren FitzPatrick asked for records of payments by CPS/BOE?! to Crowe Horwath LLP. I want the actual bills as well as proof of payment by the district. No excel sheet of costs, please, unless in addition to actual bills and payment proof . On August 1, 2016, thirty-one days after submitting her FOIA request, Ms. FitzPatrick e-mailed a Request for Review to the Public Access Bureau alleging that CPS improperly denied her request by failing to respond .","plain_summary":"The requester, a journalist, sought invoices, payment records, and a contract concerning a specific consulting firm, and the school district's automated system acknowledged the request and claimed a short extension but the district then never substantively responded. The Public Access Counselor held that failing to comply, deny, or reach a further written extension agreement within the extended period constituted a denial under FOIA. The school district was directed to produce the requested records, subject only to permissible redactions.","holding":"The Chicago Public Schools violated section 3(d) of FOIA by failing to respond to the requester's FOIA request.","legal_question":"Whether a public body violates section 3(d) of FOIA by failing to respond to a FOIA request within the statutory time limits.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/3(e), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11, 5 iLCS 140/3","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":[],"public_body":"Chicago Public Schools (CPS)","requesting_party":"FitzPatrick and Ms. Milovich","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"duty to respond","subject_description":"The failure of a public body to respond to a FOIA request for financial records and invoices.","ocr_status":"ok","ocr_quality":88.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-010.pdf","sha256":"de9e8a49f8ba27c61cb30c9b4b5df05301da257d26ce4c7ef5c15725c6cc4787","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","public records","CPS"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL November 14, 2016 PUBLIC ACCESS OPINION 16-010 (Request for Review 2016 PAC 43297) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Ms. Lauren FitzPatrick Education Reporter Chicago Sun-Times 350 North Orleans, 10th Floor Chicago, Illinois 60654 Ms. Jaculin Jerman Milovich Senior Assistant General Counsel Chicago Public Scheols, Law Department 1 North Dearborn, 9th Floor Chicago, Illinois 60602 Dear Ms. FitzPatrick and Ms. Milovich: Thisi s a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5() (West 2014)). For the reasons discussed below, this office concludes that the Chicago Public Schools (CPS) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2014) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Ms. Lauren FitzPatrick. BACKGROUND \" On July 1, 2016, Ms. FitzPatrick, on behalf of the Chicago Sun-Times, submitted a FOIA request to CPS via the FOIA Center on its website,' seeking: ‘See Freedom of Information Act (FOIA) Requests, Chicago Public Schools, http://www.cps.edu/About_CPS/Departments/Law/Pages/FOLARequest.aspx (last visited Sept. 21, 2016). - 500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090* TTY: (877) 844-3461 * Fax: (2173 782-7046 100 West Randolph Street, Chicago, Hinois 60601 * G12) 814-3000+ TTY: (800) 964.3013 * Fax: (312) 814-3806 ones aan SERRA 2 FEEDER FARA 4 PTR SOP LTE ADIN 2 Tae, S210¥ TIM CAVE EET Ms. Lauren FitzPatrick Ms. Jaculin Jerman Milovich November 14, 2016 Page 2 Since July 1, 2015: Copies of all invoices to date from the Crowe Horwath LLP. Copies of records of payments by CPS/BOE?! to Crowe Horwath LLP. I want the actual bills as well as proof of payment by the district. The most recent contract or letter of engagement for Crowe Horwath LLP. No excel sheet of costs, please, unless in addition to actual bills and payment proof. On that same date, Ms. FitzPatrick received an automatic e-mail reply from the CPS FOIA Center assigning her FOIA request a reference number and stating: “Your FOIA request has been received and is being processed.\"* The CPS automated e-mail additionally stated: Due to the high volume of FOIA requests received by CPS, we are unable to fulfill your request within 5 business days. Section 3(e\\(vi) of FOIA permits CPS to extend the response time to 10 business days if a request cannot be fulfilled in 5 business days without unduly burdening or interfering with the operations of the District. We hereby extend the response time to your FOIA request to 10 business days in accordance with 5 ILCS 140/3(e)(vi). If further time is needed to assemble and copy all documents responsive to your FOIA request, we will contact you with a time estimate and a request to extend! On August 1, 2016, thirty-one days after submitting her FOIA request to CPS, Ms. FitzPatrick e-mailed a Request for Review to the Public Access Bureau alleging that CPS improperly denied her request by failing to respond.* Specifically, she alleged: “CPS confirmed receipt the same day, assigned case number NO01883-070116[,] and automatically asked for the “BOE” presumably refers to \"Board of Education.” — ; 5FOIA request from Lauren FitzPatrick to Chicago Public Schools FOLA Center (July 1, 2016). 4E-mail from eps@mycuathelp.net to L. July 1, 2016). . 5E-mail from eps@mycusthelp.net to L. Guly 1, 2016). °E-mail from Lauren FitzPatrick, Education reporter, Chicago Sun-Times, to Sara[h] Pratt, * * * Public Access Counselor, Office of the Attorney General (August 1, 2016). Ms. Lauren FitzPatrick Ms, Jaculin Jerman Milovich November 14, 2016 Page 3 10 business {days] allowed under the law. By my count, those 10 days ended two weeks ago. {No one] from CPS has provided any update.\"7* On August 4, 2016, the Public Access Bureau forwarded a copy of the Request for Review to CPS and asked CPS to advise this.office whether it had responded to Ms. FitzPatrick's FOIA request; if it had not yet responded to Ms. FitzPatrick, this office asked CPS to do so and to provide this office with a copy of its response.’ CPS did not respond to the Public Access Bureau's August 4, 2016, correspondence. As of the date of this binding opinion, this office has not received confirmation that CPS has responded to Ms. FitzPatrick's FOIA request. On September 30, 2016, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. _ ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with (FOLA].” 5 ILCS 140/1 (West 2014). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2014)), “[alll records in the custody or possession of a public body are presumed to be open to inspection or copying.” Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond toa 7E-mail from Lauren FitzPatrick, Education reporter, Chicago Sun-Times, to Sara[h] Pratt, * * * Public Access Counselor, Office of the Attorney General (August 1, 2016). 8It is questionable whether the automated e-mail sent by CPS purporting to extend the time for response by an additional five business days is proper under FOIA. Because Ms. FitzPatrick's Request for Review challenged only the lack of response by CPS, however, this office will not address the propriety of the extension in this opinion. . Letter from Josh Jones, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Jaculin Jerman Milovich, Senior Assistant General Counsel, Chicago Public Schools, Law Department (August 4, 2016). Ms. Lauren FitzPatrick ~ Ms. Jaculin Jerman Milovich November 14, 2016 Page 4 request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). Additionally, section 3(e) of FOIA (5 ILCS 140/3(e) (West 2014)) provides: “The person making a request and the public body may agree in writing to extend the time for compliance for a period to be determined by the parties.\" CPS has not disputed that it did not, within 10 business days after its receipt of Ms. FitzPatrick’s FOIA request, comply with her request, deny her request in writing, or reach a written agreement with her to further extend its response time. CPS's failure to comply with the requisite procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On July 1, 2016, Ms. Lauren FitzPatrick, on behalf of the Chicago Sun-Times, submitted a FOIA request to CPS via the FOIA Center on its website, seeking certain records concerning Crowe Horwath LLP, including invoices, records of payments by CPS, and the most recent contract or engagement letter. CPS's FOIA Center generated an automatic response acknowledging the receipt of Ms. FitzPatrick's FOIA request and informing her that CPS was taking an extension of 5 business days pursuant to section 3(e)(vi) of FOIA. CPS did not, within 10 business days after its receipt of her request, however, comply with the FOIA request, reach a written agreement with Ms. FitzPatrick to further extend the time for its response pursuant to section 3(e) of FOIA, or deny the request in whole or in part, as is required by section 3(d) of FOIA. The failure to do so constituted a denial of the FOIA request. . 2) On August l, 2016, Ms. FitzPatrick asked the Public Access Counselor and the Public Access Bureau to review CPS's denial of her FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2014). 3) On August 4, 2016, the Public Access Bureau forwarded a copy of Ms. FitzPatrick's Request for Review to CPS, together with a letter asking CPS to advise this office whether it had responded to Ms. FitzPatrick's July 1, 2016, FOIA request. CPS did not respond to that inquiry. Ms. Lauren FitzPatrick Ms. Jaculin Jerman Milovich November 14, 2016 Page 5 ; 4) Pursuant to section 9.5(f) of FOIA, this office properly extended the time for issuing a binding opinion by 30 business days to November 17, 2016. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 5) To date, this office has received no confirmation or indication that CPS has responded to Ms. FitzPatrick’s request. Therefore, it is the opinion of the Attorney General that CPS has violated section 3(d) of FOIA by failing, within 10 business days after receiving Ms. FitzPatrick’s request, to provide the requested records, to reach a written agreement with Ms. FitzPatrick for an additional extension of time, or to deny the request in whole or in part. Accordingly, CPS is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. FitzPatrick with all records responsive to her July 1, 2016, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2015 Supp.)).!! If CPS determines that any portion of the responsive records is exempt from disclosure under section 7, CPS is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2014)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law, 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Lauren FitzPatrick as defendants. See 5 ILCS 140/11.5 (West 2014). Sincerely, LISA MADIGAN ATTORNEY GENERAL ‘ hao Michael J. Luke Counsel to the Attorney General “Because CPS did not comply with the statutory requirements for responding to Ms. FitzPatrick's FOIA request, CPS is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 iLCS 140/3(d} (West 2014) (\"A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g).”). . CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 16-010) upon: Ms. Lauren FitzPatrick Education Reporter Chicago Sun-Times 350 North Orleans, 10th Floor Chicago, Illinois 60654 lfitzpatrick@suntimes.com Ms. Jaculin Jerman Milovich Senior Assistant General Counsel Chicago Public Schools, Law Department 1 North Dearborn, 9th Floor Chicago, Illinois 60602 jjerman@cps.edu by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on November 14, 2016, Ma£n Gdat SARAH L. PRATT ~~ Public Access Counselor SARAH L. PRATT Public Access Counselor 500 South Second Street Springfield, Hlinois 62706 (217) 785-5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter asked Chicago Public Schools for records regarding payments made to a consulting firm, but the school district never replied to the request. The Attorney General's office ruled that the district broke the law by ignoring the request entirely. This means public bodies must provide a timely response to all FOIA requests, even if they intend to deny them.","card_headline":"A school district's failure to respond to a FOIA request for financial records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":74,"orig_master_id":19276,"dup_master_id":19047,"dup_sha256":"847322f00cdc44f711d4eb660540d8d45ef0bb423e4bbad6a5ab872bf55376bb","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2016,"date_issued":"2016-12-14","case_number":"2016 PAC 44066","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 16-011 (Request for Review - 2016 PAC 44066).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 16-011 (Request for Review - 2016 PAC 44066).pdf","word_count":2433,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a Freedom of Information Act (FOIA) request submitted by Mr. Michael Glotz to the Housing Authority of Cook County.","plain_summary":"The requester sought correspondence and application records concerning a specific developer and project, and the housing authority contacted him to clarify the scope of his request but then never substantively responded despite repeated follow-up emails. The Public Access Counselor held that even treating the clarified, narrowed request as restarting the response clock, the housing authority's continued silence violated the requirement to comply, deny, or extend within five business days. The housing authority was directed to produce the responsive records, subject only to permissible redactions.","holding":"The Housing Authority of Cook County violated section 3(d) of FOIA by failing to appropriately respond to the FOIA request.","legal_question":"Did the Housing Authority of Cook County comply with the requirements of the Freedom of Information Act in responding to the FOIA request?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3, 5 ILCS 140, 5 ILCS 140/7, 735 ILCS 5/3, 5 ILCS 140/11, 5 ILCS 140/3(d)","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Duncan General Counsel Housing Authority","requesting_party":"Glotz and Mr. Duncan","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"duty to respond","subject_description":"The requester sought correspondence and property applications involving a specific entity and its employees.","ocr_status":"ok","ocr_quality":88.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-011.pdf","sha256":"f944d972c0f498955b9ec5997b94379e6585a591cc6b99a42a1ea12aadcc4211","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA request","duty to respond","Housing Authority","failure to respond"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan XI— ORNEY GENERAL. December 14, 2016 PUBLIC ACCESS OPINION 16-011 Request for Review 2016 PAC 44066) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Michael Glotz 8408 Budingen Lane Tinley Park, Illinois 60487 Mr. Jon A. Duncan General Counsel Housing Authority ofCook County 175 West Jackson Boulevard, Suite 350 Chicago, Illinois 60604- 3042 Dear Mr. Glotz and Mr. Duncan: This is a binding opinion issued by the Attorney General pursuant to section 9.5( 1) of the Freedom ofInformation Act (FOIA) ( 5 ILCS 140/9.5(1) ( West 2014)). For the reasons discussed below, this office concludes that the Housing Authority of Cook County (Authority) violated section 3( d) ofFOIA ( 5 ILCS 140/3( d) ( West 2014)) by failing tocomply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Michael Glotz. BACKGROUND On July 19, 2016, Mr. Glotz submitted the following FOIA request to the Authority via e-mail: From March 01, 2015 to July 25, 2016 please provide me in PDF format any Emails, Faxes, phone calls & notes from phone conversations, and any other correspondence between Buckeye, Dave Petroni, Steven Boone, or any other Buckeye employee. 500 South Second Street. Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: (877) 844-5461 • Fax: ( 217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416 Mr. Michael Glotz Mr. Jon A. Duncan December 14, 2016 Page 2 Also, please provide me in the same time frame any applications for properties Buckeye has applied for, copies ofcontracts, approval ofapplications and properties, & denials ofproperties. Please provide any negative remarks for projects they've done or complaints from tenants on any oftheir properties. 01 On August 3, 2016, eleven business days after Mr. Glotz submitted his FOIA request, Mr. Jon Duncan, the Authority' s General Counsel, sent an e-mail to Mr. Glotz stating: We have not yet located responsive documentation for your FOIA request, but I have some questions regarding your requestthat may assist us in locating any responsive records. I attempted, without success, to reach you by telephone this afternoon. Please call me at [telephone number] to discuss this further21 Mr. Glotz replied by e-mail later that day, notifying Mr. Duncan that he would be available to discuss the request the following day.3 On August 22, 2016, Mr. Glotz and Mr. Duncan conferred by telephone regarding Mr. Glotz's FOIA request. Mr. Glotz furnished additional information concerning the records he was seeking.4 Later that day, Mr. Duncan sent an e-mail to Mr. Glotz stating: Following up on our telephone conversation ofthis afternoon, I understand that you are amending your FOIA request to ask for correspondence between the Housing Authority of Cook County and Buckeye, Dave Petroni, Steven Boone, or any other Buckeye employee, regarding aproject known as \" the Reserve\" located at 183rd and Oak Park Avenue in Tinley Park. Please confirm that I have correctly summarized your amended request and then I will process your amended request accordingly. 151 E-mail from Mike Glotz to FOIA Officer [Housing Authority ofCook County] (July 19, 2016). 2E -mail from Jon A. Duncan, General Counsel, Housing Authority ofCook County, to [Mike] Glotz (August 3, 2016). 3E -mail from Mike Glotz to [Jon] Duncan (August 3, 2016). 4E -mail from Michael Glotz to Public Access Counselor, Illinois Attorney General ( September 15, 2016). E-mail from Jon A. Duncan, General Counsel, Housing Authority ofCook County, to [Mike] Glotz (August 22, 2016). Mr. Michael Glotz Mr. Jon A. Duncan December 14, 2016 Page 3 Mr. Glotz replied to Mr. Duncan that same day confirming that he correctly summarized his FOIA request.° On August 26, 2016, Mr. Glotz sent an e-mail to Mr. Duncan asking: \" Since my FOIA was filed over a month ago and is now old, is it possible to extend my timeline to eliminate another FOIA request for you guys. Could you just make it current to Aug 27, 2016?\" 7 Not having received a response, Mr. Glotz sent e-mails to Mr. Duncan on September 1, 2016, 8. September 7, 2016,9 and September 13, 2016,10 inquiring about the status ofthe response to his FOIA request. Mr. Duncandid not respond to Mr. Glotz.\" On September 15, 2016, Mr. Glotz e-mailed aRequest for Review to the Public Access Bureau and the Public Access Counselor alleging that the Authority improperly denied his request by failing to respond.12 In a letter dated September 22, 2016, the Public Access Bureau forwarded a copy ofthe Request for Review to the Authority13 and asked the Authority to advise this office whether it had responded to Mr. Glotz's FOIA request; ifit had not yet responded to Mr. Glotz, this office asked the Authority to do so and to provide this office with a copy ofits response.\" The Authority did not respond to the Public Access Bureau' s September 22, 2016, correspondence. On October 19, 2016, the Public Access Bureau again forwarded a copy ofthe E-mail from Mike Glotz to Jon Duncan ( August 22, 2016). E-mail from [ Mike Glotz] to Jon Duncan ( August 26, 2016). 8E -mail from Mike Glotz to Jon Duncan ( September 1, 2016). 9E -mail from Mike Glotz to Jon Duncan (September 7, 2016). 10E -mail from [ Mike Glotz] to Jon Duncan ( September 13, 2016). E-mail from Mike Glotz to Public Access Counselor, Illinois Attorney General (September 15, 2016). E-mail from Mike Glotz to Public Access [ Bureau]. Sarah Pratt, Christopher Boggs, Illinois Attorney General ( September 15, 2016). After receiving messages on September 22 and 23, 2016, that delivery to iduncan@thehacc. org had failed, the Public Access Bureau sent the letter to Mr. Duncan by United States Postal Service on September 23, 2016. Letter from Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office ofthe Attorney General, to Jon A. Duncan, General Counsel, FOIA Officer, Housing Authority ofCook County September 22, 2016). Mr. Michael Glotz Mr. Jon A. Duncan December 14, 2016 Page 4 Request for Review to the Authority and asked the Authority to respond.' 5 An Assistant Attorney General in the Public Access Bureau also sent an e-mail to Mr. Duncan and attempted to contact Mr. Duncan by telephone.' 6 As ofthe date ofthis binding opinion, this office has not received any indication that the Authority has responded to Mr. Glotz's FOIA request. On November 10, 2016, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5( 1) ofFOIA.17 ANALYSIS It is a fundamental obligation ofgovernment to operate openly and provide public records as expediently and efficiently as possible in compliance with [ FOIA].\" 5 ILCS 140/ 1 ( West 2014). Under section 1. 2 of FOIA ( 5 ILCS 140/ 1. 2 ( West 2014)), \"[ a]ll records in the custody or possession ofa public body are presumed to be open to inspection or copying.\" Section 3( a) of FOIA ( 5 ILCS 140/3( a) ( West 2014)) provides that \"[ e] ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 ofthis Act.\" Section 3( d) ofFOIA further provides: Each public body shall, promptly, either comply with or deny a request forpublic records within 5 business days after its receipt ofthe request, unless the time for response is properly extended under subsection ( e) ofthis Section. Denial shall be in writing as provided in Section 9 ofthis Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial ofthe request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies ofthe requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). Letter from Leah Bartell, Assistant Attorney General, Public Access Bureau, Office ofthe AttorneyGeneral, to Jon A. Duncan, General Counsel, FOIA Officer, HousingAuthority ofCookCounty (October 19, 2016). 6E -mail from Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office ofthe Illinois Attorney General, toJon Duncan (October27, 2016). Letter from Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office ofthe Illinois Attorney General, to Mike Glotz and Jon A. Duncan, General Counsel, FOIA Officer, Housing Authority of Cook County (November 10, 2016). Mr. Michael Glotz Mr. Jon A. Duncan December 14, 2016 Page 5 The Authority did not respond to Mr. Glotz's FOIA request within five business days after receiving it by either complying with the request, extending the time to respond pursuant to section 3( e) ofFOIA (5 ILCS 140/3( e) ( West 2014)), or denying the request in writing. Eleven business days after Mr. Glotz submitted his request, the Authority contacted him and worked with him to clarify his request. After obtaining written clarification ofthe records that Mr. Glotz was seeking, however, the Authority did not respond to his FOIA request. The Authority' s failure to comply with the requisite procedures violated section 3( d) ofFOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor' s review, and the applicable law, the Attorney General finds that: 1) On July 19, 2016, Mr. Michael Glotz submitted a FOIA request to the Authority via e-mail seeking records concerning Buckeye. The Authority did not, within five business days after its receipt ofthe initial request, comply with the FOIA request, extend the time for response pursuant to section 3(e) of FOIA, or deny the request in whole or in part, as is required by section 3( d) of FOIA. The failure to do so constituted a denial ofthe FOIA request. 2) On August 3, 2016, the Authority contacted Mr. Glotz by e-mail and informed him that it had questions concerning his request. On August 22, 2016, Mr. Glotz explained to the Authority's General Counsel by telephone that he was seeking records involving Buckeye and its employees that relate to a specific development project, and confirmed the scope ofhis request to the Authority by e-mail. Even assuming, arguendo, that the August 22, 2016, clarification ofthe original FOIA request could be considered a new request, for purposes of initiating the statutory period for response, the Authority did not, within five business days thereafter, comply with the request, extend the time for response pursuant to section 3( e) of FOIA, or deny the request in whole or in part, as is required by section 3( d) ofFOIA. 3) On September 15, 2016, Mr. Glotz asked the Public Access Counselor and the Public Access Bureau to review the Authority's denial ofhis FOIA request. The Request for Review was timely filed and otherwise complies with the requirements ofsection 9.5(a) ofFOIA 5 ILCS 140/9.5( a) ( West 2014)). 4) On September 22, 2016, and again on October 19, 2016, the Public Access Bureau forwarded copies ofMr. Glotz' s Request for Review to the Authority, together with a letter asking the Authority to advise this office whether it had responded to the FOIA request that Mr. Glotz submitted on July 19, 2016, and clarified on August 22, 2016. The Authority did not respond to those inquiries. Mr. Michael Glotz Mr. Jon A. Duncan December 14, 2016 Page 6 5) Pursuant to section 9.5(f) ofFOIA, this office properly extended the time for issuing a binding opinion by 30 business days to December 28, 2016. Therefore, the Attorney General may properly issue abinding opinion with respect to this matter. 6) To date, this office has received no indication that the Authority has responded to Mr. Glotz's request. Therefore, it is the opinion ofthe Attorney General that the Authority has violated section 3( d) ofFOIA by failing, within five business days after receiving Mr. Glotz's request, to provide the requested records, to deny the request in whole or in part, or to notify Mr. Glotz in writing that it was extending the time for issuing a response. Accordingly, the Authority is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Glotz with all records responsive to his July 19, 2016, FOIA request, as clarified on August 22, 2016, subject only to permissible redactions, ifany, under section 7 ofFOIA ( 5 ILCS 140/7 ( West 2015 Supp.), as amended by Public Act 99-642, effective July 28, 2016). 18 If the Authority determines that any portion ofthe responsive records is exempt from disclosure under section 7, the Authority is directed to issue awritten denial that fully complies with the requirements ofsection 9(a) of FOIA ( 5 ILCS 140/ 9(a) ( West 2014)). This opinion shall be considered a final decision ofan administrative agency for the purposes ofadministrative review underthe Administrative Review Law. 735 ILCS 5/3- 101 etseq. ( West 2014). An aggrieved party may obtain judicial review ofthe decision by filing a complaint for administrative review with the Circuit Court ofCook or Sangamon County within 35 days ofthe date ofthis decision naming the Attorney General of Illinois and Mr. Michael Glotz asdefendants. See 5 ILCS 140/11. 5 ( West 2014). Sincerely, LISA MADIGAN ATTORNEY GENERAL By: Michael J. Luke Counsel to the Attomey General 18Because the Authority did not comply with the statutory requirements for responding to Mr. Glotz's FOIA request, the Authority is precluded from treating the request as unduly burdensome or imposing copying fees forthe responsive records. See 5 ILCS 140/3(d) ( West 2014). CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy ofthe foregoing Binding Opinion (Public Access Opinion 16-011) upon: Mr. Michael Glotz 8408 Budingen Lane Tinley Park, Illinois 60487 uds20041ocal786@aol. com Mr. Jon A. Duncan General Counsel Housing Authority ofCook County 175 West Jackson Boulevard, Suite 350 Chicago, Illinois 60604- 3042 jduncan@thehacc. org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on December 14, 2016. alit SARAH L. P Public Access Counselor SARAH L. PRATT Public Access Counselor 500 South Second Street Springfield, Illinois 62706 217) 785- 5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Michael Glotz submitted a FOIA request to the Housing Authority of Cook County seeking records about Buckeye. The agency did not respond within the required five business days, nor did it extend the time or deny the request in writing. The Illinois Attorney General issued a binding opinion finding that the agency violated section 3(d) of FOIA by failing to appropriately respond to the request.","card_headline":"Correspondence and property applications involving a specific entity","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":75,"orig_master_id":19048,"dup_master_id":19279,"dup_sha256":"18a20a14c5e3fe0d89dd29f04f98426b3126837f2fcd1a22421b3af1f2ab9024","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2016,"date_issued":"2016-12-23","case_number":"2016 PAC 44249","request_numbers":null,"title":"Improper Discussion of Salary Increases for City Employees in a Closed Meeting","filename":"PUBLIC ACCESS OPINION 16-013 (Request for Review - 2016 PAC 44249).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 16-013 (Request for Review - 2016 PAC 44249).pdf","word_count":2405,"summary":"The Lebanon Advertiser alleged that the \"closed session was improper in that it dealt with across-the-board raises and not individual employees\" The Attorney General issued a binding opinion issued by the Attorney General . The opinion concludes that the Lebanon City Council violated section 2(a) of the Open Meetings Act .","plain_summary":"The requester, a newspaper publisher, alleged that a city council closed part of a meeting to discuss and then approved an across-the-board cost-of-living raise for city employees under the exception for discussing specific employees. The Public Access Counselor held that the specific-employees exception does not extend to a general budgetary discussion affecting a broad category of employees, and that a second exception the city council later invoked for salary schedules could not be relied on because it had not been publicly cited at the time of the vote to close the meeting. The city council was directed to disclose the closed-session recording of that discussion and bring future meetings into compliance.","holding":"The Lebanon City Council violated the Open Meetings Act by discussing an across-the-board salary increase for city employees during a closed session, as the discussion was outside the scope of the cited exception (section 2(c)(1)).","legal_question":"Whether a public body may discuss and take action on across-the-board salary increases for its employees in a closed session under the personnel exception of the Open Meetings Act.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2(a), 5 ILCS 120/2(c), 5 ILCS 120/1, 5 ILCS 120/2(b), 5 ILCS 120/2, 5 ILCS 120/7, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(1)"],"public_body":"City of Lebanon City Hall","requesting_party":"Mr. David Porter, Lebanon Advertiser","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"closed session","subject_description":"The City Council held a closed session to discuss and approve a two percent across-the-board pay raise for city employees.","ocr_status":"ok","ocr_quality":90.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-013.pdf","sha256":"5f76b0663f80819eef65377408d190d0c0b75e2a7f7975f7fb97bb7a844fe3fe","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","salary increases","personnel exception","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL December 23, 2016 PUBLIC ACCESS OPINION 16-013 (Request for Review 2016 PAC 44249) OPEN MEETINGS ACT: Improper Discussion of Salary Increases for City Employees in a Closed Meeting Mr. David Porter Publisher, Lebanon Advertiser P.O. Box 126 Lebanon, Illinois 62254 The Honorable Rich Wilken Mayor, City of Lebanon City Hall 312 West St. Louis Street Lebanon, Illinois 62254 Dear |Mr. Porter and Mr. Wilken: This is a binding opinion issued by the Attorney General pursuant to section 3. 5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2015 Supp.)). For the reasons discussed below, this office concludes that the Lebanon City Council (City Council) violated section 2(a) of OMA (5 ILCS 120/2(a) (West 2015 Supp.), as amended by Public Acts 99-- 642, effective July 28, 2016; 99-646, effective July 28, 2016) by closing a portion of its September 26, 2016, meeting to discuss an across-the-board pay raise for City employees. BACKGROUND On September 26, 2016, Mr. David Porter, on behalf of the Lebanon Advertiser, submitted a Request for Review to the Public Access Counselor alleging that at a City Council meeting earlier that evening, the City Council entered closed session to discuss a pay raise for 500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416 -~ Mr. David Porter The Honorable Rich Wilken December 23, 2016 Page |2 City employees, and then took final action to approve a two percent across-the-board raise after returning to open session. Mr. Porter alleged that the \"closed session was improper in that it dealt \\with across-the-board raises and not individual employees.\"' On September 30, 2016, the Public Access Bureau sent a copy of the Request for Review to the City's mayor and asked that the City Council provide a written response identifying the specific exception in section 2(c) of OMA (5 ILCS 120/2(c) (West 2015 Supp.), as amended by Public Acts 99-642, effective July 28, 2016; 99-646, effective July 28, 2016) that the City Council publicly cited and identified as its basis for entering closed session during the September 26, 2016, meeting and explaining its applicability to the content of the closed session discussion, The City Council was also asked to provide copies of the agenda, open and closed session minutes, and verbatim recording of the closed session portion of that meeting for this office's confidential review.” Enclosed with his October 13, 2016, response letter to this office, counsel for the City furnished copies of the requested agenda and open session minutes. In addition, counsel provided a written response stating that the City Council entered into closed session pursuant to section 2(c)(1) of OMA (5 ILCS 120/2(c)(1) (West 2015 Supp.), as amended by Public Acts 99- 642, effective July 28, 2016; 99-646, effective July 28, 2016). The response asserted that the City Council properly discussed a cost-of-living pay increase for non-union City employees in closed session under section 2(c)(1) and also asserted that such a discussion would have been proper under section 2(c)(2) of OMA (5 ILCS 120/2(c)(2) (West 2015 Supp.), as amended by Public Acts 99-642, effective July 28, 2016; 99-646, effective July 28, 2016), as well? On October 18, 2016, the Public Access Bureau forwarded a copy of the City Council's response to Mr. Porter.’ Mr. Porter replied to the City's response on October 24, 2016. He asserted that the City Council was not permitted to discuss an across-the-board pay raise for non-union employees under, either of the asserted exceptions, and that the applicability of section 2(c)(2) \"is immaterial ‘E-mail from David Porter, Publisher, Lebanon Advertiser, to Public Access [Bureau] (September 26, 2016). “Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Rich Wilken, Mayor, City of Lebanon (September 30, 2016). “Letter from Duane C. Clarke, Attomey for the City of Lebanon, Bruckert, Gruenke & Long, P.C., to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (October 13, 2016). ‘Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to David Porter, Publisher, Lebanon Advertiser (October 18, 2016). Mr. David Porter The Honorable Rich Wilken December 23, 2016 Page|3 to the City's position because that exemption was not cited at the Sept. 26, 2016, Lebanon City Council meeting.” On October 27, 2016, counsel for the City sent this office copies of the closed session minutes and the closed session verbatim recording from the meeting in question.° On November 21, 2016, this office extended the time within which to issue a binding opinion by 21 business days pursuant to section 3.5(e) of OMA.’ ANALYSIS OMA is intended \"to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2014). Section 2(a) of OMA provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" Such exceptions \"are in derogation of the requirement that public bodies meet in the open, and therefore, the exceptions are to be strictly construed, extending only to subjects clearly within their scope.\" (Emphasis added.) 5 ILCS 120/2(b) (West 2015 Supp.), as amended by Public Acts 99-642, effective July 28, 2016; 99- 646, effective July 28, 2016. Section 2a of OMA (5 ILCS 120/2a (West 2014)) further provides that \"[t]he vote of each member on the question of holding a meeting closed to the public and a citation to the specific exception contained in Section 2 of this Act which authorizes the closing of the meeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of the meeting.” SLetter from David Porter, Publisher, Lebanon Advertiser, to Steve Silverman, Bureau Chief, Public ‘Access Bureau, Office of the Attorney General (October 24, 2016), at |. Mr. Porter's reply also notes that the agenda item referencing the cost-of-living increase (\"Consider COLA for employees (non-union),\" Lebanon City Council, Agenda Item Personnel 1 (September 27, 2016)) did not explain the acronym \"COLA\" and that the City Council skipped that item during the open portion of the meeting, apparently alleging that the City Council failed to provide proper advance notice of its final action to approve a pay raise. At the time that he filed his Request for Review, Mr. Porter did not allege that the City Council failed to provide sufficient advance notice of its final action on the pay raise, therefore, that issue is outside the scope of this review. °Letter from Duane C. Clarke, Attorney for City of Lebanon, Bruckert, Gruenke & Long, P.C., to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (October 27, 2016). \"Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to David Porter, Publisher, Lebanon Advertiser, and Duane C. Clarke, Bruckert, Gruenke & Long, P.C, (Novemb2e1r, 2016). Mr. David Porter The Honorable Rich Wilken December 23, 2016 Page |4 Section 2(c)(1) of OMA The open session minutes of the City Council's September 26, 2016, meeting indicate that the City Council approved a motion to enter \"into closed session pursuant to 5 ILCS 120/2(c)(1) of the OMA to discuss and consider information regarding the appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the City[!]\"* The text of this motion is taken essentially verbati [...] ause the City Council's discussion involved a general budgetary discussion related to the compensation of a range of employees, rather than any specific employee or employees, this office concludes that the City Council violated OMA by discussing in closed session matters outside the scope of section 2(c)(1). Section 2(c)(2) of OMA The City Council's response to this office also asserted that its closed session discussion would have been permissible under section 2(c)(2) of OMA, even though the City Council neither publicly disclosed this exception at the time of its vote to close the September 26, 2016, meeting nor recorded it in the meeting minutes as expressly required by section 2a of OMA Section 2(c)(2) of OMA permits a public body to enter closed session to discuss \"[clollective negotiating matters between the public body and its employees or their representatives, or deliberations concerning salary schedules for one or more classes of employees.\" This office agrees with Mr. Porter that because the City Council did not cite this exception at the time it was closing the meeting as required by the law, section 2(c)(2)i s not relevant to the propriety of the September 26, 2016, closed session. The recording shows that the City Council also discussed an unrelated matter concerning a specific employee that is not at issue in this matter. Mr. David Porter The Honorable Rich Wilken December 23, 2016 Page|6 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments presented, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On September 26, 2016, the Lebanon City Council closed a portion of its meeting \"pursuant to 5 ILCS 120/2(c)(1) of the OMA to discuss and consider information regarding the appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the City[.]\" 2) On September 26, 2016, Mr. David Porter, on behaolff the Lebanon Advertiser, submitted a Request for Review to the Public Access Counselor alleging that the City Council's closed session discussion of a pay raise for City employees was improper because it was not limited to individual employees. 3) On September 30, 2016, the Public Access Bureau sent a copy of the Request for Review to the City's mayor and asked that the City Council provide a written response to the allegation in the Request for Review, together with copies of the verbatim recording of the closed session portion of the September 26, 2016, meeting as well as the meeting agenda and the open session and closed session meeting minutes. 4) By letter dated October 13, 2016, counsel for the City furnished copies of the agenda and open session minutes and asserted in his written response that the City Council properly entered closed session pursuant to section 2(c)(1) to discuss a cost of living increase for non-union City employees. 5) On October 18, 2016, this office sent a copy of that response to Mr. Porter. On October 24, 2016, Mr. Porter submitted a reply disputing that section 2(c)(1) authorized the City Council to discuss a pay raise for non-union City employees in closed session. 6) By letter dated October 27, 2016, counsel for the City provided this office with a copy of the verbatim recording and closed session minutes of the September 26, 2016, meeting. 7) On November 21, 2016, this office extended the time within which to issue a binding opinion by 21 business days, to December 27, 2016, pursuant to section 3.5(e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 2(a) of OMA requires that all meetings of public bodies be open to the public unless the subject of the meeting is covered by one of the limited exceptions enumerated in section 2(c). Section 2(c)(1) permits a public body to close a portion of a meeting to discuss Mr. David Porter The Honorable Rich Wilken December 23, 2016 Page|7 \"{t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body[.].\" 9) Based on its plain language, section 2(c)(1) applies to discussions concerning specifiic employees. This exception does not permit a public body to discussi n closed session budgetary matters concerning broad categories of employees. Therefore, the City Council violated section 2(a) of OMA by improperly discussing an across-the-board pay raise for City employees and its impact on the City's budget pursuant to section 2(c)(1) of OMA. In accordance with these findings of fact and conclusions of law, the City Council is directed to remedy this violation by disclosing to Mr. Porter and making publicly available that portion of the closed session verbatim recording of its September 26, 2016, meeting related to an across-the-board pay raise for non-union City employees. The City Council is also directed to conduct its future meetings in full compliance with OMA. As required by section 3.5(e) of OMA, the City Council shall either take necessary action as soon as practical to comply with the directives of this opinion or initiate administrative review under section 7.5 of OMA. 5 ILCS 120/7.5 (West 2014). This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. David Porter as defendants. See 5 ILCS 120/7.5 (West 2014). Very truly yours, LISA MADIGAN ATTORNEY GENERAL Michael J. Luke Counsel to the Attorney General cc: Mr. Duane C. Clarke Attorney for the City of Lebanon Bruckert, Gruenke & Long, P.C. 1002 East Wesley Drive, Suite 100 O'Fallon, Illinois 62269 CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 16-013) upon: Mr. David Porter Publisher, Lebanon Advertiser P.O. Box 126 Lebanon, Illinois 62254 Presseditor 1@gmail.com The Honorable Rich Wilken Mayor, City of Lebanon. City Hall _ 312 West St. Louis Street Lebanon, Illinois 62254 clerk@lebanonil.org Mr. Duane C. Clarke Attorney for the City of Lebanon Bruckert, Gruenke & Long, P.C. 1002 East Wesley Drive, Suite 100 O'Fallon, Illinois 62269 dcec@pbglattorneys.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on December 23, 2016. avd( A$ hat SARAH L. PRATT~~ Public Access Counselor SARAH L. PRATT Public Access Counselor 500 South Second Street Springfield, Illinois 62706 (217)|785-5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Lebanon City Council discussed an across-the-board pay raise for city employees during a closed session on September 26, 2016, but took final action to approve the raise after returning to open session. The Attorney General ruled that the closed session violated the Open Meetings Act because the discussion involved a general budgetary matter about compensation for a range of employees, not specific personnel issues about individual employees as required by the cited exception. This means the Council must discuss broad salary policies in public view.","card_headline":"Closed-session discussion of employee pay raises","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":76,"orig_master_id":19049,"dup_master_id":19278,"dup_sha256":"9f289d6be85f620f07b3d78a981ac7ea9ae3ead60af1095118ad47ec4a1bc5dc","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2016,"date_issued":"2016-12-21","case_number":"2016 PAC 44115","request_numbers":null,"title":"Disclosure of Public Employees' Compensation","filename":"PUBLIC ACCESS OPINION 16-012 (Request for Review - 2016 PAC 44115).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 16-012 (Request for Review - 2016 PAC 44115).pdf","word_count":2389,"summary":"Lisa Madigan: The Housing Authority of the City of Freeport (Authority) violated the requirements of FOIA by improperly denying Mr. Steve Carroll's request for employee compensation information related to bonuses . The Attorney General issued a binding opinion issued by the Attorney General .","plain_summary":"The requester sought the names, titles, and dollar amounts of employee bonuses funded by a reallocation of a raise the housing authority's board had approved, and the housing authority denied the request in full, citing personal-privacy and personnel-record exemptions and arguing the requester's past FOIA use amounted to harassment. The Public Access Counselor held that bonus compensation paid from public funds is expressly subject to disclosure regardless of privacy or personnel-record concerns, and that FOIA does not allow a public body to withhold records based on its view of why the requester wants them. The housing authority was directed to disclose records showing the bonuses paid to each employee.","holding":"The Housing Authority of the City of Freeport violated FOIA by improperly denying the requester's request for employee compensation information related to bonuses.","legal_question":"Whether the Housing Authority of the City of Freeport improperly denied a FOIA request for records identifying the names, titles, and bonus amounts of staff members receiving re-allocated funds.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(1), 820 ILCS 40/0, 5 ILCS 140/3(a), 5 ILCS 140/7, 5 ILCS 140/2, 820 ILCS 40/11, 5 ILCS 140/1, 820 ILCS 40/8, 5 ILCS 140/2(c)","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"Brenda Westfall FOIA Officer Housing Authority","requesting_party":"Carroll and Ms. Westfall","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"personnel records","subject_description":"The request sought the names, titles, and dollar amounts of bonuses awarded to staff members following a board-approved re-allocation of funds.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-012.pdf","sha256":"1fb01eb3aca0427ec634bb321fdb90b51589412b97390051b3df688eda64b541","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["employee compensation","bonuses","personnel records","public records"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL December 21, 2016 PUBLIC ACCESS OPINION 16-012 (Request for Review 2016 PAC 44115) FREEDOM OF INFORMATION ACT: Disclosure of Public Employees' Compensation Mr. Steve Carroll 811 South Oak Avenue Freeport, Illinois 61032 Ms. Brenda Westfall FOIA Officer Housing Authority of the City of Freeport 1052 West Galena Avenue Freeport, Illinois 61032 Dear Mr. Carroll and Ms. Westfall: This is a binding opinion issued by the Attorney General pursuant to section 9.5({f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons discussed below, this office concludes that the Housing Authority of the City of Freeport (Authority) violated the requirements of FOIA by improperly denying Mr. Steve Carroll's August 31, 2016, request for employee compensation information related to bonuses. BACKGROUND On August 31,2016, Mr. Carroll submitted a FOIA request to the Authority seeking \"the dollar amount of the increase and the names and titles of the staff members receiving bonuses as a result of the re-allocated funds.\"' The request referred to a May 13, 2016, meeting at which the Authority's Board of Commissioners (Board) voted to approve a re- allocation of an increase in the base salary of the Authority's chief executive officer to staff 'FOIA Request from Steve Carroll to Housing Authority of the City of Freeport (August 31, 2016). t 500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 © TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 © Fax: (312) 814-3806 ratn Ssta en ai MOT me EDN ER CAA we TNT FOTN CTE ADT 8 Daas (LION O90 CALE areni ate Mr. Steve Carroll Ms. Brenda Westfall December 21, 2016 Page 2 bonuses. In a letter dated September 8, 2016, the Authority denied the request in its entirety citing sections 7(1)(b) and 7(1)(c) of FOIA (5 ILCS 140/7(1)(b), (1)(c) (West 2015 Supp.), as amended by Public Act 99-642, effective July 28, 2016), and also asserted that the Personnel Record Review Act (PRRA) (820 ILCS 40/0.01 et seg. (West 2014)) prohibits disclosure of the requested information.” On September 19, 2016, the Public Access Bureau received a Request for Review from Mr. Carroll contesting the Authority's denial.? On September 26, 2016, the Public Access Bureau sent a copy of the Request for Review to the Authority and asked it to provide a detailed explanation of the factual and legal bases for its assertion that the requested records are exempt from disclosure under sections 7(1)(b) and 7(1)(c) of FOIA and the PRRA.* The Public Access Bureau also asked the Authority to specifically address the applicability of section 2.5 of FOIA (S ILCS 140/2.5 (West 2014)), which provides that \"[a]ll records relating to the obligation, receipt, and use of public funds of the State, units of local government, and school districts are public records subject to inspection and copying by the public.” On October 7, 2016, the Authority submitted its response to the Request for Review to the Public Access Bureau.” In the redacted version of the response, the employees’ names, titles, and dollar amounts of the bonuses had been withheld, whilei n the confidential version that information was not redacted. The Authority discussed its arguments concerning the privacy of the requested information: The information being requested is confidential. [The Authority] has concern about providing the confidential information requested for a number of reasons. [The Authority] desires to be respectful of the privacy and private financial information of its employees and be in compliance with applicable *Letter from Brenda Westfall, FOIA Officer, Executive Assistant, Housing Authority of the City of Freeport, to Steve Carroll (September 8, 2016). Request for Review from Steve Carroll (signed and dated September 13, 2016). *Letter from Neil P. Olson, Deputy Public Access Counselor, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Brenda Westfall, FOIA Officer, Housing Authority of the City of Freeport (September 26, 2016). *Letter from Brenda Westfall, FOIA Officer, Housing Authority of the City of Freeport, to Office of Attorney General Lisa Madigan, c/o Neil P. Olson, Deputy Public Access Counselor (October 7, 2016). The Housing Authority submitted two versions of its response, a confidential version to be reviewed only by the Office of the Attorney General and a redacted version to be provided to Mr. Carroll. i t Mr. Steve Carroll Ms. Brenda Westfall December 21, 2016 Page 3 laws in this regard, including the FOIA and the Illinois Personnel Records Review Act. [The Authority] was reasonably concerned that if it were to provide the requested information that it would disclose private personal financial information which has ramifications for the [Authority] employees involved. Further, although Mr. Carroll's request states the requests are for \"non- commercial purposes,\" in the past, [the Authority] is aware that information about private compensation has been used to contact and harass current [Authority] employees about specific details about bonuses and compensation. This type of use of information is not in the public interest, nor is it contemplated by the Fora. On October 13, 2016, the Public Access Bureau forwarded a copy of the Authority's response with the confidential information redacted to Mr. Carroll.’ The Public Access Bureau received a reply from Mr. Carroll on October 26, 2015.\" During a November 9, 2016, telephone conversation with the Authority's FOIA Officer, an Assistant Attorney General in the Public Access Bureau requested that the Authority provide a supplemental written response detailing its allegations that information regarding employee compensation had been used as a basis to \"harass\" Authority employees. On November 29, 2016, the Authority submitted its supplemental written response to the Public Access Bureau, and asserted that the request at issue was part of a pattern of requests.” The Authority stated, in pertinent part: The harassment comes from the information he is requesting which is not within the intended purpose of FOIA, that being to \"enable people to fulfill their duties of discussing public issues fully and freely and monitoring government to ensure that it is being conducted in the public interest.\" The requests are further in derogation of the Act's provision that it is \"not intended to cause an *Letter from Brenda Westfall, FOIA Officer, Housing Authority of the City of Freeport, to Office of Attorney General Lisa Madigan, c/o Neil P. Olson, Deputy Public Access Counselor (October 7, 2016), at 1. \"Letter from Neil P. Olson, Deputy Public Access Counselor, Public Access Bureau, Office of the Attorney General, to Steve Carroll (October 13, 2016). *Reply from Steve Carroll (signed and dated October 19, 2016). \"Letter from Brenda Westfall, FOIA Officer, Housing Authority of the City of Freeport, to Office of Attorney General Lisa Madigan, c/o Neil P. Olson, Deputy Public Access Counselor (November 29, 2016). Mr. Steve Carroll Ms. Brenda Westfall December 21, 2016 Page 4 unwarranted invasion of personal privacy, nor to allow the requests of a commercial enterprise to unduly burden public resources.\"!'”! The Authority further contended that Mr. Carroll's requests targeted particular employees and arose out of his opposition to a property redevelopment program. The Authority listed and described a number of FOIA requests that Mr. Carroll had submitted between December 16, 2015, and November 11, 2016, two of which required the compilation of more than 1,000 pages of responsive records.!! The Public Access Bureau forwarded a copy of the Authority's supplemental written response to Mr. Carroll on November 29, 2016.'? On December 2, 2016, Mr. Carroll submitted a reply to the supplemental written response in which he [...] o manageable proportions, none of them authorize a public body to decline to provide \"public records\" based on its perception that the requester is seeking them for a reason that is in some way inconsistent with the purposes for which FOIA was enacted. | FINDINGS AND CONCLUSIONS ! After full examination and giving due consideration to the available information, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On August 31, 2016, Mr. Steve Carroll submitted a FOIA request to the Authority seeking \"the dollar amount of the increase and the names and titles of the staff members receiving bonuses as a result of the re-allocated funds\" in connection with a re- allocation of one staff member's salary increase to bonuses for other staff members. 2) On September 8, 2016, the Authority denied the request in its entirety, citing sections 7(1)(b) and 7(1)(c) of FOIA and the Personnel Record Review Act. ®Section 2(g) ofF OIA (5 ILCS 140/2(g) (West 2015 Supp.)) defines a \"[rJecurrent requester” as “a person that, in the 12 months immediately preceding the request, has submitted to the same public body (i) a minimum of 50 requests for records, (ii) a minimum of 15 requests for records within a 30-day period, or (iii) a minimum of 7 requests within a 7-day period.” Based on the information provided by the Authority regarding the 13 FOIA requests Mr. Carroll submitted between December 16, 2015, and November 11, 2016, Mr. Carroll would not qualify as a recurrent requester: | \"Section 2(h) of FOIA (5 ILCS 140/2(h) (West 2015 Supp.)) defines a \"[vJoluminous request\" as: a request that: (i) includes more than 5 individual requests for more than 5 different categories of records or a combination of individual requests that total requests for more than 5 different categories of records in a period of 20 business days; or (ii) requires the compilation of more than 500 letter or legal- sized pages of public records unless a single requested record exceeds 500 pages. Based on the correspondence provided by Mr. Carroll, it appears that the Authority treated his requests that required the compilation of more than 1,000:pages of records as \"voluminous requests.” Mr. Steve Carroll Ms. Brenda Westfall December 21, 2016 Page 10 3) On September 19, 2016, the Public Access Bureau received a Request for Review from Mr. Carroll contesting the denial of his FOIA request. The Request for Review was timely filed and otherwise complies with section 9.5{a) of FOIA (5 ILCS 140/9.5(a) (West 2014)). 4) On September 26, 2016, the Public Access Bureau sent a copy of Mr. Carroll's Request for Review to the Authority and asked it to provide a detailed explanation of the factual and legal bases for its assertion that the requested records are exempt from disclosure under sections 7(1)(b) and 7(1)(c) of FOIA and the PRRA. 5) On October 7, 2016, the Authority sent its written response to the Public Access Bureau. The Authority provided two versions of its response, one version of the response was redacted to conceal the identities of the employees receiving bonuses and the amounts of those bonuses, the other version was for this office's confidential review and contained the pertinent employee compensation information. A copy of the redacted response was provided to Mr. Carroll. , 6) Pursuant to section 9.5(f) of FOIA, this office properly extended the time for issuing a binding opinion by 30 business days to January 4, 2017. Therefore, the Attorney General may properly submit a binding opinion with respect to this matter. 7) Section 2.5 of FOIA specifically provides that all records relating to the obligation, receipt, and use of public funds of units of State and local government are public records subject to inspection and copying by the public. The Authority is a unit of local government and the compensation at issue was paid from public funds. Therefore, the amount of compensation paid to each employee is subject to disclosure. 8) Further, the amount of bonus compensation paid by the Authority to its employees does not constitute \"personal financial information\" or any other \"unique identifier\" that is exempt from disclosure under section 7(1)(b) of FOIA. Therefore, the Authority may not properly withhold the amount of bonus compensation paid to each employee under section 7(1)(b). 9) The Authority also failed to meet its burden of demonstrating that disclosure of the requested employee compensation information would constitute a clearly unwarranted invasion of personal privacy under section 7(1)(c) of FOIA. Because records containing that information directly relate to the Authority's use of public funds, as well as the performance of public duties by the employees in question, they are expressly subject to disclosure under section 2.5 of FOIA and any privacy interest that the employees may have in this information is outweighed by the public's legitimate interest in knowing how public funds are spent. Mr. Steve Carroll Ms. Brenda Westfall December 21, 2016 Page 11 10) The PRRA does not prohibit a public body from disclosing employee compensation information. Therefore, it is the opinion of the Attorney General that the Authority's response to Mr. Carroll's Freedom of Information Act request violated the requirements of the Act. Accordingly, the Authority is directed to take immediate and appropriate action to comply with this opinion by disclosing to Mr. Carroll records sufficient to show the bonuses paid to each Authority employee as a result of the May 13, 2016, Board vote. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Steve Carroll as defendants. See 5 ILCS 140/11.5 (West 2014). Very truly yours, LISA MADIGAN ATTORNEY GENERAL fos hee. By: Michael J. Luke Counsel to the Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 16-012) upon: Mr. Steve Carroll 811 South Oak Avenue Freeport, Illinois 61032 Ms. Brenda Westfall FOIA Officer Housing Authority of the City of Freeport 1052 West Galena Avenue Freeport, Illinois 61032 bwestfall@hacf.us by causing a true copy thereof to be sent electronically to the address as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, [Illinois on December 21, 2016. | ff SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor 500 South Second Street Springfield, Illinois 62706 (217) 785-5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Steve Carroll requested information regarding bonuses paid to staff members of the Housing Authority of the City of Freeport. The Authority denied the request, but the Attorney General ruled that this information is public record and must be disclosed. This means public bodies cannot hide details about employee compensation and bonuses from the public.","card_headline":"Staff bonus amounts after a fund re-allocation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":77,"orig_master_id":19050,"dup_master_id":19280,"dup_sha256":"332a99ebf22de704935088af23428f243a5cc5ac13356d2edf6b97b55f70cd86","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2016,"date_issued":"2016-12-30","case_number":"2016 PAC 45117","request_numbers":null,"title":"Taking Final Action on Matter Not on Meeting Agenda","filename":"PUBLIC ACCESS OPINION 16-015 (Request for Review - 2016 PAC 45117).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 16-015 (Request for Review - 2016 PAC 45117).pdf","word_count":2173,"summary":"The Attorney General issued a binding opinion issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) The opinion concludes that the Board of Trustees of the Village of Caseyville (Board) violated section 2.02(c) of OMA . The issue was not placed on the agenda and posted more than 48 hours prior to the meeting in violation of the Act .","plain_summary":"The requester, a board member, alleged that the village board voted to amend and approve a settlement agreement under a generic 'Old Business' agenda item that gave no notice the matter would be subject to final action, over the objection of the board's own attorney that the vote would be illegal. The Public Access Counselor held that an agenda item must disclose the general subject matter of any resolution or measure that will be finally acted on, and that 'Old Business' failed to do so here. The village board was directed to reconsider the settlement agreement at a properly noticed meeting.","holding":"The Board of Trustees of the Village of Caseyville violated section 2.02(c) of the Open Meetings Act by voting to approve a settlement agreement that was not listed on the meeting agenda.","legal_question":"Whether a public body violates section 2.02(c) of the Open Meetings Act by taking final action on a matter that was not included on the meeting agenda.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2, 5 ILCS 120/1, 5 ILCS 120/7, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Caseyville","requesting_party":"Modrovsky and Mr. Black","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"meeting notice","subject_description":"Vote to amend and approve a settlement agreement in a lawsuit was taken without being listed on the meeting agenda.","ocr_status":"ok","ocr_quality":91.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-015.pdf","sha256":"a4df1ae2818e9f47abf9b759321602cb3a71d3b42c92a33c92869ab7c50980e8","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["agenda","final action","settlement agreement","open meetings act","board meeting"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS _ Lisa Madigan ATTORNEY GENERAL December 30, 2016 PUBLIC ACCESS OPINION 16-015 (Request for Review 2016 PAC 45117) OPEN MEETINGS ACT: Taking Final Action on Matter Not on Meeting Agenda Mr. Matt Modrovsky 24 West Washington Caseyville, [linois 62232 The Honorable Len Black, Mayor Village of Caseyville 909 South Main Street Caseyville, IHinois 62232 Dear Mr. Modrovsky and Mr. Black: This is a binding opinion issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2015 Supp.)). For the reasons discussed below, this office concludes that the Board of Trustees of the Village of Caseyville (Board) violated section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2014)) at its November 16, 2016, meeting by voting to amend and approve a settlement agreement, although the general subject matter of that final action was not included on its meeting agenda. - 500 South Second Street, Springfield, Nlinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046 _ 100 West Randolph Street, Chicago, IHinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 © Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondale, Mlinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416 Mr. Adam Chudzik The Honorable Srbo Radisavljevic December 28, 2016 Page 2 session of the Board's September 20, 2016, meeting.’ Specifically, Mr. Chudzik alleged that approximately 10 minutes prior to the start of the meeting, he asked the Board President, Mr. Srbo Radisavljevic, whether he could record the open session, and was told that he could not.” Mr. Chudzik explained that although he \"did not make a special request, for example, to be near power outlets[,]\" Mr. Radisavljevic informed him that he was not permitted to record that meeting because he had not provided sufficient advance notice of his intent to do so.> Mr. Chudzik alleged that the Board violated section 2.05 of OMA by prohibiting him from recording the meeting. On October 12, 2016, the Public Access Bureau sent a copy of the Request for Review to Mr. Radisavljevic, as representative of the Board, and asked for a written response to thea llegations therein, including how much advance notice the Board requires from members of the public who seek to record Board meetings. This office also requested a copy of any established and recorded Board rule regarding the public's right to record its open meetings.° On October 25, 2016, the Board's outside counsel submitted a written response in which the Board acknowledged that it had prohibited Mr. Chudzik from recording the open session after he provided notice to the Board President shortly before the meeting was convened.’ Counsel for the Board also enclosed a copy of Board Policy 2:220, which provides, in pertinent part: Any person may record or broadcast an open Board meeting. Individuals wishing to record meetings must notify the Board President or Superintendent in advance. Special requests to facilitate recording or broadcasting an open Board meeting, such as seating, writing surfaces, lighting, and access to electrical power, ‘E-mail from Adam Chudzik, Norwood Park Watchdog, to Public Access (October 3, 2016). , E-mail from Adam Chudzik, Norwood Park Watchdog, to Public Access (October 3, 2016). *E-mail from Adam Chudzik, Norwood Park Watchdog, to Public Access (October 3, 2016). \"E-mail from Adam Chudzik, Norwood Park Watchdog, to Public Access (October 3, 2016). *Letter from Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Srbo Radisavljevic, President, Board of Education, Norridge School District 80 (October 12, 2016). “Letter from Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Srbo Radisavljevic, President, Board of Education, Norridge School District 80 (October 12, 2016). \"Letter from Alan T. Sraga, Engler Callaway Baasten & Sraga, LLC, to Leah Bartelt, Esq., Assistant Attorney General, Public Access Bureau (October 25, 2016). Mr. Adam Chudzik The Honorable Srbo Radisavljevic December 28, 2016 Page 3 should be directed to the Superintendent at least 24 hours before the meeting. Recording meetings shall not distract or disturb Board members, other meeting participants, or members of the public. The Board President or other presiding officer may designate a location for recording equipment, may restrict the movements of individuals who are using recording equipment, or may take such other steps as are deemed necessary to preserve decorum and facilitate the k meeting®. k The response to this office explained that the Board \"implements its policy by requiring 24-hours' advance notice of any request to record a meeting. It is the Board's position that 24-hours’ advance notice of such request is a reasonable rule to govern the right to record a meeting under Section 2.05 of OMA.\" 7 (Emphasis added.) The response further stated: The Board meeting on September 20 was held in the Leigh School Learning Resource Center (\"LRC\"). At the time of the meeting, there were children and students present in the LRC, and their images would likely have been recorded (e.g., amongst bookcases behind the Board members, and in other places in the LRC). In addition to Board Policy 2:220, the possibility that images of children and students present in the LRC may also have been recorded was unacceptable and [an] additional reason to deny the recording request without 24-hours' notice. Given Mr. Chudzik’s request immediately prior to convening the meeting, there was no opportunity to plan a location for recording equipment that would have obviated the concern.!'! Ly On November 4, 2016, this office forwarded a copy of the Board's response to Mr. Chudzik.'! He did not reply. ‘Norridge School District 80 Board of Education, Policy 2:220 (Jan. 15, 2013). *Letter from Alan T. Sraga, Engler Callaway Baasten & Sraga, LLC, to Leah Bartelt, Esq., Assistant Attorney General, Public Access Bureau (October 25, 2016), at 1. Letter from Alan T. Sraga, Engler Callaway Baasten & Sraga, LLC, to Leah Bartelt, Esq., Assistant Attorney General, Public Access Bureau (October 25, 2016), at 2. ''Letter from Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Adam Chudzik (November 4, 2016). Mr. Adam Chudzik The Honorable Srbo Radisavljevic December 28, 2016 Page 4 On December 2, 2016, this office extended the time within which to issue a binding opinion by 21 business days pursuant to section 3.5(e) of OMA.” ANALYSIS Section 2.05 of OMA provides, in pertinent part: \"[A]ny person may record the proceedings at meetings required to be open by this Act by tape, film or other means. The authority holding the meeting shall prescribe reasonable rules to govern the right to make such recordings.\" See also 1980 Ill. Att'y Gen. Op. 102, 103 (analyzing section 2.05 of OMA (IIL. - Rev. Stat. 1979, ch. 102, par. 42.05) and advising that \"there is no provision in the Open Meetings Act * * * which grants a public body the authority to prevent recording (other than to preserve decorum and prevent interference with the proceedings).\"). In binding opinion No. 12-010, issued June 5, 2012, the Attorney General concluded that a reasonable rule authorized by section 2.05 is one that is \"designed to prevent disruptions or avoid safety hazards and [that] do[es] not unduly interfere with the right to record.” Ill. Att'y Gen. Pub. Acc. Op. No. 12-010, at 4. At issue in the opinion [...] g Resource Center visible from the meeting area, to eliminate the stated concern and still ensure the public's right to record its meetings.'\" Importantly, the Board did not explain in its response what steps it would have taken to address this concern if Mr. Chudzik had provided 24-hours' advance notice of his intent to record the meeting and why those steps could not have been taken immediately prior to the state of the meeting. In summary, the Board has failed to demonstrate that its requirement of advance notice, even when special accommodations for recording are not requested, is necessary “to prevent disruptions or avoid safety hazards.\" Accordingly, the Board's advance notice requirement violates section 2.05 of OMA.'\"° FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments presented, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On September 20, 2016, Mr. Adam Chudzik attended an open meeting of the Board of Education of Norridge School District 80. \"Letter from Alan T. Sraga, Engler Callaway Baasten & Sraga, LLC, to Leah Bartelt, Esq., Assistant Attorney General, Public Access Bureau (October 25, 2016), at 2 ‘In this regard, we note that the September 20, 2016, meeting was called to order at 7 p.m. and adjourned at 10:39 p.m.; therefore, the meeting did not take place during the regular school day while children were attending classes. Norridge School District 80 Board of Education, Meeting, September 20, 2016, Minutes 1, 7. ° Because Mr. Chudzik's request to record the proceedings of the September 20, 2016, meeting did not involve special accommodations, this opinion does not address that portion of the Board's rules governing special requests. As a resuit, nothing in this opinion should be interpreted as a determination of whether a 24 hour advance notice requirement in such circumstances is permissible. Mr. Adam Chudzik The Honorable Srbo Radisavljevic December 28, 2016 Page 7 2) On October 3, 2016, Mr. Chudzik submitted a Request for Review to the Public Access Counselor alleging that the Board improperly prohibited him from recording the open session of its September 20, 2016, meeting by asserting that his notice of intent to record, given shortly before the meeting convened, did not satisfy the Board's requirement that such notice be given \"in advance” of a meeting. The Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2015 Supp.)). 3) On October 12, 2016, the Public Access Bureau sent a copy of the Request for Review to the Board and asked for a written response to Mr. Chudzik's OMA allegation, together with a copy of any Board rule addressing the recording of the Board's open meetings by members of the public. 4) The Board's outside counsel, on behalf of the Board, provided a written response to this office on October 25, 2016. The response acknowledged that the Board President prohibited Mr. Chudzik from recording the September 20, 2016, meeting, and explained that Mr. Chudzik's notification did not comply with the Board's advance notice requirement. On November 4, 2016, this office sent a copy of that response to Mr. Chudzik. He did not reply. 5) On December 2, 2016, this office extended the time within which to issue a binding opinion by 21 business days, to January 4, 2017. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 6) Section 2.05 of OMA provides that \"any person may record the proceedings at meetings required to be open by this Act by tape, film or other means. The authority holding the meeting shall prescribe reasonable rules to govern the right to make such recordings.\" , 7) Although the Board's prescribed policy concerning the public's right to record its open meetings — Board Policy 2:220 ~ requires a member of the public to furnish notice of an intention to record the proceedings \"in advance,\" the policy does not specify when a person must provide that notice. The Board explained, however, that it implements its policy by requiring 24- hours’ advance notice in all cases. 8) The Board has failed to demonstrate that enforcing Board Policy 2:220 to prohibit Mr. Chudzik from recording the meeting because he did not provide 24-hour's advance notice of his intention to record was reasonably necessary to prevent interference with the meeting or to protect the safety of those in attendance. Therefore, prohibiting Mr. Chudzik from recording the meeting based on its policy violated section 2.05 of OMA. Mr. Adam Chudzik The Honorable Srbo Radisavljevic December 28, 2016 Page 8 In accordance with these findings of fact and conclusions of law, the Board is directed to take appropriate action to comply with this opinion by revising its policies to be consistent with the principles outlinedi n this opinion, and by otherwise conducting its future meetings in full compliance with OMA. As required by section 3.5(e) of OMA, the Board shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA (5 ILCS 120/7.5 (West 2014)). This opinion shall be considered a final decision of an administrative agency for the. purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Adam Chudzik as defendants. See 5 ILCS 120/7.5 (West 2014). Very truly yours, LISA MADIGAN ATTORNEY GENERAL ” ha-olene, By: Michael J. Luke Counsel to the Attorney General cc:, Mr. Alan T. Sraga Engler Callaway Baasten & Staga, LLC 2215 York Road, Suite 515 Oak Brook, Illinois 60523 CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 16-014) upon: Mr. Adam Chudzik Norwood Park Watchdog 4252 North Octavia Avenue Norridge, Illinois 60706 Npwatchdogl82@gmail.com The Honorable Srbo Radisavijevic President, Board of Education Norridge School District 80 8151 West Lawrence Avenue Norridge, Illinois 60706 boe@norridges0.net Mr. Alan T. Sraga Engler Callaway Baasten & Sraga, LLC 2215 York Road, Suite 515 Oak Brook, Illinois 60523 asraga@englerlawgroup.com by, causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on December 28, 2016. ot em SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor 500 South Second Street Springfield, Illinois 62706 (217) 785-5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A school board prevented a citizen from recording an open public meeting and had a policy requiring people to ask for permission before recording. The Attorney General ruled that this violated the Open Meetings Act, which guarantees the public's right to record open meetings without prior notice or approval. The board must now stop enforcing its restrictive recording policy.","card_headline":"Recording of an open school board meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":79,"orig_master_id":19275,"dup_master_id":19052,"dup_sha256":"8205b8afe0ca8921f360cd3875f29b6f64e96956f4519577542c6ab20ad073a5","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2016,"date_issued":"2016-11-07","case_number":"2016 PAC 43168","request_numbers":null,"title":"Disclosure of Certain Information in a Criminal Complaint Filed by a Public Figure","filename":"PUBLIC ACCESS OPINION 16-009 (Requests for Review - 2016 PAC 43168, 43184, 43186, 43193 and 43370).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 16-009 (Requests for Review - 2016 PAC 43168, 43184, 43186, 43193 and 43370).pdf","word_count":13058,"summary":"This document is a binding opinion issued by the Attorney General regarding the disclosure of certain information in a criminal complaint filed by a public figure under the Freedom of Information Act.","plain_summary":"Five journalists sought police reports and related records concerning threats, hacking, and extortion attempts against a then-sitting state legislator, and the village withheld or redacted information citing the legislator's constitutional crime-victim rights, personal-privacy, and law-enforcement-technique exemptions. The Public Access Counselor upheld most of the redactions -- including the legislator's private identifiers, information identifying crime victims and un-charged suspects, and details revealing specialized online investigative techniques -- but held the village had not shown that the dollar amounts involved in the extortion attempts, or certain other unspecified withheld material, were exempt. The village was directed to disclose that additional non-exempt information along with the specific account names it had located.","holding":"The Village of Downers Grove violated the requirements of FOIA by improperly redacting and withholding information.","legal_question":"Did the Village of Downers Grove comply with the requirements of the Freedom of Information Act in its handling of records?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Village of Downers Grove","requesting_party":"Amanda Vinicky, John O'Connor, Chris Fusco, Nathan Lurz, and Natasha Korecki","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The disclosure of information contained within a criminal complaint filed by a public figure.","ocr_status":"ok","ocr_quality":88.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2016-Binding-PAC-Opinions/16-009.pdf","sha256":"5560b51ff4cc18212c4ed34752f620b4a8ee1348f42f6d0a1378c5eaf4923688","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","FOIA","public records","redaction","criminal complaint"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"Lisa Madigan\nATTORNEY GENERAL\nNovember 7, 2016\nPUBLIC ACCESS OPINION 16-009 |\n(Requests for Review 2016 PAC 43168, 43184, 43186, 43193 and 43370)\ni\ni\nFREEDOM OF INFORMATION ACT: |\nDisclosure of Certain Information in a /\nCriminal Complaint Filed by a Public Figure |\n/\n|\nMs. Amanda Vinicky Mr. John O'Connor\nStatehouse Bureau Chief Associated Press |\nNational Public Radio Illinois Statehouse Pressroom\n501 South Second Street 401 South 2nd Street, Basement 13G\nSpringfield, fllinois 62703 Springfield, Illinois 62706\n|\n|\nMr. Chris Fusco Mr. Nathan Lurz |\nStaff Reporter Reporter, Downers Grove and DuPage\nChicago Sun-Times Shaw Media |\n350 North Orleans, 10\" Floor 1101 West 31° Street\nChicago, Illinois 60654 Downers Grove, Illinois 60515\n/\nMs. Natasha Korecki Ms. Enza Petrarca |\nPlaybook writer/Political reporter Village Attorney |\nPolitico, LLC - Village of Downers Grove\n1000 Wilson Boulevard 801 Burlington Avenue\nArlington, Virginia 22209 Downers Grove, Hlinois 60515\ni\nDear Ms. Vinicky, Mr. O'Connor, Mr. Fusco, Mr. Lurz, Ms. Korecki, and Ms. Petrarca:\n|\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5@) (West 2014). For the reasons\ndiscussed below, this office concludes that, although the Village of Downers Grove (Village)\nprovided copies of some records and substantial additional informatioinn a supplemental\nresponse and properly applied exemptions to portions of various records that it continues to\n|\n|\ni\n|\n500 South Second Street, Springfield, llincis 62706 * (217) 782-1090* TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000* TTY: (800) 964-3013 * Fax: (312) 814-3806\n601 South University Avenue, Suite 102, Carbondale, [inois 62901 * (618) 529-6400* TTY: (877) 675-9339+ Fax: (618) 529-6416 raced\nMs. Amanda Vinicky e¢ al.\nNovember 7, 2016\nPage 2\n|\nwithhold, it violated the requirements of FOIA by improperly redacting and withholding other\ninformation related to a criminal complaint filed by a then-public official.\nBACKGROUND\nThis binding opinion addresses five FOLA requests seeking the same or similar\nrecords, each of which the Village deniedi n part asserting the same bases, Because the Requests\nfor Review present common issues, this office has consolidated these files for determinationi n\nthis binding opinion. .\n2016 PAC 43168 |\nOn July 25, 2016, Ms. Sarah Mueller submitted a FOIA request to the Village\nseeking \"[a] copy of all police reports filed by Ron Sandack of Downers Grove between July 1,\n2016 and July 24, 2016.\" On July 26, 2016, the Village's Police Records/Information Manager\nresponded by providing a copy of an incident report but redacted most of the information therein\npursuant to sections 7(1}{b), 7(1)(c), and 7(1)(d\\(vil) of FOIA G ILCS 140/7(1)(), Cyc),\n(1)(d)(vii) (West 2015 Supp.)) The response also stated that \" [iJnvestigative supplements have\nnot been completed as of the date of this response and that * [elvidentiary documents are denied\"\npursuant to sections 7(1)(c) and 7(1\\(d)vii) of FOIA? On July 26, 2016, Ms. Mueller submitted\na Request for Review, on behalf of National Public Radio (NPR) Illinois, disputing the redaction\nof the information ii n the narrative of the complaint, the type of incident, and the offense\nclassification. |\ni\nOn August 3, 2016, the Public Access Bureau sent a copy of the Request for\nReview to the Village's Police Department and asked it to provide unredacted copies of the\npolice report at issue for this office's confidential review together with a detailed explanation of\nthe factual and legal bases for the applicability of the sections 7(1)(b), 7(1)(c), and 711) (vii)\nexemptions to the information redacted from the complaint as well as to the redactions of the\nI\n|\n‘Village of Downers Grove FOIA !-Request form submitted by Sarah Mueller (July 25, 2016).\n*Letter from Tracy Adams, Police Records/Information Manager, Vilage of Downers Grove, to\nSarah Mueller (July 26, 2016). |\n5E-mail from Sarah Mueller, Reporter, NPR Ilinois, to Public Access uly 26, 2016). Ms.\nMueller also questioned why she was required to submit photo identificationi n order,t o file a FOIA request with the\nVillage. The Public Access Counselor's authority under FOIAi s limited to reviewing denials of FOLA requests. See\n5 ILCS 140/9.5(a) (West 2014). Because Ms. Mueller did not refuse to provide photo identification and because the\nVillage did not deny her request for failing to do so, this office is unable to review that iissue. However, this office\nnotes that no provision of FOIA authorizes a public body to require a requester to provide photo identification as a\nprerequisite to filing a FOIA request.\ni\nI\n|\ni\n|\ni\n|\n|\nZ\nMs. Amanda Vinicky e¢ al.\nNovember 7, 2016\nPage 3\ntype of incident and the offense classification.* On August 5, 2016, the!V illage Attorney\nfurnished those materials to the Public Access Bureaui n a consolidated|r esponse to the Requests\nfor Review in 2016 PAC 43184, 43186, and 43193 (Consolidated Response). On the same day,\nthis office forwarded a copy of the non-confidential portions of the Village’ 's Consolidated\nResponse to Ms. Mueller;® she did not reply. |\nI\nOn September 8, 2016, this office received from the Village a supplemental\nresponse in which it asserted that the information redacted from the incident report should\nremain confidential based on Mr. Sandack's rights as a crime victim under article I, sections\n8.1(a)(1) and 8.1(a)(2) of the Illinois Constitution of 1970 (Supplemental Response to PAC)’\nOn September 8, 2016, this office forwarded a copy of the Supplemental Response to PAC) to\nMs. Mueller;® she did not reply. ;\n2016 PAC 43184 |\n|\nOn July 25, 2016, Mr. John O'Connor, on behalf of the Associated Press,\nsubmitted a FOIA request to the Village’s Police Department seeking \"a copy of any report filed\nby Ron Sandack or involving alleged cyber-security threats or fraudulent impersonation using\nsocial media since July 1, 2016. 8 On July 26, 2016, the Village's Police Records/Information\nManager responded by providing a copy of an incident report but redacted most of the\ninformation therein pursuant to sections 7(1)(b), 7(1\\(c), and 7(1)(d)(vit) of FOIA. The response\nalso indicated that investigative supplements had not been completed, and that evidentiary\ndocuments were withheld pursuant to sections 7(1)(c) and 7(1)(d)(vii) of FOIA.\" On July 26,\n‘Letter from Steve Silverman, Bureau Chief, Public Access Bureau,| Office of the Attorney\nGeneral, to Tracy Adams, Police Records/Information Manager, Downers Grove Police Department (August 3,\n2016). ;\n|\nSLetter from Enza Petrarca, Village Attorney, Village of Downers Grove, to Steve Silverman,\nBureau Chief, Public Access Bureau, Office of the Attomey General (August 5, 2016).\n‘Letter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Sarah Mueller (August 5, 2016). |\n|\n\"Letter from Enza Petrarca, Village Attormey, Village of Downers Grove, to Steve Silverman,\nBureau Chief, Public Access Bureau, Office of the Attorney General (September 8, 2016).\n§L etter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Sarah Mueller (August 5, 2016). |\n*Letter from John O'Connor, Associated Press, to Downers Grove Police Department (July 25,\n2016).\n|\n“Letter from Tracy Adams, Police Records/Information Manager, Village of Downers Grove, to\nJohn O'Connor - AP (July 26, 2016).\nMs. Amanda Vinicky ef ai.\nNovember 7, 2016\nPage 4\n2016, Mr. O'Connor submitted a Request for Review asserting that the report was excessively\nredacted and requested that this office direct the \"Downers Grove Police Department to disclose\nall relevant and public information under FOIA.\"”!\nOn August 5, 2016, this office forwarded a copy of the non-confidential portions\nof the Village's Consolidated Response to Mr. O'Connor.” On August 9, 2016, Mr. O'Connor\nsubmitted a replyi n which he disputed the redaction of informationi n several specific sections\nof the incident report.” On September 8, 2016, this office forwarded a copy of the Supplemental\nResponse to PAC to Mr. O'Connor.\"* He did not reply to the Supplemental Response to PAC.\n2016 PAC 43186 |\n|\nOn July 26, 2016, Mr. Chris Fusco, on behalf of the Chicago Sun-Times,\nsubmitted a FOIA request to the Village \"seeking to review and/or obtain copies of any police\nreports, audio and/or video recordings, and/or any other records involving incidents since Jan. 1,\n2016 — including but not limited to cyberhacking — involving state Rep! Ronald Sandack, whose\nhome and office are in Downers Grove.\" On the same day, the Village’ s Police\nRecords/Information Manager responded by providing a copy of an incident report but redacted\nmost of the information therein pursuant to sections 7(1)(b), 7(1\\(c), and FAD) of FOIA;\nthe response also stated that investigative supplements had not been comm; pleted, and denied\nevidentiary documents under sections 7(1)(c) and 7(1)(d\\(vii) of FOIA On July 27, 2016, Mr.\nFusco submitted a Request for Reviewi n which he questioned whether) the information that was\nredacted and withheldi s exempt from disclosure under FOIA.”\n1 etter from John O'Connor, Associated Press, to Sarah Pratt, Public Access Bureau, Office of the\nAttorney General (July 26, 2016).\n“Letter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to John O'Connor, Associated Press (August 5, 2016). i\ni\nLetter from John O'Connor, Associated Press, to Steve Silverman! Bureau Chief, Public Access\nBureau, Office of the Attorney General (August 9, 2016).\n'4L etter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to John O'Connor, Associated Press (September 8, 2016).\n'SE-mail from Chris Fusco, Staff Reporter, Investigations/Projects, Chicago Sun-Times, to FOIA\nOfficer, Village of Downers Grove (July 26, 2016).\nSL etter from Tracy Adams, Police Records/Information Manager, Village of Downers Grove, to\nChris Fusco, [Chicago] Sun-Thnes (luly 26, 2016).\n\"E-mail from Chris Fusco, Chicaga Sun-Times, to Public Access Counselor, Illinois Attorney\nGeneral (July 27, 2016).\n1\ni\n|\n;\nI\n/\nMs. Amanda Vinicky et ai. |\nNovember 7, 2016 |\nPage 5 |\n|\n|\n|\nOn August 3, 2016, the Public Access Bureau sent a copy of the Request for\nReview to the Village's Police Department and asked it to provide unredacted copies of the\nrecords that were redacted and withheld for this office's confidential review together with a\ndetailed explanation of the factual and legal bases for the applicability of the sections 7(1)(b),\n7(1)(c), and 7(1)(d)(vii) exemptions. This office also asked the Village's Police Department to\nclarifyi n its response the reasons for withholding investigative supplements that had not been\ncompleted at the time of the response to the FOIA request.'®\nOn August 5, 2016, this office forwarded a copy of the non-confidential portions\nof the Village's response to Mr. Fusco.’ °On September 8, 2016, this office forwarded a. copy of\nthe Supplemental Response to PAC to Mr. Fusco.”? He did not reply to, either response.\n|\n2016 PAC 43193\nOn July 26, 2016, Mr. Nathan Lurz, on behalf of Shaw Media, submitted a FOIA\nrequest to the Village seeking copies of \"[a]ny police reports involving former IL State Rep. Ron\nSandack filedi n the past six months, including any legally releasable ongoing cases[.]\" 21 On\nJuly 27, 2016, the Village's Police Records/Information Manager responded by providing a copy\nof an incident report but redacted most of the information therein pursuant to sections 7(1)(b),\n7(1)(c), and 7(1)(d)(vii} of FOLA. The response also stated that investigative supplements had\nnot been completed, and that evidentiary documents were withheld pursuant to sections 7(1 )(c)\nand 7(1)(d)(vii) of FOIA.” On July 27, 2016, Mr. Lurz submitted a Request for Review\nquestioning whether the information redacted from the incident report is exempt from disclosure\nunder FOIA.3 |\nOn August 3, 2016, the Public Access Bureau sent a copy of the Request for\n8)e tter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Tracy Adams, Police Records/Information Manager, Downers Grove Police Department (August 3,\n2016).\ni\n°° etter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Chris Fusco, Staff Reporter, Chicago Sun-Times (August 5, 2016).\ni\n2° etter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Chris Fusco, Staff Reporter, Chicago Sun-Times (September 8, 2016). |\n|\n2|Village of Downers Grove FOIA 1-Request form submitted by Nathan Lurz (July 26, 2016).\n'\n1 etter from Tracy Adams, Police Records/Information Manager, Village of Downers Grove, to\nNathan Lurz, Suburban Life (July 27, 2016). i\ni\ni\ni\n34_mail from Nathan Lurz to Public Access (July 27, 2016).\n]\nt\n|\n|\n|\ni\n|\n|\n|\nMs. Amanda Vinicky e¢ af.\nNovember 7, 2016\nPage 6\nReview to the Village's Police Department and asked it to provide an unredacted copy of the\npolice report together with a detailed explanation of the factual and legal bases for the\napplicability of the sections 7(1)(b), 7(1 Kc), and 7(1)(d)\\(vii) exemptions to the information that\nwas redacted.”* |\n:\nOn August 5, 2016, this office forwarded a copy of the non-confidential portions\nof the Consolidated Response to Mr. Lurz.> On September 8, 2016, this office forwarded a copy\nof the Supplemental Response to PAC to Mr. Lurz.” He did not reply to either response.\n2016 PAC 43370\nOn July 25, 2016, Ms. Natasha Korecki, on behalf of Politico Illinois, submitted a\nFOIA request to the Village seeking a “copy or copies of any police rey ort filed by Ronald\nSandack (state Representative) from March[ ] 1, 2016 to the present.” 7 On July 26, 2016, the\nVillage's Police Department responded by providing a copy of the report but redacted\ninformation pursuant to sections 7(1}{b), 7(1)(c), and 7(1)(d)(vii) of F OIA. The response also\nstated thati nvestigative supplements had not been completed, and that evidentiary documents\nwere withheld pursuant to sections 7(1)(c) and 7(1)(d)(vii) of FOIA.”* On August 7, 2016, Ms.\nKorecki submitted a Request for Review questioning whether the information that was redacted\nfrom the report is exempt from disclosure under FOIA.” .\ni\nOn August 11, 2016, this office sent a copy of the Request for Review to the\nVillage's Police Department and asked it to provide a detailed explanation of the factual and\nlegal bases for the applicability of the sections 7(1)(b), 7(1)(c), and 7(1 )(d)(vii) exemptions to the\ni\n'\n*4Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Tracy Adams, Police Records/Information Manager, Downers Grove Police Department (August 3,\n2016). :\n51e tter from Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Nathan Lurz, Reporter, Downers Grove and DuPage County, Shaw Media (August 5, 2016).\n261e tter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Nathan Lurz, Reporter, Downers Grove and DuPage County, Shaw Medi (September 8, 2016).\n278 mail from Natasha Korecki, POLITICO Illinois Playbook writerPottca reporter, to FOIA\nOfficer (July 25, 2016). |\n51e tter from Tracy Adams, Police Records/Information Manager, Village of Downers Grove, to\nNatasha Koreck-i Politico (July 26, 2016). |\n|\n?°E_mail from Natasha Korecki, POLITICO Hlinois Playbook writer/Political reporter to Appeals\nofficer (August 7, 2016). |\n|\ni\n|\ni\n|\n;\n|\n|\n|\n|\nMs. Amanda Vinicky et ai.\nNovember 7, 2016\nPage 7\ninformation that was redacted from the report? On August 12, 2016, an Assistant Village\nAttorney asked an Assistant Attorney Generali n the Public Access Bureau to send Ms. Korecki a\ncopy of the non-confidential portions of the Village's Consolidated Response that had previously\nbeen provided to this office with regard to the other Requests for Review. On August 12, 2016,\nthis office sent a copy of that response to Ms. Korecki.?) On September 8, 2016, this office\nforwarded a copy of the Supplemental Response to PAC to Ms. Korecki.”* She did not reply to\neither response. |\n/\nSupplemental Response to FOIA Requests,\nOn September 16, 2016, the Village issued a supplemental response\n(Supplemental Response) to each requester in which it disclosed some portions of the records\nthat had previously been denied and furnished additional records that were generated or obtained\nsubsequent to its initial response. The Supplemental Response, however, indicated that other\nportions of the records were still being redacted or withheld pursuant to sections 7(1)(b) and\n7(1)(c) as well as section 7(1})(d}(v) G ILCS 140/7(1\\(d)(v) (West 2015 Supp.)). In addition, the\nresponse stated that \"some records are being denied pursuant to a court order.\"\nThis office then teceived correspondence from Mr. O'Connor,4 Mir, Fusco and\nMs. Tina Sfondeles,*> Mr. Lurz,** and Ms. Korecki°” indicating that they continued to seek\nreview of the information that had been redacted and withheldi n the Supplemental Response.\n5°)e tter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Tracy Adams, Police Records/Information Manager, Downers Grove Police Department (August 11,\n2016).\n*'Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Natasha Korecki, Politico Hlinois, Playbook writer/Political reporter (August 12, 2016).\n321e tter from Steve Silverman, Bureau Chief, Public Access Dureel Office of the Attorney\nGeneral, to Natasha Korecki, Politico lilincis, Playbook writer/Political reporter (September 8, 2016).\n®Letter from Enza Petrarca, Village Attorney, Village of Downers Grove, to \"Requester\"\n(September 16, 2016). |\nE-mail from John ‘O'Connor, AP, to [Steve] Silverman (September 16, 2016).\n|\n35E-mail from Tina Sfondeles and Chris Fusco, Chicago Sun-Times, to Public Access Counselor,\nIllinois Attorney General (September 19, 2016).. |\n*SE-mail from Nathan Lurz, Reporter— Downers Grove and DuPage County, Suburban Life\nNewspaper (September 20, 2016).\n/\n37E-mail from Natasha Korecki, POLITICO Hlinois Playbook writer/Political reporter, to Mary Jo\n(Vail] (September 20, 2016). i\ni\n|\n|\ni\n|\n|\nI\n|\n|\nMs. Amanda Vinicky e¢ af.\nNovember 7, 2016\nPage 8\nMs. Amanda Vinicky, the Springfield Bureau Chief of NPR Illinois, advised the same ina\ntelephone conversation with the Public Access Counselor. Therefore, on September 22, 2016,\nthis office sent a letter to the Village and asked it to provide a detailed explanation of the\napplicability of sections 7(1)(b), 7(1)(c), 7(1)(d)(v) and the court order to the information that\ncontinued to be redacted and withheld, adding that the Village could incorporate by reference\nany portions of its previous responses to this office which remained relevant. 38 The letter also\nasked the Village to furnish copies of any responsive records that were hot previously provided\nfor this office's confidential review. |\nI\nOn September 28, 2016, the Village provided a second supplemental response\n(Second Supplemental Response to PAC) together with the additional records that this office had\nrequested.” The response indicated that the Village incorporated the arguments set forth in its\nprevious responses to this office dated August 5, 2016, and September8 , 2016. On September\n30, 2016, this office sent the non-confidential portions of the Village's Tesponse to Ms.\nVinicky,”” Mr. O'Comnor,*! Mr. Fusco,” Mr. Lurz,”? and Ms. Korecki.# None of the requesters\nreplied to the Second Supplemental Response to PAC.\n|\nOn September 23, 2016, pursuant to section 9.5(f) of FOIA, this office extended\nthe time within which to issue a binding opinion by 30 business days in Requests for Review\ni\n|\n|\n/\ni\n|\ni\nI\n|\n/\n381e tter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Enza Petrarca, Village Attorney, Village of Downers Grove (September 2, 2016).\ni\n* Letter from Enza Petrarca, Village Attomey, Village of Downers Grove, to Steve Silverman,\nBureau Chief, Public Access Bureau, Office of the Attomey General (September 28, 2016).\n“°}e tter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Amanda Vinicky, WUIS-130 (September 30, 2016). |\n|\n“'Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to John O'Connor, Associated Press (September 30, 2016).\n“Letter from Steve Silverman, Bureau Chief, Public Access Bureaui, Office of the Attorney\nGeneral, to Chris Fusco, Staff Reporter, Chicago Sun-Times (September 30, 2016).\n|\n|\n1 etter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Nathan Lurz, Reporter, Downers Grove and DuPage County, Shaw Media (September 30, 2016).\n“4 etter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Natasha Korecki, Politico Ulinois, Playbook writer/Political reporter (September 30, 2016).\ni\n/\n|\ni\nI\n/\n|\n|\nMs. Amanda Vinicky et af.\nNovember 7, 2016\nPage 9\n2016 PAC 43168,\" 2016 PAC 43184,\" 2016 PAC 43186,\"” 2016 PAC/43193, and 2016 PAC\n43370.\nANALYSIS |\n\"It is a fundamental obligation of government to operate ‘openly and provide\npublic records as expediently and efficiently as possible in compliance+w ith [FOIA].”\" 5 ILCS\n140/1 (West 2014}. Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) provides that “[e]Jach\npublic body shall make available to any person for inspection or copying all public records,\nexcept as otherwise providedi n Sections 7 and 8.5 of this Act.” A public body “has the burden\nof proving by clear and convincing evidence\" that a recordi s exempt from disclosure. 5 ILCS\n140/1.2 (West 2014). Section 7(1) of FOIA (5 ILCS 140/7(1) (West 2015 Supp.)) further\nprovides that \"[w]hen a request is made to inspect or copy a public record that contains\ninformation that is exempt from disclosure * * * but also contains information that is not exempt\nfrom disclosure, the public body may elect to redact the information that ii s exempt. The public\nbody shall make the remaining information available for inspection and copy.\" (Emphasis\nadded.) |\nAs an initial matter, the additional information disclosed ii n the Village's\nSeptember 16, 2016, Supplemental Response to the requesters which had been redacted or\nwithheldi n the Village’s initial response resolves the allegations that those portions of the\nrecords were improperly denied. See Duncan Publishing, Inc. v. City of Chicago, 304 Ill. App.\n3d 778, 782 (1st Dist. 1999) (\"Once an agency produces all the records related to a plaintiff's\n451 etter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Amanda Vinicky, WUIS-130, and Enza Petrarca, Village Attorney, Village of Downers Grove\n(September 23, 2016).\n“SL etter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to John O'Connor, Associated Press, and Enza Petrarca, Village Attorney, Vi llage of Downers Grove\n(September 23, 2016).\n“Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Chris Fusco, Staff Reporter, Chicago Sun-Times, and Enza Petrarca, Village Attorney, Village of\nDowners Grove (September 23, 2016).\n“8 etter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Nathan Lurz, Reporter, Downers Grove and DuPage County, Shaw Media, and Enza Petrarca, Village\nAttorney, Village of Downers Grove (September 23, 2016). |\n|\n“Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Natasha Korecki, Politico Illinois, Playbook writer/Political reporter, and Enza Petrarca, Village\nAttorney, Village of Downers Grove (September 23, 2016). |\n|\ni\n|\ni\n|\n|\n|\nMs. Amanda Vinicky ef ai.\nNovember 7, 2016\nPage 10\nrequest, the merits of a plaintiff's claim for relief,i n the form of production of information,\nbecomes moot.\") Thus, our determinationi n this matteri s limited to the information that the\nVillage still claimsi s exempt from disclosure afteri ssuing its Supplemental Response.\nSection 7(1)(b) of FOIA\nSection 7(1)(b) of FOIA exempts from disclosure \"[p]rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.”\nSection 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2015 Supp.)) defines; \"private information\" as:\n[Unique identifiers, including a person's social security, number,\ndriver's license number, employee identification number, biometric\nidentifiers, personal financial information, passwords or other\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes Aome address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person. (Emphasis added.)\nThe Village's Second Supplemental Response to PAC stated that the Village\nredacted Mr. Sandack's \"home address and personal telephone number, Facebook account\nnames, numbers and URLs, Skype usernames, and account transaction numbers[ ]\" pursuant to\nsection 7(1)(b) of FOIA.\" Ina September 7, 2016, telephone conversation with an Assistant\nAttorney Generalin the Public Access Bureau, an Assistant Village Attorney stated that Mr.\nSandack's attorney confirmed for the Village that the redacted telephone numberi s for a\ncellphone that Mr. Sandack maintains for personal use.\nHome addresses and personal telephone numbers constitute ' ‘private\ninformation\" under the plain language of the definition of that term in section 2(c-5) of FOIA.\nMr. Sandack's account identification numbers and the Uniform Resource Locators (URLs) for\nhis Facebook page and that of another individua—l which are specific website addresses —are\n“unique identifiers\" and therefore forms of \"private information\" that are exempt from disclosure\nunder section 7(1)(b). In addition, the tracking numbers for wire transfers that were redacted\nconstitute \"personal financial information,” which alsoi s defined as a form of \"private\ninformation\" in section 2(c-5) of FOIA. Accordingly, this office concludes that the Village has\nsustained its burden of demonstrating that this informationi s exempt from disclosure pursuant to\nsection 7(1)(b) of FOIA. |\n|\n7 |\nLetter from Enza Petrarca, Village Attorney, Village of Downers Grove, to Steve Silverman,\nBureau Chief, Public Access Bureau, Office of the Attorney General (September 28, 2016), atl.\n|\n|\n|\nI\ni\n|\n|\n|\nMs. Amanda Vinicky ef ai.\nNovember 7, 2016\nPage 11\nHowever, Mr. Sandack's Facebook and Skype account names are akin to or\nderived from his legal name. Conspicuously absent from the statutory definition of \"private\ninformation” is any reference to a person's name. Although names are specific to individuals\n(see Lieber v. Board of Trustees of Southern Hlinois University, 176 1.2d 401, 411 (1997),\nthey are neither confidential nor unique. To the contrary, names are “basic identification,\" and as\nthe Supreme Court concludedi n Lieber, “[w]here the legislature intended to exempt a person's\nidentity from disclosure, it [has done] so explicitly.\" Lieber, 176 Ill. 2d at 412. By excluding\nnames from the definition of \"private information,” the General Assembly clearly did not intend\nfor names to be exempt from disclosure under section 7(1)(b) of FOIA.| Accordingly, this office\nconcludes that the Village improperly redacted Mr. Sandack’s Facebook and Skype account\nnames. The Facebook and Skype account names and other identifying information of the person\nwith whom Mr. Sandack communicated are addressed in the analysis of section 7(1}(c) below.\nSection 7(1)(c) of FOIA |\nSection 7(1)(c) exempts from inspection and copying “[plersonal information\ncontained within public records, the disclosure of which would constitute a Clearly unwarranted\ninvasion of personal privacy, unless the disclosurei s consented to in writing by the individual\nsubjects of the information.\" The exemption defines \"unwarrantediin vasion of personal privacy”\nas \"the disclosure of information thati s highly personal or objectionable to a reasonable person\nandi n which the subject's right to privacy outweighs any legitimate public interest in obtaining\nthe information. The disclosure of information that bears on the publiciduties of public\nemployees and officials shall not be considered an invasion of personal privacy. \" SILCS\n140/7(1)(c) (West 2015 Supp.). A public body's assertion that the release of information would\nconstitute an unwarrantedi nvasion of personal privacy is evaluated on a case-by-case basis.\nChicago Journeymen Plumbers’ Local Union 130 v. Dep't of Public Health, 327 HL. App. 3d 192,\n196 (1st Dist. 2001). The phrase \"clearly unwarrantedin vasion ofp ersonal privacy\" evinces a\nstrict standard to claim the exemption, and the burdeni s on the public body possessing the record\nto prove that standard has been met. Schessler v. Dep't of Conservation, 256 Ill. App. 3d 198,\n202 (4th Dist. 1994), |\n'\nThe Village's Consolidated Response indicated that portions of Mr. Sandack's\nstatement and birth date were redacted pursuant to section 7(1)(c) of F OIA. 3! The Village's\nSupplemental Response to PAC also indicated that, pursuant to section!7 ), the Village\nredacted information relating to the identities of suspects and withheldii n their entireties records\nthat Mr. Sandack provided to the police when he reported the crime, including receipts for wire\n|\n|\n/\n|\n“Letter from Enza Petrarca, Village Attorney, Village of Downers Grove, to Steve Silverman,\nBureau Chief, Public Access Bureau, Office of the Attorney General (August 5, 2016), at 5-6.\n|\ni\ni\ni\n|\ni\ni\n|\n|\n|\nMs. Amanda Vinicky et ai.\nNovember 7, 2016\nPage 12\ntransfers and Skype messages.”\nBirth Date\nAn individual's birth datei s highly personal by its very nature and the subject's\nright to privacy outweighs any legitimate public interest in disclosing this information. See, e.g,\nOliva v. United States, 756 F, Supp. 105, 107 (E.D.N_Y. 1991) (holding that, under Exemption 6\nof the Federal Freedom of Information Act (5 U.S.C. § 552(b)\\(6) (1990)),7 “dates of birth[ ] are\na private matter, particularly when coupled with * * * other information” and that disclosure\n\"would constitute a clearly unwarrantedi nvasion of personal privacy. \": Texas Comptroller of\nPublic Accounts v. Attorney General of Texas, 354 8.W3 d 336, 346-348, 54 Tex. Sup. Ct. J. 245\n(2010) (state employees have a “nontrivial privacy interest\" in their dates of birth under the\nTexas Public Information Act (see Tex. Gov't Code §§552.101, 552.102), which substantially\noutweighs the negligible public interest in disclosure), Accordingly, this office concludes that\nMr. Sandack's birth date is exempt from disclosure pursuant to section x 1}(c) of FOIA.\n|\n|\nMr. Sandack's Statement and the Records that he Provided to Police\n/\nAt the outset, this office notes that at the time he filed the incident report on July\n14, 2016, Mr. Sandack was the State Representative serving the 81* District ii n the Illinois House\nof Representatives. He resigned from office on July 24, 2016, “citing ‘eyber security issues’ that\nalso prompted him to delete his social media accounts.\" |\n/\nAs a former elected official, Mr. Sandack remains a public figure. An individual's\nstatus as public figure diminishes his or her right to privacy. lewa Citizens for Community\nImprovement v. United States Dep't ofA griculture, 256 F. Supp. 2d 946, 954 (S.D. lowa 2002)\n(nominee's \"privacy interest is not eliminated by the fact that he has been nominated by President\nBush to serve as Undersecretary of Agriculture for Rural Development; however, his public-\nfigure status lessens that interest.\"). Although a public figure's “official position” may be a\nrelevant factori n analyzing whether disclosure of records would constitute an unwarranted\ninvasion of personal privacy, \"it does not determine, ofi ts own accord, that the privacy interest is\npe! Pp y: ; Pp y\n|\n|\nLetter from Enza Petrarca, Village Attorney, Village of Downers Grove, to Steve Silverman,\nBureau Chief, Public Access Bureau, Office of the Attorney General (September 28, 2016), at 2.\nBecause Mlinois' FOIA statutei s based on the Federal FOIA statute, decisions construing similar\nprovisions of the Federal Act, while not controlling, may provide helpful and relevant precedentsi n construing the\nState Act. See, e.g.. Margolis y. Director, Hl. Dep't of Revenue, 180 Hl. App. 3d 1084, 1087 (1st Dist. 1989).\n“Monique Garcia, Suburban lawmaker abruptly resigns, citing hacked social media accounts,\nCHICAGO TRIBUNE Guly 25, 2016, 7:00 AM), http:/*www-.chicagotribune, com/news/local/polities/ct-ron-\nsandack-resigns-illinois-house-261 60724-story.himl.\n|\n/\n|\n|\n|\n|\n|\n|\nMs. Amanda Vinicky ef af.\nNovember 7, 2016\nPage 13\noutweighed. \" Bast v United States Dep't of Justice, 665 F.2d 1251, 1255 (D.C. Cir. 1981).\n\"Instead, in cases involving public figures, ‘the degree ofi ntrusion occasioned by disclosurei s\nnecessarily dependent upon the character of the informationi n question,\" Archibald v. United\nStates Dep't of Justice, 950 F. Supp. 2d 80, 88 (D.D.C., 2013), citing Fundf or Constitutional\nGov't v. Nat'l Archives & Records Service, 656 F.2d 856, 865 (D.C. Cir, 1981).\nFederal courts have identified several factors relevant inlenatyzing the\napplicability of the personal privacy provision of the Federal FOIATM to, records of criminal\ninvestigations concerning public figures such as current and former public officials. In Citizens\nJor Responsibility and Ethicsin Washington v. United States Dep't ofJ ustice, 978 F. Supp. 2d 1,\n8-10 (D.D.C. 2013), a Federal appellate court stated that a former United States Senator had a\nheightened privacy interesti n such records because he had resigned from office and because he\nhad not been criminally charged following an investigation concerning allegations that he\ncovered up an extra-marital affair. Citizens for Responsibility and Ethics iin Washington, 978 F.\nSupp. 2d at 10. The court, however, also stated that because the Senator had publicly\nacknowledged the existence of the investigation, his \"privacy interest in a fact already known to\nthe publici s substantially diminished; all the more so because he was the person responsible for\ndisclosingi t.\" Citizens for Responsibility and Ethics in Washington, 978 F. Supp. 2d at 10; see\nalso Citizens for Responsibility & Ethics in Washington v. United States Dep't ofJ ustice, 840 F.\nSupp. 2d 226, 233 (D.D.C. 2012) (’One can have no privacy ititerest in’‘ information thati s\nalreadyi n the public domain, especially when the person asserting his privacy is himself\nresponsible for placing that information into the public domain.”). Nonetheless, the court\nemphasized that the Senator \"retain[ed] a cognizable privacy interest in the contents of the file.\n*** Tn addition to reopening old wounds, disclosure of DOJ's investigative file could result in\nnew revelations of misconduct, even if that misconduct did not rise to the level of a criminal\nviolation.\" Citizens for Responsibility and Ethics in Washington, 978 F. Supp. 2d at 10; see also\nKimberlin v. Dep't of Justice, 139 F.3d 944, 949 (D.C. Cir. 1998) (a public official who disclosed\nto the media that he was accused of misconduct and sanctioned “still has a privacy interest,\nhowever, in avoiding disclosure of the details of the investigation[,]\"). |\n|\nIn Illinois, the resolution of a personal privacy exemption claim requires\nbalancing the public interest in disclosure of the specific information against the involved\nindividuals’ interests in privacy. See Gibson v. Hlinois State Board ofE ducation, 289 HL App.\n3d 12, 20-21 (Ist Dist. 1997). This determinationi s made by considering and weighing four\nfactors: \"(1) the [requester's] interest in disclosure, (2} the public interest ii n disclosure, (3) the\ndegree of invasion of personal privacy, and (4) the availability of alternative means of obtaining\n: .\n“Exemption 7(C) of Federal FOIA (5 U.S.C. § $52(b\\(7)(C} (2012) exempts from disclosure\n\"information compiled for law enforcement purposes, but only to the extent that the production of such law\nenforcement records or information * * * could reasonably be expected to constitute an unwarranted invasion of\npersonal privacy[.]\"\nMs. Amanda Vinicky et ai.\nNovember 7, 2016\nPage 14\nthe requested information.” National Association of Criminal Defense Lawyers v. Chicago\nPolice Dep't, 399 Il. App. 3d. 1, 13 (ist Dist. 2010).\nHere, the requesters represent media outlets that seek to disseminate information\nfrom the records in question to the public. Therefore, their interest in the records and the public's\ninterest are aligned. In his Request for Review (2016 PAC 43184), Mr. O'Connor emphasized\nthat Mr. Sandack's \"status as a public figure who voluntarily engagedii n the use of social media\nmust be taken into consideration{,]\" and asserted that \"there surelyi s information that has been\nimproperly redactedi n the name of preserving the investigation which the complainant himself\nhas disclosed to one or more members of the news media.”\"*© Mr. Sandack reportedly told.\nCapitol Fax that \"he had ‘deactivated’ three of his four online social media accounts after\n‘someone’ had ‘tried hacking[ ]\" and that \"semebody started creating fake accounts in his name\naround July 4th. In all, the person or persons wound up creating a total) of ten fake Facebook\naccounts and two fake Twitter accounts.\"*” (Emphasisi n original.) Following the disclosure of\nadditional recordsin the Village's Supplemental Response, Mr. Sandack issued a written\nstatement indicating that he \"was the target of an international crime ring focusing on high-\nprofile individuals luring them to engage in inappropriate online conversations with the intent of\nextortion,” and that he “took their bait and fell for it hook, line and sinker.\" 38 Therei s a\nsignificant public interest in disclosure of information that relates to allegations of a crime\ncommitted against a public figure, especially one that a public official publicly acknowledged\nand cited as a contributing factor in his decision to resign from public office.\nt\nAs to the degree of invasion of personal privacy, the Village's Consolidated\nResponse to this office, which it incorporated by reference in its Supplemental Response to PAC,\nstated: \"Mr. Sandacki s the victim in this case. * * * Nobody, public figure or not, would want\nany of the information being disclosed to the public.’* ? This office has! considered, buti s\nprecluded from discussingi n this binding opinion, additional information about the applicability\n/\n|\nI\n:\n**1e tter from John O'Connor, Associated Press, to Sarah Pratt, Public Access Bureau, Office of the\nAttorney General (July 26, 2016), at 2. |\n|\n*Rep. Sandack Announces Resignation, CAPITOL FAX, July 25, 20 16.\nMonique Garcia and Joe Mahr, Ex-State Rep. Ron Sandack resigned after ‘inappropriate’ online\ntalks, extortion scheme, CHICAGO TRIBUNE (September 16, 2016, 7:18 PM), |\nhttp:/Awww.chicagotribune.com/news/local/politics/ct-state-rep-ron-sandack-intemet-scam-met-09| 7-20 1609 16-\nstory.html. ;\nLetter from Enza Petrarca, Village Attorney, Village of Downers Grove, to Steve Silverman,\nBureau Chief, Public Access Bureau, Office of the Attorney General (August 5, 2016), at 5.\nMs. Amanda Vinicky ef ai.\nNovember 7, 2016\nPage 15\nof section 7(1)(c) that the Village provided confidentially.” In his reply to the Village's\nConsolidated Response in 2016 PAC 43184, Mr. O'Connor stated that \"[e]ven if statements by\nthe victim include information that would constitute an invasion of personal privacy, I find it\nhard to fathom that the statement the victim gave policei s one, long, highly personal\nnarrative.\"\ni\n|\nLastly, there do not appear to be any alternative means for the requesters to obtain\nthe recordsi n question.\nThis office's review of the records confirms that Mr. Sandack ii s the victim rather\nthan the target of the investigation documented therein. The portions of his statement that were\ndisclosedi n the Village's Supplemental Response reveal the general nature of the crime under\ninvestigation and details about how Mr. Sandack was targeted. The portions of his statement that\nremain redacted and the information he provided to police contain highly personal information.\nOn one hand, Mr. Sandack’s interest in privacy is heightened by the fact that he has resigned his\npublic office andi s no longer a public official. On the other hand, Mr. Sandack's privacy rights\nare diminished by his status as a public figure and his voluntary disclosure of discrete\ninformation about the alleged crime to the media. |\nTaking all of these factors into account, this office concludes that disclosure of\nmost of the remaining redacted portions of the statement and the documentation Mr. Sandack\nprovided to police would constitute a clearly unwarrantedin vasion of personal privacy. These\nmaterials contain highly personal and specific information concerning how Mr. Sandack was\nallegedly luredi nto an extortion scheme, how the extortion was carried out, and how he\nresponded. He has not publicly disclosed this information, whichi s unrelated to his former\npublic duties. Therei s no legitimate public interest in disclosure of these portions of the records\nthat would outweigh Mr. Sandack's right to privacy. Accordingly, this office concludes that the\nVillage has sustained its burden of demonstrating that this informationi s exempt from disclosure\npursuant to section 7(1)\\(c) of FOIA. |\nHowever, the Village has not sustained its burden of demonstrating by clear and\nconvincing evidence that the amounts of money that were requested and transmitted and the\nreceipts of those transactions would constitute an unwarrantedii n vasion of personal privacy.\nAlthough the fact that an individual paid money in response to extortion iis highly personal, that\n/\n5 ILCS 140/9.5(d) (West 2014) (\"The Public Access Counselor shal forward a copy of the\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy.”}. :\ni\n*'etter from John O'Connor, Associated Press, to Steve Silverman, Bureau Chief, Public Access\nBureau, Office of the Attorney General (August 9, 2016), at 3.\n/\n|\n'\ni\n|\n|\n|\nMs. Amanda Vinicky et ai.\nNovember 7, 2016\nPage 16\nfact has already been revealed in the records disclosed to the requesters: Further, Mr. Sandack is\na public figure who publicly acknowledged that he was extorted and he cited the extortion as a\nreason for his resignation from public office. Under these circumstances, Mr. Sandack's right to\nprivacy does not outweigh the legitimate public interest in disclosure of this information.\nAccordingly, this office concludes that the Village improperly withheldt hat information\npursuant to section 7(1}(c) of FOIA. As discussed above, Mr. Sandack's home address and\ntelephone number may be properly redacted from the receipts pursuant to section 71), and, as\ndiscussed below, information identifying the recipient of the money may be properly redacted\npursuant to section 7(1}{c). |\n/\nInformation Relating to the Identities of Suspects\n|\nWhen balancing the right to privacy against the public interest in disclosure,\ncourts have \"repeatedly expressed particular concern for protecting those who have been\ninvestigated, but not charged, in connection with a crime from the public embarrassment and\ndamage to their reputations which a disclosure of the investigative interest would cause.\"\nDunaway v. Webster, 519 F, Supp. 1059, 1078 (N.D. Cal. 1981); see also Citizens for\nResponsibility and Ethicsi n Washington v. United States Dep't ofJ ustice, 846 F. Supp. 2d 63, 71\n(D.D.C., 2012), quoting American Civil Liberties Union v. United States Dep't ofJ ustice, 655\nF.3d 1, 7 (D.C. Cir. 2011) (the right to privacy “is strongest where the individuals in question\n‘have been investigated but never publicly charged.'\"); Fiumara v. Higgins, 572 F. Supp. 1093,\n1108 (D. N.H. 1983) (the version of section 7(1)(c) in Federal FOIA “applies to withhold the\nidentities of those third parties investigated for possible criminal activities, even though not\nsubsequently charged or indicted.\"). Special circumstances — such as suspects who are\ncandidates for public office rather than private citizens and allegations of illegal campaign\ncontributions that are required to be publicly reported— are required to justify disclosure of\ninformation identifying unindicted targets of criminal investigations. See Common Cause v.\nNational Archives and Records Service, 628 F.2d 179, 184 (D.C. Cir. 1980).\nAlthough the records in question involve a public figure, Mr. Sandack was the\nvictim rather than the target of the investigation. The records contain names (possibly aliases),\nFacebook and Skype account names, and other types of identifying information of suspects who\nappear to be private citizens. Because these individuals are suspects who have not been arrested\nor charged with a crime, their right to privacy outweighs any legitimate public interest in\ndisclosure of this identifying information. Accordingly, this office concludes that the Village did\nnot improperly redact that information pursuant to section 7(1}(c) of FOIA.\nWestern Union and MoneyGram E-mails and Document Response\nThe Village contends that the following informationi n e-mails and documents\nobtained from Western Union and MoneyGram iin the course of theii n vestigation is exempt from\nMs. Amanda Vinicky e# al.\nNovember 7, 2016\nPage 17\ndisclosure pursuant to section 7(1)(c): the name of an individual to whom money was sent;\naccount numbers; the amount sent; and the names, addresses, and e-mail addresses of other\nvictims. The Village also redacted information obtained from Western Union from the records\nthat were provided to the requesters in the Supplemental Response.\nAs discussed above, the disclosure of names and other information identifying a\nsuspect of a crime who has not been arrested or charged would constitute an unwarranted\ninvasion of personal privacy. Likewise, information identifying any victims other than Mr.\nSandack may be properly redacted pursuant to section 7(1)(c) of FOIA.,| McCorstin v. United\nStates Dep't of Labor, 630 F.2d 242, 245 (5th Cir. 1980) (\"Exemption WC) iis intended to protect\nthe privacy of any person mentioned in the requested files, not only the person who is the object\nof the investigation.\"); Coleman v. F.B.L, 13 F. Supp. 24 75, 80 (D.D.C; 1998) (disclosure of\nFBI documents would constitute an unwarrantedi nvasion of personal privacy because “iti s\nevident that release of any portion would reveal the identities ofii n nocent third parties, witnesses\nor victims.\"). Accordingly, this office concludes that those portions of the e-mails and\ndocuments obtained from Western Union and MoneyGram are exempt from disclosure pursuant\nto section 7(1)(c) of FOIA. |\n/\nHowever, once de-identified, disclosure of the remaining portions of the records\nwould not constitute an unwarrantedi nvasion of privacy because they would not identify any\nsuspects or other victims. See 5 ILCS 140/7(1) (West 2015 Supp.) (when a record contains both\nexempt and non-exempt information, “the public body may elect to redact the information thati s\nexempt. The public body shall make the remaining information available for inspection and\ncopying.\"). Therefore, these records are not exempt from disclosurei n their entireties pursuant\nto section 7(1)(c) of FOIA. The Village's assertion that the records are exempt from disclosure\npursuant to section 7(1}(d)(v)i s discussed below. |\nLastly, the Village appears to have withheld certain records relating to search\nwarrants and subpoenas which reflect that unspecified information was sought from or provided\nby Yahoo and Microsoft, which owns Skype, pursuant to section 7AY(C). These portions of the\nrecords do not reveal the type of information that was sought. The Village has not explained\nhow records that merely show unspecified information was sought or produced would constitute\nan unwarrantedi nvasion of personal privacy. Accordingly, the Village has not sustainedi ts\nburden of demonstrating that these records are exempt from disclosure pursuant to section\n7(1)(c) of FOIA.\nRecords Relating to Search Warrants and Subpoenas\nSection 7(1)(d)(v) of FOIA\nSection 7(1)(d)(v) of FOIA exempts from disclosure:\nMs. Amanda Vinicky e7 al.\nNovember 7, 2016\nPage 18\nRecords in the possession of any public body created in the\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes,\nbut only to the extent that disclosure would:\n# ee |\n|\n(v) disclose unique or specialized investigative techniques\nother than those generally used and known or disclose internal\ndocuments of correctional agencies related to detection, |\nobservation or investigation of incidents of crime or misconduct,\nand disclosure would result in demonstrable harm to the agency or\npublic body that is the recipient of the request[.]\nIn construing a similar provision in Federal FOIA,© “ [clourts have held that\ninformation pertaining to law enforcement techniques and procedures properly iis withheld * * *\nwhere disclosure reasonably could lead to circumvention of laws or regulations. \" Skinner v.\nUnited States Dep't ofJ ustice, 893 F. Supp. 2d 109, 112 (D.D.C. 2012), For example, in Miller\nv. United States Dep't of Justice, 562 F Supp. 2d 82 (D.D.C. 2008), a F ederal District court held\nthat forms used by the FBI to develop psychological profiles of criminals were properly withheld\nbased on the agency's explanation of how suspects could use the information te circumvent the\neffective use of techniques for developing profiles; see also Piper v. United States Dep't of\nJustice, 294 F.Supp. 2d 16, 30 (D.D.C. 2003) (even though the use ofp olygraph examinations is |\nwidely known, the question and answers usedi n the examinations themselves were within the\nscope of the law enforcementi nvestigative technique exemption because disclosure could enable\na criminal to \"anticipate and avoid the questioning strategy of the FBI[ ,]\" thereby doing\n“violence to the polygraph examination's function - the discerning of truth.\"); but see American\nCivil Liberties Union of Southern California v, United States Citizenship and Immigration\nServices, 133 F. Supp. 3d 234, 243-44 (D.D.C. 2015) (\"vague and conclusory\" assertions with\n\"no explanation of how the information, if released, could risk circumvention of the law, no\nexplanation of what laws would purportedly be circumvented, and little detail regarding what\nlaw enforcement purpose is involved\" are insufficient to \"justify withholding records under the\nFOIA.\"). |\nThe Village's Second Supplemental Response to PAC stated that the information\nredacted pursuant to section 7(1)(d)(v) reflects specialized investigative techniques that were\n“Exemption 7(E) (5 U.S.C. § 552(b(7)(E) (2012) applies to law enforcement records that\n“would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose\nguidelines for law enforcementi nvestigations or prosecutions if such disclosure could reasonably be expected to risk\ncircumvention oft he law[.]\" |\ni\n|\ni\n/\n|\n|\n|\n|\nMs. Amanda Vinicky ef al.\nNovember 7, 2016\nPage 19\ndeveloped to assist in investigations of kidnapping cases. The Village provided additional\ninformation confidentially which asserts that disclosure of the information could harm the\nVillage's Police Department by revealing the nature of specific investigative techniques that are\nnot generally known to the public. The Village also withheld certain other records relating to\nsearch warrants and subpoenas, including the e-mails and documents obtained from Western\nUnion andM oneyGram. |\nMost of the records that were redacted or withheld pertaining to Facebook,\nYahoo, Skype, and Microsoft concern the gathering of information through specialized\ninvestigative techniques that are not generally known.” Iti s apparent that disclosure of this\ninformation would result in demonstrable harm to the Village's Police Department by providing\ninsights into specializedi nvestigative techniques that could enable perpetrators to evade\ndetection and circumvent investigations of crimes that involve communications over the Internet,\nincluding social media. Information redacted from the records provided iin the Supplemental\nResponse concerning a suspect's online profilei mage and communications with the FBI and\nauthoritiesi n another country also reflects specialized investigative techniques that are not\ngenerally known. Disclosure of such information could harm the Village’ 's Police Department by\nundermining its ability to investigate crimes that originate in other countries. Accordingly, this\noffice concludes that this information was properly redacted or withheld pursuant to section\n7(1)(d)(v) of FOIA. In contrast, portions of records that merely document that records were\nsought from companies without revealing the type of information that was sought would not\nreveal any unique or specialized investigative techniques and therefore|w ere improperly\nwithheld. |\nIn addition, certain information redacted from the records disclosedi n the\nSupplemental Response and the e-mails and documents obtained from Western Union and\nMoneyGram, which were withheldi n their entireties, appear to reflect routine investigative steps\nrather than specialized investigative techniques. The Village's assertion that disclosure of this\ninformation will impede the ability to investigate similar crimes is largely conclusory. Iti s\nunclear how release of this information would cause demonstrable harm to the Village's Police\nDepartment. Accordingly, the Village has not sustained its burden of demonstrating by clear and\nconvincing evidence that this informationi s exempt from disclosure pursuant to section\n7(1)(d)(v) of FOIA. |\n“The Village's response appears to assert that records obtained from Facebook, Yahoo, and Skype\nare exempt from disclosure only pursuant to section 7(1)(c). However, because disclosure of the content of the\nrecords would unavoidably reveal the specialized techniques used by investigators, this informationi s exempt from\ndisclosure pursuant to section 7(1(d¥v). This office declines to address the applicability of section 7(1 \\(c} to these\nrecords.\nMs. Amanda Vinicky e¢ ai.\nNovember 7, 2016\nPage 20\nIllinois Constitution of 1970\nThe Village's September 8, 2016, Supplemental Response to this office cited the\nfollowing provision of the Hlinois Constitution of 1970.\n(a) Crime victims, as defined by law, shall have the\nfollowing rights: |\n() The right to be treated with fairness and\nrespect for their dignity and privacy and to be free\nfrom harassment, intimidation, and abuse trou the\ncriminal justice process.\n(2) The right to notice and to a hearing before a\ncourt ruling on a request for access to any of the\nvictim's records, information, or communications which\nare privileged or confidential by law. ILL. Const. 1970,\nart. I, § 8.1(a)(D), (2). |\nSpecifically, the Village's Supplemental Response to this office asserted: \"As the victim ofa\ncrime, Mr. Sandacki s afforded these protections of respect for his dignity and privacy.\nAccordingly, the information that was redactedi n the initial incident report that was provided to\nthe Requesters should remain redacted and private.\" |\nThe Village's reliance on this provision is misplaced. Article I, section 8.1 of the\nIllinois Constitution of 1970 was implemented by the Rights of Crime Victims and Witnesses\nAct (725 ILCS 120/1 et seg, (West 2014)). That Act provides,in relevant part:\n(a) \"Crime victim” or \"victim\" means: (1) any natural\nperson determined by the prosecutor or the court to have'suffered\ndirect physical or psychological harm as a result of a violent crime\nperpetrated or attempted against that person or direct physical or\npsychological harm as a result of (i) a violation of Section 11-501\nof the Hlinois Vehicle Code or similar provision of a local\nordinance or (ii) a violation of Section 9-3 of the Criminal Code of\n1961 or the Criminal Code of 2012; (2)i n the case of a ctime\nvictim whoi s under 18 years of age or an adult victim who ii s\nincompetent or incapacitated, both parents, legal guardians, foster\nparents, or a single adult representative; (3)i n the case of an adult\ndeceased victim, 2 representatives who may be the spouse, parent,\nchild or sibling of the victim, or the representative of the victim's\n1 etter from Enza Petrarca, Village Attorney, Village of Downers Grove, to Steve Silverman,\nBureau Chief, Public Access Bureau, Office of the Attorney General (September 8, 2016)\nMs. Amanda Vinicky e¢ ai.\nNovember 7, 2016\nPage 21\nestate; and (4) an immediate family member of a victim under\nclause (1) of this paragraph (a) chosen by the victim. If the victim\nis 18 years of age or over, the victim may choose any person to be\nthe victim's representative. In no event shall the defendant or any\nperson who aided and abettedi n the commission of the crime be\nconsidered a victim, a crime victim, or a representative of the\nvictim.\n\\\nKR\n|\n(c) \"Violent crime\" means: (1) any felonyi n which force or threat\nof force was used against the victim; (2) any offense involving\nsexual exploitation, sexual conduct, or sexual penetration; (3) a\nviolation of Section 11-20.1, 11-20.1B, 11-20.3, or 11-23, 5 of the\nCriminal Code of 1961 or the Criminal Code of 2012; (4) domestic\nbattery or stalking; (5) violation of an order of Protection, acivil\nno contact order, or a stalking no contact order; (6) any|\nmisdemeanor which resultsi n death or great bodily harm to the\nvictim; or (7) any violation of Section 9-3 of the Criminal Code of\n1961 or the Criminal Code of 2012, or Section 11-501 of the\nIllinois Vehicle Code, or a similar provision of a local ordinance, if\nthe violation resultedi n personali njury or death. \"Violent crime”\nincludes any action committed by a juvenile that would be a\nviolent crime if committed by an adult. For the purposes|o f this\nparagraph, \"personali njury\" shall include any Type A injury as\nindicated on the traffic accident report completed by a law\nenforcement officer that requires immediate professional attention\nin either a doctor's office or medical facility. A type A injury shall\ninclude severely bleeding wounds, distorted extremities, and\ninjuries that require the injured party to be carried from the scene.\n725 ILCS 120/3(a), (c) (West 2015 Supp.), as amended by Public\nAct 99-642, effective July 28, 2016.\nNeither this office's review of the incident report nor any information provided\nby the Village indicates that Mr. Sandacki s a victim of a violent crime entitled to the rights\nguaranteed by Article 1, Section 8.1(a) of the Illinois Constitution, There iis no allegations that he\nsuffered direct physical or psychological harm as a result of a violent crime as that term is\ndefinedi n section 3(e) of the Rights of Crime Victims or Witnesses Act, or a violation of section\nMs. Amanda Vinicky et al.\nNovember 7, 2016\nPage 22\n11-501 of the Vehicle Code (625 ILCS 5/11-501 (West 2014))® or section 9-3 of the Criminal\nCode of 2012 (720 ILCS 5/9-3 (West 2014). Moreover, the protections guaranteed by article\nI, sections 8(a)(1) and 8(a)(2) of the Ilinois Constitution of 1970 apply1t o the criminal justice\nprocess and court and other proceedings related to criminal charges that have been filed.\nComplaints for Search Warrants and Search Warrants\nLastly, the Village withheld complaints for search warrants and search warrants\nfor Skype and Facebook asserting that disclosure was precluded by court order. The Village's\nSecond Supplemental Response to PAC explained:\n|\n|\nThe complaints and search warrants have similar language as\nfollows: \"Due to the ongoing nature of this investigation, it is\nhereby ordered that the complaint for search warrant, search\nwarrant, proof of service for the search warrant and the search\nwarrant inventory are to be impounded by the Circuit Court Clerk\nand not disclosed or released to the publici n any manner“, until\nfurther order of the court.\" * * * It is the position of the |Village\nthat neither the complaints nor the warrants can be released at all\nwithout a court order7\n|\nThe Illinois Appellate Court has held that “[t]rial courts have discretion to\ndetermine whether justice requires a protective order— and what the parameters of the order\nshould be.\" Willeford v. Toys \"R” Us-Delaware, Inc., 385 Ill. App. 3d 265, 273 (Sth Dist. 2008).\nThe United States Supreme Court also has recognized that a public body enjoined from releasing\ninformation by court order must obey the order when responding to FOIA requests. GTE\nSylvania, Inc. y. Consumers Union of the United States, Inc., 445 US. 375, 100 S. Ct. 1194\n(1980). In that case, the Court held that a Federal agency did not violate the Federal FOIA by\nwithholding several consumer safety reports after manufacturing groupst hat were identifiedi n\nthe reports obtained an injunction prohibiting their disclosure: \"To construe the lawful\nobedience of an injunction issued by a federal district court with jurisdiction to enter such a\ndecree as ‘improperly’ withholding documents under the Freedom of Information Act would do\nSection 11-501 of the Vehicle Code applies to \"[d]riving while under the\ninfluence of alcohol, other drug or drugs, intoxicating compound or compounds or any'combination thereof.\"\n|\nSection 9-3 of the Criminal Code of 2012 applies to “(ijnvoluntary Manslaughter\nand Reckless Homicide.”\n®\"Le tter from Enza Petrarca, Village Attorney, to Steve Silverman, Bureau Chief, Public Access\nBureau, Office of the Attorney General (September 28, 2016).\nMs. Amanda Vinicky e¢ ai.\nNovember 7, 2016\nPage 23\nviolence to the common understanding of the term ‘improperly’ and would extend the Act well\nbeyond the intent of Congress.\" GTE Sylvania, Inc., 445 U.S. at 387, 70 S. Ct. at 1202.\nLikewise, the Village has confirmed for this office that the judge who issued the\nsearch warrants included languagei n the complaints for search warrants and the warrants that\nspecifically prohibits their disclosure. Accordingly, this office concludes that the Village did not\nimproperly withhold those records.\nI\n/\nFINDINGS AND CONCLUSIONS — |\ni\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n|\n1) On July 25, 2016, Ms. Sarah Mueller, on behalf of NPR IHinois, submitted a\nFOIA request to the Village of Downers Grove seeking \"[a] copy of all police reports filed by\nRon Sandack of Downers Grove between July 1, 2016 and July 24, 2016.\" .\n. /\n2) On July 26, 2016, the Village's Police Records/Information Manager\nresponded by providing a copy of an incident report but redacted most of the information therein\npursuant to sections 7(1)(b), 7(1)(c), and 7(1)(d)(vii) of FOIA. The response also stated that\ninvestigative supplements had not been completed, and that evidentiary d| ocuments were being\nwithheld pursuant to section 7(1)(c) and 7(1)(d)(vil) of FOIA. |\n|\n3) On July 26, 2016, Ms. Mueller submitted a Request for Review (2016 PAC\n43168) with the Public Access Counselor and the Public Access Bureau in which she disputed\nthe redaction of the information in the narrative of the complaint, the type of incident, and the\noffense classification. Ms. Mueller's Request for Review was timely filed and otherwise\ncomplies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2014).\nTherefore, the Attorney General may properly issue a binding opinion with respect to this matter.\n|\n4) On July 25, 2016, Mr. John O'Connor, on behalf of the Associated Press,\nsubmitted a FOIA request to the Village's Police Department seeking “al| copy of any report filed\nby Ron Sandack or involving alleged cyber-security threats or fraudulent impersonation using\nsocial media since July 1, 2016.\" |\n5} On July 26, 2016, the Village's Police Records/Information Manager\nresponded by providing a copy of an incident report but redacted most of the information therein\npursuant to sections 7(1)(b), 7(1)(c), and 7(1)(d\\(vit) of FOIA. The response also stated that\ninvestigative supplements had not been completed, and that evidentiary documents were being\nwithheld pursuant to sections 7(1)(c) and 7(1)(d\\(vil) of FOIA.\n|\nI\n/\n|\n|\n|\n|\n|\n|\n|\nMs. Amanda Vinicky ef ai.\nNovember 7, 2016\nPage 24\n6) On July 26, 2016, Mr. O'Connor filed a Request for Review (2016 PAC\n43184) with the Public Access Counselor and the Public Access Bureau in which he asserted that\nthe report was excessively redacted and requested that this office \"direct the Downers Grove\nPolice Department to disclose all relevant and public information under|FOIA.” Mr. O'Connor's\nRequest for Review was timely filed and otherwise complies with the requirements of section\n9.5(a) of FOIA. Therefore, the Attorney General may properlyi ssue a binding opinion with\nrespect to this matter.\n7) On July 26, 2016, Mr. Chris Fusco, on behalf of the Chicago Sun-Times,\nsubmitted a FOIA request to the Village \"seeking to review and/or obtain copies of any police\nreports, audio and/or video recordings, and/or any other records involving incidents since Jan. 1,\n2016 — including but not limited to cyberhacking — involving state Rep. Ronald Sandack, whose\nhome and office are in Downers Grove.”\n8} On July 26, 2016, the Village's Police Records/Information Manager\nresponded by providing a copy of an incident report but redacted most of the information therein\npursuant to sections 7(1)(b), 7(1)(c), and 7(1(d)(vii) of FOIA. The response also stated that\ninvestigative supplements had not been completed, and denied evidentiary documents under\nsections 7(1)\\(c) and TODO) of FOIA. |\ni\n|\n9) On July 27, 2016, Mr. Fusco filed a Request for Review (2016 PAC 43186)\nwith the Public Access Counselor and the Public Access Bureaui n which he questioned whether\nthe information that was redacted and withheldi s exempt from disclosure under FOIA. Mr.\nFusco's Request for Review was timely filed and otherwise complies with the requirements of\nsection 9.5(a) of FOIA. Therefore, the Attorney General may properliyi:s sue a binding opinion\nwith respect to this matter. |\nI\nI\n10) On July 26, 2016, Mr. Nathan Lurz, on behalf of Shaw Media, submitted a\nFOIA request to the Village of Downers Grove seeking copies of \" [alny| police reports involving\nformer IL State Rep. Ron Sandack filedi n the past six months, including any legally releasable\nongoing cases.”\n|\n11) On July 27, 2016, the Village's Police Records/Information Manager\nresponded by providing a copy of an incident report but redacted most of the information therein\npursuant to sections 7(1)(b), 7(1)(c), and 7(1)(d)(vii) of FOIA. The response also stated that\ninvestigative supplements had not been completed, and that evidentiary documents were being\nwithheld pursuant to sections 7) and 7(1)(d)(vil) of FOIA.\n12} On July 27, 2016, Mr. Lurz submitted a Request for Review (2016 PAC\n43193) to the Public Access Counselor and the Public Access Bureau questioning whether the\ninformation redacted from the incident report is exempt from disclosure under FOIA. Mr. Lurz’s\nMs. Amanda Vinicky ez al.\nNovember 7, 2016\nPage 25\nRequest for Review was timely filed and otherwise complies with the requirements of section\n9.5(a) of FOIA. Therefore, the Attorney General may properlyis sue a binding opinion with\nrespect to this matter.\n13) On July 25, 2016, Ms. Natasha Korecki, on behalf of Politico Hlinois,\nsubmitted a FOIA request to the Village seeking a \"copy or copies of any police report filed by\nRonald Sandack (state Representative) from March[ ] 1, 2016 to the present. \"\n14) On July 26, 2016, the Village's Police Records/information Manager\nresponded by providing a copy of the report but redacted information pursuant to sections\n7(1)(b), 7(1)(c), and 7(1\\(d)(vil) of FOLIA. The response also stated thati nvestigative\nsupplements had not been completed, and that evidentiary documents were being withheld\npursuant to sections 7(1)(c) and 7(1}(d)(vii) of FOIA, |\n15) On August 7, 2016, Ms. Korecki submitted a Request for Review (2016 PAC\n43370) to the Public Access Counselor and the Public Access Bureau questioning whether the\ninformation that was redacted from the report is exempt from disclosure under FOIA. Ms.\nKorecki's Request for Review was timely filed and otherwise complies with the requirements of\nsection 9.5(a) of FOIA. Therefore, the Attorney General may properlyiis sue a binding opinion\nwith respect to this matter. |\n16) On August 3, 2016, the Public Access Bureau forwarded copies of Requests\nfor Review 2016 PAC 43168, 2016 PAC 43184, 2016 PAC 43186, and 2016 PAC 43193 to the\nVillage's Police Department and asked it to provide unredacted copies of the recordsi n question\nfor our confidential review together with detailed explanations of the factual and legal bases for\nthe applicability of the section 7(1)(b), 7(1)(©), and 7(1)\\(d)(vii) exemptions to the information\nthat was redacted and withheld. This office also asked the Village's Police Department to clarify\nthe reasons for withholding thei nvestigative supplements that had not brea completed.\n17) On August 5, 2016, the Village Attorney provided the materials requested to\nthe Public Access Bureaui n a consolidated response to 2016 PAC 43168, 2016 PAC 43184,\n2016 PAC 43186, and 2016 PAC 43193. |\n/\n18} On August 5, 2016, this office sent copies of the non-confidential portions of\nthe Village's responses to Ms. Mueller, Mr, O'Connor, Mr. Fusco, and Mr. Lurz.\n19) On August 9, 2016, Mr. O'Connor submitted a reply t|o the Village's\nresponse. Ms. Mueller, Mr. Fusco, and Mr. Lurz did not comment on the Village's response.\n20) On August 11, 2016, this office sent a copy of Ms. Korecki' 's Request for\nReview (2016 PAC 433760) to the Village's Police Department and asked it to provide a detailed\n|\n|\n'\ni\ni\n|\n|\n|\nMs. Amanda Vinicky et al.\nNovember 7, 2016\nPage 26\nexplanation of the factual and legal bases for the applicability of the section 7(1)(b), 7(1)(c), and\n7(1)(a)(vii) exemptions to the information that was redacted from the report.\n21) On August 12, 2016, an Assistant Village Attorney asked an Assistant\nAttorney Generali n the Public Access Bureau by e-mail to send Ms. Korecki a copy of the non-\nconfidential portions ofi ts consolidated response to this officei n 2016 PAC 43 168, 2016 PAC\n43184, 2016 PAC 43186, and 2016 PAC 43193.\n22) On August 12, 2016, this office sent a copy of that response to Ms. Korecki;\nshe did not submit a reply.\n23) On September 8, 2016, this office received from the Village a supplemental\nresponse in which it asserted that the information redacted from the incident report should\nremain confidential based on Mr. Sandack's rights as a crime victim under article I, sections\n8.1(a)(1) and 8.1(a}(2) of the Illinois Constitution of 1970.\n24) On September 8, 2016, this office forwarded copies of the Village's\nsupplemental response to Ms. Mueller, Mr. O'Connor, Mr. Fusco, Mr. Lurz, and Ms. Korecki;\nnone submitted replies to that response.\n25) On September 16, 2016, the Village issued a supplemental response to each\nrequester in which it provided portions of the records that had previously been denied as well as\nadditional records that were generated or obtained subsequent to the F OIA request. The\nsupplemental response indicated that portions of the records were still being redacted or withheld\npursuant to sections 7(1}(b) and 7(1)(c} as well as section 7(1)(d)\\(v). The supplemental response\nalso cited a court order as the basis for withholding other unspecified records.\n26) On September 16, 2016, this office received correspondence from Mr.\nO'Connor indicating that he continued to seek review of the information that was redacted and\nwithheldi n the Village’s supplemental response. On September 19, 2016, Mr. Fusco submitted\ncorrespondence indicating that he also continued to seek review of the redacted and withheld\ninformation; similar correspondence was received from Mr. Lurz and Ms. Korecki on September\n20, 2016. Ina telephone conversation with the Public Access Counselor, Ms. Vinicky also\nconfirmed that NPR continued to seek review of the information that was redacted and withheld.\n27) On September 22, 2016, this office sent a letter to the Village and asked it to\nprovide a detailed explanation of the applicability of sections 7(1)(b), TAN), 7A) and the\ncourt order to the information that continued to be redacted and withheld, adding that the Village\ncouldi ncorporate by reference any portions ofi ts previous response to this office which\nremained relevant. The letter also asked the Village to furnish copies of any responsive records\nthat were not previously provided for this office's confidential review. |\n|\n|\n|\n|\n|\n|\n|\nMs. Amanda Vinicky et ail.\nNovember 7, 2016\nPage 27\n28) On September 23, 2016, this office extended the time to issue a binding\nopinion in 2016 PAC 43168, 2016 PAC 43184, 2016 PAC 43186, and 2016 PAC 43193\nby 30 business days, to November 7, 2016, pursuant to section 9.5 of FOIA. On the same date,\nthis office extended the time to issue a binding opinion in 2016 PAC 43370 by 30 business days,\nto November 23, 2016, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may\nproperlyi ssue binding opinions with respect to these matters. |\n]\n29) On September 28, 2016, the Village provided the additional materials that\nthis office requested. |\n|\n30) On September 30, 2016, this office sent the non-confidential portions of the\nVillage's written response to Ms. Vinicky, Mr. O'Connor, Mr. Fusco, Mr Lurz, and Ms. Korecki.\nThey did not reply to that response. |\n|\n31) With respect to the specific information redacted or withheld from the\ndocuments in question, the Attorney General makes the following findings:\nI\n(a) Mr. Sandack's home addresses and personal telephone numbers constitute\n\"private information\" under the plain language of the definition of that term in section\n2(c-5) of FOIA, and therefore are exempt from disclosure pursuant to section 7(1}(b) of\nFOIA. The tracking numbers for wire transfers which were redacted constitute “personal\nfinancial information,\" which alsoi s defined as a form of \"private information” in section\n2(c-5) of FOIA. In addition, Mr. Sandack's Facebook account identification numbers, the\nUniform Resource Locator (URL) for his Facebook page and that of another individual —\nwhich are specific website addresses— are unique identifiers within the scope of section\n7(1)(b). Mr. Sandack's Facebook account names and Skype usernames, however, are not\nexempt from disclosure pursuant to section 7(1}(b).\n|\n(b) Mr. Sandack's birth date iis exempt from disclosure pursuant to section 7(1)(c)\nof FOIA. |\n|\n(c) Most of the redacted portions of Mr. Sandack's statement and the documents\nhe provided to police contain highly personal and specific information thati s unrelated to\nMr. Sandack's former public duties. Therei s no legitimate public interest in disclosure of\nthese portions of the records that outweighs Mr. Sandack's right to privacy. Accordingly,\nthat informationi s exempt from disclosure pursuant to section 7) of FOIA.\nHowever, the Village has not demonstrated that the amounts of money that were\n$5)e tter from Enza Petrarca, Village Attorney, to Steve Silverman, Bureau Chief, Public Access\nBureau, Office of the Attorney General (September 28, 2016).\nMs. Amanda Vinicky e¢ ai.\nNovember 7, 2016\nPage 28\nrequested or sent in response to extortion attempts and receipts of those transactions\nwould constitute an unwarrantedin vasion of personal privacy. Therefore, that\ninformationi s not exempt from disclosure pursuant to section 7 AY).\n(d) Disclosure of information identifying victims of crimes and those suspected\nof committing a crime who have not been arrested or charged with a crime would\nconstitute a clearly unwarrantedin vasion of those individuals’ personal privacy.\nTherefore, that informationi s exempt from disclosure pursuant to section 7(1\\(c) of\nFOIA.\n(e) The Village has not demonstrated how disclosure of. records reflecting that\nunspecified information was sought from or provided by Yahoo.l and Microsoft, which\nowns Skype, would constitute an unwarrantedi nvasion of personal privacy. Therefore\nthat informationi s not exempt from disclosure pursuant to section TAX e).\n(f) The Village has provided clear and convincing evidence that disclosure of\nmost of the remaining redacted or withheld records concerning F acebook, Yahoo, and\nSkype would cause harm to the Village's Police Department by revealing or providing\n. insights into specializedi nvestigative techniques that perpetrators could exploit to evade\ndetection and circumvent investigations of crimes that involve communications over the\nInternet, including social media. Information redacted from the records providedi n the\nsupplemental response concerning a suspect's online profileii m age and communications\nwith the FBI and authoritiesi n another country also reflects specialized investigative\ntechniques that are not generally known. Disclosure of such information could harm the\nVillage's Police Department by undermining its ability to investigate crimes that originate\nin other countries. Accordingly, this office concludes that those records are exempt from\ndisclosure pursuant to section 7(1)(d)(v) of FOIA.\n|\n(g) The Village has not, however, sustained its burden of demonstrating that\ncertain portions redacted from the records provided in the Village’ 's supplemental\nresponse, as well as e-mails and records obtained from Western Union and Money Gram,\nare exempt from disclosure pursuant to section TOAD) of FOIA. As discussed above,\nportions of those records identifying victims of crimes and those suspected of having\ncommitted a crime who have not been arrested or charged as well as the amounts of\nmoney demanded from or sent by Mr. Sandack are exempt from disclosure pursuant to\nsection 7(1)(c) of FOIA.\n(h) Because the complaints for search warrants and the search warrants issued\nexpressly prohibit their disclosure, the Village did not improperly withhold those records.\nMs. Amanda Vinicky e¢ al.\nNovember 7, 2016\nPage 29\nTherefore, it is the opinion of the Attorney General that the Village's response to\nthe Freedom of Information Act requests submitted by Ms. Mueller, Mr. O'Connor, Mr. Fusco,\nMr. Lurz, and Ms. Korecki violated the requirements of the Act, as specified iin subparagraph (f)\nof paragraph3 labove. Accordingly, the Villagei s directed to take immediate and appropriate\naction to comply with this opinion by furnishing the requesters with the|non-exempt portions of\nadditional records responsive to their requests. This officei s providing |t he Village Attorney\nunder separate cover a copy of the pertinent portions of the incident report, e-mails, and records\nobtained from Western Union, MoneyGram, Yahoo, and Microsoft. The additional portions of\nrecords provided to the requesters in the supplemental response to the FOIA request that the\nAttorney General has concluded must be disclosed are highlightedi n yellow. In addition, the\nVillage should locate and disclose portions of the records reflecting Mr! Sandack's Facebook\naccount name and Skype user names. This office has also indicated information in the records\nthat may be properly redacted pursuant to sections 7(1)(b) and 7(1)(c), in accordance with the\nanalysis in this opinion. | :\n|\n|\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2014). The Village may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Amanda\nVinicky, John O'Connor, Chris Fusco, Nathan Lurz, and Natasha Korecki as defendants. See 5\nILCS 120/7.5 (West 2014). If it chooses to pursue review, the Village should consider whether\nMr. Sandack is a necessary party under section 2-405 of the Code of Civil Procedure. 735 ILCS\n5/2-405 (West 2014). A requester may also obtain judicial review of this decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois, the Village\nand the other requesters as defendants or co-plaintiffs. See 5 ILCS 120/7.5 (West 2014). Ifa\nrequester chooses to pursue review, the requester should also consider whether Mr. Sandack is a\nnecessary party under section 2-405 of the Code of Civil Procedure. 735 ILCS 5/2-405 (West\n2014),\n|\nVery truly yours, |\n/\nLISA MADIGAN ||\nATTORNEY GENERAL\nel\n. Zomasamaa i ) Lota\nBy:\nMichael J. Luke |\nCounsel to the Attorney General\ni\n|\n|\n|\n|\n/\ni\n|\n|\n|\n|\ni\nI\n|\ni\n|\n|\nCERTIFICATE OF SERVICE |\n|\ni\n/\nSarah L. Pratt, Public Access Counselor, hereby certifies that she has served a\nif\ncopy of the foregoing Binding Opinion (Public Access Opinion 16-009) upon:\n|\n|\nMs. Amanda Vinicky Mr. Chris Fusco\n|\nStatehouse Bureau Chief Staff Reporter |\nNational Public Radio Illinois Chicago Sun-Times|\n501 South Second Street 350 North Orleans, 10 Floor\nSpringfield, Illinois 62703 Chicago, Illinois 60654\nAmanda. Vinicky@nprillingis.org On February 3, 2017, Ms. Hoosman responded via e-mail, Stating: ‘Letter from Kelsey Landis to Dorene Hoosman, East St. Louis Freedom of Information Act Officer (January 4, 2017). . *See City of East St. Louis Freedom of Information Act (FOIA) Request http://www.cesl.us/sub_category.php?id=MTk= (last visited March 13, 2017). *E-mail from Kelsey Landis, Reporter, Belleville News-Democrat, to Public Access [Bureau, Office of the Illinois Attorney General] (January 16, 2017). “Letter from Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Dorene Hoosman, City Clerk/FOIA Officer, City of East St. Louis (January 19, 2017). *E-mail from Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Dorene Hoosman (February 2, 2017). Ms. Kelsey Landis The Honorable Dorene Hoosman April 18, 2017 Page 3 I sent your request to our Police [Chief] Michael Hubbard and to our City Attorney Michael Wagner. The documents that you are requesting have to be release[d] from The Police Department. J have no control over this department. I am resending your request back to themf.]'®! Michael Hubbard and \"mwagner@cswlawillp.com\" were included as recipients of Ms. Hoosman's February 3, 2017, e-mail response.’ To date, the Public Access Bureau, has not received further correspondence from the City. On February 27, 2017, an Assistant Attorney General in the Public Access Bureau sent an e-mail to Ms. Landis asking whether the City had responded to her FOIA request.* On March 1, 2017, Ms. Landis responded by e-mail to the Public Access Bureau and indicated that she had not yet received a response to her FOIA request. Ms. Landis included Ms. Hoosman in her e-mail response. Ms. Landis also stated that she believed that the e-mail address for Ms. Hoosman that she had used to submit her January 4, 2017, FOIA request, \"dhoosm@cesl.us,” was incorrect. Ms. Landis sent her March 1, 2017, e-mail to \"dorene.hoosman@cesl.us\" and attached the initial FOIA request to the e-mail.” The same day, Ms. Hoosman, using the \"dhoosm@cesl.us\" e-mail address, responded to Ms. Landis by stating: [y]our request has been sent to the proper personnel. I don't have any records regarding police matters. Atty. Michael Wagner, City Manager Courtney R. Logan, Police Chief Michael Hubbard, LaToya Greenwood|[,] Public Safety Chairmen. I hope that this matter will be taken care of.!'“! Ms. Landis reported to this office that later on March 1, 2017, City Manager Courtney Logan left her a voicemail indicating that \"he would work with the police department to fulfill [her] request °E-mail from Dorene Hoosman to Laura Harter; Michael Hubbard; mwagnercswlawilp.com (February 3, 2017). ’E-mail from Dorene Hoosman to Laura Harter; Michael Hubbard; mwagner@cswlawllp.com (February 3, 2017). “E-mail from Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to [Kelsey] Landis (February 27, 2017). E-mail from Kelsey Landis to Laura Harter and Dorene Hoosman (March 1, 2017). '*E-mail from Dorene Hoosman to Kelsey Landis (March 1, 2017). Ms. Kelsey Landis The Honorable Dorene Hoosman April 18, 2017 Page 4 from Jan. 4.\"'' As of the date of this binding opinion, this office has not received any information indicating that the City has responded to Ms. Landis's FOIA request. On March 16, 2017, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA.\" ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2014). Under section 1.2 of FOTIA (5 ILCS 140/1.2 (West 2014)), \"[alll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). The City did not respond to Ms. Landis's FOIA request within five business days of its receipt by either complying with her request, extending the time for its response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2014)), or denying the request in writing. The City's failure to comply with the requisite procedures violated section 3(d) of FOIA. ''E-mail from Kelsey Landis to Laura Harter (March 1, 2017). “Letter from Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Kelsey Landis, Belleville News-Democrat, and the Honorable Dorene Hoosman, City Clerk/FOIA Officer, City of East St. Louis (March 16, 2017). ; Ms. Kelsey Landis The Honorable Dorene Hoosman April 18, 2017 Page 5 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On January 4, 2017, Ms. Kelsey Landis submitted a FOIA request to the City of East St. Louis via e-mail seeking copies of records pertaining to a police pursuit that began in East St. Louis on December 13, 2016. The City did not, within five business days after its receipt of Ms. Landis's FOIA request, comply with the FOIA request, extend the time for its response pursuant to section 3(e) of FOIA, or deny the request in whole or in part, as is required by section 3(d) of FOIA. Pursuant to section 3(d) of FOIA, the failure to do so constituted a denial of the FOIA request. 2) On January 16, 2017, Ms. Landis asked the Public Access Counselor and the Public Access Bureau to review the City's denial of her FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2014)). 3) On January 19, 2017, the Public Access Bureau forwarded a copy of Ms. Landis's Request for Review to the City, together with a letter asking the City to advise this office whether it had responded to Ms. Landis's January 4, 2017, FOIA request. The City did not respond to this office's inquiry. 4) On February 2, 2017, this office sent the City's FOIA Officer an e-mail inquiry regarding the status of the City's response to Ms. Landis's FOIA request. On February 3, 2017, the FOIA Officer responded that she had forwarded this office's letter to the City's police chief and the City's attorney. 5) On March 1, 2017, Ms. Landis again e-mailed her FOIA request to the City's FOIA Officer. The City's FOIA Officer responded that Ms. Landis's request had. been sent to the appropriate City personnel for response. The same day, the City Manager contacted Ms. Landis and informed her that he would work with the police department to fulfill her request. 6) On March 16, 2017, this office extended the time within which to issue a binding opinion by 30 business days, to April 28, 2017, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 7) To date, this office has received no confirmation or indication that the City has responded to Ms. Landis's request. Ms. Kelsey Landis The Honorable Dorene Hoosman April 18, 2017 Page 6 Therefore, it is the opinion of the Attorney General that the City has violated section 3(d) of FOIA by failing, within five business days after receiving Ms. Landis's January 4, 2017, FOIA request, to provide the requested records, to extend the time for its response pursuant to section 3(e) of FOIA, or to deny the request in whole or in part. Accordingly, the City is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. Landis with all records responsive to her January 4, 2017, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2015 Supp.), as amended by Public Act 99-642, effective July 28, 2016).'° If the City determines that any portion of the responsive records is exempt from disclosure under section 7, the City is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2014)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Kelsey Landis as defendants. See 5 ILCS 140/11.5 (West 2014). Sincerely, LISA MADIGAN ATTORNEY GENERAL By: Pardne__ Michael J. Luke Counsel to the Attorney General \"Because the City did not comply with the statutory requirements for responding to Ms. Landis's FOIA request, the City is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d) (West 2014) (\"A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g).\"). CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 17-002) upon: Ms. Kelsey Landis Reporter Belleville News-Demeocrat 120 South Iflinois Street P.O. Box 427° Belleville, Ulinois 62222 klandis@bnd.com The Honorable Dorene Hoosman City Clerk/FOIA Officer City of East St. Louis 301 River Park Drive East St. Louis, Illinois 62201 dhoosm@cesl.us by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on April 18, 2017. SARAH L. PRATT re : / Public Access Counselor SARAH L. PRATT Public Access Counselor : 500 South Second Street Springfield, Illinois 62706 (217) 785-5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested police records regarding a specific vehicle pursuit from the City of East St. Louis. The City did not respond within the five business days required by law, though it later acknowledged the request. The Illinois Attorney General determined that the City violated the Freedom of Information Act by failing to comply with the request within the statutory timeframe. The City was directed to provide the requested records, subject to any permissible redactions.","card_headline":"Police reports concerning a December 13, 2016 pursuit","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":81,"orig_master_id":19282,"dup_master_id":19055,"dup_sha256":"8c72cc998976dfec7478690245b55cdc6d5bb5ef3202a5858c3abfa33403b2c1","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2017,"date_issued":"2017-03-14","case_number":"2017 PAC 45894","request_numbers":null,"title":"Basis for Withholding Police Investigatory Records","filename":"PUBLIC ACCESS OPINION 17-001 (Request for Review - 2017 PAC 45894).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 17-001 (Request for Review - 2017 PAC 45894).pdf","word_count":2384,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request made by Mr. John P. Guletz to the Illinois State Police, which was denied.","plain_summary":"The requester sought a copy of a specific field report, and the state police agency withheld it in full, asserting that disclosure would interfere with a pending or contemplated law-enforcement proceeding. The Public Access Counselor held that a bare assertion that an investigation remains open, without any factual explanation of how disclosure would interfere with a proceeding, does not meet the agency's burden under that exemption. The state police agency was directed to disclose the field report, redacting only private information and dates of birth.","holding":"The Illinois State Police violated FOIA by improperly denying Mr. Guletz's request.","legal_question":"Did the Illinois State Police properly deny the FOIA request based on the exemption for law enforcement proceedings?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140, 5 ILCS 140/3, 5 ILCS 140/7, 5 ILCS 140/9(a), 5 ILCS 140/2, 735 ILCS 5","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)","7(1)(b)","7(1)(c)"],"public_body":"Illinois State Police","requesting_party":"Guletz and Ms. Easum","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought a copy of an Illinois State Police field report referenced in a previously received traffic crash report.","ocr_status":"ok","ocr_quality":89.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2017-Binding-PAC-Opinions/17-001.pdf","sha256":"694a9f16157b981e723a3f29400c6499fdc20edadad1c5a17e25d5aecb3f6de3","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","law enforcement records","investigatory records","FOIA denial"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEYGENERAL, March 14, 2017 PUBLIC ACCESS OPINION 17-001 Request for Review 2017 PAC 45894) FREEDOM OF INFORMATION ACT: Basis for Withholding Police Investigatory Records Mr. John P. Guletz Rossiter & Boock, LLC 124 Gay Avenue Clayton, Missouri 63105 Ms. Nancy G. Easum Freedom ofInformation Officer Illinois State Police 801 South Seventh Street, Suite 1000-S Springfield, Illinois 62703 Dear Mr. Guletz and Ms. Easum: This is abinding opinion issued by the Attorney General pursuant to section 9.5( f) ofthe Freedom ofInformation Act ( FOIA) ( 5 ILCS 140/9.5( f) (West 2014)). For the reasons discussed below, this office concludes that the Illinois State Police ( ISP) violated the requirements ofFOIA by improperly denying Mr. John P. Guletz's November 14, 2016, FOIA request. BACKGROUND On November 14, 2016, Mr. Guletz submitted a FOIA request to ISP seeking a copy of ISP Field Report F11- 16- 1617, which he stated was referenced in a copy ofa traffic 500 South Second Street, Springfield, Illinois 62706 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806 601 South UniversityAvenue, Suite 102, Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416 .®— Mr. John P. Guletz Ms. Nancy G. Easum March 14, 2017 Page 2 crash report that he had previously received.' On December 9, 2016, ISP denied that request in its entirety pursuant to section 7( 1)( d)( i) ofFOIA ( 5 ILCS 140/ 7(1)( d)( i) ( West 2015 Supp.), as amended by Public Act 99- 642, effective July 28, 2016), asserting that disclosure ofthe requested information \" would interfere with pending or actually and reasonably contemplated law enforcement proceeding[ s] conducted by [ a] law enforcement * * * agency.\"2 On January 13, 2017, the Public Access Bureau received aRequest for Review from Mr. Guletz disputing ISP' s denial ofhis request. 3 On January 18, 2017, the Public Access Bureau sent a copy ofthe Request for Review to ISP and asked it to provide a copy ofthe withheld field report for this office's confidential review. The January 18, 2017, letter also requested that ISP provide a detailed explanation ofthe factual and legal bases for the applicability ofthe section 7( 1)( d)( i) exemption.4 OnJanuary 27, 2017, ISP furnished the requested materials to this office.5 On February 3, 2017, the Public Access Bureau forwarded a copy ofISP' s written response to Mr. Guletz; he did not reply to that response. ANALYSIS All records in the custody or possession ofa public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden ofproving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/ 1. 2 (West 2014). Section 3( a) ofFOIA (5 ILCS 140/3( a) ( West 2014)) further provides: Each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 ofthis Act.\" The exemptions from disclosure contained in section 7 ofFOIA (5 ILCS 140/7 (West 2015 Supp.), as amended by E-mail from John P. Guletz, Rossiter & Boock, LLC, to foia_officer@isp. state.il.us (November 14, 2016). 2E -mail from Nancy G. Easum, Freedom ofInformation Officer, [Illinois State Police], to Rossiter Boock, John Guletz (December 9, 2016). E-mail from John P. Guletz, Rossiter & Boock, LLC, to Public Access [Bureau, Office ofthe Attorney General] ( January 13, 2017). Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office ofthe Attorney General, to Nancy Easum, Freedom ofInformation Officer, Illinois State Police (January 18, 2017). 5Letter from Nancy G. Easum, Legal Counsel, Illinois State Police, to Steve Silverman, Assistant Attorney General, Public Access Bureau ( January 27, 2017). 6Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office ofthe Attorney General, to John Guletz, Attorney at Law, Rossiter Boock, LLC ( February3, 2017). Mr. John P. Guletz Ms. Nancy G. Easum March 14, 2017 Page 3 Public Act 99-642, effective July 28, 2016) are to be narrowly construed. See Lieber v. Board of Trustees ofSouthern Illinois University, 176 111. 2d 401, 407 ( 1997). Section 7( 1)( d)(i) ofFOIA exempts from disclosure records in the possession ofa law enforcement agency for law enforcement purposes to the extent that their disclosure would interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement * * * agency that is the recipient of the request[.]\" However, t]he classification of information as ' law enforcement' or 'investigatory' does not necessarily foreclose access unless it can be shown, in a particular case, that disclosure wouldinterfere with law enforcement and would, therefore, not be in the public interest.\" ( Emphasis added.) Baudin v. City ofCrystal Lake, 192 Ill. App. 3d 530, 536 (2d Dist. 1989). In Baudin, 192 Ill. App. 3d at 533- 34, the Illinois Appellate Court considered, among other things, whether a municipality was entitled to summary judgment in a lawsuit alleging that it had improperly withheld its police department's policies and procedures for handling automobile accidents and certain police radio recordings under aprior version of section 7( 1)( d)(i) ofFOIA (III. Rev. Stat. 1987, ch. 116, par. 207(e)). 7 The municipality's motion for summary judgment described the records as \"' related to the detection and investigation of crime or the security and operations ofcorrectional institutions[,]\"' and its supporting affidavits included one that characterized the radio recordings as containing \"' the verbal reports ofalleged criminal activity that is or has occurred in the City ofCrystal Lake and are used for investigative purposes by the Police Department.\" Baudin, 192 I11. App. 3d at 537. The appellate court held that the lower court had improperly granted summary judgement for the municipality based on those affidavits, which it characterized as \" entirely conclusory.\" Baudin, 192 Ill. App. 3d at 537. The court further explained: The burden is on the govemmental agency to prove that specific documents fit within one ofthe statutory exemptions. To meet this burden and to assist the court in making its determination, the agency must provide a detailed justification for its claim of exemption, addressing the requested documents specifically and in amanner allowing for adequate adversary testing. [ Citation.] I]t is obvious that the party with the greatest interest in obtaining disclosure is at a loss to argue with desirable legal precision for the revelation ofthe concealed information. Citation.] Therefore, aside from legal argument, where the sole The Baudin court reviewedsection 7(e) ofFOIA (111. Rev. Stat. 1987, ch. 116, par. 207(e)), which was an earlier version of section 7( I)( d)( i) and which exempted from disclosure \"[ r]ecords of State and local law enforcement agencies and correctional agencies that are related to the detection and investigation ofcrime.\" Mr. John P. Guletz Ms. Nancy G. Easum March 14, 2017 Page 4 support regarding the contents ofdocuments and their exemption is contained in a conclusory affidavit, courts must no longer accept such conclusory or generalized allegations ofexemption and must require a relatively detailed analysis ofthe documents in manageable segments. [ Citation.] ( Emphasis in original.) Baudin, 192 I11. App. 3d at 537-38. Likewise, in Day v. City ofChicago, 388 I11. App. 3d 70, 77 ( 1st Dist. 2009), the Illinois Appellate Court held that affidavits consisting of \"sweeping generalities\" failed to support the city's assertion that disclosure ofrecords ofa 17 -year- old murder case would interfere with or obstruct an ongoing investigation.8 The court rejected the affidavits as the city's attempt \"to use th [...] Nancy G. Easum March 14, 2017 Page 5 That explanation is conclusory. ISP merely stated that its investigation remains open and contended that disclosure ofthe records could interfere with a State's Attorney's office's charging decision and potential prosecution. ISP has not, however, provided any factual basis or supporting legal authority for the assertion that the disclosure ofany or all ofthe information in the field report in question would interfere with an investigation or other law enforcement proceeding conducted by ISP. Accordingly, this office concludes that ISP has not sustained its burden ofdemonstrating by clear and convincing evidence that the field report is exempt from disclosure in its entirety pursuant to section 7( 1)( d)(i) ofFOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the available information, the Public Access Counselor' s review, and the applicable law, the Attomey General finds that: 1) On November 14, 2016, Mr. John Guletz submitted a FOIA request to ISP seeking a copy of ISP Field Report FI 1- 16- 1617. 2) On December 9, 2016, ISP denied the request in its entirety, citing section 7(1)( d)(i) ofFOIA. 3) On January 13, 2017, the Public Access Bureau received a Request for Review from Mr. Guletz contesting the denial ofhis FOIA request. The Request for Review was timely filed and otherwise complies with the requirements ofsection 9.5(a) ofFOIA (5 ILCS 140/9.5(a) West 2014)). Therefore, the Attorney General may issue a binding opinion with respect to this matter. 4) On January 18, 2017, the Public Access Bureau sent a copy ofthe Request for Review to ISP and asked it to provide a copy ofthe withheld field report for this office' s confidential review. This office also asked ISP to provide a detailed explanation ofthe factual and legal bases for the applicability ofthe section 7( 1)( d)( i) exemption. 5) On January 27, 2017, ISP furnished the requested materials to this office. 6) On February 3, 2017, the Public Access Bureau forwarded a copy ofISP's written response to Mr. Guletz; he did not reply to that response. Mr. John P. Guletz Ms. Nancy G. Easum March 14, 2017 Page 6 7) Section 7( 1)( d)(i) ofFOIA exempts from disclosurerecords inthe possession ofa law enforcement agency for law enforcement purposes only to the extent that their disclosure would \" interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement * * * agency that is the recipient of the request[.]\" 8) The mere existence of an open investigation does not render records exempt from disclosure under section 7( 1)( d)( i) ofFOIA. To sustain its burden under this exemption, a public body must demonstrate how the disclosure ofthe records would interfere with apending or actually and reasonably contemplated law enforcement proceeding conducted by the public body that received the FOIA request. 9) ISP's assertion ofsection 7(1)( d)(i) is conclusory and devoid ofdetail. Because ISP has not provided clear and convincing evidence demonstrating that the disclosure of the field report at issue would interfere with a law enforcement proceeding conducted by ISP, this office concludes that ISP has not sustained its burden ofdemonstrating that the field report is exempt from disclosure in its entirety pursuant to section 7(1)( d)(i) ofFOIA. Therefore, it is the opinion ofthe Attorney General that ISP's response to Mr. Guletz's Freedom ofInformation Act request violated the requirements ofFOIA. Accordingly, ISP is directed to take immediate and appropriate action to comply with this opinion by disclosing to Mr. Guletz acopy ofISP Field Report FI1- 16-1617. In its response to this office, ISP asserted that the report contains information that is exempt from disclosure pursuant to sections 7( 1)( b) and 7( 1)( c) ofFOIA (5 ILCS 140/7( 1)( b), ( c) ( West 2015 Supp.), as amended by Public Act 99-642, effective July 28, 2016). 10 IfISP wished to assert those exemptions it should have done so in a timely initial response to Mr. Guletz. However, ISP may redact from the report \" private informationil ' which is exempt under section 7( 1)( b) ofFOIA, and dates ofbirth 10Letter from Nancy G. Easum, Legal Counsel, Illinois State Police, to Steve Silverman, Assistant Attorney General, Public Access Bureau ( January 27, 2017). Section 2(c-5) ofFOIA (5 ILCS 140/2(c-5) ( West 2015 Supp.)) provides: Private information\" means unique identifiers, including aperson's social security number, driver's license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address andpersonal license plates, except as otherwise provided by law or when compiled without possibility ofattribution to any person. Mr. John P. Guletz Ms. Nancy G. Easum March 14, 2017 Page 7 which are exempt under section 7(1)( c) ofFOIA.12 IfISP chooses to redact this information from the copy ofthe report it provides to Mr. Guletz it must include a written denial that identifies the basis for each redaction and which otherwise complies with the requirements of section 9(a) of FOIA. This opinion shall be considered a final decision ofan administrative agency for the purposes ofadministrative review under the Administrative Review Law. 735 ILCS 5/ 3- 101 et seg. ( West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court ofCook or Sangamon County within 35 days ofthe date ofthis decision naming the Attorney General ofIllinois and John Guletz as defendants. See 5 ILCS 140/ 11. 5 ( West 2014). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: Michael J. Luke Counsel to the Attorney General 12111. Att'yGen. Pub. Acc. Op. No. 16-009, issued November 7, 2016, at 12 ( an individual' s birth date is highly personal by its very nature and the individual' s right to privacy outweighs any legitimate public interest in its disclosure). CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy ofthe foregoing Binding Opinion ( Public Access Opinion 17-001) upon: Mr. John P. Guletz Rossiter & Boock, LLC 124 Gay Avenue Clayton, Missouri 63105 Muletz@rossiterboock. com Ms. Nancy G. Easum Freedom ofInformation Officer Illinois State Police 801 South Seventh Street, Suite 1000-S Springfield, Illinois 62703 Nancy Easum@a isp.slate.il.us by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on March 14, 2017. SARAH L. P Public Access Counselor SARAH L. PRATT Public Access Counselor 500 South Second Street Springfield, Illinois 62706 217) 785-5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Guletz requested a specific Illinois State Police field report, but the police denied the request claiming it would interfere with an ongoing law enforcement investigation. The Attorney General's office reviewed the case and found that the police did not provide sufficient evidence to prove that releasing the report would actually harm a pending investigation. Consequently, the police were ordered to provide the requested records.","card_headline":"A state police field report referenced in a crash report","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":82,"orig_master_id":19056,"dup_master_id":19286,"dup_sha256":"ca22107d766ded8e7b17204c1e539c59f998d56d469883999fca0a4abe0e9d2d","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2017,"date_issued":"2017-06-12","case_number":"2017 PAC 46589","request_numbers":null,"title":"Statistical Data is Not Exempt from ° Disclosure under Section 7(1)(f) of FOIA","filename":"PUBLIC ACCESS OPINION 17-005 (Request for Review - 2017 PAC 46589).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 17-005 (Request for Review - 2017 PAC 46589).pdf","word_count":2346,"summary":"The Attorney General issued a binding opinion issued by the Attorney General pursuant to section 9.5( of the Freedom of Information Act (FOIA) The opinion concludes that the Village of Oak Park (Village) violated the requirements of FOIA by improperly denying Michael O'Malley's February 22, 2017, FOIA request .","plain_summary":"The requester sought raw traffic-count data collected during roadway monitoring, and the village withheld its entire preliminary traffic study as predecisional and deliberative. The Public Access Counselor held that purely factual data, such as vehicle counts, is not exempt as deliberative material unless it is inextricably intertwined with a public body's decision-making process, and the village had not shown that the counts revealed anything about its reasoning. The village was directed to disclose the specific pages of the study containing the requested traffic counts.","holding":"The Village of Oak Park improperly withheld traffic count data by incorrectly asserting that the records were exempt as preliminary drafts.","legal_question":"Whether traffic count data constitutes a 'preliminary draft' exempt from disclosure under section 7(1)(f) of FOIA.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(1), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/7, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(f)","public_body":"Village of Oak Park","requesting_party":"Michael O'Malley","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"exemption 7(1)(f)","subject_description":"The request sought traffic count data from specific roadway monitoring operations conducted by the Village.","ocr_status":"ok","ocr_quality":90.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2017-Binding-PAC-Opinions/17-005.pdf","sha256":"93ad7e582dea6d304c339b7c45b201092998337b36ddc93eb8372feb2fe8d086","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["traffic counts","preliminary draft","FOIA request","public records"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL ‘STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL June 12, 2017 PUBLIC ACCESS OPINION 17-005 (Request for Review 2017 PAC 46589) FREEDOM OF INFORMATION ACT: Statistical Data is Not Exempt from ° Disclosure under Section 7(1)(f) of FOIA Mr. Michael O'Malley 800 Wisconsin Avenue Oak Park, Illinois 60304 Ms. Rasheda Jackson Assistant Village Attorney . Village of Oak Park ) 123 Madison Street ! Oak Park, Illinois 60302 Dear Mr. O'Malley and Ms. Jackson: : This is a binding opinion issued by the Attorney General pursuant to section 9.5( of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons discussed below, this office concludes that the Village of Oak Park (Village) violated the requirements of FOIA by improperly denying Mr. Michael O'Malley's February 22, 2017, FOIA request. - | BACKGROUND On February 22, 2017,,Mr. O'Malley submitted a FOIA request to the Village seeking \"the traffic counts from the roadway monitoring operations conducted on 10/25/16, 10/26/16 for the following roads: Washington Blvd, Madison Street and Jackson Blvd\" and \"the traffic counts from the roadway monitoring operations conducted on 11/11/16 for Madison 500 South Second Street, Springfield, Minois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806 601 South University Avenue. Suite 102. Carbondale, Hlinois 62901 * (6185 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416 -« Mr. Michael O'Malley Ms. Rasheda Jackson June 12, 2017 Page 2 Street.\"! By letter dated February 23, 2017, the Village denied Mr. O'Malley's request, asserting that \"[t]he traffic counts are in draft form and have not been publicly released. Thus, they are exempt from disclosure pursuant to” section 7(1)(f) of FOIA (5 ILCS 140/7(1)(f) (West 2015 Supp.), as amended by Public Act 99-642, effective July 28, 2016).” On February 27, 2017, the Public Access Bureau received a Request for Review from Mr. O'Malley disputing the Village's response by stating: \"My request is simply for the data from the traffic counts: the number of vehicles that travel those roadways. I am not asking for the interpretation of the data; the notes, opinions, memoranda...or a parsing of the data. Just the data.\"’ On March 6, 2017, the Public Access Bureau sent a copy of the Request for Review to the Village together with a letter asking it to provide copies of the withheld records for this office's confidential review along with a detailed legal and factual explanation for the Village's assertion that the requested records are exempt from disclosure in their entireties under section 7(1)(f) of FOIA.* On March 15, 2017, the Village submitted to this office a written response and a copy of a preliminary draft of the \"Madison Street Corridor Study\" provided to the Village by the consulting firm it hired to conduct the traffic study.? On March 16, 2017, the Public Access Bureau forwarded to Mr. O'Malley a copy of the Village's written response.° On March 24, 2017, Mr. O'Malley submitted his reply to the Village's response and provided additional information related to the availability of the requested information.’ 'Oak Park Freedom of Information Act Request form signed by Michael O'Malley (February 22, 2017). *Letter from Rasheda Jackson, Assistant Village Attorney, Village of Oak Park, to Michael O'Malley (February 23, 2017). *E-mail from Michael O'Malley to Public Access (Bureau, Office of the Attorney General] (February 27, 2017). , , ‘Letter from Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Rasheda Jackson, Assistant Village Attorney, The Village of Oak Park (March 6, 2017). “Letter from Rasheda Jackson, Assistant Village Attorney, Village of Oak Park, to Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (March 15, 2017). °Letter from Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Michael O'Malley (March 16, 2017). \"Letter from Michael O'Malley to Laura S. Harter, Assistant Attomey General, Public Access Bureau, Office of the Attorney General, State-of Illinois (March 23, 2017) submitted via e-mail by Michael O'Malley to Barbara Yattoni, [Public Access Bureau, Office of the Attorney General] (March 24, 2017). Mr. Michael O'Malley Ms. Rasheda Jackson June 12, 2017 Page 3 On April 25, 2017, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA.’ ANALYSIS \"All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2014). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) further provides that \"{e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" The exemptions from disclosure contained in section 7 of FOIA (5 ILCS 140/7 (West 2015 Supp.), as amended by Public Act 99-642, effective July 28, 2016) are to be narrowly construed. See Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997). Section 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.\" Section 7(1)(f) is equivalent in most respects to the \"deliberative process\" exemption in the Federal FOIA (5 U.S.C. § 552(b)(5) (2012)), which applies to \"inter- and intra-agency predecisional and deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). Section 7(1)(f) is \"intended to protect the communications process and encourage frank and open discussion among agency employees before a final decision is made.\" Harwood, 344 II. App. 3d at 248. \"[I]t is well settled that '[o]nly those portions of a predecisional document that reflect the give and take of the deliberative process may be withheld.\" (Emphasis added.) Kalven y. City of Chicago, 2014 IL App (Ist) 121846, § 24, 7 N.E.3d 741, 747-48 (2014) (quoting Public Citizen, Inc. v. Office of Management .& Budget, 598 F.3d 865, 876 (D.C. Cir. 2010). The Illinois Appellate Court has stated that \"purely factual material\"i s not exempt from disclosure under section 7(1)(f) unless the factual materiali s \"inextricably intertwinedTM with predecisional discussions. Watkins v. McCarthy, 2012 IL App (Ist) 100632, 936, 980 N.E.2d 733, 743 (2012) (quoting Enviro Tech International, Inc. v. United States Environmental Protection Agency, 371 F.3d 370, 374-75 (7th Cir. 2004)). For example, purely factual material may be exempt \"if the 'manner of selecting or presenting those facts would reveal the ‘Letter from Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Michael O'Malley and Rasheda Jackson, Assistant Village Attorney, The Village of Oak Park (April 25, 2017). Mr. Michael O'Malley Ms. Rasheda Jackson June 12, 2017 Page 4 deliberative process,\" or if the factual materials \"'reflect an agency's preliminary positions or ruminations about how to exercise discretion on some policy matter[.]'\" Hamilton Securities Group Inc. v. Department of Housing and Urban Development, 106 F. Supp. 2d 23, 33 (D.D.C. 2000) (internal citations omitted). Conversely, statistical data that does not reveal a public body's reasoning or decision-making process falls outside the scope of [...] minary draft traffic study provided by the Village. Only two pages of the study appear to contain traffic count information that is responsive to the request. The remainder of the report does not appear to contain any responsive \"Letter from Rasheda Jackson, Assistant Village Attorney, Village of Oak Park, to Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (March 15, 2017), at 1. \"Letter from Rasheda Jackson, Assistant Village Attorney, Village of Oak Park, to Laura S. _ Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, State of [Illinois (March 15, 2017), at 1. \"Letter from Michael O'Malley to Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, State:‘ of Illinois (March 23, 2017). Mr. Michael O'Malley Ms. Rasheda Jackson June 12, 2017 Page 5 information. The statistical information is purely factual, including numbers representing the traffic volume for sections of Madison Street, Washington Boulevard, and Jackson Boulevard. Although the Village's response to this office notes the statutory language of section 7(1)(f) of FOIA, the Village has not explained how these traffic counts reveal or provide insight into the Village's deliberative process or how the information could be \"inextricably intertwined\" with any opinions, recommendations, or other predecisional communications. The . Attorney General's Office has previously distinguished predecisional material from preliminary statistical data, finding that \"[s]imply because the data may be subject to review and possible revision does not make that data itself preliminary or deliberative communications within the scope of section 7(1)(f).\" Tl. Att'y Gen. Pub. Acc. Op. No. 13-015, issued September 24, 2013, at 6 (concluding that the Illinois State Police improperly withheld monthly crime statistics reported by a city because the information was purely factual). In sum, the Village has not demonstrated that disclosing the preliminary traffic counts would reveal more than the factual information itself. Accordingly, the Village has not met its burden of demonstrating by clear and convincing evidence that the preliminary traffic counts are exempt from disclosure pursuant to section 7(1)(f) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the available information, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On February 22, 2017, Mr. Michael O'Malley submitted a FOIA request to the Village seeking \"the traffic counts from the roadway monitoring operations conducted on 10/25/16, 10/26/16 for the following roads: Washington Blvd, Madison Street and Jackson Blvd\" and \"the traffic counts from the roadway monitoring operations conducted on 11/11/16 for Madison Street.\" 2) On February 23, 2017, the Village denied the request in its entirety, citing section 7(1)(f) of FOTA. 3) On February 27, 2017, the Public Access Bureau received a Request for Review from Mr. O'Malley contesting the denial of his FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2014)). Mr. Michael O'Malley Ms. Rasheda Jackson June 12, 2017 Page 6 4) On March 6, 2017, the Public Access Bureau sent a copy of the Request for Review to the Village and asked it to provide a copy of the withheld records for this office's confidential review. This office also asked the Village to provide a detailed explanation of the factual and legal bases for the applicability of the section 7(1)(f) exemption. 5) On March 15, 2017, the Village furnished to this office a preliminary draft of a traffic study containing the requested traffic counts together with a written response. 6) On March 16, 2017, the Public Access Bureau forwarded a copy of the Village's written response to Mr. OMalley. On March 24, 2017, Mr. O'Malley replied to the Village's response. 7) On April 25, 2017, this office extended the time within which to issue a binding opinion by 30 business days, to June 12, 2017, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 7(1)(f) of FOIA does not exempt factual information from disclosure unless that information is inextricably intertwined with a public body's deliberative process, such that its disclosure would reveal the deliberative process. 9) Although the traffic counts that Mr. O'Malley requested are contained within the preliminary traffic study, they are purely factual. The Village has not demonstrated that the traffic counts are inextricably intertwined with a deliberative process, or that their disclosure would reveal any aspect of any deliberative process. Consequently, this office concludes that the Village has not sustained its burden of demonstrating that traffic counts are exempt from disclosure pursuant to section 7(1)(f) of FOIA. , Therefore, it is the opinion of the Attorney General that the Village's response to Mr. O'Malley's Freedom of Information Act request violated the requirements of FOIA. Accordingly, the Village is directed to take immediate and appropriate action to comply with this opinion by disclosing to Mr. O'Malley a copy of those portions of the traffic study containing the traffic counts that he requested. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a Mr. Michael O'Malley Ms. Rasheda Jackson June 12, 2017 Page 7 complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Michael O'Malley as defendants. See 5 ILCS 140/11.5 (West 2014). Very truly yours, LISA MADIGAN ATTORNEY GENERAL Michael J. Luke Counsel to the Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 17-005) upon: Mr. Michael O'Malley 800 Wisconsin Avenue Oak Park, Illinois 60304 Michaeloms33@gmail.com Ms. Rasheda Jackson Assistant Village Attorney The Village of Oak Park 123 Madison Street Oak Park, Illinois 60302 rackson@oak-park.us by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on June 12, 2017. SAZl Grh — SARAH L. PRATT ~~ Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, [llinois 62706 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A resident requested traffic count data from the Village of Oak Park, but the Village refused to provide it, claiming the documents were only 'drafts.' The Attorney General ruled that the Village was wrong to withhold this information, as statistical data does not qualify for the 'preliminary draft' exemption under FOIA. The Village is now required to release the requested records.","card_headline":"Traffic count data from roadway monitoring","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":83,"orig_master_id":19057,"dup_master_id":19285,"dup_sha256":"aee123ea3a79d38b56169a7fcf6b62c023ecf3741643a398ee242c689c1db1a1","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2017,"date_issued":"2017-05-26","case_number":"2017 PAC 46400","request_numbers":null,"title":"Financial Terms of Contracts, Billing Invoices, and Budget Documents Related to a Public Body's Use of Public Funds Are Not Exempt under Section 7(1)(g) of FOIA","filename":"PUBLIC ACCESS OPINION 17-003 (Request for Review - 2017 PAC 46400).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 17-003 (Request for Review - 2017 PAC 46400).pdf","word_count":2391,"summary":"The Taylorville Sanitary District (District) violated the requirements of FOIA in connection with Ms. Pam Peabody's December 22, 2016, FOIA request . The Attorney General issued a binding opinion issued by the Attorney General pursuant to section 9.5(f) of FOIA .","plain_summary":"The requester, a city clerk, sought contracts, invoices, and annual budgets involving the sanitary district's private wastewater-management contractor, and the district redacted substantial financial terms, invoice amounts, and budget figures, citing a confidentiality clause in its contract and the commercial-information exemption. The Public Access Counselor held that the confidentiality clause did not apply because none of the information had been marked confidential as the clause required and the clause itself excluded information required to be disclosed by law, and that because the records concerned the district's receipt and use of public funds, they were independently subject to disclosure under FOIA's public-funds provision and the Illinois Constitution. The sanitary district was directed to disclose the redacted and withheld records, including its budget ordinances.","holding":"The District improperly redacted financial terms from contracts and invoices and improperly withheld budget documents, as these records are not exempt under section 7(1)(g) of FOIA.","legal_question":"Whether financial terms of contracts, billing invoices, and budget documents related to a public body's use of public funds are exempt from disclosure under section 7(1)(g) of FOIA.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7, 5 ILCS 140/7(1), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/9(a), 5 ILCS 140/2, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(g)","public_body":"City of Taylorville","requesting_party":"Peabody and Mr. Barry","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"financial records","subject_description":"The request sought financial terms of contracts, billing invoices, and budget documents related to the District's management and operation of wastewater facilities.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2017-Binding-PAC-Opinions/17-003.pdf","sha256":"1e7f0e7242d2e59dfd5bdf931ed44bc239718482de2d2e76211fa012203986ee","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["financial records","public spending","contract transparency","budget documents","FOIA"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL May 26, 2017 PUBLIC ACCESS OPINION 17-003 (Request for Review 2017 PAC 46400) FREEDOM OF INFORMATION ACT: Financial Terms of Contracts, Billing Invoices, and Budget Documents Related to a Public Body's Use of Public Funds Are Not Exempt under Section 7(1)(g) of FOIA The Honorable Pam Peabody City Clerk City of Taylorville 115 North Main Street Taylorville, [llinois 62568 The Honorable Bruce J. Barry President Taylorville Sanitary District Post Office Box 498 Taylorville, [linois 62568 Dear Ms. Peabody and Mr. Barry: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons discussed below, this office concludes that the Taylorville Sanitary District (District) violated the requirements of FOIA in connection with Ms. Pam Peabody's December 22, 2016, FOIA request. Specifically, the District: (1) improperly redacted the substantive financial terms of its contracts with Veolia Water North America—Central, LLC (Veolia) for the management, operation, and maintenance of wastewater and related treatment facilities; (2) improperly redacted from monthly invoices the amounts billed pursuant to that contract; and (3) improperly withheld its budget ordinances in their entireties and improperly redacted financial terms from annual budgets submitted by Veolia. 500 South Second Street, Springfield, Mlinois 62706 * (217) 782-1090 ° TTY: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois. 60601 * (312) 814-3000 * TTY: (800) 964-3013 © Fax: (312) 814-3806 661 South Universite Avenue Suite 100 Carbondale. linnis 62901 * (6123 5279-6400 «© TTY: (277) 675-9339 « Fax: (618) 45299-6416 -aate The Honorable Pam Peabody The Honorable Bruce J. Barry May 26, 2017 Page 2 BACKGROUND On December 22, 2016, Ms. Peabody, in her capacity as the City Clerk of the City of Taylorville (City), submitted a FOIA request to the District seeking “copies of all contracts between the Taylorville Sanitary District and Veolia since 2010 as well as copies of any invoices from Veolia during that same time frame, and copies of the yearly budgets prepared and approved by the Taylorville Sanitary District for the same time period.\"' On January 3, 2017, the District furnished copies of 1,470 pages of records to Ms. Peabody together with a bill for $213.00, which indicated that the first 50 pages of the records were provided free of charge.” On February 14, 2017, the Public Access Bureau received Ms. Peabody's Request for Review complaining that the District improperly redacted most of the information containedi n the records.” Later that same day, this office requested a copy of the District's response letter related to Ms. Peabody's FOIA request. On February 15, 2017, Ms. Peabody responded by stating that the City “only received thei nvoice for\" the copying charges and the 1,470 pages of records*; her Request for Review indicated that \"[t]hey did not completely deny our request they just redacted most of it.\" On February 23, 2017, the Public Access Bureau sent a copy of the Request for Review to the District and asked it to: please provide unredacted copies of the contracts and five unredacted sample copies of the responsive invoices for this office's confidential review. If any information was redacted from the annual budgets, please also provide unredacted copies of the redacted portions, and identify the specific information that was 'Letter from Pam Peabody, CMC, City Clerk, City of Taylorville, to Bruce Barry, President, Taylorville Sanitary District (December 22, 2016). *Taylorville Sanitary District, Bill, $213.00 (January 3, 2017). *E-mail from Pam Peabody to Public Access [Bureau, Office of the Attorney General (February 14, 2017) to which was attached a letter from Pam Peabody, City Clerk, City of Taylorville, to Sarah Pratt, Public Access Counselor, Office of the Attorney General (February 13, 2017). ‘E-mail from Pam Peabody to Public Access [Bureau, Office of the Attorney General] (February 15, 2017). *E-mail from Pam Peabody to Public Access [Bureau, Office of the Attorney General (February 14, 2017) to which was attached a letter from Pam Peabody, City Clerk, City of Taylorville, to Sarah Pratt, Public Access Counselor, Office of the Attorney General (February 13, 2017). The Honorable Pam Peabody The Honorable Bruce J. Barry May 26, 2017 Page 3 redacted. Please also provide a detailed explanation of the District's factual and legal bases for redacting information from the records. In your response, please identify any relevant exemption in section 7 of FOIA (5 ILCS 140/7 (West 2015 Supp.), as amended by Public Act 99-642, effective July 28, 2016), and provide a detailed explanation for its applicability to the redacted information.|®! In response, the District provided: (1) an amendment, signed on June 13, 2011, to a May 1, 2008, agreement with Veolia; (2) a copy of a contract with Veolia covering the period of July 1, 2012, to June 30, 2015; (3) a one-year extension of a July 1, 2012, contract between the District and Veolia; (4) an April 7, 2016, letter concerning the one-year extension to the July 1, 2012, contract; (5) four unredacted sample invoices for monthly statements; and (6) a written response asserting that the redacted portions of the records are exempt from disclosure pursuant to section 7(1)\\(g) of FOIA (5 ILCS 140/7(1)(g) (West 2015 Supp.), as amended by Public Act 99-642, effective July 28, 2016).’ Although the written response indicated that the District was submitting copies of its budgets since 2010,* this office did not receive the indicated records. On March 13, 2017, this office forwarded a copy of the District's written response to Ms. Peabody.’ On March 22, 2017, the City Attorney replied on behalf of the City, disputing that any of the redacted informationi s exempt from disclosure pursuant to section 7(1)(g), and stating that the District's response to the FOIA request \"did not include any yearly budgets prepared and approved by the District.\"'° On March 27, 2017, the City Attorney sent this office copies of the budget records that the District had provided to the City. The provided records appeared to consist of annual budgets prepared by Veolia and submitted to the District for approval during some of the requested periods. No budgets were included for the time period of *Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Bruce J. Barry, President, Board of Trustees, Taylorville Sanitary District (February 23, 2017), at 1. \"Letter from Bruce J. Barry, President, Taylorville Sanitary District, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (March 3, 2017). *Letter from Bruce J. Barry, President, Taylorville Sanitary District, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (March 3, 2017), at 5. \"Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to Pam Peabody, City Clerk, City of Taylorville (March 13, 2017). “Letter from Rocci L. Romano, Taylorville City Attorney, to Steve Silverman, Bureau Chief. Public Access Bureau, Office of the Attorney General (March 22, 2017), at 1. The Honorable Pam Peabody The Honorable Bruce J. Barry May 26, 2017 Page 4 May I, 2011, to June 30, 2013.'' On March 29, 2017, this office sent the District a letter requesting unredacted copies of those annual budgets that were provided for our confidential’ review, and clarification of whether the District possessed any budgets for the time period of May 1, 2011, to June 30, 201 3.\" In response, the District furnished copies of its budget ordinances covering the period from May 1, 2009, to April 30, 2017, together with certificates of authenticity.\" Although these budget ordinance [...] submitted to the District for approval. This did not include budgets for the time period of May 1, 2011, to June 30, 2013. On March 29, 2017, this office sent the District a letter requesting unredacted copies of the annual budgets provided to the District and clarification of whether the District possessed any budget materials for the time period of May 1, 2011, to June 30, 2013. 8) With a letter dated March 31, 2017, the District furnished this office with copies of other records responsive to Ms. Peabody's FOIA request. Specifically, the District provided copies of budget ordinances covering the period from May 1, 2009, to April 30, 2016. Although these budget ordinances are responsive to Ms. Peabody's request for \"yearly budgets prepared and approved by\" the District, the District did not provide a reason for withholding them. 9) On April 5, 2017, this office sent a third letter to the District requesting unredacted copies of the annual budgets that were provided with redactions in the District's response to the City, together with a written response clarifying whether the District possessed any such budgets for the time period of May 1, 2011, to June 30, 2013. Ina letter dated April 11, 2017, the District furnished this office with copies of the annual budgets provided in response to the FOIA request; the District did not provide copies of any annual budgets prepared by Veolia covering the time period of May 1, 2011, to June 30, 2013, or respond to this office's request for clarification of whether it possessed such records, although it did submit a brief written response asserting that the records provided to the City were properly redacted for the reasons stated in its previous correspondence to the Public Access Bureau. The Honorable Pam Peabody The Honorable Bruce J. Barry May 26, 2017 Page 11 10) On April 24, 2017, this office forwarded a copy of that response to the City Attorney; he did not reply. 11) Pursuant to section 9.5(f) of FOIA, on April 13, 2017, this office properly extended the time within which to issue a binding opinion by 30 business days, to May 26, 2017. Therefore, the Attorney General may issue a binding opinion with respect to this matter. 12) The District did not provide Ms. Peabody with a partial denial letter setting out a detailed factual basis for its redaction or withholding of records, or the other information required by section 9(a) of FOIA when a public body denies a request in whole or in part. The District's failure to provide that information violated section 9(a) of FOIA. 13) Section 7(1)(g) of FOIA, which the District has subsequently cited as its basis for redacting or withholding the records in question, exempts from disclosure \"[t]rade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business, and only insofar as the claim directly applies to the records requested.\" 14) The District asserts that the information at issue is confidential under a confidentiality provision of its agreement with Veolia. That agreement, however, expressly requires confidential information to \"be clearly designated in writing as confidential.\" None of the information at issue is marked as confidential. Further, the District has not identified another basis for the assertion that the information is proprietary, privileged, or confidential. 15) In addition, the plain language of the confidentiality provision upon which the District relies does not apply to information that is \"required to be disclosed by operation of law.\" 16) Article VIII, section 1(c) of the Illinois Constitution of 1970 provides that \"[r]eports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law.\" Section 2.5 of FOIA correspondingly provides that \"[a]ll records relating to the obligation, receipt, and use of public funds of the State, units of local government, and school districts are public records subject to inspection and copying by the public.” 17) Because the records in question directly relate to the District's use of public The Honorable Pam Peabody The Honorable Bruce J. Barry May 26, 2017 Page 12 funds, those records are required to be disclosed under section 2.5 of FOIA and article VIII, section I(c) of the Hlinois Constitution of 1970. Consequently, the confidentiality provision upon which the District based its assertion of section 7(1)(g) is expressly inapplicable. Therefore, it is the opinion of the Attorney General that the District's response to Ms. Peabody's Freedom of Information Act request violated the requirements of FOIA. Accordingly, the District is directed to take immediate and appropriate action to comply with this opinion by disclosing to Ms. Peabody unredacted copies of the redacted records that were provided to her, as well as unredacted copies of the budget ordinances that the District provided to this office. In addition, if Veolia submitted any annual budgets to the District covering the time period of May 1, 2011, to June 30, 2013, those records also are responsive to Ms. Peabody's request and must be provided to her. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Pam Peabody as defendants. See 5 ILCS 140/11.5 (West 2014). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: Atestont (Leber Michael J. Luke Counsel to the Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 17-003) upon: The Honorable Pam Peabody City Clerk City of Taylorville 115 North Main Street Taylorville, Illinois 62568 cityclerk@taylorville.net The Honorable Bruce J. Barry President Taylorville Sanitary District Post Office Box 498 Taylorville, Hlinois 62568 via facsimile (217) 287-2113 by causing a true copy thereof to be sent electronically or by facsimile to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, IHinois on May 26, 2017. Val 49 att SARAH LP. RATT Public Access Counselor SARAH L. PRATT Public Access Counselor 500 South Second Street Springfield, Hlinois 62706 (217) 785-5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Taylorville Sanitary District refused to release details about how it spends public money, including contract terms, billing invoices, and budget documents, claiming they were exempt from disclosure. The Attorney General ruled that these financial records are public and cannot be hidden from taxpayers. The District must now provide the requested financial information.","card_headline":"Financial terms of wastewater facility contracts and invoices","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":84,"orig_master_id":19058,"dup_master_id":19284,"dup_sha256":"2f151e0c7a42aff6866e7cc0d2f71ca89147c5cf37149930c732ea9b2eb38e3e","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2017,"date_issued":"2017-06-06","case_number":"2017 PAC 46720","request_numbers":null,"title":"Discussion of Legal Matters under the Exception for Pending, Probable, or Imminent Litigation","filename":"PUBLIC ACCESS OPINION 17-004 (Request for Review - 2017 PAC 46720).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 17-004 (Request for Review - 2017 PAC 46720).pdf","word_count":2371,"summary":"The City of Bloomington improperly discussed in closed session matters related to an intergovernmental agreement that were not authorized by section 2(c)(11) of the Open Meetings Act . The agreement, known as the \"Metro-Zone Master Agreement,\" (Agreement) provides \"for the sharing of revenues and expenditures iin a designated commercial and industrial area of the two communities\"","plain_summary":"A county state's attorney, relaying citizen concerns, alleged that a city council closed part of a meeting to discuss ending a decades-old revenue-sharing agreement with a neighboring town, citing probable litigation, even though the mayor had publicly said no lawsuit was expected. The Public Access Counselor held that the council's closed-session discussion focused on what to do about the agreement rather than on litigation strategy, and that the council had not shown it had reasonable grounds to believe a lawsuit was more likely than not or close at hand, so the litigation exception did not apply. The city council was directed to disclose the closed-session recording of that discussion.","holding":"The City of Bloomington violated section 2(a) of the Open Meetings Act by discussing matters in closed session that did not fall under the litigation exception of section 2(c)(11).","legal_question":"Whether the City of Bloomington's discussion of an intergovernmental agreement in closed session was permissible under the litigation exception provided by section 2(c)(11) of the Open Meetings Act.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2(a), 5 ILCS 120/2(c), 5 ILCS 120/1, 5 ILCS 120/2(b), 5 ILCS 120/7, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(11)"],"public_body":"City of Bloomington","requesting_party":"Chambers and Mr. Renner","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"closed session","subject_description":"The City Council discussed an intergovernmental revenue-sharing agreement in a closed session under the guise of pending litigation.","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2017-Binding-PAC-Opinions/17-004.pdf","sha256":"81628d03def3a2627ecb0f16778455f74891a677661ca466c7c1351ded11b3aa","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","Open Meetings Act","intergovernmental agreement","litigation exception"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLENOIS Lisa Madigan ATTORNEY GENERAL June 6, 2017 PUBLIC ACCESS OPINION 17-004 (Request for Review 2017 PAC 46720) OPEN MEETINGS ACT: Discussion of Legal Matters under the Exception for Pending, Probable, or Imminent Litigation The Honorable Jason Chambers McLean County State's Attorney 104 West Front Street P.O. Box 2400 Bloomington, Illinois 61702-2400 The Honorable Tari Renner Mayor City of Bloomington 109 East Olive Street Bloomington, Illinois 61701 Dear Mr. Chambers and Mr. Renner: This is a binding opinion issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2015 Supp.)). For the reasons discussed below, this office concludes that the City Council of the City of Bloomington (City Council) violated section 2(a) of OMA (5 ILCS 120/2(a) (West 2015 Supp.), as amended by Public Acts 99-642, effective July 28, 2016; 99-646, effective July 28, 2016; 99-687, effective January 1, 2017) at its February 20, 2017, meeting. During this meeting, the City Council improperly discussed in closed session matters related to an intergovernmental agreement that were not authorized by section 2(c)(11) of OMA (5 ILCS 120/2(c)(11) (West 2015 Supp.), as amended by Public Acts 99-642, effective July 28, 2016; 99-646, effective July 28, 2016; 99-687, effective January 1, 2017), which permits the discussion in closed session of 500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806 ; 601 South University Avenue, Suite 102, Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416 ~ The Honorable Jason Chambers The Honorable Tart Renner June 6, 2017 Page 2 pending, probable, or imminent litigation, and which the City Council had cited as its basis for closing the meeting to the public. BACKGROUND On February 28, 2017, McLean County State's Attorney Jason Chambers submitted a letter to the Public Access Bureau stating \"[m]y office has received questions from citizens as to whether or not the City [of Bloomington] has again improperly entered closed session to discuss a matter. * * * I believe it prudent to refer these concerns and this matter to your attention.\"' By an e-mail dated March 6, 2017, Mr. Chambers confirmed that he wished to file a Request for Review conceming the City of Bloomington's (City) use of the litigation exception foundi n section 2(c)(11) of OMA.” Mr. Chambers alleged that the City Council violated OMA during its February 20, 2017, meeting’ by improperly discussing the City's continued participation in an intergovernmental agreement with the Town of Normal (Town)in closed session, pursuant to the exception for “pending or probable\" litigation.’ The agreement, known as the \"Metro-Zone Master Agreement,\" (Agreement) provides \"for the sharing of revenues and expenditures iin a designated commercial and industrial area of the two communities.\"° Mr. Chambers’ letter dated February 28, 2017, stated that last night (February 27, 2017), the City Council terminated the Agreement, and that promptedi nquiries to his office because a local news station had reported the previous week after the City's closed session \"It]herei s no current court case. And Bloomington Mayor Tari Renner said he doubts there will be a lawsuit.\"® In his Request for Review, Mr. Chambers questioned whether it was appropriate for the City Council to hold a closed session concerning this matter if no lawsuit was pending 'Letter from Jason Chambers, McLean County State's Attorney, to Christopher R. Boggs, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office (February 28, 2017). ’E-mail from Jason Chambers to Public Access (March 6, 2017). *Mr. Chambers' letter dated February 28, 2017, did not give the meeting date but referred to a news story that ran during the previous week and discussed \"the executive session of the Bloomington Council Monday evening,\" referring to the February 20, 2017, City Council meeting. ‘Letter from Jason Chambers, McLean County State's Attorney, to Christopher R. Boggs, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office (February 28, 2017). “Letter from Jeffrey R. Jurgens, Sorling Northrup Attorneys, to Leah [Bartelt}, Assistant Attorney General, Office of the Attorney General, Public Access Bureau (March 21, 2017), at 1; see also Contract for the purpose of a Metro-Zone Master Agreement, City of Bloomington, Town of Normal (January 20, 1986). *Letter from Jason Chambers, McLean County State's Attorney, to Christopher R. Boggs, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office (February 28, 2017), at 1-2. Tee” *La The Honorable Jason Chambers The Honorable Tari Renner June 6, 2017 Page 3 and the Mayor did not anticipate that a lawsuit would be filed against the City.’ Mr. Chambers also pointed out that \"the City of Bloomington went into closed session last week based on imminent litigation before it took any substantive action on the [Agreement]\" and asked whether the City Council's closed session included an improper discussion of the pros and cons of terminating the Agreement.* On March 13, 2017, the Public Access Bureau sent a copy of the Request for Review to Mayor Renner, as the head of the City Council, and asked for a written response to the allegations contained therein together with copies of the verbatim recording of the February 20, 2017, closed session meeting and the meeting minutes or draft minutes.” In a letter dated March 21, 2017, counsel for the City furnished copies of the closed session verbatim recording and draft minutes and a written response asserting that the City Council \"properly discussed the Metro Zone in closed session as probable litigation.\"'° The City's response was marked confidential, but the City also provided a redacted version of the response letter for distribution to Mr. Chambers, pursuant to section 3.5(c) of OMA (5 ILCS 120/3.5(c) (West 2015 Supp.)).'' On March 24, 2017, this office forwarded a copy of the City Council's redacted response letter to Mr. Chambers.'? He did not reply. On May 5, 2017, this office extended the time within which to issue a binding opinion by 21 business days pursuant to section 3.5(e) of OMA.” \"Letter from Jason Chambers, McLean County State's Attorney, to Christopher R. Boggs, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office (February 28, 2017), at 2. ‘Letter from Jason Chambers, McLean County State's Attorney, to Christopher R. Boggs, Assistant Attorney General, Public Access Bureau, I!linois Attormey General's Office (February 28, 2017), at 3. \"Letter from Leah Bartelt, Assistant Attomey General, Public Access Bureau, Office of the Attomey General, to The Honorable Tari Renner, Mayor, City of Bloomington (March 13, 2017). '' etter from Jeffrey. R. Jurgens, Sorling Northrup Attorneys, to Leah [Bartelt], Assistant Attorney General, Office of the Attorney General, Public Access Bureau (March 21, 2017), at 3. \"Section 3.5(c) of OMA provides, in relevant part: \"Upon request, the public body may also furnish the Public Access Counselor with a redacted copy of the answer excluding specific references to any matters at issue. The Public Access Counselor shall forward a copy of the answer or redacted answer, if furnished, to the person submitting the request for review.\" ) “Letter from Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Jason Chambers, McLean County State's Attorney (March 24, 2017). \"Letter from Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Jason Chambers, McLean County State's Attorney, The Honorable Tari Renner, Mayor, City of Bloomington, and Jef [...] d the City Council had not yet taken definitive action to alter or terminate the Agreement. Thus, it does not appear that the City Council had reasonable grounds to believe that a lawsuit was more likely than not to be instituted or was close at hand. Additionally, even if the City Council's finding that litigation was \"probable or imminent” was reasonable, the closed session discussion did not focus on litigation, as required by the 2(c)(11) exception. This office concludes that the February 20, 2017, closed session discussion focused not on the \"strategies, posture, theories, and consequences\" of any probable litigation, but rather on the City Council's course of action with respect to the Agreement. Because the discussion primarily concerned what course of action to take related to the termination of the Agreement, this office concludes that the City Council's February 20, 2017, closed session was not authorized by section 2(c)(11) of OMA and therefore violated section 2(a) of OMA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments presented, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On February 20, 2017, the City of Bloomington City Council closed a portion of its meeting to the public to discuss \"probable litigation.\" 2) On February 28, 2017, Mr. Jason Chambers, State's Attorney for McLean County, submitted a letter to the Public Access Bureau referring citizen complaints that alleged that the Board's February 20, 2017, closed session discussion was improper because litigation was not probable. On March 6, 2017, Mr. Chambers confirmed by e-mail that he wished his letter to be treated as a Request for Review. 3) On March 13, 2017, the Public Access Bureau sent a copy of the Request for Review to the City's Mayor and asked the City Council to provide a written response to the allegation in the Request for Review together with copies of the verbatim recording of the February 20, 2017, closed session meeting and the meeting minutes or draft minutes. 4) By letter dated March 21, 2017, counsel for the City furnished the requested materials and asserted in his written response that the City Council properly entered into closed session to discuss a \"dispute between the City of Bloomington and Town of Normal regarding a 30-year old intergovernmental agreement\" referred to as the Metro-Zone Master Agreement. The City Council furnished additional information and argument to this office confidentially. The Honorable Jason Chambers The Honorable Tari Renner June 6, 2017 Page 8 5) On March 24, 2017, this office sent a redacted copy of the City Council's response to Mr. Chambers. 6) On May 5, 2017, this office extended the time within which to issue a binding opinion by 21 business days, to June 6, 2017, pursuant to section 3.5(e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 7) Section 2(a) of OMA requires that all meetings of public bodies be open to the public unless the subject of the meeting is covered by one of the limited exceptions enumerated in section 2(c). Section 2(c)(11) permits a public body to close a portion of a meeting to discuss \"[l]itigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting.\" 8) If there is no litigation pending, then a public body must have reasonable grounds to believe that litigation is more likely than not to be instituted or that such an occurrence is close at hand in order to properly discuss a matter in a closed meeting pursuant to section 2(c)(11) of OMA. 9) Under the section 2(c)(11) exception, the public body must confine its closed session discussion to the litigation itself. Section 2(c)(11) does not authorize a public body to discuss in closed session taking an action or making a decision on the underlying issue that is likely to be the subject of the litigation. 10) Rather than discussing the strategies, posture, theories, and consequences of pending, probable, or imminent litigation, the City Council's February 20, 2017, closed session discussion focused on its course of action with respect to the Metro-Zone Master Agreement. Accordingly, the Board violated section 2{a) of OMA by discussing matters outside the scope of section 2(c)(11) of OMA. In accordance with these findings of fact and conclusions of law, the City Council is directed to remedy this violation by disclosing to Mr. Chambers and making publicly available the closed session verbatim recording of its February 20, 2017, meeting. As required by section 3.5(e) of OMA, the City Council shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA. 5 ILCS 120/7.5 (West 2014). The Honorable Jason Chambers The Honorabie Tari Renner June 6, 2017 Page 9 This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Hlinois and Mr. Jason Chambers as defendants. See 5 ILCS 120/7.5 (West 2014). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: Litaknn tl) Prrrbia Michael J. Luke Counsel to the Attorney General cc: Via electronic mail Mr. Jeffrey R. Jurgens Corporation Counsel City of Bloomington 109 East Olive Street Bloomington, Illinois 61702 jjurgens@cityblm.org CERTIFICATE OF SERVICE Neil P. Olson, Deputy Public Access Counselor, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 17-004) upon: The Honorable Jason Chambers McLean County State's Attorney 104 West Front Street P.O. Box 2400 Bloomington, Illinois 61702-2400 jason.chambers@mcleancountyil.gov The Honorable Tari Renner Mayor City of Bloomington 109 East Olive Street Bloomington, Illinois 61701 mayor(@cityblm.org Mr. Jeffrey R. Jurgens Corporation Counsel City of Bloomington 109 East Olive Street Bloomington, Illinois 61702 jjurgens@cityblm.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on June 6, 2017. Jt e— NEIL P. OLSON Deputy Public Access Counselor NEIL P. OLSON Deputy Public Access Counselor 500 South Second Street | Springfield, Illinois 62706 (217) 782-9078","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The City of Bloomington held a closed-door meeting to discuss an intergovernmental agreement, claiming it was related to pending or probable litigation. The Attorney General found that the discussion did not actually meet the legal requirements for a closed session, meaning the City violated the Open Meetings Act by excluding the public from that conversation.","card_headline":"A city council's closed-session discussion of a revenue-sharing agreement","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":85,"orig_master_id":19059,"dup_master_id":19287,"dup_sha256":"dc5decddc2a64e765c4388cc4c21290472c53ed042987fda89d569b97c313944","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2017,"date_issued":"2017-06-12","case_number":"2017 PAC 46587","request_numbers":null,"title":"Disclosure of Information Related to State Employees Designated as Essential","filename":"PUBLIC ACCESS OPINION 17-006 (Request for Review - 2017 PAC 46587).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 17-006 (Request for Review - 2017 PAC 46587).pdf","word_count":2352,"summary":"Illinois Department of Corrections violated the requirements of FOIA by improperly denying John O'Connor's February 16, 2017, FOIA request . The Attorney General issued a binding opinion issued by the Attorney General on behalf of the Associated Press .","plain_summary":"The requester, a wire-service reporter, sought records showing the job titles, locations, and numbers of employees the department deems essential during a pay interruption, and the department denied the request without acknowledging whether responsive records existed, first asserting attorney-client and deliberative-process exemptions and then withdrawing and reasserting different grounds. The Public Access Counselor held that a denial must state whether records exist and provide a detailed factual basis for any claimed exemption, and that the department's shifting, conclusory assertions did not establish that the requested staffing list was privileged or predecisional. The department of corrections was directed to disclose the requested records.","holding":"The Illinois Department of Corrections improperly denied the request for records regarding essential employee designations.","legal_question":"Whether the Illinois Department of Corrections properly denied a FOIA request for records identifying 'essential' employees under the Freedom of Information Act.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(1), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/7, 5 ILCS 140/9(a), 5 ILCS 140/3(d), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(m)","7(1)(f)"],"public_body":"Illinois Department of Corrections","requesting_party":"John O'Connor (Associated Press)","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"personnel records","subject_description":"The request sought job titles, locations, and counts of employees designated as essential for work during potential state pay interruptions.","ocr_status":"ok","ocr_quality":90.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2017-Binding-PAC-Opinions/17-006.pdf","sha256":"3dbaf62efcbbb54c795c02c84be5215b8a3b004833b367c7b068791447b02193","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["essential employees","state government shutdown","personnel records","FOIA request"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"pa 4 ct ,h y, iea fy. pases Sseat OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL June 12, 2017 PUBLIC ACCESS OPINION 17-006 — (Request for Review 2017 PAC 46587) FREEDOM OF INFORMATION ACT: Disclosure of Information Related to State Employees Designated as Essential Mr. John O'Connor Reporter The Associated Press Statehouse Pressroom Room 13G Basement Springfield, Illinois 62706 Ms. Camile Lindsay Chief Legal Counsel Illinois Department of Corrections 1301 Concordia Court | P.O. Box 19277 : Springfield, Iinois 62794-9277 Dear Mr. O'Connor and Ms. Lindsay: | This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons discussed below, this office concludes that the Illinois Department of Corrections (DOC) violated the requirements of FOIA by improperly denying Mr. John O'Connor's February 16, 2017, FOIA request. : | - BACKGROUND On February 16, 2017, Mr. O'Connor, on behalf of the Associated Press, submitted a FOIA request to IDOC seeking records \"sufficient to show the job titles, locations, and numbers of employees in each category which the Department of Corrections considers 4 500 South Second Street, Springfield, illinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 © Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 »* Fax: (618) 529-6416 Mr. John O'Connor Ms. Camile Lindsay June 12, 2017 Page 2 essential and who would be required to report to work in the event of interruption in state employee pay and the closing of some offices and services.\" On February 24, 2017, IDOC denied the request by stating that, \"to the extent [documents] exist, [the documents] are exempt from production pursuant to Section 7(1)(m) of\" FOIA (5 ILCS 140/7(1)(m) (West 2015 Supp.), as amended by Public Act 99-642, effective July 28, 2016). In addition, IDOC stated that the records \"are exempt from production pursuant to Section 7(1)(f of\" FOIA (5 ILCS 140/7(1)() (West 2015 Supp.), as amended by Public Act 99-642, effective July 28, 2016.2 On February 27, 2017, the Public Access Counselor and the Public Access Bureau received Mr. O'Connor's Request for Review contesting IDOC’s denial of his FOIA request.’ On March 1, 2017, the Public Access Bureau sent a copy of the Request for Review to IDOC and asked it to clarify whether IDOC possessed records responsive to Mr. O'Connor's request. If IDOC determined that it did not possess responsive records, then this office’s letter requested that IDOC provide a detailed description of its search for such records, including the individuals and departments that were contacted.‘ -The March 1, 2017, letter also requested that if IDOC determined that it possessed responsive records, IDOC provide a copy of those records for the Public Access Bureau's confidential review together with a detailed explanation of the factual and legal bases relied upon for the assertion of the section 7(1)(f) and section 7(1)(m) exemptions.> On March 13, 2017, IDOC provided the Public Access Bureau with a written response in which it acknowledged that \"[t]he responsive records in this matter are a list of staff which are [sic] deemed essential in case of a work stoppage.” © IDOC declined, however, to furnish the requested records to the Public Access Bureau for its confidential review. IDOC's response further withdrew its assertion of section 7(1)(f) of FOIA, but reiterated its 'Letter from John O'Connor, Reporter, Associated Press, to Lisa Weitekamp, Illinois Department of Corrections (February 16, 2017). 2Letter from Lisa Weitekamp, Freedom of Information Officer, IHinois Department of Corrections, — to John O'Connor (February 24, 2017). 3Letter from John O'Connor, Associated Press, to Sarah Pratt, [Public Access Counselor], Public Access Bureau, Office of the Attorney General (February 27, 2017). ‘Letter from Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Lisa Weitekamp, FOIA Officer, Illinois Department of Corrections (March |, 2017). Letter from Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Lisa Weitekamp, FOIA Officer, Ilinois Department of Corrections (March 1, 2017). ‘Letter from Joel M. Diers, Freedom of Information Office, Illinois Department of Corrections, to Matthew Hartman, Assistant Public Access Counselor, Office of the Illinois Attorney General (March 13, 2017). Mr. John O'Connor Ms. Camile Lindsay June 12, 2017 Page 3 contention that the list was exempt under section 7(1)(m) of FOIA.’ On March 17, 2017, an Assistant Attorney General in the Public Access Bureau sent IDOC an e-mail again requesting copies of the withheld records. On March 21, 2017, the Public Access Bureau forwarded a copy of IDOC's written response to Mr. O'Connor;? he did not reply to that response. On March 23, 2017, IDOC sent the Public Access Bureau a letter stating that it \"formally withdraws its letter submitted to you on March 13, 2017 regarding the above- captioned matter. That letter should have received additional authorization prior to release; therefore, it has no effect. This letter constitutes the Department's sole response on this matter. nig IDOC asserted that \"to the extent records responsive to Mr. O'Connor's request exist,\" those records would be exempt under section 7(1)(m) of FOIA.'! IDOC's March 23, 2017, response did not specifically reference section 7(1)(f).'7 IDOC again declined to furnish the Public Access Bureau with copies of responsive records for its confidential review, citing the ongoing litigation in AFSCME y, Rauner, No. 121984 (Ill. S.Ct).!>_ On March 24, 2017, the Public Access Bureau sent a copy of IDOC's March 23, 2017, response to Mr. O'Connor;'* he did not reply to that response. \"Letter from Joel M. Diers, Freedom of Information Office, Illinois Department of Corrections, to Matthew Hartman, Assistant Public Access Counselor, Office of the Illinois Attorney General (March 13, 2017). 8E-mail from Matthew S, Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to [Joel] Diers (March 17, 2017). *Letter from Matthew Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to John O'Connor, Reporter, The Associated Press (March 21, 2017). Letter from Camile Lindsay, Chief Legal Counsel, Illinois Department of Corrections, to Matt Hartman, Assistant Attorney General, Public Access Bureau (March 23, 2017), at 1. \"Letter from Camile Lindsay, Chief Legal Counsel, Hlinois Department of Corrections, to Matt Hartman, Assistant Attorney General, Public Access Bureau (March 23, 2017), at 2. '2Because IDOC's March 23, 2017, response did not withdraw the assertion of the exemption found in section 7(1)f), unlike IDOC's March 13, 2017, response that IDOC requested that this office disregard, this binding opinion analyzes the applicability of section 7(1)(f) based on the available information. 31e tter from Camile Lindsay, Chief Legal Counsel, Illinois Department of Corrections, to Matt Hartman, Assistant Attorney General, Public Access Bureau (March 23, 2017), at 3. M47e tter from Matthew Hartman, Assistant Attomey General, Public Access Bureau, Office of the Attorney General, to John O'Connor, Reporter, The Associated Press (March 24, 2017). Mr, John O'Connor Ms. Camile Lindsay June 12, 2017 Page 4 On April 27, 2017, thé Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA.\" ANALYSIS \"All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosu [...] , on behalf of the Associated Press, submitted a FOIA request to IDOC seeking records concerning the job titles, locations, and numbers of employees in each category which IDOC considers essential and who would be required to report to work in the event of an interruption in pay. 2) On February 24, 2017, IDOC denied the request in its entirety stating that if responsive records existed, the records would be exempt pursuant to sections 7(1)(f) and 7(1)(m) of FOIA. IDOC did not provide a detailed factual explanation supporting its assertion of either exemption. 3) On February 27, 2017, the Public Access Bureau received a Request for Review from Mr. O'Connor contesting the denial of his FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA. 4) On March I, 2017, the Public Access Bureau sent a copy of the Request for Review to IDOC and asked it to clarify whether IDOC possessed responsive records. If IDOC did possess responsive records, the letter requested that IDOC provide a copy of those records for this office's confidential review together with a detailed explanation of the factual and legal bases for its assertion of the sections 7(1)(f) and 7(1)(m) exemptions. Alternatively, if IDOC asserted that it did not possess responsive records, this office asked IDOC to provide a detailed explanation of how it conducted its search for records. 5) On March 13, 2017, IDOC provided this office with a written response; it declined to provide the Public Access Bureau with copies of the responsive records. 6) On March 21, 2017, the Public Access Bureau forwarded a copy of IDOC's written response to Mr. O'Connor; he did not reply to IDOC's response. 7) On March 23, 2017, IDOC provided this office with a second written response in which it withdrew its March 13, 2017, response. The response, which did not specifically address the section 7(1)(f)} exemption, asserted that any records responsive to Mr. O'Connor's request are exempt from disclosure pursuant to section 7(1)(m) of FOIA. IDOC continued to decline to furnish the requested records to this office. Mr. John O'Connor Ms. Camile Lindsay June 12, 2017 Page 10 8) On March 24, 2017, the Public Access Bureau forwarded a copy of IDOC's second written response to> Mr. O'Connor; he didnn ot reply to that.r esponse, either, 9) Pursuant to 9.5(f) of FOIA, this office properly extended the time forii ssuing a binding opinion by 30 business days to June 12, 2017. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 10) Section 9(a) of FOIA requires a public body denying a request to set forth \"the reasons for the denial, including:a detailed factual basis for the application of any exemption claimed[.]\" IDOC did not acknowledge that it possessed responsive records, yet claimed that any records it might possess would be exempt from disclosure. IDOC's original response to Mr. O'Connor's request cited sections 7(1){f) and 7(1)(m) of FOIA as the reasons for its denial, but failed to provide any explanation supporting the applicability of those exemptions. Such a response is improper under FOIA, because the validity of the asserted exemptions cannot be determined without confirmation that responsive records exist. 11) Conclusory assertions that records contain attorney-client communications or attorney work-product do not render records exempt from disclosure under section 7(1)(m) of FOIA. Because neither IDOC's response to Mr. O'Connor's request nor its response to this office related to Mr. O'Connor's Request for Review has provided clear and convincing evidence demonstrating that the records at issue (if such records exist) reflect privileged communications made by an attorney acting in the capacity of a legal advisor or that the records were created in preparation for trial and reveal the attorney's mental impressions or litigation plans, this office concludes that IDOC has not sustained its burden of demonstrating that the records are exempt from disclosure pursuant to section 7(1)(m) of FOIA. 12). In addition to not providing a detailed factual basis for the application of section 7(1)(f) in its response to Mr. O'Connor's FOIA request, IDOC did not specifically reference that exemption in its March 23, 2017, response to this office related to the Request for Review. Therefore, [DOC's assertion of section 7(1)(f)i s conclusory and does not provide factual or legal support. Because IDOC has not provided clear and convincing evidence. demonstrating that the records at issue contain predecisional and deliberative material in which opinions are expressed, or policies or actions are formulated, this office concludes that IDOC has not sustained its burden of demonstrating that the records are exempt from disclosure pursuant to section 7(1)(f) of FOIA. Therefore, it is the opinion of the Attorney General that IDOC's response to Mr. O'Connor's Freedom of Information Act request violated the requirements of section 9(a) of FOIA. Accordingly, IDOC is directed to take immediate and appropriate action to comply with this opinion by disclosing to Mr. O'Connor records showing the job titles, locations, and numbers Mr. John O'Connor Ms. Camile Lindsay June 12, 2017 Page 11 of employees in each category which IDOC considers essential and who would be required to report to work if there was an interruption in State employee pay. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and John O'Connor as defendants. See 5 ILCS 140/11.5 (West 2014). Very truly yours, LISA MADIGAN ATTORNEY GENERAL py, CeceLan he Michael J. Luke Counsel to the Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 17-006) upon: Mr. John O'Connor Reporter The Associated Press Statehouse Pressroom Room 13G Basement Springfield, Illinois 62706 yoconnor @ap.org Ms. Camile Lindsay Chief Legal Counsel Illinois Department of Corrections 1301 Concordia Court P.O. Box 19277 Springfield, Illinois 62794-9277 camite.} lindsay@doc.illinois.gov by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on June 12, 2017. SARAH L. PRATT: Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62706 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Associated Press asked the Illinois Department of Corrections for a list of employees considered 'essential' who would be required to work during a state government shutdown or pay interruption. The Department refused to provide the information, but the Attorney General ruled that the refusal was improper and that the records should be released to the public.","card_headline":"Essential employee designation records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":86,"orig_master_id":19060,"dup_master_id":19288,"dup_sha256":"73185b9b2755a91ec778f012c8cfea222ca236ec5191f0778ef33cc8bf3c0e17","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2017,"date_issued":"2017-07-05","case_number":"2017 PAC 47743","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 17-008 (Request for Review - 2017 PAC 47743).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 17-008 (Request for Review - 2017 PAC 47743).pdf","word_count":2209,"summary":"Lisa Madigan: Office of the Governor (Governor's Office) violated section 3(d) of FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Ms. Monica Stabile . Request for Review states that Ms. Stabile did not receive a public response from the agency until two weeks after the request was submitted .","plain_summary":"The requester, a business journal reporter, sought a deputy governor's emails and a forward-looking schedule, and the governor's office acknowledged the request by phone but never provided a substantive response despite nearly two months of follow-up emails. The Public Access Counselor held that the office's failure to comply, deny, or extend the response period in writing violated FOIA. The governor's office was directed to produce the responsive records, subject only to permissible redactions.","holding":"The Governor's Office violated section 3(d) of FOIA by failing to provide a timely response to the requester's FOIA request.","legal_question":"Whether the Governor's Office violated section 3(d) of FOIA by failing to respond to a FOIA request within the statutory five-business-day deadline.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Office of the Governor","requesting_party":"Stabile","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"FOIA response deadline","subject_description":"The request sought emails concerning a Deputy Governor.","ocr_status":"ok","ocr_quality":89,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2017-Binding-PAC-Opinions/17-008.pdf","sha256":"1ea2fa6ab7b5fac9b0e5b950039f2ed9b12cfeac9d578ce9bfcc5b9baee860db","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA response","deadline","Governor's Office","timeliness"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL July 5, 2017 PUBLIC ACCESS OPINION 17-008 (Request for Review 2017 PAC 47743) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Ms. Monica Stabile and Mr. Patrick Yeagle Springfield Business Journal Post Office Box 398 Springfield, Illinois 62705 Ms. Christina M. McClernon Associate General Counsel, FOIA Officer Office of Governor Bruce Rauner 100 West Randolph Street, 16-100 Chicago, Illinois 60601 Dear Ms. Stabile, Mr. Yeagle, and Ms. McClernon: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the Office of the Governor (Governor's Office) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2016)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Ms. Monica Stabile. -. BACKGROUND On March 10, 2017, Ms. Stabile, on behalf of Springfield Business Journal, submitted a FOIA request to the Governor's Office via an e-mail to its FOIA officer, Christina McClernon, which stated: 500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, illinois 60601 * (312) 814-3000 « TTY: (800) 964-3013 © Fax: (312) 814-3806 601 South University Avenue. Suite 102. Carbondale. Tllinois 62901 * (618) 4529-6400 © TTY: (R97) 674.0230 « Fav (AIG 690 £414 oom Ms. Monica Stabile Mr. Patrick Yeagle Ms. Christina M. McClernon July 5, 2017 Page 2 I request that a copy of the following documents or documents concerning the following subject matter be provided to me: emails that Deputy Governor Leslie Munger sent or received since she became Deputy Governor; and Munger's daily schedule for the next six months.! On March 20, 2017, Ms. Stabile sent a follow-up e-mail to Ms. McClernon stating that she had not received a response to her FOIA request.” On May 5, 2017, Ms. Stabile and Mr. Patrick Yeagle, one of the editors of the Springfield Business Journal, e-mailed a Request for Review, dated May 3, 2017, to the Public Access Bureau alleging that the Governor's Office had not provided the requested records or otherwise responded to Ms. Stabile's FOIA request.° Specifically, the Request for Review states that Ms. Stabile: [d]id not receive a public response from the agency until two weeks after (the FOIA request] was submitted, when [the] FOIA officer called to clarify the request and stated she could provide the requested documents. Have tried to contact the FOIA officer since then, but haven't received a response after multiple emails and calls.\"{41 ‘Letter from Monica Stabile to Christina McClernon, [Associate General Counsel, FOIA Officer, Office of Governor Bruce Rauner] (March 10, 2017). \"E-mail from Monica Stabile to Christina McClernon (March 20, 2017). *FOIA — Request for Review by Public Access Counselor (PAC) form submitted by Monica Stabile and Patrick Yeagle, Springfield Business Journal (dated May 3, 2017). “FOIA — Request for Review by Public Access Counselor (PAC) form submitted by Monica Stabile and Patrick Yeagle, Springfield Business Journal (dated May 3, 2017). Ms. Monica Stabile Mr. Patrick Yeagle Ms. Christina M. McClernon July 5, 2017 Page 3 Ms. Stabile’s submissions to this office also included e-mails that she had sent to Ms. McClernon dated April 18, 2017,° April 20, 2017,° April 21, 2017,” April 24, 2017,° April 27, 2017,° and May 4, 2017.'° In each of those e-mails, Ms. Stabile attached another copy of her March 10, 2017, FOIA request and stated either that she had not received a reply or she had not received the requested records. Ms. Stabile also noted in her e-mails that she looked forward to hearing from Ms. McClernon soon. On May 15, 2017, the Public Access Bureau forwarded a copy of the Request for Review to Ms. McClernon at the Governor's Office and asked the Governor's Office to notify this office whether it had \"received and responded to this FOIA request from Ms. Stabile. If the Governor's Office has not yet responded to this request, please respond to Ms. Stabile and provide a copy of your response to this office.\"'’ The Governor's Office did not respond to the Public Access Bureau. On May 26, 2017, the Public Access Bureau forwarded a second copy of the Request for Review to the Governor's Office and asked the Governor's Office to respond as soon as possible to the May 15, 2017, letter of inquiry, noting that section 9.5(c) of FOIA (5 ILCS 140/9.5(c) (West 2016)) requires a public body to fully cooperate with the Public Access Counselor within 7 business days of receiving a Request for Review.'* Again, the Governor's Office did not respond. As of the date of this binding opinion, this office has received no °E-mail from Monica Stabile to Christina McClernon (April 18, 2017). °E-mail from Monica Stabile to Christina McClernon (April 20, 2017). ’E-mail from Monica Stabile to Christina McClernon (April 21, 2017) at 9:35 a.m; e-mail from Monica Stabile to Christina McClemon (April 21, 2017) at 2:58 p.m. *E-mail from Monica Stabile to Christina McClernon (April 24, 2017). °E-mail from Monica Stabile to Christina McClernon (April 27, 2017). ‘E-mail from Monica Stabile to Christina McClernon (May 4, 2017). 'ye tter from S. Piya Mukherjee, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Christina M. McClernon, Associate General Counsel, FOIA Officer, Office of Governor Bruce Rauner (May 15, 2017), at 1. \"Letter from S. Piya Mukherjee, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Christina M. McClernon, Associate General Counsel, FOIA Officer, Office of Governor Bruce Rauner (May 26, 2017). Ms. Monica Stabile Mr. Patrick Yeagle Ms. Christina M. McClernon July 5, 2017 Page 4 response from the Governor's Office or any information indicating that it has responded to Ms. Stabile's March 10, 2017, FOIA request. On July 3, 2017, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2016). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2016)), \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) provides that “[eJach public body shall make available to any person for inspection or copying all public records, except as otherwise | provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). The Governor's Office did not, within five business days after its receipt of Ms. Stabile's FOIA request, either comply with her request, extend the time for its response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2016)), or deny her request in writing. The available information indicates that even after obtaining verbal clarification of the records that Ms. Stabile was seeking, the Governor's Office did not respond to her FOIA request. The 5]e tter from S. Piya Mukherjee, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Monica Stabile, Springfield Business Journal, and Christina M. McClernon, Associate General Counsel, FOIA Officer, Office of Governor Bruce Rauner (July 3, 2017). Ms. Monica Stabile Mr. Patrick Yeagle Ms. Christina M. McClernon July 5, 2017 Page 5 Governor's Office's failure to comply with the requisite procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: {) On March 10, 2017, Ms. Monica Stabile, on behalf of the Springfield Business Journal, submitted a FOIA request to the Governor's Office via an e-mail to its FOIA Officer, Christina McClernon, seeking copies of e-mails sent to or received by Leslie Munger during her time serving as Deputy Governor as well as her daily schedule for the six month period following the date of Ms. Stabile's FOIA request. The Governor's Office did not, within five’ business days after its receipt of Ms. Stabile's FOIA request, comply with the request, extend the time for response pursuant to section 3(e) of FOIA, or deny the request in whole or in part, as is required by section 3(d) of FOIA. 2) On May 5, 2017, Ms. Stabile and Mr. Patrick Yeagle, one of the editors for the Springfield Business Journal, asked the Public Access Counselor to review the Governor's Office's failure to respond to Ms. Stabile's FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9. 5S(a) (West 2016)). 3) On May 15, 2017, the Public Access Bureau forwarded a copy of Ms. Stabile's Request for Review to the Governor s Office, together with a letter asking the Governor's Office. to advise this office whether it had received and responded to Ms. Stabile's March 10, 2017, FOIA request. The Governor's Office did not respond to thisi nquiry. 4) On May 26, 2017, this office sent the Governor's Office a second copy of the Request for Review and a letter requesting a response to the May 15, 2017, letter of inquiry. Again, the Governor's Office did not respond. . 5) On July 3, 2017, this office extended the time within which to issue a binding opinion by 30 business days, to August 15, 2017, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properlyi ssue a binding opinion with respect to this matter. 6) To date, this office has received no indication that the Governor'ss Office has responded to Ms. Stabile's FOIA request. Ms. Monica Stabile Mr. Patrick Yeagle Ms. Christina M. McClernon July 5, 2017 Page 6 Therefore, it is the opinion of the Attorney General that the Governor's Office has violated section 3(d) of FOIA by failing to respond to Ms. Stabile's request for public records as required by the Act. Accordingly, the Governor's Office is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. Stabile with all records responsive to her March 10, 2017, FOIA request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2016)).'* If the Governor's Office determines that any portion of the responsive records is exempt from disclosure under section 7, the Governor's Office is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2016)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois, Ms. Monica Stabile, and Mr. Patrick Yeagle as defendants. See 5 ILCS 140/11.5 (West 2016). Sincerely, LISA MADIGAN ATTORNEY GENERAL horn By: Michael J, Luke Counsel to the Attorney General “Because the Governor's Office did not comply with the statutory requirements for responding to Ms. Stabile's FOIA request, section 3(d) of FOIA precludes the Governor's Office from treating the request as unduly burdensome or imposing copying fees for the responsive records. CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 17-008) upon: Ms. Monica Stabile and Mr. Patrick Yeagle Springfield Business Journal Post Office Box 398 Springfield, Hlinois 62705 intem@springfieldbusinessjournal.com patrick@springfieldbusinessjournal.com Ms. Christina M. McClernon Associate General Counsel, FOIA Officer Office of Governor Bruce Rauner 100 West Randolph Street, 16-100 Chicago, Illinois 60601 christina.meclernon@illinois.gov by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on July 5, 2017. sha. Lat SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62706 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Springfield Business Journal requested emails and the daily schedule of Deputy Governor Leslie Munger from the Governor's Office, but the office failed to respond within the legally required five business days. The Illinois Attorney General determined that this failure violated section 3(d) of the Freedom of Information Act. As a result, the Governor's Office was directed to immediately provide the requested records or issue a written denial if any exemptions apply.","card_headline":"Emails concerning a Deputy Governor","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":87,"orig_master_id":19061,"dup_master_id":19289,"dup_sha256":"413d9e4bc08d416fcc61fcf82fe43b376660d15065a62ccd1a0626055662f00c","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2017,"date_issued":"2017-07-11","case_number":"2017 PAC 47126","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 17-009 (Request for Review - 2017 PAC 47126).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 17-009 (Request for Review - 2017 PAC 47126).pdf","word_count":2423,"summary":"The Attorney General issued a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) The opinion concludes that the City of Carlinville violated section 3(d) of FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by John Kraft .","plain_summary":"The requester sought city credit-card and cell-phone statements and proof of officials' Open Meetings Act and FOIA training, and although the city's attorney told the Public Access Bureau that records had been mailed to the requester, the city never confirmed this in writing and the requester repeatedly reported receiving nothing. The Public Access Counselor held that, on the record presented, the city had not shown it complied with, denied, or properly extended the request within the statutory period, violating FOIA. The city was directed to produce the requested records, subject only to limited private-information redactions.","holding":"The City of Carlinville violated section 3(d) of FOIA by failing to provide a timely response to the requester's FOIA request.","legal_question":"Whether a public body violates section 3(d) of FOIA by failing to provide any response to a FOIA request within the statutory time limits.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7(1), 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"City of Carlinville","requesting_party":"Kraft and Ms. Brockmeier","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"FOIA response","subject_description":"The request sought credit card statements, cell phone statements, and proof of FOIA/OMA training for elected officials.","ocr_status":"ok","ocr_quality":90.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2017-Binding-PAC-Opinions/17-009.pdf","sha256":"21e354df7c898e6008f82d580ca5d45f41b5d38636295e2599e73f7fce0f3386","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","statutory deadline","public records"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"ERT, nt Wes 4 : OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL July 11, 2017 PUBLIC ACCESS OPINION 17-009 (Request for Review 2017 PAC 47126) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. John Kraft 7060 Illinois Highway 1 Paris, Illinois 61944 The Honorable Carla Brockmeier City Clerk City of Carlinville 550 North Broad Carlinville, Illinois 62626 Dear Mr. Kraft and Ms. Brockmeier: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the City of Carlinville (City) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2016)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. John Kraft. BACKGROUND On March 18, 2017, Mr. Kraft submitted a FOIA request to the City's FOTIA Officer, Carla Brockmeier, seeking the following records: 500 South Second Street, Springfield, Hlinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416 Mr. John Kraft The Honorable Carla Brockmeier July 11, 2017 Page 2 1) Copy of all credit card, debit card, fuel charge card, p-card, purchase card statements (all pages) since October 1, 2016. 2) Copy of all cell/smart phone statements (all pages) since October 1, 2016. 3) Copy of Open Meetings Act and Freedom Of Information Act proofs of‘t raining for all elected officials of the City of Carlinvillef.]!) On March 28, 2017, Mr. Kraft e-mailed a Request for Review to, the Public Access Bureau alleging that the City had failed to respond to his FOIA request.” On March 29, 2017, the Public Access Bureau forwarded a copy of the Request for Review to the City, together with a letter asking it to advise this office whether it had received and responded to Mr. Kraft's FOIA request. Ifi t had not yet responded to Mr. Kraft, the letter requested that the City do so and provide this office with a copy of the response.’ The City did not respond to the Public Access Bureau's March 29, 2017, correspondence. On April 13, 2017, Mr. Kraft telephoned an Assistant Attorney General (AAG) in the Public Access Bureau to report that the City had not yet responded to his FOIA request. The AAG then telephoned Ms. Brockmeier inquiring as to the status of the City's response. Ms. Brockmeier referred the AAG to the City's attorney, Mr. Daniel Schuering. The AAG telephoned Mr. Schuering for information regarding the City's response. Mr. Schuering indicated that the City had sent records to Mr. Kraft on April 7, 2017. Mr. Schuering stated that he would provide a copy of the transmittal letter via e-mail to the AAG. Mr. Schuering, however, did not provide a copy of the letter to the AAG. On April 18, 2017, the AAG telephoned Mr. Schuering to inquire as to his submission of a copy of the transmittal letter. Mr. Schuering explained that he had not yet sent the letter to the AAG, but would do so. On April 21, 2017, Mr. Kraft informed the AAG via telephone that the City still had not responded to his March 18, 2017, FOIA request. 'E-mail from John Kraft too cbrockmeier@eityofvarlinvile com (Meare 38, 2017) 2E.mail from John Kraft, to Public Access (March 28, 2017). oo *Letter from Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Carla Brockmeier, City Clerk, City of Carlinville (March 29, 2017). Mr. John Kraft The Honorable Carla Brockmeier July 11, 2017 Page 3 As of April 24, 2017, the Public Access Bureau had not received further correspondence from the City or its attorney. As a result, to follow up, the Public Access Bureau sent Mr. Schuering a letter stating that this office had not received confirmation that the City had responded to Mr. Kraft.’ The letter to Mr. Schuering also included a copy of the Public Access Bureau's March 29, 2017, letter to the City. Mr. Schuering did not respond to the letter from this office. On May 5, 2017, Mr. Kraft informed the Public Access Bureau via telephone that he had not yet received a response to his March 18, 2017, FOIA request. On May 11, 2017, the AAG e-mailed Ms. Brockmeter and Mr. Schuering, noting that the Public Access Bureau had not received.a response to its March 29, 2017, letter or confirmation that the City had responded to Mr. Kraft. Along with the e-mail, the AAG also sent a copy of the March 29, 2017, letter. The AAG asked Ms. Brockmeier and Mr. Schuering to advise this office whether the City had received and responded to Mr. Kraft's March 18, 2017, FOIA request.” Neither Ms. Brockmeier nor Mr. Schuering responded. On May 18, 2017, Mr. Kraft informed the Public Access Bureau via e-mail that he had not yet received a response to his March 18, 2017, FOIA request.° On May 18, 2017, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA.’ On July 11, 2017, Mr. Kraft informed an AAG in the Public Access Bureau via telephone that the City still had not responded to his March 18, 2017, FOIA request. ‘Letter from Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Daniel P. Schuering, Schuering Law, LTD (April 24, 2017). °E-mail from Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General — State of Illinois, to [Carla Brockmeier] and [Daniel] Schuering. (May 11, 2017). °E-mail from John Kraft to Laura Harter (May 18, 2017). \"Letter from Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to John Kraft, and the Honorable Carla Brockmeier, City Clerk, City of Carlinville (May 18, 2017). Mr. John Kraft The Honorable Carla Brockmeier July t1, 2017 Page 4 ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].” 5 ILCS 140/1 (West 2016). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2016)), \"[a]l] records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). Based upon the information available to this office, the City did not, within five business days after its receipt of Mr. Kraft's request, either comply with his request, extend the time for its response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2016)), or deny the request in writing. The City's failure to comply with the requisite procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On March 18, 2017, Mr. John Kraft submitted a FOIA request to the City of Carlinville via e-mail seeking copies of records pertaining to credit card, debit card, fuel charge card, p-card, and purchase card statements since October 1, 2016; cell and smart phone statements since October 1, 2016; and proof of Open Meetings Act and FOIA trainings completed by City officials. Mr. Kraft did not receive a response to his request. Mr. John Kraft The Honorable Carla Brockmeier July 11,2017 Page 5 2) On March 28, 2017, Mr. Kraft asked the Public Access Counselor and the Public Access Bureau to review the City's failure to respond to his FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2016)). 3) On March 29, 2017, the Public Access Bureau forwarded a copy of Mr. Kraft's Request for Review to the City, together with a letter asking the City to advise this office whether it had responded to Mr. Kraft's March 18, 2017, FOIA request. The City did not respond to this office's inquiry. 4) On April 13, 2017, an Assistant Attorney General in the Public Access Bureau telephoned Ms. Brockmeier inquiring as to the status of the City's response. Ms. Brockmeier referred the AAG to the City's attorney, Mr. Daniel Schuering. The AAG telephoned Mr. Schuering for information regarding the City's response. Mr. Schuering indicated that the City had sent records to Mr. Kraft on April 7, 2017. Mr. Schuering also stated that he would provide a copy of the transmittal letter via e-mail to the AAG. Mr. Schuering, however, did not provide a copy of the letter to the AAG. On April 18, 2017, the AAG telephoned Mr. Schuering to inquire as to his submission of the transmittal letter. Mr. Schuering indicated that he had not yet sent the letter to the AAG, but would do so. 5) On April 24, 2017, this office sent the City's attorney a copy of this office's March 29, 2017, letter and informed him that the Public Access Bureau had not yet received proof of the City’s response to Mr. Kraft. The City's attorney did not respond to this office's inquiry. 6) On May i1, 2017, this office sent the City's FOIA officer and attorney an e- maili nquiry regarding the status of the City's response to Mr. Kraft's FOIA request. The City did not respond. 7) On May 18, 2017, this office extended the time within which to issue a binding opinion by 30 business days, to July 11, 2017, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 8) To date, this office has received no confirmation or indication that the City has responded to Mr. Kraft's request. Therefore, it is the opinion of the Attorney General that the City has violated section 3(d) of FOIA by failing to respond to Mr. Kraft's request for public records as required by the Act. Accordingly, the City is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Kraft with all records responsive to his March 18, Mr. John Kraft The Honorable Carla Brockmeier July 11, 2017 Page 6 2017, request, subject only to permissible redactions, if any, of: (1) \"private information\" pursuant to section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2016));8 or (2) dates of birth pursuant to section 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) (West 2016)).” If the City determines that any portion of the responsive records is exempt from disclosure under section 7(1)(b) or 7(1)(c) of FOIA, the City is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2016)).!° This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 ef seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. John Kraft as defendants. See 5 ILCS 140/11.5 (West 2016). Sincerely, LISA MADIGAN ATTORNEY GENERAL Michael J. Luke Counsel to the Attorney General *Section 7(1)(b) of FOIA exempts from disclosure \"private information.” Section 2(c-5) of FOIA (S ILCS 140/2(c-5) (West 2016)) defines \"private information\" as: unique identifiers, including a person's social security number, driver's license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person. *Section 7(1)(c) of FOIA exempts \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]\" Ill. Att'y Gen. Pub. Acc. Op. No. 16-009, issued November 7, 2016, at 12 (an individual’ s birth date is highly personal by its very nature and the individual’ s right to privacy outweighs any legitimate public interest in its disclosure). “Because the City did not comply with the statutory requirements for responding to Mr. Kraft's FOIA request, section 3(d) of FOIA precludes the City from treating the request as unduly burdensome or imposing copying fees for the responsive records. CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 17-009) upon: Mr. John Kraft 7060 Hlinois Highway #1 Paris, Illinois 61944 john@illinoisleaks.com The Honorable Carla Brockmeier City Clerk,.City of Carlinville 550 North Broad Carlinville, Hlinois 62626 cbrockmeier@cityofcarlinville.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on July 11, 2017. wes Qual SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62706 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"John Kraft requested various financial and training records from the City of Carlinville, but the City never responded to his request. The Attorney General's office ruled that the City broke the law by ignoring the request entirely. Because the City failed to respond on time, they are now prohibited from claiming the request was too burdensome or charging fees for the records.","card_headline":"Credit card and cell phone statements for elected officials","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":88,"orig_master_id":19291,"dup_master_id":19062,"dup_sha256":"b485e1b30c30273469efbdd016c466466c21d8e7689a965a36ce560c1048f2ec","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2017,"date_issued":"2017-06-26","case_number":"2017 PAC 46838","request_numbers":null,"title":"Duty to Respond to a FOIA Request for Records ofa City Appointed Board and Related to City -Owned Property","filename":"PUBLIC ACCESS OPINION 17-007 (Request for Review - 2017 PAC 46838).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 17-007 (Request for Review - 2017 PAC 46838).pdf","word_count":2490,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a FOIA request submitted by Ms. Julie Payne-Hubler to the City of Benton, which was not appropriately responded to.","plain_summary":"The requester sought agendas and minutes for meetings of the city's municipal airport, and the city's FOIA officer told her the airport was a separate entity without its own FOIA officer and directed her to a newly elected airport board member, after which no substantive response followed. The Public Access Counselor held that because the city owns the airport, appoints its board, and has designated only one FOIA officer for its departments and boards, the city's FOIA officer remained obligated to respond, and referring the requester elsewhere did not satisfy FOIA. The city was directed to produce the requested agendas and minutes.","holding":"The City of Benton violated section 3(d) of FOIA by failing to comply with or appropriately respond to the FOIA request.","legal_question":"Did the City of Benton violate the Freedom of Information Act by failing to respond to a FOIA request?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3, 5 ILCS 140, 5 ILCS 140/3(e), 65 ILCS 5, 5 ILCS 140/3(d), 5 ILCS 140/8, 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Benton","requesting_party":"Payne- Hubler and Ms. Craig","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"FOIA response","subject_description":"The request sought agendas and meeting minutes for the Benton Airport for the years 2013, 2014, and 2015.","ocr_status":"ok","ocr_quality":89.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2017-Binding-PAC-Opinions/17-007.pdf","sha256":"e7866d0913aa3c3d84bbb80458ec89bfcf5938dd5f88d3c16514753f98bff198","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA request","duty to respond","meeting minutes","airport board"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL June 26, 2017 PUBLIC ACCESS OPINION 17-007 Request for Review 2017 PAC 46838) FREEDOM OF INFORMATION ACT: Duty to Respond to a FOIA Request for Records ofa City Appointed Board and Related to City -Owned Property Ms. Julie Payne-Hubler 700 West Webster Benton, Illinois 62812 Ms. Brook Craig FOIA Officer/ City Clerk City ofBenton 1403 South Main Street P.O. Box 640 Benton, Illinois 62812 Dear Ms. Payne- Hubler and Ms. Craig: This is abinding opinion issued by the Attorney General pursuant to section 9.5( f) ofthe Freedom of Information Act ( FOIA) ( 5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the City ofBenton (City) violated section 3(d) of FOIA (5 ILCS 140/3( d) ( West 2016)) by failing to comply with, deny iri whole or in part, or otherwise appropriately respond to a FOIA request submitted by Ms. Julie Payne-Hubler. BACKGROUND On February 17, 2017, Ms. Payne-Hubler submitted a FOIA request to the City using the City's FOIA request form and seeking \"[ a]gendas & [ m] eeting [ m]inutes for Benton 500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: (877) 844-5461 • Fax: ( 217) 782- 7046 100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806 601 South University Avenue, Suite 102, Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: ( 877) 675-9339 • Fax: (618) 529- 6416 • e— Ms. Julie Payne- Hubler Ms. Brook Craig June 26, 2017 Page 2 Airport for calendar years 2013, 2014 & 2015. iI Mr. Rocky Morris, an \" Airport [ Board] Member[ ],\" sent a letter dated February 22, 2017, to Ms. Payne-Hubler stating \" in response to your FOIA request we ask for a 5 day extension... The Airport Board has not appointed a FOIA director yet..\" On March 11, 2017, Ms. Payne-Hubler submitted a Request for Review to this office alleging that the City had improperly denied her request by failing to respond.3 Specifically, she alleged: At 3: 43 pm on [ February 17, 2017], I received a call from [ Brook] Craig, city clerk stating she didn'thave [ the requested records] and I should] contact the airport board FOIA officer. When I asked who that was she stated she didn't know. I then called Rocky Morris who is a board member. He stated there was not one and he would call [Brook]. I did not hear anything back until 2/22/[ 2017] when Mr. Morris requested a 5 day extension as the board had not appointed a FOIA officer yet. I still cannot get the materials. Please help.l41 Ms. Payne-Hubler's initial submission did not include acopy ofher FOIA request or the extension letter she received from Mr. Morris. Ms. Payne- Hubler was asked to submit the missing materials to the Office ofthe Attorney General; on March 13, 2017, Ms. Payne-Hubler submitted those materials to complete her Request for Review.5 On March 22, 2017, an Assistant Attorney General ( AAG) in the Public Access Bureau telephoned Ms. Brook Craig, the City Clerk and FOIA Officer ofthe City of Benton, to discuss the Request for Review and to gather information to determine whether the Benton Airport was a public body separate from the City. During the conversation, Ms. Craig stated that: ( 1) she had advised Ms. Payne-Hubler to go to the Airport Board, but the Board did not City ofBentonRequestforCopies ofPublic Records under the Illinois Freedom of Information Act form signed by Julie Payne- Hubler ( February 17, 2017). 2Letter from Rocky Morris, Airport Member, to Julie [ Payne- Hubler] ( February 22, 2017). E-mail from Julie Payne- Hubler to Public Access [ Bureau, Office ofthe Attorney General], March 11, 2017). 4E -mail from Julie Payne-Hubler to Public Access [Bureau, Officeofthe Attorney General], March 11, 2017). 5E -mail from Julie Payne- Hubler to Public Access [ Bureau, Office ofthe Attorney General] March 13, 2017). Ms. Julie Payne-Hubler Ms. Brook Craig June 26, 2017 Page 3 have a FOIA officer; ( 2) she had not sent a written response to Ms. Payne- Hubler; and ( 3) the Benton Municipal Airport (Airport) has a Board ofDirectors ( Airport Board) but uses the City's tax identification number.6 That same day the AAG telephoned Mr. Morris, who said that he was a newly elected Airport Board member and that the City Clerk had given him the key to the Airport filing cabinets but he had been unable to find the requested agendas and minutes. On March 23, 2017, this office forwarded a copy ofthe Request for Review to the City and asked it to advise this office whether it had responded to Ms. Payne-Hubler's FOIA request. Ifthe City had not yet responded to the request, then this office asked the City to do so and to provide this office with a copy of its response. 8 By letter dated March 29, 2017, the City's FOIA Officer responded to this office, and sent a copy ofthat letter to Ms. Payne- Hubler.9 The City's response stated that the City had responded to multiple FOIA requests from Ms. Payne over the years, but her February 17th FOIA request pertained to the Airport, and therefore should be directed to the Airport. The response further asserted that \"the Benton Municipal Airport is a separate entity1) that was formed under Ordinance # 506 on April 7, 1947. The Benton Municipal Airport has its own board and, more importantly, adopts its own laws, rules, and regulations for the guidance and government of said Airport.\"\" The City's response also included a document entitled \" Benton City Code, Chapter 2, Airport Board.\" 12 The document contains ordinance provisions related to, among otherthings, the appointment, removal, and powers ofthe Airport's Board ofDirectors and provides: Telephone conversation between Edie Steinberg, Assistant Attorney General, Public Access Bureau and Brook Craig, FOIA Officer and City Clerk, City ofBenton (March 22, 2017). Telephone conversation between Edie Steinberg, Assistant Attorney General, Public Access Bureau and Rocky Morris, Airport Board member ( March 22, 2017). 8Letter from Edie Steinberg, Assistant Attorney General, PublicAccess Bureau, Office ofthe Attorney General, to Brook[ ] Craig, FOIA Officer/City Clerk ( March 23, 2017). Letter from Brook Craig, FOIA Officer, City ofBenton, to [Edie] Steinberg, Office ofthe Attorney General (March 29, 2017). 10The City ofBenton's website provides that the \" Benton Municipal Airport (FAA LID: H96) is a city -owned public -use airport.\" http://bentonil.com/?page_id=180 (last viewed May 2, 2017). Letter from Brook Craig, FOIA Officer, City ofBenton, to [ Edie] Steinberg, Office ofthe Attorney General (March 29, 2017). 12Benton, 111., City Code § 2- 1- 1 ( effective April 7, 1947). Ms. Julie Payne-Hubler Ms. Brook Craig June 26, 2017 Page 4 2-1- 1 BOARD ESTABLISHED. The Mayor shall, with the advice and consent ofthe City Council, appoint a board of six (6) directors for the Municipal Airport and the Commissioner of Finance shall automatically be the seventh ( 7`\") member ofsaid Board. Not more than one ( 1) member ofthe City Council shall, at any one time, be a member ofthe Airport Board. (Ord. No. 09-08; 04-27-09) 2-1- 2 TERM. The Directors shall hold office for four (4) years from the first (Vi) day ofMay following their appointment. The Mayor shall, on or before the first (0) day of May in each year, appoint two (2) Directors who shall hold their office for four (4) years and until their successors are appointed and qualified. The Mayor may, with the advice and consent ofthe City Council, remove and discharge any Director for misconduct or neglect -of - duty. 2- 1- 3 VACANCIES. Vacancies in the Board ofDirectors shall be reported to the City Council and shall be filed in like manner as this Chapter provides. No director shall receive compensation as a member ofthe Airport Board. 2-1- 4 OFFICERS. The Directors shall elect one ( 1) oftheir members as President and other such officers as they may deem necessary. They shall meet and adopt such [...] yne-Hubler. Ms. Brook Craig June 26, 2017 Page 9 cabinets, presumably so that he could respond to the request. The City's failure to properly respond to Ms. Payne- Hubler's request violated section 3( d) ofFOIA. 2 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On February 17, 2017, Ms. Payne-Hubler submitted a FOIA request to the City of Benton seeking copies ofagendas and meeting minutes for the City Airport for three specified calendar years. The City did not respond to the FOIA request. Instead, the City's FOIA Officer advised Ms. Payne- Hubler that the Airport and the City are separate entities, and referred her to the Airport Board. 2) On February 22, 2017, a member ofthe Airport Board sent a letter to Ms. Payne- Hubler requesting to extend the time for response by 5 business days because the Airport did not have aFOIA officer. Under section 3(e) ofFOIA, the lack ofa designated FOIA officer does not provide a basis for a public body to unilaterally extend the time for response and Ms. Payne-Hubler did not agree to extend the response time. Therefore, the time for response was not properly extended. Further, Ms. Payne- Hubler did not subsequently receive a substantive response to her request from the City or the Airport Board. 3) On March 11, 2017, Ms. Payne-Hubler asked the Public Access Counselor to review the City's denial ofher FOIA request. On March 13, 2017, Ms. Payne-Hubler submitted the additional materials required to complete her Request for Review, which was timely filed and otherwise complies with the requirements ofsection 9.5( a) ofFOIA (5 ILCS 140/9.5(a) (West 2016)). 4) On March 23, 2017, the Public Access Bureau forwarded a copy ofMs. Payne-Hubler's Request for Review to the City, togetherwith aletter asking the City to advise this office whether it had responded to Ms. Payne- Hubler' s February 17, 2017, FOIA request. 5) On March 29, 2017, the City responded to this office that Ms. Payne- Hubler's FOIA request should be directed to the Airport rather than to the City because the Airport is a separate entity. 221n the future, the City may wish to consider posting all Airport Board meeting agendas and minutes on its website. Under section 8.5(a) ofFOIA (5 ILCS 140/8.5( a) ( West 2016)), a public body isnot required to copy a public record that is published on the public body's website, unless a requester is unable to reasonably access the records online. Ms. Julie Payne-Hubler Ms. Brook Craig June 26, 2017 Page 10 6) On April 7, 2017, the Public Access Bureau forwarded a copy ofthe City's response to Ms. Payne- Hubler. On April 10, 2017, this office received Ms. Payne-Hubler's reply. 7) On May 9, 2017, this office extended the time within which to issue a binding opinion by 30 business days, to June 26, 2017, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 8) The information available indicates that the City owns the Airport and appoints the directors ofthe Airport Board; the Airport Board does not have its own FOIA officer. 9) Section 22-3- 2 ofthe 2015 Benton City Code provides that the City's FOIA Officer \" shall receive requests submitted to the City under the Freedom ofInformation Act, insure that the City responds to requests in a timely fashion, and issue responses under the Freedom ofInformation Act.\" 10) Although the City may designate \"one or more officials or employees\" to be FOIA officers for its various departments and boards, it appearsthat only one FOIA officer has been designated. Accordingly, the City's FOIA Officer was obligated to respond to the FOIA request seeking records conceming the Airport; referring Ms. Payne-Hubler to the Airport Board did not satisfy the requirements ofsection 3 of FOIA. Therefore, it is the opinion ofthe Attorney General that the City has violated section 3( d) of FOIA by failing, within 5 business days after receiving Ms. Payne-Hubler's February 17, 2017, FOIA request, to provide the requested records, to deny the request in whole or in part, or to enter into awritten agreement with Ms. Payne- Hubler to extend the time for responding. Accordingly, the City is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. Payne-Hubler with all records responsive to her February 17, 2017, request, subject only to permissible redactions under section 7 ofFOIA (5 ILCS 140/7 (West 2016)).23 Ifthe City determines that any portion ofthe responsive records are exempt from disclosure undersection 7, the City is directed to issue awritten denial that fully complies with the requirements of section 9(a) ofFOIA ( 5 ILCS 140/9(a) ( West 2016)). 23Because the City did notcomply with the statutory requirements for responding to Ms. Payne- Hubler's FOIA request, the City is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS I40/3(d) ( West 2016) (\"A public bodythat fails torespond to arequest within the requisite periods inthis Section but thereafter provides the requester with copies ofthe requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome undersubsection ( g).\"). Ms. Julie Payne-Hubler Ms. Brook Craig June 26, 2017 Page 11 This opinion shall be considered a final decision ofan administrative agency for the purposes ofadministrative review under the Administrative Review Law. 735 ILCS 5/3- 101 et seq. ( West 2016). An aggrieved party may obtain judicial review ofthe decision by filing a complaint for administrative review with the Circuit Court ofCook or Sangamon County within 35 days of the date ofthis decision naming the Attorney General ofIllinois and Ms. Julie Payne- Hubler as defendants. See 5 ILCS 140/ 11. 5 ( West 2016). Sincerely, LISA MADIGAN ATTORNEY GENERAL By: Michael J. Luke Counsel to the Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy ofthe foregoing Binding Opinion ( Public Access Opinion 17-007) upon: Ms. Julie Payne-Hubler 700 West Webster Street Benton, Illinois 62812 jphlbh070@n gmail. com Ms. Brooke Craig FOIA Officer/City Clerk City ofBenton 1403 South Main Street P.O. Box 640 Benton, Illinois 62812 via facsimile (618) 435-2610 by causing a true copy thereof to be sent electronically or by facsimile to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on June 26, 2017. 4a, e 14( u, 716— SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor 500 South Second Street Springfield, Illinois 62706 217) 785- 5526","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Ms. Julie Payne-Hubler requested meeting minutes and agendas for the Benton Airport from the City of Benton. The City failed to provide the requested documents or issue a proper legal denial, violating the Freedom of Information Act. The Attorney General's office ruled that the City must comply with the request as required by law.","card_headline":"Agendas and meeting minutes for an airport","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":89,"orig_master_id":19063,"dup_master_id":19292,"dup_sha256":"d98f53eef603aa72178f89543d01fde6fb8fdd3a7ccbec4d24849f37927baa34","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2017,"date_issued":"2017-07-25","case_number":"2017 PAC 48071","request_numbers":null,"title":"Disclosure of Contractor's Employees’ Names in Certified Payroll Records","filename":"PUBLIC ACCESS OPINION 17-010 (Request for Review - 2017 PAC 48071).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 17-010 (Request for Review - 2017 PAC 48071).pdf","word_count":2380,"summary":"Attorney General Lisa Madigan: City of Rockford violated the requirements of FOIA by improperly redacting employees’ names from the certified payroll records provided in response to Richard J. Stewart's May 22, 2017, FOIA request . The City, however, redacted from the payroll records the contractor's employees' names, addresses, social security numbers, and driver's license numbers .","plain_summary":"The requester, a construction-industry monitoring organization, sought certified payroll records for a public works contractor, and the city disclosed the records but redacted the contractor employees' names along with the addresses and identification numbers the certified-payroll statute specifically requires be redacted. The Public Access Counselor held that names are not among the categories of information the statute allows a public body to redact from certified payroll records, and that the city had not separately shown disclosure of the names would be a clearly unwarranted invasion of privacy given the strong public interest in payroll compliance. The city was directed to disclose the contractor employees' names.","holding":"The City of Rockford violated FOIA by improperly redacting the names of contractor employees from certified payroll records, as those names are not exempt from disclosure.","legal_question":"Whether the names of contractor employees contained in certified payroll records submitted to a public body are exempt from disclosure under FOIA.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/2, 820 ILCS 130/5(a), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/7, 5 ILCS 140/9(a), 5 ILCS 140/7(1), 820 ILCS 130/5, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"City of Rockford","requesting_party":"Stewart and Ms. Rongere","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"personnel records","subject_description":"The disclosure of contractor employee names within certified payroll records for a public works project.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2017-Binding-PAC-Opinions/17-010.pdf","sha256":"b4afeff232fa8343190dfdb4396681573d8e560331676c3736d2e72d6dd1decb","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["payroll records","contractor employees","FOIA","public works"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ELLINOIS Lisa Madigan ATTORNEY GENERAL July 25, 2017 PUBLIC ACCESS OPINION 17-010 (Request for Review 2017 PAC 48071) FREEDOM OF INFORMATION ACT: Disclosure of Contractor's Employees’ Names in Certified Payroll Records Mr. Richard J. Stewart Construction Analyst Indiana, Illinois, lowa Foundation for Fair Contracting 6170 Joliet Road, Suite 200 Countryside, Ilinois 60525 Ms. Monica L. Rongere Diversity Procurement Officer City of Rockford, Legal Department 425 East State Street Rockford, Illinois 61104 Dear Mr. Stewart and Ms. Rongere: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the City of Rockford (City) violated the requirements of FOIA by improperly redacting employees’ names from the certified payroll records provided in response to Mr. Richard J. Stewart's May 22, 2017, FOIA request. BACKGROUND On May 22, 2017, Mr. Stewart, on behalf of the Indiana, Illinois, lowa Foundation for Fair Contracting (HI FFC), submitted a FOIA request to the City seeking copies 500 South Second Street, Springfield, [llinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Hlinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806 601 South University Avenue. Suite 102. Carbondale. Ulinais 62901 © (618) 4529-6400 « TTY: (877) 675-9339 + Fax: (618) 5299-6416 ae _ Mr. Richard J. Stewart Ms. Monica L. Rongere July 25, 2017 Page 2 of \"payroll records for project 516-PW-052, contractor T C I Concrete Inc.\"! Ina letter dated May 23, 2017, and e-mailed to Mr. Stewart on May 25, 2017, the City responded that the request was \"approved in its entirety[ ]\" and provided Mr. Stewart with copies of the certified payroll records.” The City, however, redacted from the payroll records the contractor's employees' names, addresses, social security numbers, and driver's license numbers, The General Assembly has specifically determined that certified payroll records submitted to a public body are public records that are subject to inspection and copying under section 2.10 of FOIA (5 ILCS 140/2.10 (West 2016)), which provides: Certified payroll records submitted to a public body under Section 5(a)(2) of the Prevailing Wage Act are public records subject to inspection and copying in accordance with the provisions of this Act; except that contractors' employees’ addresses, telephone numbers, and social security numbers must be redacted by the public body prior to disclosure. (Emphasis added.) It is undisputed that the certified payroll records Mr. Stewart requested were submitted to the City pursuant to section 5(a)(2) of the Prevailing Wage Act (820 ILCS 130/5(a)(2) (West 2016)), and therefore are subject to the terms of section 2.10 of FOIA. On May 26, 2017, Mr. Stewart submitted this Request for Review contesting the City's redaction of the names of the contractor's employees.? On June 2, 2017, the Public Access Bureau sent a copy of the Request for Review to the City and asked it to provide a detailed written response to Mr. Stewart's allegation, including the factual and legal bases for the applicability of any exemption that the City relied upon to redact the names of the contractor's employees.* ‘Request For Public Records Official Request Form submitted by Richard Stewart to City of Rockford (May 22, 2017). Freedom of Information Response Letter from Kerry F. Partridge, Freedom of Information Officer, City of Rockford, to Richard Stewart (May 23, 2017), at 1. 3E-mail from Richard J. Stewart, [1] FFC, Construction Analyst, to Christopher Boggs (May 26, 2017). . ‘Letter from Christopher R. Boggs, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Monica L. Rongere, Diversity Procurement Officer, City of Rockford Legal Department (June 2, 2017). Mr. Richard J. Stewart Ms. Monica L. Rongere July 25, 2017 Page 3 On June 5, 2017, the City responded by letter, which provided in pertinent part: The City complied with the request by providing certified payrolls for the 516-PW-052 as required. Information on the certified payrolls included: race, gender, labor classifications, wage-rates and the number of hours each employee worked. All additional personal information was redacted by the City. TCI Concrete Inc. is a government contractor; however, its employees are not government employees. Therefore, the personal information of its employees should be protected from public disclosure. Mr. Stewart's request as to whether prevailing wages have been paid on City contracts is warranted, but the exposure of ‘ a specific individual's salary is unnecessary. For these reasons, the City chose to withhold the release of personal data which was not needed to determine TCI Concrete's compliance with City contracts.] On June 5, 2017, the Public Access Bureau forwarded a copy of the City's response to Mr. Stewart.® In a June 6, 2017, telephone conversation with an Assistant Attorney General in the Public Access Bureau, Mr. Stewart stated that he did not wish to reply to the City’s response but that he stood by his initial arguments. ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2016). \"All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2016). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) further provides: \"Each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" The exemptions from disclosure contained in section 7 of FOIA (5 ILCS 140/7 (West 2016)) are to be narrowly Letter from Monica L. Rongere, Diversity Procurement Officer, City of Rockford Legal Department, to Assistant Attorney General Christopher Boggs, State of Illinois (June 5, 2017). ®Letter from Christopher R. Boggs, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Richard J. Stewart, 1] FFC, Construction Analyst (June 5, 2017). Mr. Richard J. Stewart Ms. Monica L. Rongere July 25, 2017 Page 4 construed. See Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997). Sufficiency of FOIA Response As a threshold matter, section 9(a) of FOIA (5 ILCS 140/9(a) (West 2016)) provides: Each public body denying a request for public records shall notify the requester in writing of the decision to deny the request, the reasons for the denial, including a detailedf actual basis for the application of any exemption claimed, and the names and titles or positions of each person responsible for the denial. Each notice of denial by a public body shall also inform such person of the right to review by the Public Access Counselor and provide the address and phone number for the Public Access Counselor. Each notice of denial shall inform such person of his right to judicial review under Section 11 of this Act. (Emphasis added.) In its May 23, 2017, response to the FOIA request, the City stated that it was approving the request in its entirety. In addition to withholding the information expressly authorized for redaction by section 2.10, however, the City redacted the employees’ names and driver's license numbers. In doing this, the City partially denied the FOIA request, although its response letter did not notify Mr. Stewart that it was denying the request in part and did not state the basis for the partial denial. By excluding notice of and the reason for the partial denial of information from its response to Mr [...] ) See also Ill. Const. 1970, art. VII, §1(¢) (\"Reports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law.\") Accordingly, the Attorney General has previously concluded that \"the public has a right to know the purposes for which public funds are expended, including the identity of those who receive the funds and the amount of funds received.\" See Hl. Att'y Gen. Pub. Acc. Op. No. 15-006, issued August 31, 2015, at 7; see also Ill. Att'y Gen. Pub. Acc. Op. No. 15-004, issued June 17, 2015, at 5. In this instance, assuming the employees’ names could be considered highly personal information, the compelling public interest in disclosure of records related to the use of public funds reflected by section 2.5 of FOIA would outweigh the employees' right to privacy and require disclosure of their names, Accordingly, the City has not sustained its burden of demonstrating by clear and convincing evidence that disclosure of the names of the contractor's employees would constitute a \"clearly unwarranted invasion of personal privacy” under section 7(1)(c) of FOIA, or that the names are otherwise exempt from disclosure. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the available information, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On May 22, 2017, Mr. Richard J. Stewart, on behalf of the Indiana, I[linois, Iowa Foundation for Fair Contracting, submitted a FOIA request to the City seeking copies of “payroll records for project 516-PW-052, contractor T C I Concrete Inc.\" Mr. Richard J. Stewart Ms. Monica L. Rongere July 25, 2017 Page 7 2) In its letter dated May 23, 2017, the City responded that the request was “approved in its entirety” and provided Mr. Stewart with certified payroll records. In the records it disclosed, however, the City redacted the contractor's employees' names, addresses, social security numbers, and driver's license numbers. 3) Section 2.10 of FOJA expressly provides that certified payroll records submitted to a public body under section 5(a)(2) of the Prevailing Wage Act are public records subject to inspection and copying, except that contractor's employees’ addresses, telephone numbers, and social security numbers must be redacted before disclosure. Further, section 7(1)(b) of FOIA specifically allows redaction of the employees’ driver's license numbers. 4) On May 26, 2017, Mr. Stewart submitted this Request for Review contesting the City's redaction of the names of the contractor's employees from the responsive certified payroll records. The Request for Review was timely filed and otherwise complies with section 9.5(a) of FOTIA (5 ILCS 140/9.5(a) (West 2016)). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 5) On June 2, 2017, the Public Access Bureau sent a copy of the Request for Review to the City and asked it to provide a detailed written response to Mr. Stewart's allegations, including the factual and legal bases for the applicability of any asserted exemptions. 6) On June 5, 2017, the City responded, asserting that the exposure of specific individuals’ salaries is unnecessary and that the personal information of a government contractor's employees should be protected from public disclosure. 7) Because the City failed in its response to Mr. Stewart to notify him of the partial denial of his request or to provide a detailed factual basis for the exemption under which it redacted the records, its partial denial of the request did not satisfy the requirements of section 9(a) of FOIA. 8) In its response to this office, the City argued that the \"personal information\" of the employees should be protected from disclosure because they are not government employees. Based on the reference to \"personal information,\" this office has construed the City's response as asserting that the information redacted from the records is exempt from disclosure pursuant to section 7(1)(c) of FOIA, The City's response did not, however, explain why disclosure of the names of employees in the certified payroll records would be highly objectionable to a reasonable person or demonstrate how the employees’ rights to privacy outweigh the public interest in disclosure, as required under section 7(1)(c). Mr. Richard J. Stewart Ms. Monica L. Rongere July 25, 2017 Page 8 9) Although names are unquestionably \"personal information,\" they are not highly personal or confidential. Moreover, section 2.5 of FOIA requires the disclosure of records related to the use of public funds. As a result, the City has not met its burden.of demonstrating how the disclosure of the names of employees paid by public funds would be highly objectionable to a reasonable person or that an employee's right to privacy outweighs the public interest in disclosure in these circumstances. Therefore, it is the opinion of the Attorney General that the City's response to Mr. Stewart's Freedom of Information Act request violated the requirements of FOIA. Accordingly, the City is directed to take immediate and appropriate action to comply with this opinion by disclosing to Mr. Stewart the names of the contractor's employees contained within the requested certified payroll records. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Richard J. Stewart as defendants. See 5 ILCS 140/11.5 (West 2016). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: Ct tenlene fy Lee Ea. Michael J. Luke Counsel to the Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 17-010) upon: Mr. Richard J. Stewart Construction Analyst Indiana, Illinois, lowa Foundation for Fair Contracting 6170 Joliet Road, Suite 200 Countryside, Illinois 60525 rstewart@itiffc.org Ms. Monica L. Rongere Diversity Procurement Officer City of Rockford, Legal Department 425 East State Street Rockford, Hlinois 61104 monica.rongere@rockfordil.gov by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on July 25, 2017. SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62706 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A construction analyst requested certified payroll records for a city project, but the City of Rockford redacted the names of the contractor's employees. The Attorney General ruled that these names are public information and cannot be withheld. This means that public bodies must disclose the names of workers on government-funded projects when requested under FOIA.","card_headline":"Contractor employee names in certified payroll records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":90,"orig_master_id":19064,"dup_master_id":19290,"dup_sha256":"a42597b5d15e03a1420b5090d8cc6f11b5e63003b9038a4221201ed819ace051","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2017,"date_issued":"2017-08-14","case_number":"2017 PAC 47695","request_numbers":null,"title":"Disclosure of 9-1-1 Cali Recordings","filename":"PUBLIC ACCESS OPINION 17-011 (Requests for Review - 2017 PAC 47695 & 2017 PAC 47696).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 17-011 (Requests for Review - 2017 PAC 47695 & 2017 PAC 47696).pdf","word_count":2385,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a FOIA request for 9-1-1 call recordings related to the death of a child. It concludes that the Will County Sheriff's Office violated FOIA by denying the request.","plain_summary":"The requester, a radio reporter, sought two 9-1-1 call recordings connected to a widely reported child's death, and the sheriff's office withheld both as containing exempt biometric identifiers and withheld one further as likely to interfere with its active investigation. The Public Access Counselor held that an ordinary voice recording is not a \"biometric identifier\" absent some measurement or analysis of the voice itself, and that the sheriff's office's conclusory assertion of investigative interference, without any specific explanation, did not meet its burden. The sheriff's office was directed to disclose both 9-1-1 recordings.","holding":"The Will County Sheriff's Office violated FOIA by improperly denying the FOIA requests.","legal_question":"Did the Will County Sheriff's Office violate FOIA by denying the request for 9-1-1 call recordings?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/2, 5 ILCS 140/7(1), 5 ILCS 140/1, 5 ILCS 140/2(c), 5 ILCS 140/3(a), 5 ILCS 140/7, 740 ILCS 14/1, 740 ILCS 14/10, 735 ILCS 4/3","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)","7(1)(b)"],"public_body":"Will County Sheriff's Office","requesting_party":"Miller","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought 9-1-1 call recordings related to the death of a seventeen-month-old child.","ocr_status":"ok","ocr_quality":89.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2017-Binding-PAC-Opinions/17-011.pdf","sha256":"bfc96e2933894d56373f017a9eb7e10cdea391c3d84127a8c1c28fcfbae4f53d","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["9-1-1 recordings","police records","FOIA denial","child death investigation"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL August 14, 2017 PUBLIC ACCESS OPINION 17-011 (Requests for Review 2017 PAC 47695 & 2017 PAC 47696) FREEDOM OF INFORMATION ACT: Disclosure of 9-1-1 Cali Recordings Mr. Steve Miller Ms. Shannon Zobel Reporter FOIA Officer WBBM Newsradio 780 AM and 105.9 FM Will County Sheriff's Office 180 North Stetson Avenue 16909 West Laraway Road 2 Prudential Plaza, Suite 1178 Joliet, Iinois 60433 Chicago, IHinois 60601 Mr. Philip A. Mock Assistant State's Attorney Will County State's Attorney's Office 57 North Ottawa Street, 6th Floor Joliet, Illinois 60432 Dear Mr. Miller, Ms. Zobel, and Mr. Mock: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the Will County Sheriff's Office (Sheriff's Office) violated the requirements of FOIA by improperly denying Mr. Steve Miller's FOIA requests for 9-1-1 call recordings relating to the death of a child. 500 South Second Street, Springfield, [Hinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Pax: (217) 782-7046 100 West Randoiph Street, Chicago, HHineis 60601 + (312) 814-3000 » TTY: (800) 964-3013 * Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondale, Hlinois 62901 * (618) 529-6400 + TTY: (877) 675-9339 + Fax: (618}529-6416 -= Mr. Steve Miller Ms. Shannon Zobel Mr. Philip A. Mock August 14, 2017 Page 2 BACKGROUND As described in a publicly available report of the Illinois Department of Children and Family Services, seventeen-month old Semaj Crosby was reported missing from her family home on April 25, 2017. After a search by law enforcement and volunteers, Semaj Crosby was discovered deceased in her family home on April 27, 2017.' On April 27, 2017, Mr. Miller, on behalf of WBBM Newsradio, submitted a FOIA request to the Sheriff's Office seeking \"the audio from a 911 call made on Easter Sunday, April 16, from the home of Semaj Crosby, in the 300 block of Louis Road.” On the same day, Mr. Miller submitted a second FOIA request to the Sheriff's Office seeking \"the audio from a 911 call made on the afternoon/evening of April 25, from the home of Semaj Crosby, in the 300 block of Louis Road, when Semaj was reported as missing.” On May 2, 2017, the Sheriff's Office denied both requests in their entireties.’ The Sheriff's Office asserted that 9-1-1 call recordings contain “biometric identifiers[,]\"\" which are included in the definition of \"private information” found in section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2016)) and are therefore exempt from disclosure under section 7(1}(b) of FOIA (5 ILCS 140/7(1)(b) (West 2016)). In addition, the Sheriff's Office denied access to the recording of the April 25, 2017, 9-1-1 call under section 7(1)(d)(vii) of FOIA (5 ILCS 140/7(1)(d)(vii) (West 2016)), asserting that disclosure of the requested information “at this time could impede this active investigation” of the death of Semaj Crosby> Mr. Miller filed two Requests for Review with this office on May 2, 2017, contesting each of these denials. In the Requests for Review, Mr. Miller asserted that “{b]esides the reasons they stated for denying my request, | was told by the FOIA officer, \"We have never ‘Department of Children and Family Services, Offices of Quality Enhancement and Clinical Practice, Joint Special Review (May 24, 2017). . 7E-mail from Steve Miller, Reporter, WBBM NewsRadio 780 AM and 105.9 FM, to Shannon Zobel (April 27, 2017, 12:39 p.m.) 5E-mail from Steve Miller, Reporter, WBBM NewsRadio 780 AM and 105.9 FM, to Shannon Zobel (April 27, 2017, 1:12 pm). “Letters from S. Zobel, FOIA Officer, Will County Sheriff's Office, to Steve Miller, WBBM Newsradio (May 2, 2017). ‘Letter from S. Zobel, FOIA Officer, Will County Sheriff's Office, to Steve Miller, WBBM Newsradio (May 2, 2017), Mr. Steve Miller - Ms. Shannon Zobel Mr. Philip A. Mock August 14, 2017 Page 3 released audio from a 911 call.’ If that is Will County's default position, I consider that problematic.\"® On May 10, 2017, this office sent copies of the Requests for Review to the Sheriff's Office and asked it to provide copies of the requested recordings for our confidential review together with a detailed explanation of the factual and legal bases for the applicability of the asserted exemptions.’ In a letter dated May 19, 2017, and received by this office on May 30, 2017, the Will County State's Attorney's Office (State's Attorney's Office) provided a written response to this office on behalf of the Sheriff's Office, as well as copies of the responsive 9-1-1 call recordings.* The written response referred to one of the pending Requests for Review (2017 PAC 47696), but not the other (2017 PAC 47695). On June 2, 2017, an Assistant Attorney General in the Public Access Bureau confirmed that the May 19, 2017, written response and its reasoning applied to both pending Requests for Review concerning Mr. Miller's requests for 9-1- 1 call recordings.” On June 2, 2017, this office forwarded a copy of the Sheriff's Office's written response to Mr. Miller.'® On June 9, 2017, Mr. Miller submitted a written reply.'! On June 28, 2017, this office properly extended the time within which to issue a *E-mails from Steve Miller to Public Access [Bureau, Office of the Attorney General] (May 2, 2017). \"Letters from Neil P. Olson, Deputy Public Access Counselor, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Shannon Zobel, FOIA Officer, Will County Sheriff's Office (May 10, 2017). ‘Letter from Philip A. Mock, Assistant State's Attorney, [Will County State's Attorney's Office], to Neil P. Ols[o]n, Deputy Public Access Counselor, Illinois Attorney General (May 19, 2017). *Telephone conference between Neil P. Olson, Deputy Public Access Counselor, Assistant Attorney Generai, Public Access Bureau, Office of the Attorney General and Philip A. Mock, Assistant State's Attorney, Will County State’s Attorney's Office (June 2, 2017). Letter from Neil P. Olson, Deputy Public Access Counselor, Assistant Attorney General, Public Access Bureau, to Steve Miller, WBBM Newsradio 780 AM and 105.9 FM (June 2, 2017). ''Letter from Steve Miller, WBBM Newsradio 780 AM — 105.9 FM, to [Neil] Olson (June 9, 2017). Mr. Steve Miller Ms. Shannon Zobel Mr. Philip A. Mock August 14, 2017 Page 4 binding opinion by 30 business days, to August 14, 2017, pursuant to section 9.5(f) of FOIA.\" ANALYSIS “All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body.that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.” 5 ILCS 140/1.2 (West 2016). \"Public records\" as defined in section 2(c) of FOIA (5 ILCS 140/2(c) (West 2016)) include \"recordings,\" therefore 9-1-1 call recordings are public records. Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) further provides: “Each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in sections 7 and 8.5 of this Act.\" The exemptions from disclosure contained in section 7 of FOIA (5 ILCS 140/7 (West 2016)) are to be narrowly construed. See Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997). Section 7(1)(b) of FOIA Section 7(1}(b) exempts from disclosure \"[p]rivate information, unless disclosure is required by another provision of this Act, a State or federal law or a court order.” Section 2(c- 5) of FOIA, in turn, defines \"private information\" as: {Ujnique identifiers, including a person's social security number, driver's license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. [...] asis to support a finding that disclosure of the limited information in the 9-1-1 call would obstruct its investigation. Accordingly, this office concludes that the Sheriff's Office has not sustained its burden of demonstrating by clear and convincing evidence that the 9-1-1 call recording is exempt from disclosure under section 7(1)(d)(vii) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1} On April 27, 2017, Mr. Steve Miller, on behalf of WBBM Newsradio, submitted two FOIA requests to the Will County Sheriff's Office each seeking a recording of a 9-1-1 call made from the home of Semaj Crosby. 2) On May 2, 2017, the Sheriff's Office denied both requests citing sections 2(c- 5) and 7(1)(b) of FOIA. The denial letters asserted that the requested recordings contained “biometric identifiers” and therefore were exempt \"private information\" as defined in section 2(c-5) of FOIA. With respect to the second request (2017 PAC 47696), the Sheriff's Office asserted that the requested recording was also exempt under section 7(1)(d)(vii) of FOIA because the Sheriff's Office was investigating the death of Semaj Crosby. 3) On May 2, 2017, Mr. Miller submitted Requests for Review contesting the two denials by the Sheriff's Office. The Requests for Review were timely filed and otherwise comply with section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2016)). ‘SL etter from Philip A. Mock, Assistant State's Attorney, [Will County State's Attorney's Office], to Neil P. Ols[o]a, Deputy Public Access Counselor, Illinois Attomey General (May 19, 2017), at 1-2. Mr. Steve Miller Ms. Shannon Zobel Mr. Philip A. Mock August 14, 2017 Page 9 4) On May 10, 2017, the Public Access Bureau sent copies of Mr. Miller's Requests for Review to the Sheriff's Office and asked it to provide copies of the requested 9-1-1 call recordings for our confidential review together with a detailed explanation of the factual and legal bases of the applicability of the asserted exemptions. 5) On May 30, 2017, the Public Access Bureau received a written response from the Will County State's Attorney's Office on behalf of the Sheriff's Office together with copies of the responsive 9-1-1 call recordings. 6) On June 2, 2017, the Public Access Bureau forwarded a copy of the Sheriff's Office's written response to Mr. Miller. On June 9, 2017, Mr. Miller submitted a written reply. 7) On June 28, 2017, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days, to August 14, 2017, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to these matters. 8) Section 7(1)(b) of FOIA exempts \"private information\" from inspection and copying. Section 2(c-5) of FOIA defines \"private information\" to include \"biometric identifiers.\" The term “biometric identifiers” is not defined in section 2(c-5) or elsewhere in FOIA. The term \"biometric identifier,\" however, is commonly understood to refer to the measurement and analysis of a unique physical or behavioral characteristic that identifies a person. 9} The voice recordings at issue do not contain a measurement or analysis of a person's voice, such as a “voiceprint.” Because the requested 9-1-1 call recordings do not contain biometric identifiers as that phrase is commonly used, they do not contain “private information\" and therefore are not exempt from disclosure under section 7(1)(b) of FOIA. 10) Section 7(1)(d)(vii) of FOIA exempts from disclosure records in the possession of a law enforcement agency for law enforcement purposes only to the extent that their disclosure would “obstruct an ongoing criminal investigation by the agency that is the recipient of the request.” 11) The existence of a criminal investigation does not, by itself, render records relating to the investigation exempt from disclosure under section 7(1)(d)(vii) of FOIA. To sustain its burden under this exemption, a public body must demonstrate how the disclosure of the records would obstruct an ongoing criminal investigation by the public body that received the FOIA request. Mr. Steve Miller Ms. Shannon Zobel Mr. Philip A. Mock August 14, 2017 Page 10 12) In asserting section 7(1)\\(d\\ vid), the Sheriff's Office's has not provided a sufficient factual basis to show how disclosure of the information in the 9-1-1 call recording would obstruct its investigation. Because the Sheriff's Office has not provided clear and convincing evidence that the disclosure of the 9-1-1 call recording would interfere with a criminal investigation conducted by the Sheriff's Office, this office concludes that the Sheriff's Office has not sustained its burden of demonstrating that the April 25, 2017, 9-1-1 call recording is exempt from disclosure under section 7(1)(d)(vii) of FOIA. Therefore, it is the opinion of the Attorney General that the Sheriff's Office has improperly denied Mr. Miller's Freedom of Information Act requests in violation of the requirements of the Act. Accordingly, the Sheriff's Office is directed to take immediate and appropriate action to comply with this opinion by disclosing the requested 9-1-1 call recordings to Mr. Miller. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 4/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of IHinois and Mr. Steve Miller as defendants. See 5 ILCS 140/11.5 (West 2016). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: Lone, Michael J. Luke Counsel to the Attorney Generali CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 17-011) upon: Mr. Steve Miller WBBM Newsradio 780 AM and 105.9 FM 180 North Stetson Avenue Chicago, Illinois 60601 ssmiller@wbbm-am.com Mr. Philip A. Mock Assistant State's Attorney Will County State's Attorney's Office 57 North Ottawa Street, 6\" Floor Joliet, Illinois 60432 pmock@willcountyillinois.com Ms. Shannon Zobel FOIA Officer Will County Sheriff's Office 16909 West Laraway Road Joliet, Ninois 60433 szobel@willcosheriff.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on August 14, 2017. %, SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor - Office of the Attorney General 500 South Second Street Springfield, Illinois 62706 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested 9-1-1 recordings from the Will County Sheriff's Office regarding the death of a child. The Sheriff's Office denied the request, but the Attorney General ruled that the denial was improper and that the recordings must be released. This means public bodies cannot withhold 9-1-1 recordings simply because they relate to an ongoing investigation unless a specific legal exemption is met.","card_headline":"9-1-1 call recordings of a child's death","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":91,"orig_master_id":19065,"dup_master_id":19293,"dup_sha256":"db2218f8c19ce0192670c2b343c5d7f3ff372918ebbb7a96bbee1613a04d3706","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2017,"date_issued":"2017-11-07","case_number":"2017 PAC 49564","request_numbers":null,"title":"Disclosure of Recordings of Public Meetings","filename":"PUBLIC ACCESS OPINION 17-012 (Request for Review - 2017 PAC 49564).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 17-012 (Request for Review - 2017 PAC 49564).pdf","word_count":2338,"summary":"Lisa Madigan: Lake County Housing Authority violated the requirements of FOIA by improperly denying Rick Kambic's FOIA request for recordings of public meetings of the Housing Authority's Board of Commissioners (Board) The Attorney General issued a binding opinion issued by the Attorney General .","plain_summary":"The requester, a newspaper reporter, sought audio recordings of the housing authority board's open meetings from a given year, and the housing authority withheld them as preliminary, deliberative material. The Public Access Counselor held that a verbatim recording of a meeting that was open to the public is inherently subject to public scrutiny and is not the kind of predecisional record the deliberative-process exemption protects, regardless of the purpose for which the recording was made. The housing authority was directed to disclose the requested meeting recordings.","holding":"The Lake County Housing Authority improperly denied the request for audio recordings of public meetings, as such recordings are public records that must be disclosed under FOIA.","legal_question":"Whether audio recordings of public meetings of a public body are public records subject to disclosure under the Freedom of Information Act.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(1), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/7, 5 ILCS 120/1, 5 ILCS 120/2, 735 ILCS 5/3, 5 ILCS 140","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)","7(1)(l)","7(1)(a)"],"public_body":"Lake County Housing Authority","requesting_party":"Kambic","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"meeting records","subject_description":"The request sought audio recordings of public meetings of the Board of Commissioners.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2017-Binding-PAC-Opinions/17-012.pdf","sha256":"01490f8759bd0ff25a2ce5bc907bb3515ceab43428e9191c32d5f61179fc54e7","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["audio recordings","public meetings","FOIA request","public records"],"truncated_suspect":0,"site_category":"Meeting Minutes","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL November 7, 2017 PUBLIC ACCESS OPINION 17-012 (Request for Review 2017 PAC 49564) FREEDOM OF INFORMATION ACT: Disclosure of Recordings of Public Meetings Mr. Rick Kambic Staff Reporter Pioneer Press Newspapers 777 West Chicago Avenue Chicago, Illinois 60654 Ms. Valerie Rogers Executive Secretary Freedom of Information Act Officer Lake County Housing Authority 33928 North U.S. Highway 45 Grayslake, Illinois 60030 Dear Mr. Kambic and Ms. Rogers: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the Lake County Housing Authority (Housing Authority) violated the requirements of FOIA by improperly denying Mr. Rick Kambic's FOIA request for recordings of public meetings of the Housing Authority's Board of Commissioners (Board). BACKGROUND On August 23, 2017, Mr. Kambic, on behalf of Pioneer Press Newspapers, submitted a FOIA request to the Housing Authority seeking copies of: (1) all e-mails sent and received from the account assigned to former commissioner Dawn Abernathy; (2) all e-mails sent to or received from the e-mail address dmabers@comceast.net; and (3) \"[a]ll audio $00 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Ilinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806 661 South University Avenue, Suite 102. Carbondale. [llinois 6290] * (618) 529-6400 « TTY: (877) 675-9339 + Fax: (618) 529-6416 ‘<< Mr. Rick Kambic Ms. Valerie Rogers November 7, 2017 Page 2 recordings taken during Board of Commissioner meetings in 2017.\"' On August 29, 2017, the Housing Authority responded that it was unable to search the-e-mail account assigned to Ms. Abernathy because the account had been \"terminated on 7/25/17 as per normal practice[,]\" but provided copies of e-mails that other staff members sent to or received from her e-mail account.” The Housing Authority also stated that it did not locate any e-mails to or from the e-mail address dmabers@comcast.net, and denied audio recordings of its Board meetings pursuant to section 701) of FOIA (5 ILCS 140/7(1)(f) (West 2016), as amended by Public Acts 100-026, effective August 4, 2017; 100-201, effective August 18, 2017).? On September 8, 2017, Mr. Kambic submitted a Request for Review disputing the denial of the audio recordings of the Board's open meetings, and questioning whether the Housing Authority may have archived or otherwise preserved any responsive e-mails from Ms. Abernathy's terminated e-mail account.’ ! On September 15, 2017, the Public Access Bureau sent a copy of the Request for Review to the Housing Authority and requested a representative sample copy of the Board meeting recordings that were withheld for the office's confidential review, together with a detailed explanation of the factual and legal bases for the applicability of section 7(1)(f) to those recordings.” This office also asked the Housing Authority to \"describe any efforts to determine whether any responsive e-mails sent from or receivedi n the e-mail account assigned to Ms. Abernathy were archived or otherwise preserved,\" and to \"clarify if all e-mails in terminated accounts are deleted and incapable of being restored.\" On September 29, 2017, the Housing Authority responded by asserting that the audio recordings of Board meetings are preliminary materials within the scope of section 7(1)(f), and that Ms. Abernathy’s Housing Authority e-mails 'Letter from Rick Kambic, Pioneer Press Newspapers, to Valerie Rogers, FOIA Officer, Lake County Housing Authority (August 23, 2017). ! *Letter from Valerie Rogers, Executive Secretary, Freedom of Information Act Officer, Lake County Housing Authority, to Rick Kambic (August 29, 2017), at 1. *Letter from Valerie Rogers, Executive Secretary, Freedom of Information Act Officer, Lake County Housing Authority, to Rick Kambic (August 29, 2017), at 1. “Letter from Rick Kambic, Pioneer Press Newspapers, to Public Access Counselor, Office of the Attorney General (September 8, 2017). *Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to Valerie Rogers, Executive Secretary, Freedom of Information Act Officer, Lake County Housing Authority (September 15, 2017), at 2. °Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to Valerie Rogers, Executive Secretary, Freedom of Information Act Officer, Lake County Housing Authority (September 15, 2017), at 2. Mr. Rick Kambic Ms. Valerie Rogers November 7, 2017 Page 3: could not be retrieved because her e-mail account had been deleted.’ On October 2, 2017, this office sent a copy of the Housing Authority's response to Mr. Kambic.* On October 5, 2017, Mr. Kambic replied by asserting that audio recordings of Board meetings open to the public are subject to disclosure.” On October 6, 2017, Mr. Kambic sent an e-mail to an Assistant Attorney General in the Public Access Bureau in which he stated: \"[W]e at Pioneer Press want to move forward with your review of the Lake County Housing Authority's denial of my FOIA request for audio recordings made during their Board of Commissioner meetings. However, we do not wish to pursue the issue of former-Commissioner Dawn Abernathy’ s emails being inaccessible.\"'° Therefore, this office's determinationi n this binding opinion is limited to whether the responsive audio recordings of open meetings are exempt from disclosure pursuant to section 7(1)(f) of FOIA. ANALYSIS \"All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2016). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) further provides: “Each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in sections 7 and 8.5 of this Act.\" The exemptions from disclosure contained in section 7 of FOIA (5 ILCS 140/7 (West 2016)) are to be narrowly construed. See Lieber v. Board of Trustees of Southern Hlinois University, 176 It. 2d 401, 407 (1997). Section 7(1)(f) applies to \"[p]reliminary drafts, notes, recommendations, memoranda and other recordsi n which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when | \"Letter from Valerie Rogers, Executive Secretary, Freedom of Information Act Officer, Lake County Housing Authority, to Office of the Attorney General, State of Illinois, Steve Silverman, Bureau Chief, Public Access Bureau (September 29, 2017), at 1. ‘Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to Rick Kambic, Pioneer Press Newspapers (October 2, 2017). *Letter from Rick Kambic, Pioneer Press Newspapers, to Public Access Counselor, Office of the Attorney General (October 5, 2017), at 1. ‘E-mail from Rick Kambic, Staff Reporter, Pioneer Press Newspapers, to [Steve] Silverman (October 6, 2017). Mr. Rick Kambic Ms. Valerie Rogers November 7, 2017 Page 4 the record is publicly cited and identified by the head of the public body.\" The section 7(1)(f) exemption applies to \"inter- and intra-agency predecisional and deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). Based on the deliberative process exemption in Federal FOIA,'! section 7(1)(f)i s “intended to protect the communications process and encourage frank and open discussion among agency employees before a final decisioni s made.\" Harwood, 344 Ill. App. 3d at 248; see also Dep't of Interior v. Klamath Water Users [...] dmabers@comcast.net; and (3) \"[a]ll audio recordings taken during Board of Commissioner meetings in 2017.\" 2) On August 29, 2017, the Housing Authority responded that it was unable to search the e-mail account assigned to Ms. Abernathy because the account had been \"terminated,\" but provided copies of e-mails that other staff members sent to or received from her e-mail account. The Housing Authority also stated that it did not locate any e-mails to or from the e- mail address dmabers@comcast.net, and denied audio recordings of its Board meetings pursuant to section 7(1)(f) of FOIA. | 3) On September 8, 2017, Mr. Kambic submitted a Request for Review disputing the denial of audio recordings of the Board's open meetings and questioning whether the Housing Authority may have archived or otherwise preserved any responsive e-mails from Ms. Abernathy's terminated e-mail account. The Request for Review was timely filed and otherwise complies with section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2016)). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. Therefore, verbatim recordings of closed meetings are generally exempt from disclosure pursuant to section 7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (West 2016), as amended by Public Acts 100-026, effective August 4, 2017; 100-201, effective August 18, 2017), which permits a public body to withhold \"{i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" Mr. Rick Kambic Ms. Valerie Rogers November 7, 2017 Page 8 4) On September 15, 2017, the Public Access Bureau sent a copy of the Request for Review to the Housing Authority and requested a representative sample copy of the recordings of Board meetings that were withheld for the office's confidential review, together with a detailed explanation of the factual and legal bases for the applicability of section 7(1)(f) to those recordings. This office also asked the Housing Authority to describe its efforts to locate e- mails from Ms. Abernathy's Housing Authority e-mail account. 5) On September 29, 2017, the Housing Authority provided a written response asserting that the audio recordings of Board meetings are preliminary materials within the scope of section 7(1)(f). The Housing Authority also stated that Ms. Abernathy's Housing Authority e- mail account was deleted and that the e-mails in that account cannot be restored. 6) On October 2, 2017, the Public Access Bureau forwarded a copy of the Housing Authority's written response to Mr. Kambic. On October 5, 2017, Mr. Kambic submitted a written reply asserting that recordings of Board meetings are subject to disclosure under FOIA. 7) On October 6, 2017, Mr. Kambic sent an e-mail to an Assistant Attorney General in the Public Access Bureau stating that he wished to pursue only the portion of his Request for Review disputing the denial of recordings of open Board meetings. Therefore, this binding opinion is limited to that issue. 8) Section 7(1)(f) permits a public body to withhold \"[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.” The scope of the exemption is limited to records that provide insight into the public body's deliberative processes; it does not encompass factual material unless the facts are inextricably intertwined with predecisional material. 9) .A verbatim recording of an open meeting is not predecisional within the meaning of section 7(1)(f). Although the recording may reflect preliminary discussions of matters pending before the public body, as the court in Veltri v. Charleston Urban Renewal Authority noted, \"[by] virtue of the [public] character of that meeting the exchange of ideas which occurred at that meeting was inherently subject to public scrutiny.\" The public body's purpose in recording an open meeting is immaterial to this analysis. Mr. Rick Kambic Ms. Valerie Rogers November 7, 2017 Page 9 10) To the extent that recordings of the Board's meetings document deliberative discussions, the Housing Authority has not provided a basis to conclude that the disclosure of the recordings of open meetings would discourage the Board from engaging in frank and open discussions of public business. 11) Further, construing section 7(1)(f) as exempting from disclosure recordings of meetings open to the public would undermine the public policy articulated in section | of OMA, which provides that the public has the right to be fully informed of how public bodies conduct public business during open meetings. Because the Board's meetings were open to the public, recordings of those meetings are inherently subject to public inspection and copying and therefore are not exempt from disclosure pursuant to section 7(1)(f) of FOIA. Therefore, it is the opinion of the Attorney General that the Housing Authority has improperly denied Mr. Kambic's Freedom of Information Act request in violation of the requirements of the Act. Accordingly, the Housing Authority is directed to take immediate and appropriate action to comply with this opinion by disclosing the requested recordings of the Board's open meetings to Mr. Kambic. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Rick Kambic as defendants. See 5 ILCS 140/ I 5 (West 2016). Very truly yours, LISA MADIGAN | ATTORNEY GENERAL By: Cttewteetl boche Michael J. Luke Counsel to the Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 17-012) upon: Mr. Rick Kambic Staff Reporter Pioneer Press Newspapers 777 West Chicago Avenue Chicago, Illinois 60654 rkambic@pioneerlocal.com Ms. Valerie Rogers Executive Secretary Freedom of Information Act Officer Lake County Housing Authority 33928 North U.S. Highway 45 Grayslake, Illinois 60030 vrogers@lakecountyha.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on November 7, 2017. SadZ Z.eal SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62706 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested audio recordings of public meetings held by the Lake County Housing Authority. The Housing Authority denied the request, claiming the recordings were preliminary materials exempt from disclosure. The Illinois Attorney General ruled that the recordings are not exempt under FOIA's preliminary materials exemption and must be provided to the requester.","card_headline":"Audio recordings of a housing authority board's public meetings","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":92,"orig_master_id":19066,"dup_master_id":19297,"dup_sha256":"d93b1cde6787051dbb6d1f3a59676a5342f837ce50e1580599649e1afebbf7e9","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2017,"date_issued":"2017-12-28","case_number":"2017 PAC 49833","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 17-015 (Request for Review - 2017 PAC 49833).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 17-015 (Request for Review - 2017 PAC 49833).pdf","word_count":1858,"summary":"Attorney General Lisa Madigan issued binding opinion on behalf of Sarah Jackson . Jackson requested log only of FOIA requests received by the Governor's Office since July 1, 2017 . Jackson filed a Request for Review with the Public Access Counselor, alleging that the governor's Office had failed to respond to her FOIA request . On November 22, 2017, this office extended the time within which to issue a binding opinion by 30 business days to January 9, 2018 .","plain_summary":"The requester sought an electronic log of the FOIA requests the governor's office had received over roughly two months, including requester names, dates, and statuses, and the office never responded despite two follow-up letters from the Public Access Bureau. The Public Access Counselor held that the office's total silence violated FOIA's requirement to comply, deny, or extend the response period in writing. The governor's office was directed to produce the requested log, subject only to permissible redactions.","holding":"A public body that fails to comply with, extend, or deny a FOIA request within five business days violates section 3(d) of FOIA, and such failure precludes it from later claiming the request is unduly burdensome or charging copying fees.","legal_question":"Whether the Office of the Governor violated section 3(d) of FOIA by failing to respond to a request for a log of FOIA requests.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/3, 5 ILCS 140/9(b), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Office of the Governor","requesting_party":"Jackson and Ms. McClernon","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"FOIA response","subject_description":"The failure of the Governor's Office to respond to a request for a log of FOIA requests.","ocr_status":"ok","ocr_quality":90.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2017-Binding-PAC-Opinions/17-015.pdf","sha256":"a3ff63901002be0103f4f286786f1dbbd02383dd3e39facabba29453e8530d5b","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","Governor's Office","public records"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL December 28, 2017 PUBLIC ACCESS OPINION 17-015 (Request for Review 2017 PAC 49833) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Ms. Sarah Jackson 1 North State Street Suite 1500 Chicago, Illinois 60602 Ms. Christina McClernon Associate General Counsel, FOJA Officer Office of the Governor, State of Illinois James R. Thompson Center 100 West Randolph Street, Suite 16-100 Chicago, Illinois 60601 Dear Ms. Jackson and Ms. McClernon: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the Office of the Governor (Governor's Office) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2016)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Ms. Sarah Jackson. BACKGROUND On September 14, 2017, Ms. Jackson submitted a FOIA request via e-mail to the FOIA Officer for the Governor's Office seeking \"a log only of FOIA requests received by the Office of the Governor since July 1, 2017. This log should include fields such as the name of the 500 South Second Street, Springfield, [linois 62706 * (217) 782-1090 © TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Hlinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 © Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416 om Ms. Sarah Jackson Ms. Christina McClernon December 28, 2017 Page 2 person or entity making the request, the date of request, the full description of the request and whatever fields are used to indicate its status such as denial, records released, or in progress.\"! Ms. Jackson requested that the records be provided in an unlocked electronic spreadsheet format. On September 26, 2017, Ms. Jackson filed a Request for Review with the Public Access Counselor, alleging that the Governor's Office had failed to respond to her FOIA request.* On October 2, 2017, the Public Access Bureau forwarded a copy of the Request for Review to the Governor's Office, together with a letter asking whether the Governor's Office had received and responded to Ms. Jackson's FOIA request and, if not, to do so and provide this office with a copy of the response. The Governor's Office did not respond to the Public Access Bureau's October 2, 2017, correspondence. On October 16, 2017, the Public Access Bureau forwarded a second copy of the Request for Review to the Governor's Office and asked the Governor's Office to respond as soon as possible to this office's October 2, 2017, letter of inquiry, noting that section 9.5(c) of FOIA (5 ILCS 140/9.5(c) (West 2016)) requires a public body to fully cooperate with the Public Access Counselor within seven business days of receiving a Request for Review.’ Again, the Governor's Office did not respond. On November 22, 2017, this office extended the time within which to issue a binding opinion by 30 business days, to January 9, 2018, pursuant to section 9.5(f) of FOIA.’ As of the date of this binding opinion, this office has not received a response from the Governor's Office or any information indicating that it has responded to Ms. Jackson's September 14, 2017, FOIA request. 'E-mail from Sarah Jackson to christina.mcclernon@illinois.gov (September 14, 2017). E-mail from Sarah Jackson to [Sarah Pratt], Public Access [Counselor, Office of the Attorney General] (September 26, 2017). 3Letter from Matthew Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Christina McClernon, Associate General Counsel, FOIA Officer, Office of Governor Bruce Rauner, State of Illinois (October 2, 2017). 4Letter from Matthew Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Christina McClernon, Associate General Counsel, FOIA Officer, Office of Governor Bruce Rauner, State of Illinois (October 16, 2017). Letter from Matthew Hartman, Assistant Attorney General, Public Access Bureau, to Sarah Jackson and Christina McClernon, Associate General Counsel, FOIA Officer, Office of the Governor (November 22, 2017). Ms. Sarah Jackson Ms. Christina McClernon December 28, 2017 Page 3 ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2016). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) provides that \"[eJach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.” Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g).!¢ The Governor's Office did not, within five business days after its receipt of Ms. Jackson's F OIA request, either comply with her request, extend the time for its response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2016)), or deny her request in writing. The Governor's Office's failure to comply with the requisite procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: Section 3.5(a}(4) of FOIA (5 ILCS 140/3.5(a)(4) (West 2016)) also requires FOIA officers, upon the receipt of a request for public records, to “create a file for the retention of the original request, a copy of the response, a record of written communications with the requester, and a copy of other communications.\" In addition, public bodies are required to retain \"copies of all notices of denial * * * in a single central office file that is open to the public and indexed according to the type of exemption asserted and, to the extent feasible, according to the types of records requested.\" 5 ILCS 140/9(b) (West 2016). Ms. Sarah Jackson Ms. Christina McClernon December 28, 2017 Page 4 1) On September 14, 2017, Ms. Sarah Jackson submitted a FOIA request to the Office of the Governor via e-mail seeking an electronic spreadsheet containing a log of specified information regarding the FOIA requests received by the Governor's Office since July 1, 2017. In particular, for each FOIA request, Ms. Jackson sought the name of the requester, the date of the request, the full description of the request, and the status of the Governor's Office's response to the request. Ms. Jackson did not receive a response to her request. 2) On September 26, 2017, Ms. Jackson asked the Public Access Counselor to review the Governor's Office's failure to respond to her FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2016)). 3) On October 2, 2017, the Public Access Bureau forwarded a copy of Ms. Jackson's Request for Review to the Governor's Office, and asked the Governor's Office to advise this office whether it had received and responded to Ms. Jackson's September 14, 2017, FOIA request. The Governor's Office did not respond to this office's inquiry. 4) On October 16, 2017, this office sent the Governor's Office a second copy of the Request for Review and another letter requesting a response to the October 2, 2017, letter of inquiry. Again, the Governor's Office did not respond. 5) On November 22, 2017, this office extended the time within which to issue a binding opinion by 30 business days, to January 9, 2018, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may issue a binding opinion with respect to this matter. 6) To date, this office has received no indication that the Governor's Office has responded to Ms. Jackson's request. Therefore, it is the opinion of the Attorney General that the Governor's Office has violated section 3(d) of FOIA by failing to respond to Ms. Jackson's request for public records as required by the Act. Accordingly, the Governor's Office is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. Jackson with all records responsive to her September 14, 2017, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2016), as amended by Public Acts 100-026, effective August 4, 2017; 100-201, effective August 18, 2017).’. If the Governor's Office determines that any portion of the responsive records is exempt from disclosure under section 7, \"Because the Governor's Office did not comply with the statutory requirements for responding to Ms. Jackson's FOIA request, section 3(d) of FOIA precludes the Governor's Office from treating the request as unduly burdensome or imposing copying fees for responsive records. Ms. Sarah Jackson Ms. Christina McClernon December 28, 2017 Page 5 | the Governor's Office is directed to issue a written denial that complies fully with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2016)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seg. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Sarah Jackson as defendants. See 5 ILCS 140/11.5 (West 2016). Sincerely, LISA MADIGAN ATTORNEY GENERAL By: : Michael J. Luke Counsel to the Attorney General a CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 17-015) upon: Ms. Sarah Jackson 1 North State Street Suite 1500 Chicago, Illinois 60602 sjackson4371@gmail.com Ms. Christina McClernon Associate General Counsel, FOIA Officer Office of the Governor, State of Illinois James R. Thompson Center 100 West Randolph Street, Suite 16-100 Chicago, Illinois 60601 christina.mcclernon@illinois.gov by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on December 28, 2017. Minds &. Lat SARAH L, PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"This opinion addresses whether the Office of the Governor violated section 3(d) of FOIA by failing to respond to a request for a log of FOIA requests received since July 1, 2017. The Attorney General held that the Governor's Office violated section 3(d) of FOIA because it did not comply with, extend the time for, or deny the request within five business days, and it never responded even after repeated inquiries from the Public Access Bureau. The rule applied is that a public body's failure to timely comply, extend, or deny a FOIA request within the statutory period is deemed a denial, and such a public body may not later treat the request as unduly burdensome or impose copying fees. The Governor's Office was directed to provide responsive records subject only to permissible exemption redactions, or to issue a compliant written denial.","card_headline":"A governor's office log of FOIA requests","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":93,"orig_master_id":19067,"dup_master_id":19294,"dup_sha256":"081879e147d4edcd0df2a661af31eeabb82320ac49de4829da20a3a5923b8402","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2017,"date_issued":"2017-11-21","case_number":"2017 PAC 49332","request_numbers":null,"title":"Discussion of the Conduct of a Public Body Member in Closed Session Pastor Marvin Hightower President Peoria NAACP P.O. Box 6002 Peoria, Illinois 61601","filename":"PUBLIC ACCESS OPINION 17-013 (Request for Review - 2017 PAC 49332).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 17-013 (Request for Review - 2017 PAC 49332).pdf","word_count":2407,"summary":"This is a binding opinion issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) This office concludes that the Board of Trustees of the Village of Mapleton violated section 2(a) of OMA at its August 8, 2017, meeting . The Village had been facing backlash over racist comments made by a Village Board Member during a May meeting .","plain_summary":"An advocacy organization alleged that a village board closed part of a meeting to discuss a board member's racially charged public comments, after an agenda item identified the matter for discussion, rather than address the issue openly. The Public Access Counselor held that none of the potentially applicable exceptions authorized the closed session: the specific-employees exception does not cover elected board members, the board lacked authority to remove one of its own members so the removal-of-office exception did not apply, and the board was not sitting in a quasi-adjudicative capacity when it discussed the comments. The village board was directed to disclose the closed-session recording of that discussion.","holding":"The Board of Trustees of the Village of Mapleton violated section 2(a) of the Open Meetings Act at its August 8, 2017, meeting by improperly discussing the conduct of a public body member in closed session.","legal_question":"Whether a public body may discuss the conduct of one of its members in closed session under the exception for evidence or testimony in section 2(c)(4) of the Open Meetings Act.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2(a), 5 ILCS 120/2(c), 5 ILCS 120/1, 5 ILCS 120/2(b), 5 ILCS 120/2, 5 ILCS 120/2(d), 65 ILCS 3.1, 65 ILCS 5/3, 5 ILCS 120/7","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Mapleton","requesting_party":"Pastor Marvin Hightower","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"closed session","subject_description":"Discussion of a board member's racist comments and conduct during a closed session of the Village Board.","ocr_status":"ok","ocr_quality":91.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2017-Binding-PAC-Opinions/17-013.pdf","sha256":"3ac7c42c47dfe81ee2b52e849ee79551e3adedb8181bf933e81f20aede782b81","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","racist comments","board member conduct","Open Meetings Act violation","section 2(c)(4)"],"truncated_suspect":0,"site_category":null,"full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF [LLINOIS Lisa Madigan ATTORNEY GENERAL November 21, 2017 PUBLIC ACCESS OPINION 17-013 (Request for Review 2017 PAC 49332) OPEN MEETINGS ACT: Discussion of the Conduct of a Public Body Member in Closed Session Pastor Marvin Hightower President Peoria NAACP P.O. Box 6002 Peoria, Illinois 61601 The Honorable Carl Bishop Mayor Village of Mapleton 8524 West Main Street Mapleton, Illinois 61547 Dear Pastor Hightower and Mayor Bishop: This is a binding opinion issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2016)). For the reasons discussed below, this office concludes that the Board of Trustees of the Village of Mapleton (Board) violated section 2(a) of OMA (5 ILCS 120/2(a) (West 2016)) at its August 8, 2017, meeting. Specifically, the information provided by the Board indicates that it voted to enter closed session pursuant to the exception in section 2(c)(4) of OMA (5 ILCS 120/2(c)(4) (West 2016)), which allows closed session discussion of certain evidence or testimony. In this instance, however, the Board's closed session discussion was outside the scope of that exception or any other exception. 500 South Second Street, Springfield, Minois 62706 © (217) 782-1090 © “I EY: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Hlinois 60601 © (312) 814-3000 © “TPY: (800) 964-3013 © Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondale, Itlingis 62901 © (618) 529-6400 © “PLY: (877) 675-9339 © Fax: (618) 529-6416 eS1 Pastor Marvin Hightower The Honorable Carl Bishop November 21, 2017 Page 2 BACKGROUND In a letter dated August 18, 2017, and electronically submitted to the Attorney General's Public Access Bureau on August 22, 2017, Pastor Marvin Hightower, on behalf of the Peoria, Illinois branch of the National Association for the Advancement of Colored People, submitted a Request for Review to the Public Access Counselor alleging violations of OMA during the Board's August 8, 2017, meeting.’ The Request for Review stated, as background, that \"the Village had been facing backlash over racist comments made by a Village Board Member * * * during a May meeting.\" The Request for Review alleged that the agenda for the August 8, 2017, meeting identified a resolution concerning the Board member's comments as an item for discussion, but rather than discussing the comments publicly, the Board entered closed session for this discussion.’ The Request for Review further alleged that the Board improperly cited the section 2(c)(1) exception (5 ILCS 120/2(c)(1) (West 2016)) to the general requirement that public bodies conduct public business openly as its basis for closing the meeting.’ The Request for Review also argued that, even though the Board did not cite section 2(¢)(3) of OMA (S ILCS 120/2(c)(3) (West 2016)) when voting to enter closed session, the closed session discussion would not have been permissible under that exception because the Boardi s not authorized by law or ordinance to remove the Board member from office.” On September 5, 2017, the Public Access Bureau sent a copy of the Request for Review to the Village's mayor and requested copies of the open and closed session minutes (in draft form, if necessary) and the verbatim recording of the closed session portion of the Board's ‘Letter from Pastor Marvin Hightower, President[,] Peoria NAACP, to Sarah Pratt, Public Access Counselor, Office of the Attorney General (dated August 18, 2017, and transmitted to the Public Access Bureau via e-mail on August 22, 2017). *Letter from Pastor Marvin Hightower, President[,] Peoria NAACP, to Sarah Pratt, Public Access Counselor, Office of the Attorney General (dated August 18, 2017, and transmitted to the Public Access Bureau via e-mail on August 22, 2017), at 1. *Village of Mapleton, Board Meeting, Agenda Item X.M/ Resolution 2017-08-8-02 Condemning Comments Made by a Board Member (Mayor) (August 8, 2017). See http://www.mapletonillinois.com/uploads /1/6/6/9/166990 1 0/agenda_august_8 2017_-_final.pdf (last visited November 15, 2017). ‘Letter from Pastor Marvin Hightower, President[,] Peoria NAACP, to Sarah Pratt, Public Access Counselor, Office of the Attorney General (dated August 18, 2017, and transmitted to the Public Access Bureau via e-mail on August 22, 2017). *Letter from Pastor Marvin Hightower, President[,] Peoria NAACP, to Sarah Pratt, Public Access Counselor, Office of the Attorney General (dated August 18, 2017, and transmitted to the Public Access Bureau via e-mail on August 22, 2017). Pastor Marvin Hightower The Honorable Carl Bishop November 21, 2017 Page 3 August 8, 2017, meeting for this office's confidential review.° This office also requested a written response identifying the exception in section 2(c) of OMA (5 ILCS 120/2(c) (West 2016)) that the Board cited as its basis for closing the meeting, and an explanation of how that exception applied to the Board's closed session discussion. On Septemiber 26, 2017, the Village clerk sent this office a copy of the verbatim recording of the closed session as well as a draft version of the closed session minutes.’ Ina follow-up e-mail on the same day, the Village clerk furnished a copy of the draft version of the open session minutes.* The Village did not, however, provide a written response. On September 26, 2017, an Assistant Attorney General (AAG) in the Public Access Bureau asked the Village clerk to provide a written response identifying the exception under which the Board entered closed session.” This office, however, has not received a written response from the Board or its attorney. '° Under OMA, \"the public body may, but is not required to, answer the allegations of the request for review.\" 5 ILCS 120/3.5(c) (West 2016). Because the Board was not required to provide a written response to the allegations, it fulfilled the procedural requirements of section 3.5(c) of OMA by furnishing copies of the verbatim recording and draft minutes, as requested by this office. 5 ILCS 120/3.5(c) (West 2016). On October 20, 2017, this office extended the time within which to issue a binding opinion by 21 business days, to November 21, 2017, pursuant to section 3.5(e) of OMA. *Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Carl Bishop, Mayor, Village of Mapleton (September 5, 2017), at 2. \"E-mail from Pat Briggs, Clerk, Village of Mapleton, to Steven Silverman (September 26, 2017, 10:56 a.m.). \"E-mail from Pat Briggs, Clerk, Village of Mapleton, to Steven Silverman (September 26, 2017, 12:48 p.m.). *E-mail from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to [Pat] Briggs (September 26, 2017). On September 26, 2016, AAG Steve Silverman also spoke with Village Trustee Mark Brining, who stated that the Village had hired an attorney who might provide a written response. In a telephone conversation with AAG Silverman on October 5, 2017, the Village's mayor, Carl Bishop, also referred this office to the Village's attorney for a response. The Village's attorney, Erik Gibson, told AAG Silverman during an October 25, 2017, telephone conversation that he would provide a written response on behalf of the Board. On November 17, 2017, Mr. Gibson left a voice mail for AAG Silverman stating that he was still gathering information for the response. Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to Pastor Marvin Hightower, Liberty Church of Peoria, President, Peoria NAACP, and The Honorable Carl Bishop, Mayor, Village of Mapleton (October 20, 2017). Pastor Marvin Hightower The Honorable Carl Bishop November 21, 2017 Page 4 ANALYSIS OMA is intended \"to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly.” 5 ILCS 120/1 (West 2016). Section 2(a) of OMA provides that \"[a]ll meetings of public [...] that the Board violated section 2(a) of OMA by entering into closed session at its August 8, 2017, meeting to discuss the conduct of one of the Board members. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: L) On August 22, 2017, Pastor Marvin Hightower, on behalf of the Peoria, Illinois branch of the National Association for the Advancement of Colored People, submitted a Request for Review alleging that during its August 8, 2017, meeting, the Mapleton Village Board of Trustees entered closed session to discuss racist comments by a Board member. The Request for Review alleged that the Board cited section 2(c)(1) of OMA as its basis for closing the meeting. 2) On September 5, 2017, the Public Access Bureau sent a copy of the Request for Review to the Village's mayor. The Public Access Bureau requested copies of the open and closed session minutes of the August 8, 2017, meeting, and the verbatim recording of the closed session portion of the Board's August 8, 2017, meeting. This office also requested a written response identifying the exception in section 2(c) of OMA that the Board cited as its basis for Pastor Marvin Hightower The Honorable Carl Bishop _ November 21, 2017 Page 7 closing the meeting, and an explanation of how that exception applied to the Board's closed session discussion. 3) On September 26, 2017, the Village clerk submitted a copy of the verbatim recording of the closed session proceedings, as well as a draft version of the closed session minutes to this office for review. In a follow-up e-mail on the same day, the Village clerk furnished a copy of the draft version of the open session minutes. As allowed under section 3.5(c) of OMA, the Village did not provide a written response to the Request for Review. 4) On October 20, 2017, this office extended the time within which to issue a binding opinion by 21 business days, to November 21, 2017, pursuant to section 3.5(e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 5) Section 2(a) of OMA provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" 6) The Request for Review alleged that the Board cited section 2(c)(1) of OMA as its basis for closing the August 8, 2017, meeting. The information submitted by the Board, however, does not indicate that the Board cited this exception when entering closed session on August 8, 2017. Even assuming the Board cited section 2(c)(1), it would not have provided a basis for the closed session that took place on August 8, 2017. 7) Section 2(c)(1) permits a public body to enter closed session to discuss \"[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body or legal counsel for the public body[.]\" Because Board members hold a public office, and are not employees of the Village, section 2(c)(1) of OMA did not authorize the Board's closed session discussion of the Board member's comments. 8) In his Request for Review, Pastor Hightower also discussed the applicability of section 2(c)(3) of OMA. There is no indication that the Board cited section 2(c)(3) of OMA as a basis for entering closed session. As with section 2(c)(1), even if the Board relied on section 2(c)(3), it would not have provided a basis for the closed session. Section 2(c)(3) applies to closed session discussions of the \"discipline, performance or removal of the occupant of a public office, when the public body is given power to remove the occupant under law or ordinance.\" Here, the Board does not have the power to remove a Board member under law or ordinance. 9) The draft versions of the open and closed session minutes that the Board provided to this office indicate that the Board entered closed session pursuant to section 2(c)(4) of OMA. This section allows a public body to go into closed session to consider \"[e]vidence or testimony presented in open hearing, or in closed hearing where specifically authorized by law, Pastor Marvin Hightower The Honorable Carl Bishop November 21, 2017 Page 8 to a quasi-adjudicative body, as defined in this Act, provided that the body prepares and makes available for public inspection a written decision setting forth its determinative reasoning.\" 10) There is no indication that, under the law or a Village ordinance, a Board member's comments could be subject to an adjudicatory or quasi-adjudicatory process by the Board. Moreover, during its closed session discussion, the Board acted as a legislative body rather than a quasi-adjudicative body. Therefore, section 2(c)(4) of OMA did not authorize the Board's closed session discussion. Accordingly, the Board violated section 2(a) of OMA by discussing the Board member's comments in closed session. In accordance with these findings of fact and conclusions of law, the Board is directed to remedy this violation by disclosing to Pastor Hightower and making publicly available the verbatim recording of the closed session portion of its August 8, 2017, meeting. As required by section 3.5(e) of OMA, the Board shall either take necessary action as soon as practical to comply with the directives of this opinion, or shall initiate administrative review under section 7.5 of OMA (5 ILCS 120/7.5 (West 2016). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS $/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Pastor Marvin Hightower as defendants. See 5 ILCS 120/7.5 (West 2016). Very truly yours, LISA MADIGAN ATTORNEY GENERAL Michael J. Luke Counsel to the Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 17-013) upon: Pastor Marvin Hightower Liberty Church of Peoria President, Peoria NAACP P.O. Box 6002 Peoria, Illinois 61601 Hmarvin864@gmail.com The Honorable Carl Bishop Mayor Village of Mapleton 8524 West Main Street Mapleton, Illinois 61547 mapletonclerk@live.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on November 21, 2017. A thaad 2 Catt SARAH L. P T Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62706 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A Village Board member made racist comments at a public meeting, causing backlash. The Board then held a closed session to discuss that member's conduct, claiming it was about evidence or testimony. The Attorney General said that discussion was not allowed in closed session because it was about the member's conduct, not evidence or testimony, so the Board broke the Open Meetings Act.","card_headline":"Closed-session discussion of a board member's conduct","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":94,"orig_master_id":19295,"dup_master_id":19068,"dup_sha256":"068ba8742a98f57728d70e7420b5f5d98207b1ac371742331ebe06798c0682ab","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2017,"date_issued":"2017-12-20","case_number":"2017 PAC 49554","request_numbers":null,"title":"Purpose of Request Invalid Basis On Which to Withhold Public Records","filename":"PUBLIC ACCESS OPINION 17-014 (Request for Review - 2017 PAC 49554).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 17-014 (Request for Review - 2017 PAC 49554).pdf","word_count":2391,"summary":"Attorney General Lisa Madigan issued a binding PAC opinion finding that McLean County violated FOIA by improperly denying Diane Benjamin's request for records, using the purpose of the request as an improper basis for withholding.","plain_summary":"The requester, a local news outlet, sought a log of FOIA requests filed with the county clerk's office and the county's responses over an eight-week period, and the county denied the request in its entirety, arguing it did not serve FOIA's purpose because it sought information about other requesters rather than about government conduct. The Public Access Counselor held that FOIA does not allow a public body to deny a request based on its view of the requester's purpose, apart from fee-waiver or commercial-purpose determinations, though the county could redact other requesters' identifying information to protect their privacy. The county was directed to produce the requested log.","holding":"McLean County violated FOIA by using the requester's purpose as an improper basis to deny access to public records.","legal_question":"Whether a public body may deny a FOIA request on the basis of the requester's stated purpose for seeking the records.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140, 5 ILCS 140/1, 5 ILCS 140/3, 5 ILCS 140/2(c), 5 ILCS 140/8, 125 ILCS 140/1, 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"McLean County","requesting_party":"Benjamin and Ms. Walley","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"FOIA requests","subject_description":"The requester sought copies of previous FOIA requests and responses handled by the County Clerk's office.","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2017-Binding-PAC-Opinions/17-014.pdf","sha256":"76649da735a36663a011fc65f2ed5ed88d92ae823c4f456b64a772acb2b76bba","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA request","denial of records","requester purpose","public records"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan A'I\"I'ORNEY GENERAL December 20, 2017 PUBLIC ACCESS OPINION 17-014 Request for Review 2017 PAC 49554) FREEDOM OF INFORMATION ACT: Purpose of Request Invalid Basis On Which to Withhold Public Records Ms. Diane Benjamin Bloomington Normal News 27248E 1100 North Rd Ellsworth, Illinois 61737 Ms. Samantha Walley Assistant State's Attorney, Civil Division McLean County State's Attorney' s Office 115 East Washington Street Bloomington, Illinois 61701 Dear Ms. Benjamin and Ms. Walley: This is a binding opinion issued by the Attorney General pursuant to section 9.5( f) ofthe Freedom ofInformation Act ( FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that McLean County ( County) violated the requirements of FOIA by improperly denying Ms. Diane Benjamin' s FOIA request. On September 6, 2017,1 Ms. Benjamin, on behalfofBloomington Normal News, submitted a FOIA request to the County seeking \"[ a]ll FOIA requests filed and the County responses for information from the County Clerk['] s office in the last 8 weeks. ( from yesterday).i2 Later that same day, Assistant State's Attorney Samantha Walley, responding on behalfofthe County, denied the request in its entirety, stating that the request did \"not meet the Ms. Benjamin's Request for Review states she filed her FOIA request on September 9, 2017, and that it wasdenied hours later. However, the County's response is dated September 6, 2017, and Ms. Benjamin' s Request for Review was sent via e-mail to the Public Access Bureauon September7, 2017. Accordingly, itappears that Ms. Benjamin'sreference to September 9 was ascrivener's error. 2E -mail to McLean County FOIA Requests from binnews@yahoo. com ( September 6, 2017). 500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: (877) 844- 5461 • Fax: ( 217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806 601 South University Avenue, Suite 102, Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675- 9339 • Fax: (618) 529-6416 Ms. Diane Benjamin Ms. Samantha Walley December 20, 2017 Page 2 purpose and intent of [FOIA].i3 On September 7, 2017, Ms. Benjamin submitted a Request for Review to the Public Access Bureau, asserting that the denial was improper.4 On September 14, 2017, the Public Access Bureau forwarded a copy ofthe Request for Review to the County. The letter noted that the County denied the FOIA request in its entirety because it did not believe that the request met the purpose and intent of FOIA. The letter also explainedthat, pursuant to section 9.5(d) ofFOIA (5 ILCS 140/9.5( d) (West 2016)), the County could provide an answerto the allegations set out in the Request for Review.5 On September 22, 2017, the Public Access Bureau received the County' s answer to the allegation that its denial was improper.\" Citing section 1 ofFOIA ( 5 ILCS 140/ 1 ( 2016)) and Chicago Alliance for Neighborhood Safety v. City ofChicago, 348 I11. App. 3d 188 ( 2004), the County argued that the public policy underlying FOIA is to provide citizens with information concerning government, not to allow persons to obtain information about private individuals seeking access to government information. The County also asserted that \"Ms. Benjamin is attempting to manipulate the Act in an effort to obtain information about her fellow citizens that her neighbors may not wish her to have.\" s On September 27, 2017, the Public Access Bureau sent a copy ofthe County's answer to Ms. Benjamin and provided her with an opportunity to reply to the County' s response. 9 Ms. Benjamin did not reply. On November 3, 2017, this office extended the time within which E-mail to Diane Benjamin from Samantha Walley, Assistant State's Attorney — Civil Division, McLean County State's Attorney'sOffice (September 6, 2017). E-mail from Diane Benjamin, Bloomington Normal News, to Public Access [ Bureau, Office of the Attorney General] ( September 7, 2017). Letterfrom Sarah L. Pratt, Public Access Counselor, Office ofthe Attorney General, to Samantha Walley, Assistant State's Attorney, Civil Division, McLean County State'sAttorney's Office (September 14, 2017). 6Letterfrom Samantha M. Walley, Assistant State's Attorney —C ivil Division, McLean County State's Attorney' s Office, to Sarah Pratt, Public Access Counselor, Office ofthe Attorney General ( September 20, 2017). Letter from Samantha M. Walley, Assistant State's Attorney — Civil Division, McLean County State's Attorney's Office, to Sarah Pratt, Public Access Counselor, Office ofthe Attorney General ( September 20, 2017), at 1- 2. 6Letterfrom Samantha M. Walley, Assistant State's Attorney —C ivil Division, McLean County State's Attorney' s Office, to Sarah Pratt, Public Access Counselor, Office ofthe Attorney General ( September 20, 2017), at2. Letter from Sarah L. Pratt, Public Access Counselor, Office ofthe Attorney General, to Diane Benjamin ( September 27, 2017). Ms. Diane Benjamin Ms. Samantha Walley December 20, 2017 Page 3 to issue a binding opinion by 30 business days, to December 20, 2017, pursuant to section 9.5(f) of FOIA. ' ° ANALYSIS It is a fundamental obligation ofgovernment to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/ 1 ( West 2016). Under section 1. 2 ofFOIA (5 ILCS 140/1. 2 ( West 2016)), \"[ a] ll records in the custody or possession ofa public body are presumed to be open to inspection or copying.\" Section 3( a) of FOIA ( 5 ILCS 140/3( a) ( West 2016)) provides that \"[ e] ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 ofthis Act.\" As noted above, the County did not rely on a specific exemption in section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2016), as amended by Public Acts 100-026, effective August 4, 2017; 100-201, effective August 18, 2017) as a basis for its denial ofthe request. Instead, the County denied the request on the basis that the purpose ofthe request does not comport with the public policy behind FOIA. The public policy behind FOIA is stated in section 1 ofthe statute, which provides, in part: Restraints on access to information, to the extent permitted by this Act, are limited exceptions to the principle that the people ofthis State have a right to full disclosure of information relating to the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct ofgovernment and the lives ofany or all ofthe people. The provisions ofthis Act shall be construed in accordance with this principle. The language in section 1 ofFOIA is broad and provides, as cited above, that \"all records are presumed to be open to inspection and copying\" and a public body must make public records available to \"anyperson.\" ( Emphasis added.) Further, section 3( c) ofFOIA ( 5 ILCS 140/ 3(c) ( West 2016)) expressly provides that \"[ a] public body may not * * * require the requester to specify the purpose for a request, except to determine whether the records are requested for a commercial purpose or whetherto grant arequest for afee waiver.\" Neither afee waiver nor a request for a commercial purpose are at issue here. Just as FOIA prohibits a public 10Letter from Sarah L. Pratt, Public Access Counselor, Office ofthe Attorney General, to Diane Benjamin and Samantha Walley, Assistant State's Attorney; Civil Division, McLean County State's Attorney's Office (November 3, 2017). Ms. Diane Benjamin Ms. Samantha Walley December 20, 2017 Page 4 body from requiring a requester to specify a reason for requesting records, except in the limited circumstances involving a fee request or acommercial request, the statute does not contain a provision allowing a public body to deny a FOIA request based on what it believes the underlying pu [...] held that names and addresses could be redacted because disclosure \" would constitute a clearly unwarranted invasion ofpersonal privacy.i13 Chicago Alliance, 348 Ill. App. 3d at 213. Based on the specific issue that the Court was addressing, the language from Chicago Alliance on which the County relies14 pertained to whether redactions ofrequesters' names and addresses was proper. Under the reasoning ofChicago Alliance, the County could appropriately protect the privacy ofindividual requesters by redacting identifying information. Chicago Alliance does not provide support for the County's position that FOIA requests and responses are exempt from disclosure in their entireties. Based on the foregoing, this office concludes that the County violated FOIA by improperly denying Ms. Benjamin' s September 6, 2017, FOIA request in its entirety. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On September 6, 2017, Ms. Diane Benjamin, on behalf ofBloomington Normal News, submitted a FOIA request to McLean County seeking \"[ a]ll FOIA requests filed and the County responses for information from the County Clerk['] s office in the last 8 weeks. from yesterday).\" 2) The County denied Ms. Benjamin's FOIA request in its entirety on September 6, 2017, asserting that the request did not fit within the purpose and intent ofFOIA. 3) On September 7, 2017, Ms. Benjamin submitted a Request for Review to the Public Access Bureau, asserting that the denial was improper. Ms. Benjamin's Request for Review was timely filed and otherwise complies with section 9.5( a) of FOIA (5 ILCS 140/9.5( a) West 2016)). 125 ILCS 140/1 etseq. (West2000). The specific exemption applied to \"[ i]nformation that, ifdisclosed, would constitute a clearly unwarranted invasion ofpersonal privacy.\" 5 ILCS 140/7( 1)( b) ( West 2000). The current version ofthat provision exempts \"[ p]ersonal information contained within public records, the disclosure ofwhich would constitute a clearly unwarranted invasion ofpersonal privacy, unless the disclosure is consented to in writing by the individual subjects ofthe information.\" 5 ILCS 140/7( 1)( c) ( West 2016), as amended by Public Acts 100-026, effective August 4, 2017; 100-201, effective August 18, 2017. T]hecore purpose ofthe FOIA is to expose whatthe government is doing, not what its private citizens are upto.' ChicagoAlliance, 348 111. App. 3dat 212 (quoting Lakin Law Firm, P.C., v. Federal Trade Commission, 352 F.3d 1122, 1124 ( 7th Cir. 2003)). Ms. Diane Benjamin Ms. Samantha Walley December 20, 2017 Page 6 4) On September 14, 2017, the Public Access Bureau forwarded a copy ofthe Request for Review to the County and explained that, pursuant to section 9.5( d) ofFOIA, the County could answer the allegations set out in the Request for Review. 5) On September 22, 2017, the Public Access Bureau received the County' s answer. In its answer, the County argued that Ms. Benjamin' s request was properly denied because the public policy underlying FOIA is to provide citizens with information concerning government, not to allow persons to obtain information about private individuals seeking access to government information. 6) On September 27, 2017, the Public Access Bureau sent a copy ofthe County' s answer to Ms. Benjamin. Ms. Benjamin did not reply. 7) OnNovember 3, 2017, this office extended the time within which to issue a binding opinion by 30 business days, to December 20, 2017, pursuant to section 9.5( f) ofFOIA. Therefore, the Attorney General may properly issue abinding opinion with respect to this matter. 8) Section 3( a) ofFOIA provides that \"[ e] ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 ofthis Act.\" 9) It is undisputed that the records sought by Ms. Benjamin in her September 6, 2017, FOIA request to the County are \"public records.\" 10) The County did not assert a statutory exemption as the basis for denying the FOIA request. 11) The Chicago Alliance case, cited by the County, provides support for the County to redact information identifying the FOIA requesters, such as their names and addresses. Chicago Alliance, however, does not support the County' s decision to withhold the FOIA requests and responses in their entireties. Therefore, it is the opinion ofthe Attorney General that McLean County violated section 3( a) ofFOIA by not providing copies ofthe requested public records. Accordingly, the County is directed to take immediate and appropriate action to comply with this opinion by furnishing Ms. Benjamin with all records responsive to her September 6, 2017, FOIA request, subject only to permissible redactions under section 7 ofFOIA. Ifthe County determines that any portion ofthe responsive records is exempt from disclosure under section 7, the County is Ms. Diane Benjamin Ms. Samantha Walley December 20, 2017 Page 7 directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA ( 5 ILCS 140/9(a) ( West 2016)). 15 This opinion shall be considered a final decision ofan administrative agency for the purposes ofadministrative review under the Administrative Review Law. 735 ILCS 5/3- 101 et seq. ( West 2016). An aggrieved party may obtainjudicial review ofthe decision by filing a complaint for administrative review with the Circuit Court ofCook or Sangamon County within 35 days ofthe date ofthis decision naming the Attorney General of Illinois and Ms. Diane Benjamin as defendants. See 5 ILCS 140/11. 5 ( West 2016). Sincerely, LISA MADIGAN ATTORNEY GENERAL By: Michael J. Luke Counsel to the Attorney General Because the County did not comply with the statutory requirements forresponding to Ms. Benjamin's FOIA request, section 3(d) ofFOIA precludes the County from treating the request as unduly burdensome or imposing copying fees for responsive records. CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy ofthe foregoing Binding Opinion ( Public Access Opinion 17- 014) upon: Ms. Diane Benjamin Bloomington Normal News 27248 East 1100 North Road Ellsworth, Illinois 61737 blnnews@yahoo.com Ms. Samantha Walley Assistant State' s Attorney, Civil Division McLean County State's Attorney' s Office 115 East Washington Street, Room 401 Bloomington, Illinois 61702 samantha.walley@mcleancountyil. gov by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on December 20, 2017. SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office ofthe Attorney General 500 South Second Street Springfield, Illinois 62701 217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Diane Benjamin requested copies of FOIA requests and responses from the McLean County Clerk's office, but the County denied the request because they disapproved of her purpose for seeking the information. The Attorney General ruled that under Illinois law, a public body cannot deny a FOIA request based on the requester's stated purpose or identity. Consequently, the County was ordered to provide the requested records.","card_headline":"Previous FOIA requests and responses from a county clerk's office","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":95,"orig_master_id":19296,"dup_master_id":19069,"dup_sha256":"d25c69502cc402ef1394db0db39418f703936e198c80b25e60d7d443cfeae4b8","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2018,"date_issued":"2018-01-23","case_number":"2017 PAC 49999","request_numbers":null,"title":"Disclosure of Information in Village President's Resignation Letter","filename":"PUBLIC ACCESS OPINION 18-001 (Request for Review - 2017 PAC 49999).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 18-001 (Request for Review - 2017 PAC 49999).pdf","word_count":3117,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a Freedom of Information Act (FOIA) request for an unredacted resignation letter from the Village of Hudson's former president. The opinion concludes that the Village improperly redacted information from the requested document.","plain_summary":"The requester, a radio reporter, sought an unredacted copy of a departing village president's resignation email, and the village withheld several lines of the email, first citing the deliberative-process exemption and later also an exemption for employee-grievance adjudications. The Public Access Counselor held that the redacted text reflected the president's own final, already-made decision to resign rather than an ongoing predecisional deliberation, and that nothing indicated the email related to a formal grievance or disciplinary adjudication. The village was directed to disclose the resignation email in full.","holding":"The Village of Hudson violated FOIA by improperly redacting information from the resignation letter.","legal_question":"Did the Village of Hudson violate the Freedom of Information Act by redacting information from the resignation letter?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Village of Hudson","requesting_party":"Ms. Judith Valente (WGLT Radio)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request concerned the disclosure of an unredacted resignation letter submitted by a former Village President.","ocr_status":"ok","ocr_quality":90.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2018-Binding-PAC-Opinions/18-001.pdf","sha256":"5845256e145674b4c693b3e32c032bdaa8a3660a8c0c996880e1f3d30e87cf7c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["resignation letter","redaction","personnel records","FOIA request"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLENOIS\nLisa Madigan\nATTORNEY GENERAL\nJanuary 23, 2018\nPUBLIC ACCESS OPINION 18-001\n(Request for Review 2017 PAC 49999)\nFREEDOM OF INFORMATION ACT:\nDisclosure of Information in Village\nPresident's Resignation Letter\nMs. Judith Valente\nSenior Correspondent\nWGLT Radio\nCampus Box 8910\nIllinois State University\n[street address redacted for site publication -- see original PDF]\nMs. Sara Hill\nFOIA Officer\nVillage of Hudson\nP.O. Box 221\n109 Front Street\nHudson, Illinois 61748\nDear Ms. Valente and Ms. Hill:\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/0.5(f) (West 2016)). For the reasons\ndiscussed below, this office concludes that the Village of Hudson (Village) violated the\nrequirements of FOIA by improperly redacting information from an e-mail provided in response\nto Ms. Judith Valente’s October 4, 2017, FOIA request.\n500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 * TT: (877) 844-3461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Hlinois 60601 * (312) 814-3000 + TTY: (800) 964-3013 * Fax: (312) 814-3806\n601 South University Avenue, Suite 102, Carbondale, Hingis 62001 * (618) 529-6400 + TTY: (877) 675-9339 + Fax: {618) 529-6416 - On October 20, 2017, the Village submitted a written response to the Request for\nReview and furnished this office with an unredacted copy of the responsive record.® In its\nwritten response, the Village asserted that the redacted information was exempt from disclosure\nunder both section 7(1}(n) (5 ILCS 140/7(1}\\(n) (West 2016), as amended by Public Acts 100-\n026, effective August 4, 2017; 100-201, effective August 18, 2017), and section 7(1\\(f of\nFOIA.” On October 24, 2017, the Public Access Bureau forwarded a copy of the Village's\n‘Letter from Judith Gudy) Valente to [Allison] Brutlag (October 4, 2017).\n*Letter from Sarah Hi, FOIA Officer, Village of Hudson, to Judith Valente, WGLT Radio\n(October 6, 2017).\n3E-mail from the Public Access [Bureau], [Office of the Attorney General], to Judith Valente\n(October 10, 2017). :\n‘E-mail from Judith Valente, Senior Correspondent, GLT Radio, to Public Access Counselor,\n[Office of the Attorney General] (October 9, 2017); E-mail from Judith Valente, Senior Correspondent, GLT Radio,\nto Public Access [Bureau, Office of the Attorney General] (October 10, 2017).\n+Letter from Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the\nAttommey General, to Sara[ ] Hill, FOIA Officer, Village of Hudson (October 12, 2017).\n‘E-mail from Sara Hill to Public Access Counsel (October 20, 2017).\n7E-mail from Sara Hill to Public Access Counsel (October 20, 2017).\nMs. Judith Valente\nMs. Sara Hill\nJanuary 23, 2018\nPage 3\nresponse to Ms. Valente.’ She did not reply. On December 7, 2017, this office extended the\ntime within which to issue a binding opinion by 30 business days, to January 24, 2018, pursuant\nto section 9.5(f) of FOIA.\nANALYSIS\n\"Tt is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with [FOIA].” 5 ILCS\n140/1 (West 2016). \"All records in the custody or possession of a public body are presumed to\nbe open to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2016). “To meet this burden, the public body must provide a detailed justification\nfor its claim of exemption, addressing the requested documents specifically and in a manner\nallowing for adequate adversarial testing.\" Peoria Journal Star v. City of Peoria, 2016 IL App\n(3d) 140838, 912, 52 N.E.3d 711, 713-14 (2016). Further, the exemptions from disclosure\ncontained in section 7 of FOIA (5 ILCS 140/7 (West 2016), as amended by Public Acts 100-026,\neffective August 4, 2017; 100-201, effective August 18, 2017) are to be narrowly construed. See\nLieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997).\nThe record at issue is a one-page e-mail, dated May 3, 2017, from Jason Collins,\nthe former President of the Village, to the Village Trustees and the Village Clerk at their Village\ne-mail addresses. In his e-mail, Mr. Collins wrote that he had “decided * * * to resign as Village\nPresident.\"!° In the paragraph following that statement, the Village redacted approximately three\nlines of text (a portion of one sentence) prior to furnishing a copy of the e-mail to Ms. Valente.\nIn its written response to this office, the Village explained:\nWe propose that the redacted information is exempt from\ndisclosure in that it relates to a public body's adjudication of\nemployee grievances and is thus exempt under subsection (n) of\nSection 7 of the Illinois FOIA. Additionally, we propose that it is\na record in which an opinion is expressed that is not the final\n®Letter from Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Judith Valente, Senior Correspondent, WGLT Radio (October 24, 2017).\nLetter from Leah Bartelt, Assistance Attorney General, Public Access Bureau, Office of the\nAttorney General, to Judith Valente, Senior Correspondent, WGLT Radio, and Sara Hill, FOIA Officer, Village of\nHudson (December 7, 2017}.\nE-mail from Jason Collins te Betty Scanlon, Phil Morris, Pat O'Grady, Allison Brutlag, Caleb\nPost, Alan Meissner, and Kerry Tudor (May 3, 2017).\nMs. Judith Valente\nMs. Sara Hill\nJanuary 23, 2018\nPage 4\npolicy of the Village of Hudson and is thus exempt under\nsubsection (f) of Section 7 of the Hlinois FOIA. If you have any\nfurther questions, we would refer you to Village Attorney Trygve\nMeadef.JUU\nSection 7(1)() of FOIA\nSection 7(1}() exempts from inspection and copying \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption applies to \"inter- and intra-agency predecisional and deliberative\nmaterial,\" Harwood v. McDonough, 344 lll. App. 3d 242, 247 (1st Dist. 2003). Based on the\ndeliberative process exemption in Federal FOIA,\" section 7(1)(f) is “intended to protect the\ncommunications process and encourage frank and open discussion among agency employees\nbefore a final decision is made.” Harwood, 344 Ill. App. 3d at 248.\nGiven the purpose of section 7(1)(D, its protections extend only to “the opinions\nthat public officials form while creating government policy. It does not protect factual material\nor final agency decisions.” (Emphasis added.) Kalven v. City of Chicago, 2014 IL App (ist)\n121846, 924, 7 N.E.3d 741, 747-48 (2014). \"Thus, in order to qualify for the privilege, a\ndocument must be both predecisional in the sense that it is actually [a]ntecedent to the adoption\nof an agency policy, and deliberative in the sense that * * * it is ‘actually *** related to the\nprocess by which policies are formulated.” (Omission in original.) Dumke v. City of Chicago,\n2013 IL App (ist) 121668, 914, 994 N_E.2d 573, 578-79 (2013) (citing Enviro Tech\nInternational, Inc., v. United States Environmental Protection Agency, 37\\ F.3d 370, 374-75 (7th\nCir. 2004)); see also Kalven, 2014 IL App (Ist) 121846, 924, 7 N.E.3d (quoting Public Citizen,\nInc. v. Office of Management & Budget, 598 F.3d 865, 876 (D.C. Cir. 2010) (holding that section\n7(1)(f) extends only to materials that “reflect the give and take of the deliberative, process[.]\"\");\nCoastal States Gas Corp, v. Department ofE nergy, 617 F.2d 854, 868 (D.C. Cir 1980) (a public\nbody that asserts the deliberative process exemption \"has the burden of establishing what\ndeliberative process is involved, and the role played by the documents in issue in the course of\nthat process.\").\n‘E-mail from Sara Hill to Public Access Counsel (October 20, 2017).\nExemption 5 of Federal FOIA (5 U.S.C. § $52(b)(5) (2012) applies to “inter-agency or intra-\nagency memorandums or letters that would not be available by law to a party other than an agency in litigation with\nthe agency[.]\"\nMs. Judith Valente\nMs. Sara Hill\nJanuary 23, 2018\nPage 5\nIn its response to this office, the Village argued that the redacted material is\nexempt from disclosure pursuant to section 7(1}(f) because “it is a record in which an opinion is\nexpressed that is not the final policy of the Village of Hudson[.]\"\" This office has reviewed the\nunredacted copy of the record furnished by the Village. Although the redacted portion of Mr.\nCollins’ e-mail may reflect his opinion concerning the circumstances behind his decision to\nresign, that opinion was not expressed as part of a deliberative or decision-making process.\nRather, as explained above, Mr. Collins sent the e-mail to announce his resignation. The e-mail\nrepresents his final decision about his tenure as Village President. A communication that reflects\na final decision is not part of a predecisional, deliberative process. State Journal-Register v.\nUniversity of Illinois Springfield, 2013 IL App (4th) 120881, (31, 994 N.E.2d 705, 714 (2013).\nMr. Collins’ e-mail also was not part of the \"give-and-take of the deliberative\nprocess\" concerning a policy matter. Instead, it was a single communication which announced\nand explained his resignation and, in doing so, included his comments on the conduct of Village\nbusiness, As stated above, a public body that withholds or redacts information pursuant to one of\nthe FOIA exemptions has the burden of providing \"a detailed justification for its claim of\nexemption, addressing the requested documents specifically and in a manner allowing for\nadequate adversarial testing.\" Peoria Journal Star, 2016 IL App (3d) 140838, 412, 52 N.E.3d at\n713-14. Based on the specific facts of this e-mail, this office concludes that the Village has not\nsustained its burden of demonstrating that the lines redacted from Mr. Collins’ resignation e-mail\nare exempt from disclosure pursuant to section 7(1)(H of FOIA. :\nSection 7(1)(n) of FOTIA\nThe Village also asserted that the redacted section of the e-mail could be withhold\npursuant to section 7(1)(n), which exempts from disclosure \"[rJecords relating to a public body's\nadjudication of employee grievances or disciplinary cases; however, this exemption shall not\nextend to the final outcome of cases in which discipline is imposed.” The Illinois Appellate\nCourt has construed an \"adjudication\" for purposes of section 7{1)(n) as a “formalized legal\nprocess that results in a final and enforceable decision.\" Kalven, 2014 IL App. (ist) 121846,\n4/13, 7 N.E.3d at 745. Further, the court emphasized that \"[t]he phrase ‘related to' must be read\nnarrowly,\" and held that the scope of section 7(1)(n) is limited to records generated during an\nadjudication, and does not encompass records of any underlying investigation that may have\npreceded the adjudication. Kafven, 2014 IL App. (ist) 121846, §22, 7 N.E.3d at 747; see also Tl.\nAtt'y Gen. Pub. Acc. Op. No. 13-011, issued June 11, 2013, at 8 (distinguishing adjudicatory\nrecords that are exempt from disclosure under section 7(1)(n) from investigatory records that are\nnot).\nSBE-mail from Sara Hill to Public Access Counsel (October 20, 2017).\nMs. Judith Valente\nMs. Sara Hill\nJanuary 23, 2018\nPage 6\nIn arguing that the redacted information relates to the Village's adjudication of\nemployee grievances, the Village has not identified an ongoing or contemplated grievance,\ncomplaint, or disciplinary action that was or would be adjudicated. Based on our confidential\nreview of the unredacted record provided by the Village, the record in question does not appear\nto have been generated during any formalized legal proceeding that could be considered an\n“adjudication.” The e-mail does not refer to any formal proceedings related to employee\ngrievances. The text of the e-mail indicates that it was created and sent for the purpose of\neffecting Mr. Collins’ resignation and explaining his reasons for that resignation. Accordingly,\nthis office concludes that the Village has not sustained its burden of demonstrating by clear and\nconvincing evidence that the redacted information is exempt from disclosure under section\n7(1)(n) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the available information,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On October 4, 2017, Ms. Judith Valente, on behalf of WGLT Radio, submitted\na FOIA request to the Village of Hudson seeking \"an unredacted copy of the resignation letter\nhanded in by former Village President Jason Collins.” :\n2) On October 6, 2017, the Village provided Ms. Valente with a copy of Mr.\nCollins' resignation e-mail but redacted several lines of text in the e-mail pursuant to section\n7(1)@) of FOIA.\n3) On October 10, 2017, Ms. Valente submitted all of the materials required for\nthis Request for Review and contested the Village's redaction of the responsive e-mail. The\nRequest for Review was timely filed and otherwise complies with section 9.5(a) of FOIA (5\nILCS 140/9.5(a) (West 2016).\n4) On October 12, 2017, the Public Access Bureau sent a copy of the Request for\nReview to the Village and asked it to provide for this office's confidential review an unredacted\ncopy of the e-mail furnished to Ms. Valente, together with a written response to Ms. Valente's\nallegation, including the factual and legal bases for the assertion of section 7(1)() of FOIA with\nrespect to the redacted portions of the e-mail.\n5) On October 20, 2017, the Village responded, providing an unredacted copy of\nthe e-mail responsive to the request, and asserting that the redacted section of the e-mail is\nexempt from disclosure pursuant to sections 7(1)(f) and 7(1)(n) of FOIA.\nMs. Judith Valente .\nMs. Sara Hill\nJanuary 23, 2018\nPage 7\n6) On October 24, 2017, the Public Access Bureau forwarded a copy of the\nVillage's written response to Ms. Valente. She did not reply to that response.\n7) On December 7, 2017, this office extended the time within which to issue a\nbinding opinion by 30 business days, to January 24, 2018, pursuant to section 9.5() of FOIA.\nTherefore, the Attorney General may properly issue a binding opinion with respect to this matter.\n8) Section 7(1)(f) of FOIA exempts from inspection and copying \"[p|reliminary\ndrafts, notes, recommendations, memoranda and other records in which opinions are expressed,\nor policies or actions are formulated{.]” In order to fall within the scope of section 7(1}(f, a\ndocument must be both predecisional and deliberative, in that it must be actually related to the\nprocess by which a public body formulates action.\n9) Although the redacted information may be characterized as an opinion of the\nformer Village President concerning the circumstances related to his resignation, there is no basis\nin the e-mail or in any other information available to this office to conclude that the statement\nwas made in the context of a predecisional, deliberative process. The e-mail expresses the\nPresident's decision to resign and conveys that decision to other elected Village officials.\nConsequently, this office concludes that the Village has not met its burden of demonstrating that\nthe redacted information is exempt from disclosure pursuant to section 7(1)( of FOTA.\n10) Section 7(1(n) of FOIA exempts from disclosure \"[r]ecords relating to a\npublic body's adjudication of employee grievances or disciplinary cases[.]” The Illinois\nAppellate Court has construed “adjudication” for purposes of section 7(1)(n) as a “formalized\nlegal process that results in a final and enforceable decision.”\n11) The information provided by the Village does not indicate that the President's\nresignation related to an ongoing adjudication of employee grievances. Accordingly, this office\nconcludes that the Village has not met its burden of demonstrating that the redacted information\nis exempt from disclosure pursuant to section 7(1)(n).of FOIA.\n\" Therefore, it is the opinion of the Attorney General that the Village's response to\nMs, Valente's Freedom of Information Act request violated the requirements of FOIA.\nAccordingly, the Village is directed to take immediate and appropriate action to comply with this\nopinion by disclosing to Ms. Valente an unredacted copy of Mr. Collins’ May 3, 2017,\nresignation e-mail.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a\nMs. Judith Valente\nMs. Sara Hill\nJanuary 23, 2018\nPage 8\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days of the date of this decision naming the Attorney General of Hlinois and Ms. Judith\nValente as defendants. See 5 ILCS 140/11.5 (West 2016).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\ntte eel F ban fie\nMichael J. Luke :\nCounsel to the Attorney General\ncc. Mr. Trygve Meade\nVillage Attorney\nMeade Law Office, P.C.\n3106 North Main Street\nCanton, Hlinois 61520\nCERTIFICATE OF SERVICE\nSarah L. Pratt, Public Access Counselor, hereby certifies that she has served a\ncopy of the foregoing Binding Opinion (Public Access Opinion 18-001) upon:\nMs. Judith Valente\nSenior Correspondent\nWGLT Radio\nCampus Box 8910\nIllinois State University\nNormal, Illinois 61790\njavalen@ilstu.edu\nMs. Sara Hill\nFOIA Officer\nVillage of Hudson\nP.O. Box 221\n109 Front Street\nHudson, Illinois 61748\nsara.hill@hudsonil.org\nMr. Trygve Meade\nVillage Attorney\nMeade Law Office, P.C.\n3106 North Main Street\nCanton, Illinois 61520\ntrygve@meadelawpc.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Springfield, [linois on January 23, 2018.\nee\nSARAH L. PRATT\nPublic Access Counselor\nSARAH L. PRATT\nPublic Access Counselor\nOffice of the Attorney General\n500 South Second Street\nSpringfield, Hlinois 62701\n(217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested an unredacted copy of a former Village President's resignation letter, but the Village redacted parts of it claiming it was exempt from disclosure. The Illinois Attorney General's Public Access Counselor reviewed the case and determined that the Village did not have a valid legal reason to hide that information. The Village was ordered to release the unredacted document to the requester.","card_headline":"A former village president's unredacted resignation letter","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":96,"orig_master_id":19070,"dup_master_id":19299,"dup_sha256":"1bde1232ab55a462329a12db72cad92f43299ddae99053ee4f4d10dbbb862b83","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2018,"date_issued":"2018-02-21","case_number":"2017 PAC 50370","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 18-003 (Request for Review - 2017 PAC 50370).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 18-003 (Request for Review - 2017 PAC 50370).pdf","word_count":2262,"summary":"The Attorney General issued a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) The opinion concludes that the City of East St. Louis violated section 3(d) of FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request .","plain_summary":"The requester sought records of a city official's meeting schedule over a four-month period, and although the city clerk forwarded the request to the city attorney and later to a new city attorney, the city never provided a substantive response despite months of calls and letters from the Public Access Bureau. The Public Access Counselor held that this prolonged failure to respond violated FOIA's requirement to comply, deny, or extend within five business days. The city was directed to produce the requested records, subject only to permissible redactions.","holding":"The City of East St. Louis violated section 3(d) of FOIA by failing to respond to the requester's FOIA request within the statutory timeframe.","legal_question":"Whether the City of East St. Louis violated section 3(d) of FOIA by failing to respond to a request for public records.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/3(g), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of East St","requesting_party":"Martin and Ms. Hoosman","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"duty to respond","subject_description":"The request sought meeting schedules and related correspondence for a city official.","ocr_status":"ok","ocr_quality":90.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2018-Binding-PAC-Opinions/18-003.pdf","sha256":"7bd6402fb4efdb05b24d083a585f25430a40f15d19e2a01ebdc16d26bad545ab","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","public records","city government"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL February 21, 2018 PUBLIC ACCESS OPINION 18-003 (Request for Review 2017 PAC 50370) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Kaley J. Martin Cyber-Path Integrated IT Solutions 28 South 87th, Suite 001 Belleville, Illinois 62223 The Honorable Dorene Hoosman City Clerk/FOIA Officer City of East St. Louis 301 River Park Drive East St. Louis, Illinois 62201 Dear Mr. Martin and Ms. Hoosman: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the City of East St. Louis (City) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2016)) by failing te comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Kaley J, Martin. BACKGROUND On October 26, 2017, Mr. Martin submitted a FOIA request to the City seeking copies of \"all records responsive to Courtney Logan's meeting schedule for the months of March 2016, April 2016, May 2016 and June 2016[,]\" specifying that the records should include \"correspondence and communication in regards to dates, time, place and who the meetings were 500 South Second Street, Springfield, IHinois 62706 * (217) 782-1090 + TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Mlinois 60601] * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806 601 South PIniversity Avenne Suite 167. Cerbondale Plnoic ATGOGL « (6123) 370-AgG # TTY: (2773 AT4_G310 « Fae (6IR\\SIODAAIA meme Mr. Kaley J. Martin The Honorable Dorene Hoosman February 21, 2018 Page 2 with[.]\"' Mr. Martin sent the request via e-mail to \"d.moore@cesl.us,\" which, according to the City's webpage,’ is the e-mail address of City Manager Daffney Moore, and to Mike Wagner, who, the City previously explained to this office in a separate, unrelated matter,? has served as the City Attorney.* Mr. Martin also copied, among others, City Clerk Dorene Hoosman on the request. On November 6, 2017, Mr. Martin e-mailed a Request for Review to the Public Access Bureau alleging that the City had failed to respond to his FOIA request.> On November 8, 2017, the Public Access Bureau forwarded a copy of the Request for Review to the City, together with a letter asking it to advise this office whether it had received and responded to Mr. Martin's FOIA request. If it had not yet responded to Mr. Martin, this office requested that the City do so and provide this office with a copy of the response.° The City did not respond to the Public Access Bureau's November 8, 2017, correspondence. . On November 21, 2017, Mr. Martin sent an e-mail to the Public Access Bureau stating that the City had not responded to his request.’ On November 22, 2017, an Assistant Attorney General (AAG)in the Public Access Bureau sent a letter to Clerk Hoosman, which inquired as to the status of the City's response.® Copies of the Request for Review and this office's November 8, 2017, letter were attached to the correspondence. The City did not respond to this letter. ‘E-mail from Kaley J. Martin, CYBER-PATH Integrated IT Solutions, to ‘Mike Wagner’ ; 'd.moore@cesl.us’ (October 26, 2017). *See East St. Louis City Hall, Departments, http://www.ces|.us/ (last visited January 17, 2018). >See Request for Review file No. 2017 PAC 45923. ‘E-mail from Dorene Hoosman to Laura Harter, Michael Hubbard, and ‘iwagnereswlawllp. com (February 3, 2017). : . 5E-mail from Kaley J. Martin, CYBER-PATH Integrated IT Solutions, to ATG Office (November 6, 2017). . . ‘Letter from Christopher R. Boggs, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to {Dorene] Hoosman, City Clerk/FOIA Offi cer, City of East St. Louis (November 8, 2017). 7E-mail from Kaley Martin to Barbara Yattoni, [Public Access Bureau, Office of the Attorney General] (November 21, 2017). . sos 5Letter from Christopher R. Boggs, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Dorene Hoosman, City Clerk/FOIA Officer, City of East St. Louis (November 22, 2017). Mr. Kaley J. Martin The Honorable Dorene Hoosman February 21,2018 - Page 3 On December 8, 2017, the AAG left a voicemail for Clerk Hoosman to check the status of the City’s response. Later that same day, Clerk Hoosman returned the call and explained that she forwards all FOIA requests from Mr. Martin to the City Attorney and that the City had provided Mr. Martin with the records he requested in response to a previous request. The AAG stated that the City was required to respond to this FOIA request, whether by providing responsive records or denying the request as an unduly burdensome repeated request under section 3(g) of FOIA (5 ILCS 140/3(g) (West 2016)). Clerk Hoosman stated that she would forward the request to the new City Attorney and that the City would respond to Mr. Martin by Monday, December 11, 2017.\" On January 2, 2018, the AAG left a voicemail with Clerk Hoosman asking about the status of the City's response. Clerk Hoosman did not respond. On January 3, 2018, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days, to February 21, 2018, pursuant to section 9.5(f) of FOIA.'© On January 10, 2018, the AAG contacted Clerk Hoosman and left a message with one of her office staff. In a return telephone call, Deputy City Clerk Christopher Powell explained that Clerk Hoosman would forward the matter to the new City Attomey.'' As of the issuance of this binding opinion, this office has not received a written response from the City or confirmation from Mr. Martin that he has received a response to his October 26, 2017, FOIA request.! ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2016). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) provides that \"[eJach °Telephone conversation between Christopher R. Boggs, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, and the Honorable Dorene Hoosman, City Clerk/FOIA Officer, City of East St. Louis (December 8, 2017). : ‘Letter from Christopher RK. Boggs, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Kaley Martin, and the Honorable [Dorene} Hoosman, City Clerk/FOIA Officer, City of East St. Louis (January 3, 2018). \"Telephone conversation between Christopher R. Boggs, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, and-Christepher Powell, Deputy cry Clerk,, City of East St. Louis (January 10, 2018). . in a Februa1r4y, 2018, telephone Conversation with an AAG, Mr. C.J. Baricevic, counsel for the City, stated that the City would provide Mr. Martin with a response to his FOLA request before February 21, 2018. Mr. Kaley J. Martin The Honorable Dorene Hoosman February 21, 2018 Page 4 public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further. provides: Each public body shall, promptly, either comply witho r deny a request for public records within 5 business days afteri ts receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as providedi n Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of-the requested public records may not impose a fee for such copies. A public body that fails te respond to a request received may not treat the request as unduly burdensome under subsection (g). The City did not respond to Mr. Martin's FOIA request within five business days after its receipt by either complying with his request, extending the time for its response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2016))o,r denying the request in writing. The City's failure to comply with the requisite procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due. consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attomey, General finds that: py On October 26, 2017, Mr. Kaley Martin submitted a FOIA request to the City of East St. Louis via e-mail seeking copieso f records concerning Courtney Logan's meeting schedule for the months of March 2016, April 2016, May 2016, and June 2016. Mr. Martin did not receive a response to his request, 2) On November 6, 2017, Mr. Martin submitted a Request for Review and asked - the Public Access Counselor and the Public Access Bureau to review the City's failure to respond to his FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9,.5(a} of FOIA (5 ILCS 140/9,S(a) (West 2016)). 3) On Noveniber 8, 2017; the Public ‘Access Bureau forwarded a copy of Mr. Martin's Request for Review to the City, and asked the Cify to advise this office whether it had ot Mr. Kaley J. Martin. . The Honorable Dorene Hoosman February 21, 2018 Page 5 responded to Mr. Martin's October 26, 2017, FOIA request. The City did not respond to» this office’ s inquiry. . 4) On November” , 2017, the Public Access Bureau sent a copy of the Request for Review and a letteri nquiring as to the status of the City's response. The City did not respond. 5) Ina December 8, 2017, telephone conversation with an AAG in the Public Access Bureau, Clerk Hoosman explained that she forwards all FOIA requests from Mr. Martin to the City Attorney and stated that the City had provided Mr. Martin with the records in response to a previous FOIA request. However, Clerk Hoosman stated that she would forward the request to the new City Attorney and that the City would respond to Mr. Martin by Monday, December 11, 2017. 6) On January 3, 2018, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(9 of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 7) On January 16, 2018, Mr. Martin confirmed to this office by telephone that the City had not responded to his request. . 8) As of the issuance of this binding opinion, this office has not received confirmation that the City has responded to Mr. Martin's request. Therefore, it is the opinion of the Attorney General that the City has violated section 3(d) of FOIA by failing to respond to Mr. Martin's request for public records as required by the Act. Accordingly, the City is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Martin with all records responsive to his October 26, 2017, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2016), as amended by Public Acts 100-026, effective August 4, 2017; 100-201, effective August 18, 2017).!> Ifthe City determines that any portion of the responsive records ii s exempt from disclosure under section 7, the Cityi s directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2016)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law, 735 ILCS 5/3-101 et seq. (West 2016). An aggrieved patty may obtain judicial review of the decision by filing a Because the City did not comply with the statutory requirements for zesponding to Mr. Martin's FOIA request, the Cityi s precluded fromm treating the request as unduly burdensome or imposing copying fees for the responsive records. Mr. Kaley J. Martin. The Honorable Dorene Hoosman February 21, 2018 Page 6 complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Hlinois and Mrr.. Kaley Martin as defendants. See 5 ILCS 140/11. 5.( West 2016). we . Sincerely, ; ‘LISAMADIGAN ATTORNEY GENERAL Michael J. Luke Counsel to the Attorney General cc: Mr: C.J. Baricevic Chatham & Baricevic 107 West Main Street Suite 1 Belleville, Hlinois 62220 CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 18-003) upon: Mr. Kaley J. Martin. Cyber-Path Integrated IT Solutions 28 South 87th, Suite 001 Belleville, Illinois 62223 kaleym@cyber-panteht The Honorable Dorene Hoosman City Clerk/FOIA Officer City of East St. Louis 301 River Park Drive East St. Louis, [linois 62201 dhoosm@cesl.us Mr. C.J. Baricevic Chatham & Baricevic 107 West Main Street, Suite 1 Belleville, [limois 62220 ¢j@chathamlaw.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on February 21, 2018. ud£ Watt SARAH L. PRATT ——— Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General $00 South Second Street Springfield, Illinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Kaley J. Martin requested meeting schedules and related communications for a city official from the City of East St. Louis. The City failed to provide any response to the request, which is a violation of the Freedom of Information Act. The Attorney General's office ruled that the City must comply with the law by responding to the request.","card_headline":"A city official's meeting schedules and related correspondence","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":97,"orig_master_id":19071,"dup_master_id":19300,"dup_sha256":"df0bb2ba088b9405eb3b375f0ec46fc1aae44ff0cc0a6538592a453ecaa7fd7b","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2018,"date_issued":"2018-02-14","case_number":"2017 PAC 50286","request_numbers":null,"title":"Disclosure of Names of Municipal Water Account Holders","filename":"PUBLIC ACCESS OPINION 18-002 (Request for Review - 2017 PAC 50286).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 18-002 (Request for Review - 2017 PAC 50286).pdf","word_count":2379,"summary":"Lisa Madigan: The City of Joliet violated the requirements of FOIA by redacting non-exempt information from the record furnished in response to Ms. Debbie Stuck's October 17, 2017, FOIA request . Ms. Stuck, on behalf of Troy Community Consolidated School District 30C, submitted a FOIA request to the City seeking a copy of the water 500 South Second Street, Springfield, Illinois .","plain_summary":"The requester, a school district checking who lived at a particular address, sought a copy of a specific water bill, and the city provided it but redacted the customer's name along with the mailing address and account number as private information. The Public Access Counselor held that a person's name is not among the \"unique identifiers\" that make information private under FOIA, and that because water bills document the city's receipt of public funds for utility services, the customer's name was independently subject to disclosure under FOIA's public-funds provision. The city was directed to disclose a copy of the bill showing the customer's name.","holding":"The City of Joliet improperly redacted the customer's name from the water bill, as the name does not qualify as 'private information' under section 7(1)(b) of FOIA.","legal_question":"Whether the names, mailing addresses, and account numbers of municipal water utility customers constitute 'private information' exempt from disclosure under section 7(1)(b) of FOIA.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(1), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/2, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"Registration Specialist Troy School District","requesting_party":"Stuck and Mr. Regis","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"exemption 7(1)(b)","subject_description":"The disclosure of municipal water utility customer account information.","ocr_status":"ok","ocr_quality":90.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2018-Binding-PAC-Opinions/18-002.pdf","sha256":"beedab732c70c0b63a8671f02e82bc2cf017158c3f8e5ccc0320927a32fa8152","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["private information","utility records","water bill","redaction"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL February 14, 2018 , PUBLIC ACCESS OPINION 18-002 (Request for Review. 2017 PAC 50286) FREEDOM OF INFORMATION ACT: Disclosure of Names of Municipal Water Account Holders Ms. Debbie Stuck . Registration Specialist Troy School District 30C 5800 West Theodore Street Plainfield, Illinois 60586 Mr. Christopher Regis Interim Corporation Counsel City of Joliet 150 West Jefferson Street Joliet, Hilinois 60432-4158 Dear Ms. Stuck and Mr. Regis: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the City of Joliet (City) violated the requirements of FOIA by redacting non-exempt information from the record furnished in response to Ms. Debbie Stuck's October 17, 2017, FOIA request. BACKGROUND On October 17, 2017, Ms. Stuck, on behalf of Troy Community Consolidated School District 30C (District), submitted a FOIA request to the City seeking a copy of the water 500 South Second Street, Springfield, Illinois 62706 © (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 »* Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondale, Illinois 6290] * (618) 529-6400 © TTY: (877) 675-9339 +* Fax: (618) 529-6416 <<&ip= Ms. Debbie Stuck Mr. Christopher Regis February 14, 2018 Page 2 bill associated with a specified address.' On October 19, 2017, the City furnished a copy of the requested water bill but redacted the customer's name, the customer's mailing address, and the account number as \"private information,\" citing section 7(1)(b) of FOIA (5 ILCS 140/7(1)(6) (West 2016), as amended by Public Acts 100-026, effective August 4, 2017; 100-201, effective August 18, 2017).2: The service address was not redacted from the bill. On October 30, 2017, the Public Access Bureau received a Request for Review from Ms. Stuck disputing the City's redaction of the name of the account holder.? The Request for Review indicates that the District utilizes FOIA \"to help discern who lives at a Troy school district address.\" On November 7, 2017, the Public Access Bureau sent a copy of the Request for Review to the City and asked it to provide an unredacted copy of the water bill for this office's confidential review together with a detailed explanation of the factual and legal bases for the applicability of section 7(1)(b) of FOIA to the redactions. On November 13, 2017, the City furnished the requested record and a written response.> On November 22, 2017, the Public Access Bureau forwarded a copy of the City's written response to Ms. Stuck.® Ms. Stuck replied on November 27, 2017, and reiterated that the District is contesting only the redaction of the customer's name from the bill.’ ‘Public Records Request submitted to City of Joliet by Debbie Stuck (October 17,2017):. 2E-mail from Christa M. Desiderio, City Clerk/FOIA Officer, city ¢C lerk's Office, [City of Joliet], to Debbie [Stuck] (October 19, 2017). 3E-mail from Debbie Stuck, Registration Specialist, Troy District Offifi ce, Troy School District 300], to Public Access [Bureau, Office of the Attorney General] (October 30, 2017). ‘Letter from Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Christa M. Desiderio, City Clerk/FOIA Officer, City of Joliet (November 7, 2017). This letter also asked for responses to three other Requests for Review submitted by Ms. Stuck which concer similar FOIA denials (file Nos. 2017 PAC 50294, 2017 PAC 50295, and 2017 PAC 50296); however, those matters are not addressedi n this opinion. | *Correspondence from Christopher Regis, Interim Corporation Counsel, City of Joliet, to Leah Bartelt, Assistant AttorneyG eneral (November 13, 2017). ‘Letter from Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Debbie Stuck, Registration Specialist, Troy School District 30C (November 22, 2017). Letter from Debbie Stuck, Registration Specialist, Troy CCSD 30C, to Leah Bartelt, Assistant Attorney General, Public Access Bureau (November 27, 2017). Ms. Debbie Stuck Mr. Christopher Regis February 14, 2018 Page 3 On December 29, 201 7, ‘the Public Access Bureau extended the time within which to issue a binding opinion in this matter by 30 business days, to February 14, 2018, pursuant to section 9.5(f) of FOIA.® ANALYSIS \"All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.” 5 ILCS 140/1.2 (West 2016). Section 3(a) of FOTIA (5 ILCS 140/3(a) (West 2016)) further provides: \"Each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.” The exemptions from disclosure contained in section 7 of FOIA are to be narrowly construed. See Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997). The record in question is a utility bill that the City sent to a customer for municipal water services. The City redacted the customer's name from the bill pursuant to section 7(1)(b) of FOIA, which exempts from disclosure \"[p]rivate information, unless disclosure is required by another provision of this Act, a State or federal law or a court order.\" Section 2(c- 5) of FOIA (5 ILCS 140/2(c-5) (West 2016)) defines.\"private information\" as: [U]nique identifiers, including a person's social security number, driver's license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person. In its response to this office, the City argued that \"[t]his information is private information within the definition of the statute, as it is personal financial information, as well as an individual's home address. In order to maintain corporate integrity, as well as protect the personal information of citizens, these redactions are necessary.\"” *Letter from Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Debbie Stuck, Registration Specialist, Troy School District 30C, and Christopher Regis, Interim Corporation Counsel, City of Joliet (December 29, 2017). Correspondence from Christopher Regis, Interim Corporation Counsel, City of Joliet, to Leah Bartelt, Assistant Attorney General (November 13, 2017). Ms. Debbie Stuck Mr. Christopher Regis February 14, 2018-_ Page4 = The definition of \"private information,\" however, in section 2(c-5) does not include names among the\" unique identifiers.\" Moreover, this office rejected a public university's argument that names of students enrolled at a public university are exempt from disclosure pursuant to section TOY) of FOIA: The examples of “unique identifiers\" cited in section 2(c-5) include information, such as a social security number, thati s alone sufficient to identify a particular individual, as well as information whichi s both unique to an individual and of a type in which there is @ significant personal privacy interest, such as medical or financial records. Names are not specifically included in the definition of \"private information,” and a name is not ordinarily sufficiently unique to identify a specific individual because many persons have the same name. Ill. Att'y Gen. Pub. Acc. Op. No. 12- . 003, issued January 18, 2012, at 7. In support of this construction of the language [...] s’ receipt of public funds for utility services. Thus, the requested information clearly relates to the City's receipt of public funds. Even assuming, for the sake of argument, that the names of utility customers constituted \"personal financial information\" under the definition of \"private information\" in section 2(c-5) of FOIA, the more specific disclosure requirements of section 2.5 of FOIA would © prevail. See Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 346 (2008) (\"When a general statutory provision and a more specific one relate to the same subject, we will presume that the legislature intended the more specific statute to govern.\"), Section 2.5 of FOIA relates to a single category of records, those concerning the obligation, receipt and use of public funds, whereas \"private information\" is defined to include various types of unique identifiers. Because bills for water services are expressly subject to disclosure under section 2.5, the customer names and service addresses on those bills are not \"personal financial information\" as that phrase is usedi n section 2(c-5). Accordingly, this office concludes that the City has not sustained its burden of demonstrating that the name of the recipient of the water bill iis exempt from disclosure pursuant to section TUyey of FOIA. ) FINDINGS AND CONCLUSIONS After full examination and givingd ue consideration to the available information, the Public Accéss Counselor's review, and the applicable law, the Attorney General finds that: 1) On October 17, 2017, Ms. Debbie Struck, on behalf of Troy Community Consolidated School District 30C, submitted a FOIA request to the City of Joliet seeking a copy of a water bill for a specified address. . . 2)O n October 19, 2017, the City furnished a copy of the. requested bill with the customer's name, the customer's mailing address, and the account number redacted pursuant to section 7(1)(b) of F OIA. Ms. Debbie Stuck - Mr. Christopher Regis February 14, 2018 . Page 6 3) On October 30, 2017, the Public Access Bureau received.a Request for. Review from Ms. Stuck contesting the redaction of the customer's name from the bill. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5¢a) of FOIA (5 ILCS 140/9.5(a) (West 2016)). 4) On November 7, 2017, the Public Access Bureau sent a copy of the Request for Review to the City and asked it to provide an unredacted copy of the water bill for this office's confidential review. This office also asked the City to provide a detailed explanation of the factual and legal bases for the applicability of section 7(1)(b) to the redaction. 5) On November 13, 2017, the City furnished a copy of the unredacted utility bill and a written explanation asserting that section 7(1)(b) permitted redaction of the customer's name because it was personal financial information. . * 6) On November 22, 2017, the Public Access Bureau forwarded a copy of the City's response to Ms. Stuck; she replied on November 27, 2017. 7) On December 29, 2017, the Public Access Bureau extended the time within which to issue a binding opinion in this matter by 30 business days, to February 14, 2018, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may. Properlyi.s sue a binding opinion with respect to this matter. . oe 8) Section 7(1)(b) of FOIA exempts from disclosure \" (p]rivate information, unless disclosurei s required by another provision of this Act, a State or federal law or a court order.\" Section 2(c-5) of FOIA further defines \"private information\" as \"unique identifiers,\" including several specific types of information about a person, including ' ‘personal financial information.\" ) ) 9) Section 2(c-5) does not expressly list a person's name as a “unique identifier.\" Furthermore, where the legislature has intended to exempt a person's identity from disclosure under FOIA, it has done so explicitly. Therefore, nothing in section 7(1)(b) or FOIA as a whole suggests that a person's name is private information. 10) Section 2.5 of FOIA states that \"[a]ll records relating to the obligation, receipt, and use of public funds of the Sate, unitosf local government, and school districts are public records.\" Article VIII, section 1(c) of the Illinois Constitution of 1970 also provides that \"records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law.\" Because water bills relate to the City's receipt of public funds for water services, the name of the customer who receives a water bill is expressly subject to disclosure under section 2.5. Asa Ms. Debbie Stuck Mr. Christopher Regis: February 14, 2018 Page 7 result, a customer's name cannot be considered \"personal financial information\" as that phrase is used in section 2(c-5) of FOIA. 11) Accordingly, the City has not sustained its burden of demonstrating that the customer's name on the water bill requested by Ms. Stucki s exempt from disclosure pursuant to section 7(1)(b) of FOIA. Therefore, it is the opinion of the Attorney General that the City’ S response to Ms. Stuck's Freedom of Information Act request violated the requirements of FOIA. Accordingly, the City is directed to take immediate and appropriate action to comply with this opinion by disclosing to Ms. Stuck a revised copy of the water bill displaying the customer’s name. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Debbie Stuck as defendants. See 5 ILCS 140/11.5 (West 2016). Very truly yours, LISA MADIGAN ATTORNEY GENERAL (eee et 7 tal By: . ' Michael J. Luke Counsel to the Attorney General CERTIFICATE OF SERVICE Neil P. Olson, Deputy Public Access Counselor, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 18-002) upon: Ms. Debbie Stuck Registration Specialist Troy School District 30C 5800 West Theodore Street Plainfield, Illinois 60586 dstuck@troy30c.org Mr. Christopher Regis Interim Corporation Counsel City of Joliet 150 West Jefferson Street Joliet, Hlinois 60432-4158 cregis@jolietcity.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be: deposited in the United States mail at Springfield, [linois on February 14, 2018. h = NEIL P. OLSON Deputy Public Access Counselor NEIL P. OLSON Deputy Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 — (217) 782-9078","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A school district requested a water bill from the City of Joliet. The City provided the bill but redacted the customer's name, mailing address, and account number, claiming they were private information. The requester only contested the redaction of the customer's name. The Attorney General ruled that the customer's name is not 'private information' under FOIA and must be disclosed. The opinion did not address the mailing address or account number because they were not contested.","card_headline":"A school district's customer account information for water utility","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":98,"orig_master_id":19072,"dup_master_id":19303,"dup_sha256":"cb966ec14e491a07afd1b865db2bb4671f445fd094acb91df45f6f7c33fe7c72","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2018,"date_issued":"2018-06-26","case_number":"2018 PAC 52207","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 18-006 (Requests for Review - 2018 PAC 52207, 52208, and 52209.pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 18-006 (Requests for Review - 2018 PAC 52207, 52208, and 52209.pdf","word_count":1886,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding the Village of Washington Park's failure to respond appropriately to three FOIA requests submitted by Mr. Scott Rose.","plain_summary":"The requester submitted three requests seeking minutes and a recording of a fire department personnel meeting, fire department policies on hiring and discipline, and months of fire department meeting minutes, and the village never responded to any of them despite repeated inquiries from the Public Access Bureau and the requester. The Public Access Counselor held that the village's failure to comply, deny, or extend the response period in writing on all three requests violated FOIA. The village was directed to produce the requested records, subject only to permissible redactions.","holding":"The Village of Washington Park violated section 3(d) of FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to the FOIA requests.","legal_question":"Did the Village of Washington Park violate the Freedom of Information Act by failing to respond to FOIA requests?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":[],"public_body":"Village of Washington Park","requesting_party":"Rose and Mr. Thomas","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"duty to respond","subject_description":"The requester sought access to personnel meeting minutes, audio recordings, and personnel policies from the Village and its Fire Department.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2018-Binding-PAC-Opinions/18-006.pdf","sha256":"1550877fdf3fe4d3a587a6d1a1ef16bdae5bffcedf86d7d76b7e0a2616e8a689","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["duty to respond","FOIA request","Village of Washington Park","failure to respond"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STAPE OF ILLINOIS Lisa Madigan NPTORNEY GENERAL, June 26, 2018 PUBLIC ACCESS OPINION 18-006 (Requests for Review 2018 PAC 52207, 52208, and 52209) - FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Scott Rose 5400 Bunkum Road Washington Park, [linois 62204 The Honorable Rickie Thomas Mayor Village of Washington Park §218 North Park Drive Washington Park, Illinois 62204 Dear Mr. Rose and Mr. Thomas: This is a binding opinion issued by the Attorney General pursuantot section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the Village of Washington Park (Village) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2016)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to three FOIA requests submitted by Mr. Scott Rose. BACKGROUND On February 21, 2018, Mr. Rose submitted three FOIA requests to the Village seeking certain records pertaining to the Village and its Fire Department. In his first FOIA request to the Village, Mr. Rose sought \"[t]o review minutes from Village of Washington Park personnel meeting from February 19 2018 5:30 PM as well as listen to tape recording of such 500) South Second Street, Springfield. Hinois 62706 © (217) 782-1090 © “TP PY: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 ¢ (312) 814-3000 ¢ PLY: (800) 964-3013 © Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondale. [Hinois 62901 © (618) 529-6400 © “TTY: (877) 675-9339 © Fax: (618) 529-0416 Mr. Scott Rose The Honorable Rickie Thomas June 26, 2018 Page 2 meeting[.]\"! Mr. Rose's second FOIA request to the Village asked \"to review all personnel polic[ies] [and] procedures for the Washington Park Fire Department that are used for hiring, firing, discipline as well as promotion or demotion of rank.\"? In his third FOIA request to the Village, Mr. Rose sought \"to review the Village of Washington Park Fire Department[']s monthly meeting minutes and any commit[t]ee meeting minutes from July 1 2017 through February 21 2018.\" . On March 14, 2018, Mr. Rose sent the Public Access Counselor three Requests for Review via facsimile alleging that the Village had failed to respond to his three FOIA requests.’ | On March 22, 2018, the Public Access Bureau forwarded copies of the Requests for Review to the Village, together with one letter asking the Village to advise this office whether it had received and responded to Mr. Rose's FOIA requests. If it had not yet responded to Mr. Rose, this office requested that the Village do so and provide this office with a copy of the responses.’ The Village did not respond to the Public Access Bureau's March 22, 2018, correspondence. ) On April 6, 2018, the Public Access Bureau forwarded a second copy of the Requests for Review to the Village and asked it to respond as soon as possible to this office's March 22, 2018, letter of inquiry, noting that section 9.5(c) of FOIA (5 ILCS 140/9.5(c) (West 2016)) requires a public body to \"fully cooperate with the Public Access Counselor\" within 7 business days of receiving a Request for Review.° The Village did not respond to this letter. ‘VILLAGE OF WASHINGTON PARK FOIA REQUEST FOR PUBLIC RECORDS form submitted by Scott Rose to Village of Washington Park (February 21, 2018). 2VILLAGE OF WASHINGTON PARK FOIA REQUEST FOR PUBLIC RECORDS form submitted by Scott Rose to Village of Washington Park (February 21, 2018). 3VILLAGE OF WASHINGTON PARK FOIA REQUEST FOR PUBLIC RECORDS form submitted by Scott Rose to Village of Washington Park (February 21, 2018). ‘FOIA — REQUEST FOR REVIEW BY PUBLIC ACCESS COUNSELOR (PAC) submitted by Scott Rose (March 14, 2018). , . Letter from Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Rickie Thomas, Mayor, Village of Washington Park (March 22, 2018). Setter from Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Rickie Thomas, Mayor, Village of Washington Park (April 6, 2018). Mr. Scott Rose The Honorable Rickie Thomas June 26, 2018 Page 3 On May 1, 2018, an Assistant Attorney General (AAG) in the Public Access Bureau contacted Mr. Rose by telephone and inquired whether he had received any responses from the Village to his three FOIA requests. Mr. Rose stated that he had not received any response from the Village.” On May 14, 2018, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days, to June 26, 2018, pursuant to section 9.5(f) of FOIA.® As of the issuance of this binding opinion, this office has not received a written response from the Village or confirmation from Mr. Rose that he has received a response to his February 21, 2018, FOIA requests. ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2016). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). The Village did not respond to Mr. Rose's FOIA requests within five business days afier their receipt by either complying with his requests, extending the time for its responses pursuant to section 3(€) of FOIA (5 ILCS 140/3(e) (West 2016)), or denying the requests in Telephone conversation between Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, and Scott Rose (May 1, 2028). 81e tter from Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Scott Rose and Rickie Thomas, Mayor, Village of Washington Park (May 14, 2018). Mr. Scott Rose ‘The Honorable Rickie Thomas June 26, 2018 Page 4 writing. The Village's failure to comply with the requisite procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On February 21, 2018, Mr. Scott Rose submitted three FOIA requests to the Village of Washington Park seeking to inspect minutes and recordings of a February 19, 2018, personnel meeting; personnel policies and procedures for the Village Fire Department related to hiring, firing, discipline, and promotion or demotion of rank; and Fire Department meeting minutes from July 1, 2017, through February 21, 2018. Mr. Rose did not receiv©e responses to his requests. 2) On March 14, 2018, Mr. Rose submitted three Requests for Review and asked the Public Access Counselor and the Public Access Bureau to review the Village's failure to respond to his FOIA requests. The Requests for Review were timely filed and otherwise comply with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2016)). 3) On March 22, 2018, the Public Access Bureau forwarded copies of Mr. Rose's Requests for Review to the Village, and asked the Village to advise this office whether it had responded to Mr. Rose's February 21, 2018, FOIA requests. The Village did not respond to this office's inquiry. 4) On April 6, 2018, the Public Access Bureau sent the Village additional copies of the Requests for Review and a letter inquiring as to the status of the Village's response. The Village did not respond. 5) On May 1, 2018, Mr. Rose confirmed to this office by telephone that the Village had not responded to his requests. 6) On May 14, 2018, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days, to June 26, 2018, pursuant to section 9.5(f) of FOIA. Therefore, that Attorney General may properly issue a binding opinion with respect to this matter. 7) As of the date of issuance of this binding opinion, this office has not received confirmation that the Village has responded to Mr. Rose's requests. Mr. Scott Rose The Honorable Rickie Thomas June 26, 2018 Page 5 Therefore, it is the opinion of the Attorney General that the Village has violated section 3(d) of FOIA by failing to respond to Mr. Rose's requests for public records as required by the Act. Accordingly, the Village is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Rose with all records responsive to his February 21, 2018, requests, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2017 Supp.).? If the Village determines that any portion of the responsive records is exempt from disclosure under section 7, the Village is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2016)). This opinion shal! be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seg. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Scott Rose as defendants. See 5 ILCS 140/11.5 (West 2016). Sincerely, LISA MADIGAN ATTORNEY GENERAL Michael J. Luke Counsel to the Attorney General *Because the Village did not comply with the statutory requirements for responding to Mr. Rose's FOIA requests, the Village is precluded from treating the requests as unduly burdensome or imposing copying fees for the responsive records. CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 18-006) upon: Mr. Scott Rose 5400 Bunkum Road Washington Park, Illinois 62204 sr1963@gmail.com The Honorable Rickie Thomas Mayor Village of Washington Park 5218 North Park Drive Washington Park, Illinois 62204 mayorrickiethomas@gmail.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Hlinois on June 26, 2018. Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Scott Rose submitted three requests for public records to the Village of Washington Park, but the Village never responded to them. The Illinois Attorney General's office ruled that the Village broke the law by ignoring these requests. Because the Village failed to respond, they are now legally required to provide the records and cannot charge fees or claim the requests were too burdensome.","card_headline":"Personnel meeting minutes, audio recordings, and policies","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":99,"orig_master_id":19298,"dup_master_id":19073,"dup_sha256":"312626fb320ec1adbb94fd6d53735fd65b56627296168d4bb232ff25333093ca","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2018,"date_issued":"2018-03-06","case_number":"2017 PAC 50559","request_numbers":null,"title":"Third Party Cost Records Submitted to a City Related to a City-Funded Redevelopment Project Are Not Exempt - From Disclosure under Section 7(1)(g) of FOIA","filename":"PUBLIC ACCESS OPINION 18-004 (Request for Review - 2017 PAC 50559).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 18-004 (Request for Review - 2017 PAC 50559).pdf","word_count":4882,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request made by Ms. Elena Ferrarin for redevelopment cost records related to a city-funded project in Elgin, which the city improperly denied.","plain_summary":"The requester, a newspaper reporter, sought a private developer's project budget that the developer had submitted to the city to justify a public redevelopment-assistance payment, and the city withheld the budget in full as commercial and financial information furnished in confidence. The Public Access Counselor held that the developer had not shown it submitted the budget under an express claim of confidentiality at the time it was furnished -- a letter asserting confidentiality only after the request was made did not establish this -- and that neither the developer nor the city had shown with specific facts that disclosure would cause competitive harm, particularly given that the budget related to the city's disbursement of public redevelopment funds. The city was directed to disclose the requested budget record.","holding":"The City of Elgin violated FOIA by improperly denying the request.","legal_question":"Are third party cost records submitted to a city related to a city-funded redevelopment project exempt from disclosure under Section 7(1)(g) of FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(g)"],"public_body":"City of Elgin","requesting_party":"Ms. Elena Ferrarin (Daily Herald)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(g)","subject_description":"Redevelopment cost records submitted by a private developer to a city for a publicly funded building project.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2018-Binding-PAC-Opinions/18-004.pdf","sha256":"d12abe79e6dbc70062639e79c273d2e5fdc7aa2e5d6f029d192adb7b5e9a81c0","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["redevelopment records","exemption 7(1)(g)","third-party records","budget documents","economic development"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nMarch 6, 2018\nPUBLIC ACCESS OPINION 18-004\n(Request for Review 2017 PAC 50559)\nFREEDOM OF INFORMATION ACT:\nThird Party Cost Records Submitted to a\nCity Related to a City-Funded\nRedevelopment Project Are Not Exempt -\nFrom Disclosure under Section 7(1)(g) of FOIA\n|\nMs. Elena Ferrarin\nSenior Staff Writer\nDaily Herald\nP.Q. Box 280\n[street address redacted for site publication -- see original PDF]\nMr. Michael R. Gehrman\nAssistant Corporation Counsel\nCity of Elgin\n150 Dexter Court\nElgin, Mlinois 60120\nDear Ms, Ferrarin and Mr. Gehrman:\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5()) (West 2016)). For the reasons\ndiscussed below, this office concludes that the City of Elgin (City) violated the requirements of\nFOIA by improperly denying Ms. Elena Ferrarin’s November 7, 2017, FOIA request.\nBACKGROUND\nOn November 7, 2017, Ms. Ferrarin, on behalf of the Daily Herald, submitted a\nFOIA request to the City seeking \"[t]he latest revised redevelopment cost budget submitted by\nCapstone Development Group regarding the Tower Building in Elgin that was mentioned in the\n:\n4 500 South Second Street, Springfield, Winois 62706 * (217) 782-1090 + TTY: (877) 844-5461 * Fax: (217) 782-7046\no ' 100 West Randolph Street, Chicago, Hlincis 60601 + (312) 814-3000 + TTY: (800) 964-3013 + Fax: (312) 814-3806\n601 South University Avenue, Suite 102, Carbondale, Ilincis 62901 + (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416 -=\nMs. Elena Ferrarin\nMr: Michael R. Gehrman\nMarch 6, 2018\nPage 2\ncity council weekly report dated Nov. 3.\"! On November 20, 2017, the City denied Ms.\nFerrarin’s request pursuant to section 7(1)(g) of FOIA (5 ILCS 140/71 )(g) (West 2016), as\namended by Public Acts 100-026, effective August 4, 2017; 100-201, effective August 18,\n2017).2_ On November 21, 2017, the Public Access Bureau received a Request for Review from\nMs. Ferrarin disputing the City's response.’\nOn November 29, 2017, the Public Access Bureau sent a copy of the Request for\nReview to the City. With the Request for Review, the Public Access Bureau also sent the City a\nletter iin which it asked for copies of the withheld records for this office's confidential review\ntogether with a detailed legal and factual explanation for the City’s assertion that the requested\nrecords were exempt from disclosurei n their entireties under section 7(1)(g) of FOIA.4\nOn December 18, 2017, the Public Access Bureau received a written answer from\nthe City.> Included with the City's answer was: (1) a copy of an Elgin Courier-News article\nabout the Elgin Tower Building (Tower) redevelopment project:® (2) a copy of the Tower's\ndevelopment costs budget (Budget) requested by Ms. Ferrarin; (3); a December 14, 2017, letter\nfrom Mr. William Luchini, President, Capstone Development Group, LLC (Capstone) to Mr.\nMichael Gehrman, City of Elgin concerning the FOIA request; and (4) an excerpt from a\nSeptember 2004 version of A GUIDE TO THE ILLINOIS FREEDOM OF INFORMATION ACT by the\nOffice of the Attorney General.’ As permitted by FOIA, the City submitted the Budget for this\noffice's confidential review only. It also submitted a version of the December 14, 2017, letter\nfrom Capstone with the president's direct phone number redacted for this office to forward to\n‘FOIA request submitted by eferrarin@dailyherald.com via the City's online request portal.\n1\nLetter from Michael R. Gehrman, Assistant Corporation Counsel, [City of] Elgin, to Elena -\nFerrarin (November 20, 2017).\n3E-mail from Elena Ferrarin, Senior staff writer, Daily Herald, to Public Access (Bureau, Office of\nth©e Attomey General] (November 21,2017).\n‘Letter from Laura 3. Harter, Assistant Attomey General, Public Access Bureau, Office of the\nAttorney General, to Michael R. Gehrman, Assistant Corporation Counsel, City of Elgin (November 29, 2017).\n1\n| . 5Letter from Michael R. Gehrman, Assistant Corporation Counsel, [City of] Elgin, to Laura S.\nHarter, ‘Assistant’ Attorney General; Public Access Bureati (December 14, 2017).\n‘Mike Danahey, \"Elgin Tower Building rehab more than halfwafiyn ished,” Elgin Courier-News,\nNovember 6, 2017.\n\"Letter from Michael R. Gehrman, Assistant Corporation Counsel, [City off Elgin, to Laura S.\nHarter, Assistant Attorney General, Public Access Bureau (December 14, 2017).\nMs, Elena Ferrarin\nMr. Michael R. Gehrman .\nMarch 6, 2018\nPage 3\nMs, Ferrarin. Also on December 18, 2017, the Public Access Bureau received from the City a\nsupplemental written answer that contained the City's legal analysis.* The same day, the Public\nAccess Bureau forwarded to Ms. Ferrarin copies of the City's two written answers and the\nattachments related thereto, except for the Budget.’ On December 29, 2017, Ms. Ferrarin\nprovided a reply to the City's answe!r?.\nOn January 25, 2018, the City responded to Ms. Ferrarin’s reply.!! This office\nsent Ms. Ferrarin a copy of the City's supplemental response on January 30, 2018.'2 The next\nday, Ms. Ferrarin sent an e-mail to acknowledge receipt of the City’s supplemental response. 3\nPursuant to section 9.5(8) of FOIA, the Public Access Bureau properly extended\nthe time within which to issue a binding opinion by 30 business days, to March 6, 2018, ina\nletter dated January 17, 2018.'*\nANALYSIS\n1\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2016). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) further provides:\n\"Each public body shall make available to any person for inspection or copying all public _\nrecords, except as otherwise provided in Sections 7 and 8.5 of this Act.” The exemptions from\n*Letter from Michael R. Gehrman, Assistant Corporation Counsel, [City of] Elgin, to Laura S.\nHarter, Assistant Attorney General, Public Access Bureau (December 5, 2017).\nLetter from Laura S. Harter, Assistant Attorney General, Public Access Bureau, offi ce of the\nAttorney General, to Elena Ferrarin, Senior Staff Writer, Daily Herald (December 18, 2017).\n“Letter from Elena Ferrarin, Daily Herald, te {(Laural Harter @ecember 29, 2017).\nULetter from Michael R. Gehrman, Assistant Corporation Counsel, {City of] Elgin, to Laura s.\nHarter, Assistant Attorney General, Public Access Bureau (January 25, 2018).\n2)e tter from Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the\nAttomey General, to Elena Ferrarin, Senior Staff Writer, Daily Herald January 30, 2018).\nE-mail from Elena Ferrarin to [Hattie] Bryant (January 31, 2018).\n41e tter from Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Elena Ferrarin, Senior Staff Writer, Daily Herald, and Michael Gehrman, Assistant\nCorporation Counsel, City of Elgin (January 17, 2018).\nMs, Elena Ferrarin\nMr. Michael R. Gehrman\nMarch 6, 2018\nPage 4\ndisclosure contained in section 7 of FOIA ($ ILCS 140/7 (West 2016), as amended by Public\nActs 100-026, effective August 4, 2017; 100-201, effective August 18, 2017) are to be narrowly\nconstrued. See Lieber v. Board of Trustees of Southern Mlinois University, 176 I. 2d 401, 407\n(1997). Under FOIA, bare assertions without a detailed rationale do not satisfy a public body's\nburden of demonstrating that an exemption is applicable. See Rockford Police Benevolent and\nProtective Ass'n, Unit No. 6 v. Morrissey, 398 Ill. App. 3d 145, 151 (2d Dist. 2010) (citing\nIllinois Education Ass'n v. Illinois State Board afE ducation, 204 Ill. 2d 456, 464 (2003).\nThe Budget for the Elgin Tower Building was prepared by Capstone, a private\nentity redeveloping the Tower from an office building into an apartment building.'5 One of the\nTower redevelopment project's funding sources is tax increment financing (TIF) moneys from\nthe ‘City.'!© According to the terms of the City’s agreement with Capstone, the City committed to\nprovide $3.175 million in TIF district funds to Capstone when the Tower redevelopment project\nwas halfway completed.!” The City agreed to pay Capstone another $3.175 million when the\nproject was substantially completed. 8 In November, the City paid Capstone the first $3.175\nmillion payment upon receiving proof from Capstone that it had the funding to complete the\nproject and that the redevelopment work was halfway completed.!® The Budget was one of the\nitems of proof provided to the City by Capstone.\ni Letter from Michael R. Gehrman, Assistant Corporation Counsel, [City of] Elgin, to Laura S.\nHarter, Assistant Attorney General, Public Access Bureau (December 14, 2017), at 2; Mike Danahey, Elgin Tower\nBuilding rehab more than halfway finished, ELGIN COURIER-NEWS, November 6, 2017.\n‘Letter from Michael R. Gehrman, Assistant Corporation Counsel, [City of] Elgin, to Laura S.\nHarter, Assistant Attorney General, Public Access Bureau (December 14, 2017), Mike Danahey, Elgin Tower\nBuilding rehab more than halfwayfi i nished, ELGIN COURIER-NEWS, November 5, 26 17 (on file with author).\n‘Letter from Elena Ferrarin, Daily Herald, to [Laura S.] Harter, Assistant Attorney General,\nPublic Access Bureau (December 29, 2017), Rick Kozal, City Manager, Elgin City Council Weekly Report, Tower\nReceives First Development Assistance Payment, November 3, 2017. :\n'8Letter from Elena Ferrarin, Daily Herald, to Laura S. Harter, Assistant Attorney General, Public\nAccess Bureau, (December 29, 2017); Rick Kozal, Elgin City Council Weekly Report, \"Tower Receives First\nDevelopment Assistance Payment” (November 3, 2017).\nLetter from Michael R. Gehrman, Assistant Corporation Counsel, to Laura S. Harter, Assistant\nAttorney General, Public Access Bureau (December 14, 2017), Mike Danahey, Elgin Tower Building rehab more\nthan halfway finished, ELGIN COURIER-NEWS, November 6, 2017 (on file with author).\nMs. Elena Ferrarin\nMr. MichaeRl. Gehrman\nMarch 6, 2018 7\nPage 5\nSection 7(D(g) of FOIA exempts from disclosure:\n, Trade secrets and commercial or financial information\nto obtained from a person or business where the trade secrets or\ncommercial or financial information are furnished under a claim\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness, and only insofar as the claim directly applies to the\nrecords requested.\nFor a record to be exempt from disclosure under section 7(1)(g):\n{T]he document must contain (1) a trade secret, commercial, or\nfinancial information, (2) that was obtained from a person or\ni “ business where the trade secrets or commercial or financial\ninformation are furnished under a claim that they are either (a)\nproprietary, (b) privileged, or (c) confidential, and (3) that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness. (Emphasis in original.) Chicago v. Janssen\nPharmaceuticals, Inc., 2017 IL App (1st) 1508701, 27, 78 N.E3d\n446, 455 (2017)... .\nAs discussedi n Janssen, section 7(1)(g) was substantively amended by the\nGeneral Assemblyi n 2010.7° Prior to 2010, section 7(1)(g) of FOIA exempted from disclosure\n\"[t]rade secrets and commercial or financial information obtained from a person or business\nwhere the trade secrets or information are proprietary, privileged or confidential, or where\ndisclosure of the trade secrets or information may cause competitive harm.\" (Emphasis added.)\n5 ILCS 140/7(1)(g} (West 2008). Thus, the previous version of section 7(1}(g) applied to\nrecords containing trade secrets or commercial or financial information that were merely\n\"obtained\" from a person or business. In contrast, the current version of section 7(1}(g)\nspecifically requires that such records be.\"furnished under a claim that they are proprietary,\nprivileged, or confidential.\" The General Assembly's addition of this requirement indicates its\nintention to limit the scope of the 7(1)(g) exemption to records expressly claimed to fall under\none or more of those three categories at the time that the records are provided to the public body.\n20See Public Act 96-542, effective January 1, 2010.\nMs. Elena Ferrarin\nMr. Michael R. Gehrman\nMaich 6, 2018\nPage 6\nAlong with its answer to this office, the City submitted a copy of a December 14,\n2017, letter from Capstone’s President. The letter stated that \"the Redevelopment Agreement\nbetween the City of Elgin and Capstone Development requires proof of sufficient financial\nresources to complete the project. This information was provided to the city with the belief that\nit would remain confidential and privileged.\"*! The City asserted that the letter establishes that\nthe Budget was provided “under an express or implied promise that it [will] be kept\nconfidential[.]'\"”\nAlthough the City has not provided evidence that Capstone made an express claim\nof confidentiality at the time it gave the City the Budget, the City argues that Capstone submitted\nthe information under an implied promise that it would be kept confidential. To support its\nposition that an implied promise of confidentiality satisfies the requirements of section 7(1)(g) of\nFOIA, the City cites a 2004 version of the Attorney General's A GUIDE TO THE ILLINOIS\nFREEDOM OF INFORMATION ACT (Guide) for the proposition that \"[s]ubsection 7(1)(g)i s intended\nto protect information whichi s proprietary property of a private party and whichi s submitted to\nthe government under an express or implied promise that it will be kept confidential.\" The\nGuide, however, which cites Cooper v. Dep't of the Lottery, 266 Ill. App. 3d 1007, 1013 (ist\nDist. 1994), interprets the earlier version of section 7(1)(g) of FOIA referenced above.\nThe court in Cooper v. Dep't of the Lottery gave effect to what it interpreted as an\n“implied promise by the government that [ ] information will be kept confidential (Cooper, 266\nIll. App. 3d at 1013) (quoting Benson v. General Services Administration, 289 F.Supp. 590, 594\n(W.D. Wash.1968)). Presumably, the General Assembly was aware of that decision when it\namended section 7(1)(g} to require that information be submitted under a claim that it is\nproprietary, privileged, or confidential as a threshold for the applicability of section 7(1)(g).\nJanssen, 2017 IL App (ist) 150870, (28, 78 N.E.3d at 455-56 (citing Pink v. Ryan, 174 Ul. 2d\n302, 308 (1996)) (\"It is presumed that, in enacting new legislation, the legislature acts with full\nknowledge of previous judicial decisions addressing the subject matter of that legislation.\").\nAccordingly, because the available information indicates that Capstone did not furnish the\nBudget under an express claim that the information was “proprietary, privileged, or confidential,\"\n‘ 2lLetter from William Luchini, President, Capstone Development Group, LLC, to City of Elgin\n(December 14, 2017).\n2Letter from Michael R. Gehrman, Assistant Corporation Counsel, to Laura S. Harter, Assistant\nAttorney General, Public Access Bureau (January 25, 2018), at 3 (quoting OFFICE OF THE ATTORNEY GENERAL,\nSTATE OF ILLINOIS, ATTORNEY GENERAL LISA MADIGAN, A GUIDE TO THE ILLINOIS FREEDOM OF INFORMATION ACT\n26 (2004).\n2QPFICE OF THE ATTORNEY GENERAL, STATE OF ILLINOIS, ATTORNEY GENERAL LISA MADIGAN,\nA GUIDE TO THE ILLINOIS FREEDOM OF INFORMATION ACT 26 (2004).\nMs. Elena Ferrarin\nMr, Michael R. Gehrman\nMarch 6, 2018 ©\nPage 7\nthe City has failed to meet its burden of demonstrating that the records are exempt from\ndisclosure under section 7(1)(g) of FOIA.\nEven assuming that Capstone had furnished the Budget to the City under a claim\nthat it was confidential or privileged, the City has not established an additional requirement of\nsection 7(1)(g—) that disclosure of the Budget would cause competitive harm to Capstone. “'To\nshow substantial competitive harm, the agency must show by specific factual or evidentiary\nmaterial that: (1) the person or entity from which information was obtained actually faces\ncompetition; and (2) substantial harm to a competitive position would likely result from\ndisclosure of the information in the agency's records.\" Cooper, 266 Ill. App. 3d at 1013 (quoting\nCalhoun v. Lyng, 864 F.2d 34, 36 (Sth Cir. 1988)). “Parties opposing disclosure need not\ndemonstrate actual competitive harm; instead, they need only show actual competition and a\nlikelihood of substantial competitive injury in order to ‘bring [that] commercial information\nwithin the realm of confidentiality.\" New Hampshire Right to Life v. United States Dep't of\nHealth & Human Services, 778 F.3d 43, 50 (1st Cir. 2015} (quoting Public Citizen Health\nResearch Group v. Food & Drug Administration, 704 F.2d 1280, 1291 (D.C. Cir. 1983)).\nThe City stated that the Budget “contains particularly sensitive financial\ninformation, the nature of which is apparent on the face of the document, including but not\nlimited to such things as financing costs, consulting costs, profit calculations and particular\nprofessional fees.\"*4 The City asserted that disclosure of the budget would lead to competitive\nharm. It also referenced the letter from Capstone's president, which stated that \"[i]f this\ninformation is released it will cause competitive harm to [Capstone] and/or [the Tower] as other\ndevelopers can use the confidential information to model and structure their, developments. This\nwould be a detriment to the developer and the project.\"*°\nIn making its argument, the City has not provided facts or evidence that\ndemonstrate how disclosure of the Tower's Budget would resulti n competitive harrn to Capstone\nor the Tower. In particular, the City has not detailed what competition Capstone or the Tower\nfacés. It also has not described how the line items in the Budget could be used to structure\ncompetitors’ developmentsi n a way that would harm Capstone or the Tower. As a result, the\nCity’ s statements regarding competitive harm are generalized and do not detail how harm would\narise or how substantial the harm would be. These generalized statements are not sufficient to\nMLetter from Michael R. Gehrman, Assistant Corporation Counsel, {city of] Elgin, to Laura S.\nHarter, Assistant Attorney General, Public Access Bureau, (December 14, 2017), at 2; ;\n_ . ' BLetter from Willam Luchini, President, Capstone Development Group, LLC, to0 City of Elgin\n(December 14, 2017):\nMs: Elena Ferrarin\nMr: Michael R. Gehrman\nMaich 6, 2018 ,\nPage 8\nfl\n1\n.\ndemonstrate that disclosure of the Tower's Budget would cause competitive harm to any person\nor business.\nIn its supplemental answetor the Public Access Bureau, the City also argued that\ndisclosing the Budget would dissuade developers from doing business with the City in situations\nin which the City seeks to confirm the developers’ financial stability, as other_businesses might\nfear that their trade secret information could be disclosed.® To support this assertion, the City\ncites BlueStar Energy Services, Inc. v. Hlinois Commerce Commission, 374 Ill. App. 3d 990, 995\n(1st Dist. 2007), superseded by statute, Freedom of Information Act (5 ILCS 140/7(1)(g) (West\n2014), as recognizedin Janssen, 2017 IL App (ist) 150870, 928, 78 N.E.3d at 456, for the\nproposition that \"trade secret in the context of the FOIA has been interpreted to include\ninformation that (1) would either inflict substantial competitive harm or (2) make it more\ndifficult for the agency to induce people to submit similar information in the future.” (Emphasis\nin-original.)\nIs +\nTn Janssen, the Illmois Appellate Court concluded that because BlueStar was\ndecided before the 2010 amendments to section 7(1)(g) of FOIA, it no longer accurately\ndescribed the requirements for exempting information as a trade secret. The amendments\nnarrowed the scope of 7(1)(g), requiring that the trade secrets both be \"furnished under a claim\nthat they are proprietary, privileged or confidential, and that disclosure of the trade secrets or\ncommercial or financial information would cause competitive harm to the person or business[.]\"\n(Emphasis ii n original.) Janssen, 2017 IL App (ist) 150870, (27, 78 N.E.3d at 455 (quoting 5\nILCS 140/7(1)(g} (West 2014)). Accordingly, the court explained that its;\nCo statement in BlueStar that \"[t]he term frade secret in the context of\na the FOIA has been interpreted to include information that (1)\nwould either inflict substantial competitive harm or (2) make it\nmore difficult for the agency to induce people to submit similar\ninformation in the future” (emphasis in original) [citation] is only\napplicable to those FOIA requests made pursuant to the earlier\nversions of the statute. Janssen, 2017 IL App (Ist) 150870, §28,\n78 N.E.3d at 456,\nIn a similar argument to the one made by the City in the present case, the\nappellant in Janssen objected to disclosure of what it claimed was confidential information\nbecause disclosure “would have a ‘chilling effect' on other organizations complying with a\nsubpoena\" in the future. Janssen, 2017 IL App (ist) 150870, (25, 78 N.E.3d at 455-56.\n26L etter from Michael R. Gehrman, Assistant Corporation Counsel, to Laura S. Harter, Assistant\nAttorney General, Public Access Bureau, Office of the Attommey General (December 15, 2017), at 1.\n1\n1\ni\nf\n|\nMs, Elena Ferrarin\nMr, Michael R. Gehrman\nMarch 6, 2018\nPage 9\nte e\nAlthough the court in Janssen noted that the policy concerns at issue in BlueStar were still valid,\nit found that Janssen had not met the threshold requirement of section 7(1)(g) of FOIA because it\nfailed to establish that the disclosure of the alleged confidential information would cause it\ncompetitive harm. Janssen, 2017 IL App (1st) 150870, (29, 78 N.E.3d at 456. Similarly,\nalthough the City has raised the concern that requiring disclosure of the Budget would have a\nchilling effect on its ability to contractually require developers to submit sensitive financial\ninformation, it has not demonstrated how disclosing the budget would cause competitive harm to\neither Capstone or the Tower.\nAccordingly, this office concludes that the City has not sustained its burden of\nderhonstrating that the Budget record requested by Ms. Ferrarin is exempt from disclosure\npursuant to section 7(1)(g) of FOIA.”\nFINDINGS AND CONCLUSIONS\nAfier full examination and giving due consideration to the available information,\nthe'Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n|\n1) On November 7, 2017, Ms. Elena Ferrarin, on behalf of the Daily Herald,\nsubmitted ;a FOIA request to the City of Elgin seeking \"the latest revised redevelopment cost\nbudget submitted by Capstone Development Group regarding the Tower Buildingi n Elgin that\nwas mentioned in the city council weekly report dated Nov. 3.078\n2) On November 20, 2017, the City denied Ms. Ferrarin's request in its entirety,\nciting section 70g) of FOIA.\n3) On November 21, 2017, the Public Access Bureau received aa Request for\nReview from Ms, Ferrarin contesting the denial of her FOIA request. The Request for Review\n2\" This office also notes that article VIH, ‘section 1{c) of the Ltinois Constitution ‘of 1970 provides\nthat \"Erleports and records of the obligation, receipt and use of public funds of the State, units of local government\nand school districts are public records available fori nspection by the public according to law.” Section 2.5 of FOIA\n(5 ILCS 140/2.5 (West 2016)) correspondingly provides that “[a]}l records relating to the obligation, receipt, and use\nof public funds of the State, units of local government, and school districts are public records subject to inspection\nand copying by the public.” The Budget concerns the development costs associated with a building project for\nwhich the City agreed to contribute $6.35 million in public funds. The City argued that the Budget was not created\nby the City and does not reflect any financial information regarding the City's resources or liquid funds, but it does\nnot dispute that the funds provided by the City were used for a portion of the costs reflectedi n the Budget.\nAccordingly, the Budgeti s a record relating to the City's use of public funds and must be disclosed.\n28FOIA request submitted by eferrarin@dailyherald.com via the City's online request portal.\nMs: Elena Ferrarin\nMr. MichaeRl. Gehrman\nMarch 6, 2018-\nPage 10\not\nwas timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5\nILCS 140/9.5(a) (West 2016)).\ni 4) On November 29, 2017, the Public Access Bureau sent a copy of the Request\nfor Review to the City and asked it to provide copies of the withheld records for this office's\nconfidential review. This office also asked the City to provide a.detailed explanation of the\nfactual and legal bases for the applicability of the section 7(1)(g) exemption.\n5} On December 18, 2017, this office received a copy of the redevelopment cost\nBudget along with two written answers from the City, which included the City's legal analysis of\nthe'section 7(1)(g) exemption.\n6) On December 18, 2017, the Public Access Bureau forwarded a copy of the\nCity's written answers to Ms. Ferrarin.\n.\ni 7) On December 29, 2017, Ms. Ferrarin replied to the City's answers.\n' 8) On January 17, 2018, this office extended the time within which to issue a\nbinding opinion by 30 business days, to March 6, 2018, pursuant to section 9.5(Dof FOIA.\nTherefore, the Attorney General may properly issue a binding opinion with respect to this matter.\n! 9) On January 25, 2018, the City submitted additional correspondence to address\npoints raisedi n.Ms. Ferrarin's reply. .\n10) On January 30, 2018, this office sent Ms. Ferrarin a copy of the City’ s\nsupplemental response. On January 31, 2018, she acknowledged receipt of the City's\nsupplemental response in an e-mail.\n1 Section 7g) of FOIA exempts from disciosure \"[t]rade secrets and\ncommercial or financial information obtained from a person or business where the trade secrets\nor commercial or financial information are furnished under a claim that they are proprietary,\nprivileged or confidential, and that disclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or business, and only insofar as the\nclaim directly applies to the records requested.\"\n12)U nder the current language of section 7(1)(g), a public body that withholds a\nrecord pursuant to this exemption must demonstrate that: (1) it contains a trade secret,\ncommercial, or financial information; (2) it was obtained from a person or business where the\ntrade secrets or commercial or financial information are furnished under a claim that they are\n‘\nMs: Elena Ferrarin\nMr. Michael R. Gehrman\nMarch 6, 2018\nPage 11\n‘\neither proprietary, privileged, or confidential; and (3) disclosure of the trade secrets or\ncommercial or financial information would cause competitive harm to that person or business.\n13) The City argues that Capstone supplied the Budget to it under a claim of\nconfidentiality. However, the letter from Capstone provided by the City to the Public Access\nBureau is dated after the City received Ms. Ferrarin's FOIA request. That letter does not provide\nevidence that the Budget was “furnished under a claim that” the information was proprietary,\nprivileged, or confidential.\n14) The City also argues that the records are exempt from disclosure under\n7(1)(g) because the City made an implied promise to keep them confidential. In arguing that an\nimplied promise satisfies the requirements of section 7(1)(g), the City relies on Illinois Appellate\nCourt opinions that interpreted a prior version of section 7(1)(g). Since those decisions, however,\nthe legislature has amended section 7(1)(g) to require that the information at issue must have\nbeen submitted to the public body under a claim that it is proprietary, privileged or confidential.\nIn this matter, the City has not established that the Budget was furnished to it by Capstone under\na claim that it was proprietary, privileged or confidential.\n15} The City also has not provided clear and convincing evidence to establish the\nadditional requirement of 7(1}(g) that the disclosure of the Budget would cause competitive harm\nto Capstone or the Tower, While the City has raised the concern that disclosure of the Budget\nwould dissuade others from submitting similar information to the City in the future, it has not\nprovided specific facts demonstrating the competitive harm to Capstone or the Tower that would\nresult from disclosing the Budget. Accordingly, this office concludes that the City has not\nsustained its burden of demonstrating that the Budgeti s exempt from disclosurei n its entirety\npursuant to section 70M) of FOIA.\nTherefore, it is the opinion of the Attorney General that the City’s response to Ms.\nFerrarin's Freedom of Information Act request violated the requirements of FOIA. Accordingly,\nthe City is directed to take immediate and appropriate action to comply with this opinion by\ndisclosing to Ms. Ferrarin a copy of the budget record that she requested. :\nMs; Elena Ferrarin\nMr. Michael R. Gehrman ~\nMarch 6, 2018 .\nPage 12\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Elena Ferrarin as\ndefendants. See 5 ILCS 140/11.5 (West 2016).\nVery truly yours,\n. LISA MADIGAN\nATTORNEY GENERAL\nacamenats @ hata\nBy:\nMichael J. Luke\nCounsel to the Attorney General\nCERTIFICATE OF SERVICE\n|\n| Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a\ncopy of the foregoing Binding Opinion (Public Access Opinion 18-004) upon:\n|\n|\nMs, Elena Ferrarin\nSenior Staff Writer\nDaily Herald\nPO Box 280\nArlington Heights, Hlinois 60006\n|\neferrarin@dailyherald.com\n| Mr. Michael R. Gehrman\n| Assistant Corporation Counsel\n| City of Elgin\n| 150 Dexter Court\n| Elgin, Illinois 60120\n| Gehrman_m@cityofelgin.org\ni\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\n¢\ncausing to be mailed a true copy thereof ii n correctly addressed, prepaid envelopes to be\ndeposited iin the United States mail at Springfield, Illinois on March 3, 2018.\nanL Poutt\n|\n| a SARAHL. PRATT ~~~\nPublic Access Counselor _\n|\nSARAH L. PRATT\nPublic Access Counselor\nOffice of the Attomey General\n500 South Second Street\nSpringfield, Illinois 62701\n(217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"FOIA exemption 7(1)(g) protects pre-decisional deliberative materials, but the burden is on the public body to prove disclosure would actually harm the decision-making process. Here, the City failed to show that the third-party cost records were deliberative or that release would chill future submissions or internal deliberations; the records were factual budget data submitted after the project was underway, not preliminary opinions. Because the City did not meet its evidentiary burden, the exemption did not apply and the records had to be disclosed.","card_headline":"Developer cost records for a city-funded redevelopment project","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":100,"orig_master_id":19074,"dup_master_id":19301,"dup_sha256":"0760846d559fd5c2ecb1c064d962d54eb952fa5e025bbce952c41771fa161541","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2018,"date_issued":"2018-03-13","case_number":"2017 PAC 50592","request_numbers":null,"title":"Disclosure of Public Employees’ Compensation","filename":"PUBLIC ACCESS OPINION 18-005 (Request for Review - 2017 PAC 50592).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 18-005 (Request for Review - 2017 PAC 50592).pdf","word_count":2457,"summary":"The Attorney General issued a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) The opinion concludes that the City of Nashville violated the requirements of FOIA by improperly denying Ms. Letisha Luecking Orlet's request for records of City employees' wages and salaries .","plain_summary":"The requester, an attorney, sought a complete list of city employees' names, titles, wages, and salaries for two years, and the city denied the request in its entirety, arguing disclosure would be an unwarranted invasion of employee privacy. The Public Access Counselor held that records showing the use of public funds -- including individual public employees' compensation -- are expressly subject to disclosure under FOIA's public-funds provision, and that the public interest in wage and salary transparency outweighs any privacy interest employees have in that information. The city was directed to disclose the requested wage and salary records.","holding":"The City of Nashville violated FOIA by improperly denying the request for employee salary and wage information, as such records are public and not exempt from disclosure.","legal_question":"Whether the City of Nashville properly denied a FOIA request for employee wages and salaries by invoking the personal privacy exemption under section 7(1)(c) of FOIA.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 6 ILCS 140/7(1), 5 ILCS 140/2, 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/7, 5 ILCS 70/1, 95 ILCS 140/7, 15 ILCS 140/7(1Xb), 5 ILCS 140/7(1)","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(b)"],"public_body":"City of Nashville","requesting_party":"Orlet and Ms. Warren","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"personnel records","subject_description":"The request sought records of wages and salaries paid to City of Nashville employees during 2016 and 2017.","ocr_status":"ok","ocr_quality":90.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2018-Binding-PAC-Opinions/18-005.pdf","sha256":"71cdbd34dd07855591e5a3a80f7f0a12568c8703038abb097e20e3d0f57d5296","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["employee salary","public records","personnel records","FOIA request"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan AVTORNEY GENERAL ' March 13, 2018 PUBLIC ACCESS OPINION 18-005 (Request for Review 2017 PAC 50592) FREEDOM OF INFORMATION ACT: Disclosure of Public Employees’ Compensation Ms. Letisha Luecking Orlet Attorney at Law Letisha Luecking Orlet, P.C. 236 East St. Louis Street Nashville, [linois 62263 Ms. Brittany P. Warren Attorney for the City of Nashville - DeFranco & Bradley, P.C. 141 Market Place, Suite 104 Fairview Heights, Illinois 62208 Dear Ms. Orlet and Ms. Warren: Thisi s a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the City of Nashville (City) violated the requirements of FOIA by improperly denying Ms. Letisha Luecking Orlet's request for records of City employees' wages and salaries. BACKGROUND By letter dated November 14, 2017, and received on November 16, 2017, Ms. Orlet submitted a FOIA request to the City seeking a “[c]omplete copy of wages and salaries paid to your employees listed by names and titles during 2016 and 2017.\"' On November 21, ‘Letter from Letisha Luecking Orlet to City of Nashville, Terri Kurwicki (November 14, 2017). 500 South Second Street, Springfield, Hlinois 62706 + (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217} 782-7046 100 West Randaiph Street, Chicago, Hlinois 60601 « (312) 814-3000 * TTY: (800) 964-3013 + Fax: (312) 814-3806 601 South University Avenue: Suite 102, Carbondale, Wlinois 6290] * (618) 529-6400 « TTY: (B77) 675-9339 + Fax: (618)529-6416 -e~« Ms. Kaley Johnson Mr. David Clark September 10, 2018 Page 2 concerning three named individuals and one specific address.' On May 30, 2018, Ms. Johnson submitted a Request for Review to the Public Access Bureau alleging that the Department had not responded to her FOIA request.? The Request for Review further alleged that Ms. Johnson had sent follow-up emails to the Department on May 24 and 29, 2018, and had telephoned on May 24, 29, and 30, 2018. On June 8, 2018, the Public Access Bureau forwarded a copy of the Request for Review to the Department, together with a letter asking the Department to notify this office whether it had received and responded to Ms. Johnson's FOIA request. If it had received the request but not yet responded, this office asked the Department to respond to Ms. Johnson and to provide this office a copy of the response.? The Department did not respond to the Public Access Bureau's correspondence. On July 9, 2018, an Assistant Attorney General (AAG) in the Public Access: Bureau telephoned Mr. David Clark, the chief of police of the Department. An employee of the Department, who identified herself as \"Jan,\" informed the AAG that the police chief had been out of the office for weeks and that the secretary was out of the office at an appointment. The AAG left a message asking for the police chief or his secretary to return her call. The employee also provided the AAG with the police chief's e-mail address, although she suggested that the AAG e-mail correspondence to her as well as the police chief, so she could provide the correspondence to another employee in the Department for a response.* Neither the police chief nor his secretary returned the AAG's call. Later that same day, the Public Access Bureau e-mailed a second letter to the Department's police chief and the employee with whom the AAG had spoken, together with a copy of this office's June 8, 2018, letter of inquiry and the Request for Review. The letter reminded the Department that it had not responded to this office's June 8, 2018, letter, and asked it to do so. The Department did not respond. On July 27, 2018, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days, 'E-mail from Kaley Johnson, Belleville News-Democrat Reporter to [Alorton Police Department] records custodian (May 17, 2018). E-mail from Kaley Alyssa Johnson, Belleville News-Democrat Reporter, to Public Access [Bureau, Office of the Attorney General] (May 30, 2018). sLetter from Edie Steinberg, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Chief David Clark, Chief of Police, Village of Alorton Police Department (June 8, 2018). ‘Telephone conversation between Edie Steinberg, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, and “Jan” Guly 9, 2018). ‘Letter from Edie Steinberg, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Chief David Clark, Chief of Police, Village of Alorton Police Department (July 9, 2018). Ms. Kaley Johnson Mr. David Clark September 10, 2018 Page 3 to September 10, 2018, pursuant to section 9.5(f) of FOIA.® As of the date of this binding opinion, this office has not received any response from the Department or any indication that the Department has responded to Ms. Johnson's FOIA request. ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2016). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) provides that \"[eJach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply to a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). The Department did not respond to Ms. Johnson's FOIA request within five business days after its receipt by either complying with the request, extending the time for its response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2016)), or denying the request in writing. The Department's failure to comply with the requisite procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: °Letter from Edie Steinberg, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Chief David Clark, Chief of Police, Village of Alorton Police Department, and Kaley Johnson, Reporter, Belleville News-Democrat (July 27, 2018). Ms. Kaley Johnson Mr. David Clark September 10, 2018 Page 4 1) On May 17, 2018, Ms. Kaley Johnson, on behalf of the Belleville News- Democrat, submitted a FOIA request to the Department seeking copies of reports concerning three named individuals and one specific address. Ms. Johnson did not receive a response to her request. 2) On May 30, 2018, Ms. Johnson submitted a Request for Review and asked the Public Access Bureau to review the Department's failure to respond to her request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2016)). 3) On June 8, 2018, the Public Access Bureau forwarded a copy of Ms. Johnson's Request for Review to the Department, together with a letter asking the Department whether it had responded to Ms. Johnson's May 17, 2018, FOIA request. The Department did not respond to this office's inquiry. 4) On July 9, 2018, the Public Access Bureau e-mailed the Department an additional copy of the Request for Review and a letter inquiring as to the status of the Village's response. The Department did not respond. 5) On July 27, 2018, this office properly extended the time within which to issue a binding opinion by 30 business days, to September 10, 2018, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 6) As of the date of issuance of this binding opinion, this office has not received confirmation that the Department has responded to Ms. Johnson's request. For the reasons stated above, it is the opinion of the Attorney General that the Department has violated section 3(d) of FOIA by failing to respond to Ms. Johnson's request for public records as required by the Act. Accordingly, the Department is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. Johnson with all records responsive to her May 17, 2018, FOIA request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2017 Supp.)).’ If the Department determines that any portion of the responsive records is exempt from disclosure under section 7, the Department is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2016)). 7Because the Department did not comply with the statutory requirements for responding to Ms. Johnson's FOIA request, the Department is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d), (g) (West 2016). Ms. Kaley Johnson Mr. David Clark September 10,2018. Page 5 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Kaley Johnson as defendants. See 5 ILCS 140/11.5 (West 2016). Sincerely, LISA MADIGAN ATTORNEY GENERAL Michael J. Luke. Counsel to the Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 18-011) upon: Chief David Clark Chief of Police Village of Alorton Police Department 4821 Bond Avenue Alorton, Illinois 62207 clark.dave@alorton-il.us Ms. Kaley Johnson Reporter Belleville News-Democrat 120 South Illinois P.O. Box 427 Belleville, [inois 62222 kjohnson@bnd.com — by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on September 10, 2018. Au£ Gdaal SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Hlinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested police records from the Village of Alorton, but the police department never responded to the request. The Illinois Attorney General's office ruled that the department broke the law by ignoring the request entirely. This means public bodies are legally required to provide a response, even if they intend to deny the request.","card_headline":"Police reports for three named individuals and an address","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":103,"orig_master_id":19302,"dup_master_id":19077,"dup_sha256":"4515a47fd4f73f67d94c9c563d2dbe84bb5f23bba8f3b3d317b44a336632f603","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2018,"date_issued":"2018-07-16","case_number":"2018 PAC 52464","request_numbers":null,"title":"Disclosure of Property Index Numbers","filename":"PUBLIC ACCESS OPINION 18-009 (Request for Review - 2018 PAC 52464).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 18-009 (Request for Review - 2018 PAC 52464).pdf","word_count":3775,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a FOIA request made by Mr. Alan J. Dunleavy for property index numbers in Chicago. It concludes that the City of Chicago violated FOIA by redacting these numbers.","plain_summary":"The requester sought a list of properties granted an adjustment under a city's shared-housing ordinance, including each property's index number, but the city withheld the index numbers as private or personal information. The Public Access Counselor held that a property index number identifies a parcel of land rather than a person, is required by state law to be publicly available, and that the public interest in knowing which properties received adjustments outweighed any privacy interest, so neither exemption applied. The city was directed to provide the list including the previously redacted property index numbers.","holding":"The City of Chicago Department of Business Affairs and Consumer Protection violated FOIA by redacting property index numbers.","legal_question":"Did the City of Chicago violate the Freedom of Information Act by redacting property index numbers from the records provided in response to a FOIA request?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Chicago Department of Business Affairs and Consumer Protection","requesting_party":"Mr. Alan J. Dunleavy","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"property records","subject_description":"The request sought a list of properties granted a Commissioner's Adjustment under the City of Chicago's shared housing ordinance.","ocr_status":"ok","ocr_quality":90.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2018-Binding-PAC-Opinions/18-009.pdf","sha256":"f7c31fbe74e713a75ec72a8f15bd315fbb8a9c39797f332f2d4647e3bd59b8c7","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["property index numbers","shared housing","redaction","public records"],"truncated_suspect":0,"site_category":"Property Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL,\nJuly 16, 2018\nPUBLIC ACCESS OPINION 18-009\n(Request for Review 2018 PAC 52464)\nFREEDOM OF INFORMATION ACT:\nDisclosure of Property Index Numbers\nMr. Alan J. Dunleavy\n[street address redacted for site publication -- see original PDF]\nMs. Martha-Victoria Diaz\nSenior Corporation Counsel\nCity of Chicago Department of Law\n30 North LaSalle Street, Suite 1720\nChicago, Illinois 60602-2580\nDear Mr. Dunleavy and Ms. Diaz:\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons\ndiscussed below, this office concludes that the City of Chicago (City) Department of Business\nAffairs and Consumer Protection (Department) violated the requirements of FOIA by redacting\nproperty index numbers from the records furnished in response to Mr. Alan J. Dunleavy's\nFebruary 28, 2018, FOIA request.\nBACKGROUND\nOn February 28, 2018, Mr. Dunleavy submitted a FOIA request to the\nDepartment seeking \"a list of all properties in the City of Chicago that have been granted a\nCommissioner's Adjustment under the Section 4-6-300(1) of the Shared Housing ordinance\n500 South Second Street, Springfield, Mineis 62706 * (217) 782-1090 © “ITY: (877) H44-S401 © Fax: (217) 782-7046\n100 West Randotph Street, Chicago, Hineis 60601 * (312) 814-3000 « TTY: (B00) 964-3013 «© Fax: (312) 814-3806\n601 South University Avenue, Suite 102, Carbondale, Hingis 62401 * (618) 529-6400 © “PPY. (877) 675-9339 © Fax: (618) 529-0416 eg 1\nMr. Alan J. Dunleavy\nMs. Martha-Victoria Diaz\nJuly 16, 2018\nPage 2\n(6/22/2016). Please include the property identification number\"! and which condition the\nCommissioner granted the adjustment outlined within the above section. *2 On March 29, 2018,\nthe Department provided“a list of 'granted’ Commissioner Adjustment properties by registration\nnumber and final status.\"? Specifically, the Department provided a list showing the application\nnumbers of properties that had been granted an adjustment, but denied property index numbers\nas private information under section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2017 Supp. yy\nOn April 2, 2018, the Public Access Bureau received a Request for Review from Mr. Dunleavy\ncontesting the denial of the property index numbers.*\nOn April 11, 2018, the Public Access Bureau forwarded a copy of the Request for\nReview to the Department and asked it to provide this office with a representative sample of the\nwithheld records together with a detailed written response to the allegationsi n the Request for\nReview.® Because the Department did not respond to the April 11, 2018, letter, on May 10,\n2018, the Public Access Bureau sent a second request to the Department for copies of records\nand a response.” On May 15, 2018, Ms. Martha-Victoria Diaz, Senior Corporation Counsel for\nthe City of Chicago Department of Law, responded on behalf of the Department, stating that the\nproperty index numbers were exempt “private information\" under section 7(1)(b) of FOIA and\n‘Mr. Dunleavy's Request for Review and the related correspondence refers to the “property\nidentification numbers\" or “property identification Pins.” We have assumed that Mr. Dunleavy's Requefsotr\nReview relates to “property index numbers” as that phrase is defined in the Property Tax Code (see 35 ILCS 200/1-1\net seq. (West 2016). This office will use the phrase “property index numbers” to refer to the information that Mr.\nDunleavy is seeking. A property index number is “[a] number used to identify a parcel of property for assessment\nand taxation purposes.\" 35 ILCS 200/1-120 (West 2016).\n*City of Chicago FOIA request form submitted by Alan Dunleavy (February 28, 2018).\n3Letter from Angel Hawthorne, Freedom of Information Office, Department of Business Affairs\nand Consumer Protection, City of Chicago, to Alan Dunleavy (March 29, 2018).\n‘Letter from Angel Hawthorne, Freedom of Information Office, Department of Business Affairs\nand Consumer Protection, City of Chicago, to Alan Dunleavy (March 29, 2018).\n5B-mail from Alan Dunleavy to Sarah Pratt, [Public Access Counselor, Office of the Attorney\nGeneral] (April 1, 2018).\nSLetter from Edie Steinberg, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Angel Hawthorne, Freedom of Information Officer, City of Chicago Department of Business\nAffairs and Consumer Protection (April 11, 2018).\n\"Letter from Edie Steinberg, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Angel Hawthorne, Freedom of Information Officer, City of Chicago Department of Business\nAffairs and Consumer Protection (May 10, 2018).\nMr. Alan J. Dunleavy\nMs. Martha- Victoria Diaz\nJuly 16, 2018\nPage 3\nalso exempt \"personal information\" pursuant to section 7(1)(c} of FOIA G ILCS 146/7(1\\(c)\n(West 2017 Supp.)).? On May 16, 2018, Ms. Diaz provided for this office's confidential review\nan unredacted copy of the responsive records which included the property index numbers.” On\nMay 16, 2018, this office forwarded a copy of the Department's response letter to Mr.\nDunleavy.’ He did not reply.\nOn May 31, 2018, this office extended the time within which to issue a binding\nopinion by 30 business days, to July 16, 2018, pursuant to section 9.5(f) of FOIA. u\nANALYSIS\n“All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.” 5 ILCS\n140/1.2 (West 2016). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) further provides that\n\"felach public body shall make available to any person for inspection or copying all public\nrecords, except as otherwise provided in Sections 7 and 8.5 of this Act.\" The exemptions from\ndisclosure contained in section 7 of FOIA (5 ILCS 140/7 (West 2017 Supp.)) are to be narrowly\nconstrued. Lieber v. Board of Trustees ofS outhern Hlinois University, 176 IL. 2d 401, 407\n(1997).\nThe portions of the records at issue are the property index numbers of each\nproperty that was granted an adjustment under section 4-6-300()) of the City of Chicago\nMunicipal Code (Ordinance) (CHICAGO, ILL., MUNICIPAL CODE § 4-6-300(D (2018)\n(effective June 22, 2016)). The Ordinance regulates vacation rentals by setting out registration\nand licensing requirements and limitations on the types of dwellings that may be rented.\nCHICAGO, ILL., MUNICPAL CODE§ 4-6-300 (effective June 22, 2016). Section 4-6-300(1)\npermits a person to seek an adjustment from the commissioner, which allows for a vacation\n5Letter from Martha-Victoria Diaz, Senior Corporation Counsel, City of Chicago, Department of\nLaw, to Edie Steinberg, Assistant [Attorney General], Office of Attomey General (May 15, 2018).\n°E-mail from Martha-Victoria Diaz, Senior Corporation Counsel, City of Chicago Department of\nLaw, Investigations & Prosecutions Division, to [Edie] Steinberg (May 16, 2018).\n\"letter from Edie Steinberg, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Alan Dunleavy (May 16, 2018).\n\"Letter from Edie Steinberg, Assistant Attorney General, Public Access Bureau, Office of the\nAttomey General, to Alan Dunleavy and Martha-Victoria Diaz, Senior Corporation Counsel, City of Chicago\nDepartment of Law (May 31, 2018).\nMr. Alan J. Dunleavy\nMs. Martha-Victoria Diaz\nJuly 16, 2018\nPage 4\nrental under certain circumstances when the dwelling unit does not otherwise comply with the\nOrdinance's dwelling unit requirements. The application for a commissioner's adjustment must\nbe submitted to the Department and requires the applicant to include the property index\nnumber.\nSection 7(1)(b) of FOLA\nThe Department redacted property index numbers from the responsive records\npursuant to section 7(1}(b) of FOIA, which exempts from disclosure “[p|rivate information,\nunless disclosure is required by another provision of this Act, a State or federal law or a court\norder.\" Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2016)) defines \"private information\"\nto include:\n{U}nique identifiers, including a person's social security number,\ndriver's license number, employee identification number, biometric\nidentifiers, personal financial information, passwords or other\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person. (Emphasis added.)\nIn construing statutes such as FOIA, the primary goal is to ascertain and\neffectuate the intent of the General Assembly. Southern Ilinoisan y. Illinois Department of\nPublic Health, 218 UW. 2d 390, 415 (2006). \"[W]hen a statute lists several classes of persons or\nthings but provides that the list is not exhaustive, the class of unarticulated persons or things will\nbe interpreted as those ‘others such like’ the named persons or things.\" Board of Trustees of\nSouthern Illinois Univ. v. Hlinois Dep't ofH uman Rights, 159 1. 2d 206, 211 (1994). In other\nwords, the listed terms are examples of what the General Assembly intended the statute to cover.\nSee Duffy v. Illinois Dep't of Human Rights, 354 M1 App. 3d 236, 239 (4\" Dist. 2004).\n“The examples of ‘unique identifiers’ cited in section 2(c-5) include information,\nsuch as a social security number, that is alone sufficient to identify a particular individual, as\nwell as information which is both unique to an individual and of a type in which there is a\nsignificant personal privacy interest].]\" Ill. Att'y Gen. Pub. Acc. Op. No. 12-003, issued January\n“City of Chicago, Department of Business Affairs and Consumer Protection, Commissioner's\nAdjustment Application for Shared Housing Units & Vacation Rentals, available at\nhttps://www. cityofchicago.org/content/dam/city/depts/bacp/Small®20Business*420Center/cmsradjustmentapp5 181\n7-instructions52417.pdf (last viewed June 5, 2018).\nMr. Alan J. Dunleavy\nMs. Martha-Victoria Diaz\nJuly 16, 2018\nPage 5\n18, 2012, at 7. A property index number \"is a numerical code for the legal description of a piece\nof land as it has been defined for the purposes of real estate taxation. The formatted code points\nto the parcel's location on the county's tax maps.\"'? Thus, although a property index number\ndoes identify a property, standing by itself it does not identify the owner or occupant thereof.\nIn its response to this office, the Department argued that because a property\nindex number \"identifies a distinct property[,]\"\"* a search can be conducted on the Cook County\nAssessor's website to determine the address for that property, and the address can be used to\nsearch websites for the name of the property owner.'* Mr. Dunleavy stated in his Request for\nReview, and the Department did not dispute, that property index numbers are readily available\non the Cook County Property Tax Portal’ and on the Cook County Assessor's website.'? By\nentering the address of the property, any user can retrieve a property index number as well as the\nname of the property owner. Indeed, section 9-45 of the Property Tax Code (35 ILCS 200/9-45\n(West 2016)) specifically provides that a county's property index number system \"shall be open\nto public inspection and be made available to the public.\"\nBecause property index numbers are unique to properties, rather than to persons,\nthey are not \"unique identifiers” for purposes of section 7(1}(b). Even if they were considered\n“unique identifiers,\" property index numbers are a matter of public record, the disclosure of\nwhich is “otherwise provided\" by section 9-45 of the Property Tax Code. There is not a\nsignificant personal privacy interest in information that is required by State law to be disclosed.\nMoreover, the fact that a person can combine various available pieces of information to\nultimately identify otherwise exempt information does not render that information exempt from\ndisclosure. Thus, when determining the City’s duty to disclose property index numbers pursuant\nto FOIA, it is not dispositive that a person could use the property index numbers to research and\nidentify the property's owner. Accordingly, the Department has not sustained its burden of\n“About Property Index Number (PIN), David Orr, Cook County Clerk's Office,\nhttps://www.cookcountyclerk.com/service/about-property-index-number-pin (last visited June 5, 2018).\n‘4 etter from Martha-Victoria Diaz, Senior Corporation Counsel, City of Chicago Department of\nLaw, to Edie Steinberg, Assistant [Attorney General], Office of the Attormey General (May 15, 2018).\nSetter from Martha-Victoria Diaz, Senior Corporation Counsel, City of Chicago Department of\nLaw, to Edie Steinberg, Assistant [Attorney General], Office of the Attorney General (May 15, 2018).\nCook County Property Tax Portal, http://www.cookcountypropertyinfo.com (last visited July 29,\n2018). .\n\"Cook County Assessor's Office, Joseph Berrios, Property Search,\nhttp://cookcountyassessor.com/Search/Property-Search.aspx (last visited June 29, 2018).\nMr. Alan J. Dunleavy\nMs. Martha- Victoria Diaz\nJuly 16, 2018\nPage 6\ndemonstrating that the property index numbers are exempt from disclosure pursuant to section\n7(1)(b) of FOIA.\nSection 7(1)(c) of FOIA\nIn its response to Mr. Dunleavy's Request for Review, the Department also raised,\nfor the first time, section 7(1\\(c) of FOIA. That section exempts from disclosure \"[p]ersonal\ninformation contained within public records, the disclosure of which would constitute a clearly\nunwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the\nindividual subjects of the information.” Section 7(1\\(c) defines “unwarranted invasion of\npersonal privacy\" as:\n[T]he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject's\nright to privacy outweighs any legitimate public interest in\nobtaining the information. The disclosure of information that bears\non the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy.\nThe phrase “clearly unwarranted invasion of personal privacy\" evinces a strict standard to claim\nthe exemption, and the burden is on the public body to prove that standard has been met.\nSchessler v. Department of Conservation, 256 lll. App. 3d 198, 202 (4th Dist. 1994).\nAs noted above, section 9-45 of the Property Tax Code specifically provides that\na county's property index number system “shall be open to public inspection and be made\navailable to the public.\" Because State law requires property index numbers to be publicly\naccessible, disclosure of property index numbers cannot be considered a clearly unwarranted\ninvasion of personal privacy. oo\nEven assuming, however, that property index numbers could be considered highly\npersonal information for purposes of section 7(1){c), the determination of whether their\ndisclosure would constitute a clearly unwarranted invasion of personal privacy requires the\nweighing of four factors: \"(1} the [requester's] interest in disclosure, (2) the public interest in\ndisclosure, (3) the degree of invasion of personal privacy, and (4) the availability of alternative\nmeans of obtaining the requested information.” National Ass'n of Criminal Defense Lawyers v.\nChicago Police Department, 399 Ill. App. 3d 1, 13 (1st Dist. 2010).\nAlthough Mr. Dunleavy has not stated his interest in disclosure, there is a\nsignificant public interest in the disclosure of information identifying properties that may be\nleased as vacation rentals because, as the Department indicates in its response to this office, it\nMr. Alan J. Dunleavy\nMs. Martha-Victoria Diaz\nJuly 16, 2018\nPage 7\nmay affect the value of properties in the surrounding neighborhood. Further, there is a\nsignificant public interest in the disclosure of information that sheds light on whether the\nadjustment process is being conducted fairly and equitably throughout the City's various\nneighborhoods. That information could only be ascertained by identifying the properties that\nreceive the adjustments. See 5 ILCS 140/1 (West 2016) (it is the public policy of this State that\nall persons are entitled to complete information to monitor \"government to ensure that it is being\nconducted in the public interest.”).\nConcerning the third factor, the degree of invasion of personal privacy, the\nDepartment asserts that \"a reasonable person may object to the disclosure that they own a\nproperty which they may intend to list for rent as shared housing of aS a vacation rental.” 8 The\nDepartment also asserts that a person has a privacy interest in how they manage their property\nand that \"revealing that a property was offered as shared housing or as a vacation rental may\naffect the resale value of that property. ald Listing a property for rent and renting it as a vacation\nrental, however, necessarily implies that the rental status of the property will be disseminated to\nthe public to attract renters. As a result, the owner does not have a reasonable expectation of\nprivacy in the property's address, And, as discussed above, a rental property's property index\nnumber can be readily determined by entering the property's address into a Cook County\ngovernment website.\nFinally, there appears to be no other readily available means for Mr. Dunleavy to\nobtain the property index numbers for the adjustments granted by the Department's\ncommissioner. Taking all these factors into account, this office concludes that the public interest\nin the disclosure of property index numbers of properties that have been granted adjustments\noutweighs any privacy interest that property owners may have in revealing that their property is\navailable for vacation rental. Accordingly, the Department has not sustained its burden of\ndemonstrating that the property index numbers are exempt from disclosure pursuant to section\n7(1)(c) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n'§]e tter from Martha-Victoria Diaz, Senior Corporation Counsel, City of Chicago Department of\nLaw, to Edie Steinberg, Assistant [Attorney General], Office of the Attorney General (May 15, 2018).\n“Letter from Martha-Victoria Diaz, Senior Corporation Counsel, City of Chicago Department of\nLaw, to Edie Steinberg, Assistant [Attorney General], Office of the Attomey General (May 15, 2013).\nMr. Alan J. Dunleavy\nMs. Martha-Victoria Diaz\nJuly 16, 2018\nPage 8\n1) On February 28, 2018, Mr. Alan J. Dunleavy submitted a FOIA request to the\nCity of Chicago Department of Business Affairs and Consumer Protection seeking a list of all\nproperties in the City that had been granted a Commissioner's Adjustment under Section 4-6-\n300(1) of the Shared Housing ordinance (6/22/2016), including the property index number of the\nproperty.\n2) On March 29, 2018, the Department provided responsive records but redacted\nthe property index numbers, citing as its basis section 7(1)(b) of FOIA.\n3) On April 2, 2018, the Public Access Bureau received a Request for Review\nfrom Mr. Dunleavy contesting the Department's redactions of the property index numbers. The\nRequest for Review was timely filed and otherwise complies with the requirements of section\n9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2016)).\n4) On April 11, 2018, the Public Access Bureau forwarded a copy of Mr.\nDunleavy's Request for Review to the Department, together with a letter asking the Department\nto furnish within seven business days after its receipt copies of the withheld records for the\nPublic Access Bureau's confidential review, as well as a detailed explanation of the factual and\nlegal bases for withholding the property index numbers. The Department did not respond. On\nMay 10, 2018, the Public Access Bureau sent a second request to the Department for the\npreviously requested information.\n5) On May 15, 2018, the Department furnished its written response. The\nDepartment asserted that the property index numbers were exempt pursuant to section 7(1}(b) as\nwell as section 7(1}(c} of FOIA. On May 16, 2018, the Department provided for this office's\nconfidential review a copy of the responsive records which included the property index numbers.\nOn that same day, this office forwarded a copy of the Department's written response letter to Mr.\nDunleavy.\n6) On May 31, 2018, this office extended the time within which to issue a\nbinding opinion by 30 business days, to July 16, 2018, pursuant to section 9.5(f) of FOIA.\nTherefore, the Attorney General may properly issue a binding opinion with respect to this matter.\n7) Section 7(1)(b) of FOIA exempts from disclosure \"private information.” The\ndefinition of \"private information\" in section 2(c-5) of FOIA includes Social Security numbers\nand other such information that is unique to a person. A property index number identifies a\nspecific parcel of property, not a particular individual. Further, property index numbers are\nreadily available to the public on governmental websites and subject to public inspection\npursuant to section 9-45 of the Property Tax Code. The Department has not sustained its burden\nMr. Alan J, Dunleavy\nMs. Martha-Victoria Diaz\nJuly 16, 2018\nPage 9\nof demonstrating that property index numbers are “private information\" under the definition of\nthat term in section 2(c-5) of FOIA.\n8) Section 7(1)\\(c) exempts “personal information contained within public\nrecords, the disclosure of which would constitute an unwarranted invasion of personal privacy[.}\"\nBecause State law requires property index numbers to be publicly accessible, the Department has\nnot sustained its burden of demonstrating that property index numbers are highly personal\ninformation within the meaning of section 7(1)(c) of FOIA. Further, even assuming that\nproperty index numbers are highly personal information, there is a significant public interest in\nthe disclosure of information that identifies properties that have been granted adjustments so that\nthe public may assess whether the adjustment process in question is conducted fairly and\nequitably and because of the potential impact of adjustments on property values of surrounding\nproperties. The Department has not demonstrated that the privacy rights of property owners who\nhave been granted adjustments outweigh the public interest in disclosure of this information.\nTherefore, it is the opinion of the Attorney General that the Department's response\nto Mr. Dunleavy's Freedom of Information Act request violated the requirements of the Act. The\nDepartment is directed to take immediate and appropriate action to comply with this opinion by\nproviding Mr. Dunleavy with a list of all properties in the City that have been granted a\ncommissioner's adjustment under the Section 4-6-300(1) of the Shared Housing Ordinance,\nincluding the property index numbers which were previously redacted.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days of the date of this decision naming the Attorney General of Illinois and Mr. Alan J.\nDunleavy as defendants. See 5 ILCS 140/11.5 (West 2016).\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\nMichael J. Luke\nCounsel to the Attorney General\nCERTIFICATE OF SERVICE\nSarah L. Pratt, Public Access Counselor, hereby certifies that she has served a\ncopy of the foregoing Binding Opinion (Public Access Opinion 18-009) upon:\nMr. Alan Dunleavy\n1940 West Henderson Street\nChicago, Illinois 60657\nalanjdunleavy@gmail.com\nMs. Martha-Victoria Diaz\nSenior Corporation Counsel\nCity of Chicago Department of Law\n30 North LaSalle Street, Suite 1720\nChicago, Illinois 60602-2580\nMartha- Victoria.D iaz@cityofchicago.org\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Springfield, [linois on July 16, 2018.\ndud ZZL. Lut\nSARAH L. PRATT\nPublic Access Counselor\nSARAH L. PRATT\nPublic Access Counselor\nOffice of the Attorney General\n500 South Second Street\nSpringfield, Illinois 62701\n(217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Dunleavy requested a list of Chicago properties that received a specific adjustment under the city's shared housing ordinance, including their property index numbers. The City provided the list but redacted the property index numbers, claiming they were private. The Attorney General ruled that these numbers are public information and the City violated the law by hiding them.","card_headline":"A list of properties with Commissioner's Adjustments under a shared housing ordinance","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":104,"orig_master_id":19078,"dup_master_id":19306,"dup_sha256":"cbb3982683968d97ad00c6d5374609d4bad7f66b4fdc32c689aae8ccad7a7bc8","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2018,"date_issued":"2018-08-24","case_number":"2018 PAC 53172","request_numbers":null,"title":"Disclosure of General Allegations Against Public Body in a Settlement Agreement","filename":"PUBLIC ACCESS OPINION 18-010 (Request for Review - 2018 PAC 53172).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 18-010 (Request for Review - 2018 PAC 53172).pdf","word_count":2354,"summary":"The Attorney General issued a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOTA) The opinion concludes that Arbor Park School District No. 145 violated the requirements of FOIA by improperly redacting the nature of the claims giving rise to the settlement agreement responsive to Ms. Valerie Gardner's request .","plain_summary":"The requester, a union representative, sought a settlement agreement between a school district and a former principal, and the district redacted the description of the underlying claims as an unwarranted invasion of personal privacy. The Public Access Counselor held that settlement agreements are public records under FOIA, that the redacted language described the claims only in general terms that were not highly personal, and that the information bore on the public duties of a public employee, so the privacy exemption did not apply. The district was directed to provide an unredacted copy of the settlement agreement.","holding":"The District improperly redacted the nature of the claims in a settlement agreement, as the public interest in understanding the basis for the expenditure of public funds outweighs the privacy interest of the former employee.","legal_question":"Whether a public body may redact the nature of claims giving rise to a settlement agreement under the personal privacy exemption of FOIA.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7, 5 ILCS 140/9(a), 5 ILCS 140/7(1), 5 ILCS 140/2, 5 ILCS 140/1, 5 ILCS 140/3(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(c)","public_body":"Keeffe Assistant Superintendent of Finance Arbor Park School District","requesting_party":"Ms. Valerie Gardner","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"settlement agreement","subject_description":"The disclosure of the nature of claims underlying a settlement agreement between a school district and a former principal.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2018-Binding-PAC-Opinions/18-010.pdf","sha256":"b3fdb922871c2550df8d7a43998c98b7ab0915b73f74ca44d4bf5f69c556e035","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["settlement agreement","redaction","privacy exemption","public funds"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"_ OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS ; Lisa Madigan ATTORNEY GENERAL August 24, 2018 PUBLIC ACCESS OPINION 18-010 (Request for Review 2018 PAC 53172) FREEDOM OF INFORMATION ACT: Disclosure of General Allegations Against Public Body in a Settlement Agreement Ms. Valerie Gardner UniServ Director — Region 56 Hlinois Education Association — IEA-NEA 4747 Lincoln Mall Drive, Suite 501 Matteson, Illinois 60443 Mr. Brian K. O'Keeffe Assistant Superintendent of Finance Arbor Park School District No. 145 17301 Central Avenue Oak Forest, Illinois 60452-4920 Dear Ms. Gardner and Mr. O'Keeffe: _ This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOTA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that Arbor Park School District No. 145 (District) violated the requirements of FOIA by improperly redacting the nature of the claims giving rise to the settlement agreement responsive to Ms. Valerie Gardner's April 13, 2018, FOIA request. BACKGROUND | On April 13, 2018, Ms. Gardner, on behalf of the Illinois Education Association- NEA (Association), submitted a FOIA request to the District seeking \"copies of records that pertain to the settlement agreement between [the] * * * District * * * and Mr. Ronald 500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondale, Illinois 62901 * (618) 529-6400 *« TTY: (877) 675-9339 « Fax: (618) 529-6416 -qp Ms. Valerie Gardner Mr. Brian K. O'Keeffe August 24, 2018 Page 2 Murabito[,]\"! a former principal in the District. On April 17, 2018, the District provided her with a redacted copy of the settlement agreement, but did not specify the exemption in section 7 of FOIA (5 ILCS 140/7 (West 2017 Supp.)) claimed to authorize the redactions or provide the other information required by section 9(a) of FOIA (5 ILCS 140/9(a) (West 2016)).2 On April 23, 2018,.in response to an e-mail from Ms. Gardner asking why the redacted information was not disclosed,* the District stated that \"[i]nformation in the provided record was redacted because it constitutes personal information in which disclosure would constitute a clearly unwarranted invasion of personal privacy, which is exempt from inspection under Section 7(1)(c) of FOIA [5 ILCS 140/7(1)(c) (West 2017 Supp.))].\"* The District also notified Ms. Gardner of her right to have its decision reviewed in accordance with section 9(a) of FOIA.° On May 15, 2018, this office received via e-mail Ms. Gardner's letter dated April 27, 2018, requesting review of the District's partial denial of her request.® Specifically, she alleged that the District: (1) failed to timely assert the exemption under which the records were exempt from disclosure and failed to provide information to her regarding her right to appeal; and (2) did not assert a genuine basis for the unwanted invasion of privacy exemption of section 7(1)(c) when balancing the interests of the parties, because under section 2.20 of FOIA (5 ILCS 140/2.20 (West 2016)) all settlement agreements are subject to inspection and copying, unless an exemption applies. On May 22, 2018, the Public Access Bureau sent a copy of the Request ‘for Review to the District and asked it to provide an unredacted copy of the settlement agreement for this office's confidential review, together with a detailed explanation of the factual and legal bases for the applicability of section 7(1)(c).’ ‘Letter from Valerie Gardner, UniServ Director, IEA/NEA Region 56, to Brian O'Keef[f]e, Assistant Superintendent of Finance/CSBO, Arbor Park School District 145 (April 13, 2018). ’Letter from Brian K. O'Keeffe, Assistant Superintendent of Finance/CSBO, Arbor Park School District 145, to Valerie Gardner, UniServ Director, IEA/NEA Region 56 (April 17, 2018). E-mail from Valerie Gardner to Brian O'Keeffe (April 19, 2018). ‘Letter from Brian K. O'Keeffe, Assistant Superintendent of Finance/CSBO, FOIA Officer, Arbor Park School District 145, to Valerie Gardner, UniServ Director, IEA/NEA (April 23, 2018). ‘Letter from Brian K. O'Keefe, Assistant Superintendent of Finance/CSBO, FOIA Officer, Arbor Park School District 145, to Valerie Gardner, UniServ Director, IEA/NEA Region 56 (April 23, 2018). 6Letter from Valerie Gardner, Illinois Education Association, IEA-NEA, Matteson Office, to Sarah Pratt, Public Access Counselor, Office of the Attorney General (April 27, 2018) . 7Letter from Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Brian K. O'Keeffe, Assistant Superintendent of Finance, Arbor Park School District No. 145 (May 22, 2018). Ms. Valerie Gardner Mr. Brian K. O'Keeffe August 24, 2018 Page 3 On June 5, 2018, legal counsel for the District provided this office with the requested materials. ® On June 6, 2018, the Public Access Bureau forwarded a redacted copy of the District's response’ to Ms. Gardner for comment.'® She did not reply. On July 11, 2018, this office properly extended the time within which to issue a binding opinion by 30 business days, to August 24, 2018, pursuant to section 9.5(f) of FOIA.!! ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2016). \"All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.” 5 ILCS 140/1.2 (West 2016). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) further provides: \"Each public body shal! make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" The exemptions from disclosure contained in section 7 of FOIA are to be narrowly construed. See Lieber v. Board of Trustees of Southern Illinois University,.176 Il], 2d 401, 407 (1997). Section 2.20 of FOIA In her Request for Review, Ms. Gardner argued that the redacted information is subject to disclosure pursuant to section 2.20 of FOIA (5 ILCS 140/2.20 (West 2016)), which provides that \"[a]ll settlement and severance agreements entered into by or on behalf of a public *Letter from Cynthia M. Baasten, Engler Callaway Baasten & Sraga, LLC, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Hlinois Attorney General (June 5, 2018). *See 5 ILCS 140/9.5(d} (West 2016) (\"The Public Access Counselor shall forward a copy of the answer to the person submitting the request for review, with any alleged confidential information to which the request pertains redacted from the copy.\"). The District provided this office with a redacted copy of its response for forwarding to the requester. 1°L etter from Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Valerie Gardner, UniServ Director — Region 56, Illinois Education Association ~ fEA-NEA (June 6, 2018). \"Letter from Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Valerie Gardner, UniServ Director — Region 56, Illinois Education Association - IEA-NEA, Brian K. O'Keeffe, Assistant Superintendent of Finance, Arbor Park School District No. 145, and Cynthia M. Baasten, Engler Callaway Baasten & Sraga, LLC (July 11, 2018). Ms. Valerie Gardner Mr. Brian K. O'Keeffe August 24, 2018 Page 4 body are public records subject to inspection and copying by the public, provided that information exempt from disclosure under Section 7 of this Act may be redacted.\"'* By enacting - section 2.20, the General Assembly clearly intended to re [...] l privacy.” Ill. Att'y Gen. Pub. Acc. Op. No. 15-004, at 5. Similarly, in this instance the settlement agreement that Ms. Gardner sought terminated Mr. Murabito's employment and extinguished any employment-related claims he may have had. Additionally, the redacted information concerning the reasons he separated from the District bears on one or more public duties of a public employee. Consequently, such information is not exempt from disclosure under the plain language of section 7(1)(c) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the available information, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On April 13, 2018, Ms. Valerie Gardner, on behalf of the Illinois Education Association-NEA, submitted a FOIA request to Arbor Park School District No. 145 seeking copies of records that pertain to the settlement agreement between the District and Mr. Ronald Murabito. 2) Ina letter dated April 17, 2018, the District provided Ms. Gardner with a redacted copy of the settlement agreement. The District did not cite any FOIA exemptions or provide the other information required by section 9(a) of FOIA. On April 23, 2018, in response to an e-mail from Ms. Gardner, the District issued a supplemental response stating that it had redacted the agreement pursuant to section 7(1)(c) of FOIA. The District also notified Ms. Gardner of her right to have the partial denial reviewed by the Public Access Counselor or seek judicial review, in accordance with section 9(a) of FOIA. 3) On May 15, 2018, this office received Ms. Gardner's Request for Review contesting the District's partial denial, arguing that the public has a valid interest in accessing the terms of a settlement agreement that gave rise to the District paying an administrator over Ms. Valerie Gardner Mr. Brian K. O'Keeffe | August 24, 2018 Page 7 $50,000:in exchange for his resignation and a waiver of claims. The Request for Review was timely filed and otherwise complies with section 9.5(a) of FOIA. 4) On May 22, 2018, the Public Access Bureau.sent a copy of the Request for Review to the District and asked it to provide an unredacted copy of the settlement agreement for this office's confidential review, together with a detailed explanation of the factual and legal bases for the applicability of section 7(1)(c). 5) On June 5, 2018, the District, through its legal counsel, provided this office with the requested materials, and asserted that Mr. Murabito's privacy interests clearly outweigh the Illinois Education Association's interest in disclosure of the redacted information, The — following day, this office forwarded a copy of the District's redacted answer to Ms. Gardner for comment. Ms. Gardner did not submit a reply. 6). On July 11, 2018, this office properly extended the time within which to issue a binding opinion by 30 business days, to August 24, 2018, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 7) Section 2.20 of FOIA provides that \"[a]ll settlement and severance agreements entered into by or on behalf of a public body are public records subjectot inspection and copying by the public, provided that information exempt from disclosure under Section 7 of this Act may be redacted.\" | | | 8) Section 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information contained within public records, the disclosuroef which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information.” Section 7(1)(c) defines \"unwarranted invasion of personal privacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining | the information.\" Section 7(1)(c) further provides that \"[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of _ personal privacy.” : 9) In this instance, the redacted information describes Mr. Murabito's allegations and potential claims against the District in only broad, general terms. The District has not demonstrated that such general information is highly personal, or that its disclosure would be objectionable to a reasonable person. Moreover, the redacted portions of the settlement agreement bear on one or more public employees' public duties. Accordingly, the redacted information is not exempt from disclosure under the plain language of section 7(1)(c) of FOIA. Ms. Valerie Gardner Mr. Brian K. O'Keeffe August 24, 2018 Page 8 For the reasons stated above, it is the opinion of the Attorney General that the District's partial denial of Ms. Gardner's Freedom of Information Act request violated the requirements of FOIA. Accordingly, the District is directed to take immediate and appropriate action to comply with this binding opinion by providing Ms. Gardner with an unredacted copy of the requested settlement agreement. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Valerie Gardner as defendants. See 5 ILCS 140/11.5 (West 2016). Very truly yours, LISA MADIGAN ATTORNEY GENERAL py, rte nhe Michael J. Luke Counsel to the Attorney General cc: Ms. Cynthia M. Baasten Engler Callaway Baasten & Sraga, LLC 2215 York Road, Suite 515 Oak Brook, Illinois 60523 CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 18-010) upon: Ms. Valerie Gardner UniServ Director ~ Region 56 Illinois Education Association - IEA-NEA 4747 Lincoln Mall Drive, Suite 501 Matteson, Illinois 60443 valerie. gardner@ieanea.org Mr. Brian K. O'Keeffe Assistant Superintendent of Finance Arbor Park School District No. 145 17301 Central Avenue Oak Forest, Illinois 60452-4920 bokeefte@arbor145.org Ms. Cynthia M. Baasten Engler Callaway Baasten & Sraga, LLC 2215 York Road, Suite 515 Oak Brook, Illinois 60523 cbaasten@englerlawgroup.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, I}linois on August 24, 2018. Aud Lett SARAH L. PRATT Public Access Counselor SARAH L, PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, [inois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A school district settled a legal dispute with a former employee but tried to hide the reasons for the settlement by blacking out parts of the agreement. The Attorney General ruled that the public has a right to know why public money is being spent on settlements, meaning the district could not keep the nature of the claims secret.","card_headline":"Settlement agreement claims with a former principal","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":105,"orig_master_id":19079,"dup_master_id":19309,"dup_sha256":"0b49f7b48d54601cb70db02a337d6f4755dd1676c22643760fbfb249679f811e","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2018,"date_issued":"2018-07-11","case_number":"2018 PAC 52443","request_numbers":null,"title":"Improper Denial of a Request for Records as an Unduly Burdensome Repeated Request; Financial Terms Related to a Public Body's Use of Public Funds Are Not Exempt under Section 7(1)(g) of FOIA","filename":"PUBLIC ACCESS OPINION 18-008 (Request for Review - 2018 PAC 52443).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 18-008 (Request for Review - 2018 PAC 52443).pdf","word_count":2454,"summary":"The Cook County Health & Hospitals System (CCHHS) violated the requirements of FOIA by improperly withholding an amendment to an agreement for mental health services showing the fixed monthly amount that CCHHS pays for each recipient of services .","plain_summary":"The requester, a physician, sought a contract amendment showing the fixed monthly rate a county health system paid a mental health provider per enrollee, records she had previously been given in redacted form; the county system denied her renewed request as an unduly burdensome repeated request. The Public Access Counselor held that a repeated-request denial requires the agency to have already properly provided or denied the same records, which the county system had not done, and separately held that the payment rate was a public-funds record not shown to qualify as exempt trade secret or commercial information. The county system was directed to provide the requester with the amendment showing the rate.","holding":"The PAC determined that CCHHS violated FOIA by improperly denying Dr. King's request as an unduly burdensome repeated request under section 3(g), because the prior request for the same records had not been properly responded to or denied, and the capitation rate was not exempt under section 7(1)(g).","legal_question":"Whether a public body may withhold an amendment to a service agreement containing financial terms regarding the expenditure of public funds by claiming it is an unduly burdensome request or exempt under section 7(1)(g) of FOIA.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140, 5 ILCS 140/7(1), 5 ILCS 140/1, 5 ILCS 140/3(a), 765 ILCS 1065/2(d), 5 ILCS 140/2, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(g)","public_body":"Cook County Health & Hospitals System (CCHHS)","requesting_party":"King and Ms. Fortier","pac_outcome":"UNCLEAR","pac_law_type":"FOIA","subject_category":"fees/contract terms","subject_description":"A contract amendment specifying the fixed monthly capitation rate CCHHS pays a mental health services provider per recipient of services.","ocr_status":"ok","ocr_quality":89.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2018-Binding-PAC-Opinions/18-008.pdf","sha256":"a5e382489970b2fb4807dd16d8b161c9fb9fffc1c5e153f334f3ce78580e6af9","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["unduly burdensome request","repeated request 3(g)","contract records","trade secrets exemption","public funds expenditure"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL Ju11l, 2y018 PUBLIC ACCESS OPINION 18-008 (Request for Review 2018 PAC 52443) FREEDOM OF INFORMATION ACT: Improper Denial of a Request for Records as an Unduly Burdensome Repeated Request; Financial Terms Related to a Public Body's Use of Public Funds Are Not Exempt under Section 7(1)(g) of FOIA Dr. Judy King 945 West George Street, Suite 218 Chicago, Hlinois 60657 Ms. Deborah J. Fortier Assistant General Counsel Office of the General Counsel Cook County Health & Hospitals System 1900 West Polk Street, Suite 104 Chicago, Illinois 60612 Dear Dr. King and Ms. Fortier: This is a binding opinion issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the Cook County Health & Hospitals System (CCHHS) violated the requirements of FOIA by improperly withholding an amendment to an agreement for mental health services showing the fixed monthly amount that CCHHS pays for each recipient of services. Bee, a, BACKGROUND On March 28, 2018, Dr..Judy King submitted a FOIA request to CCHHS seeking: 500 Seuath Second Screat, Springfield,“ Winois 62706 © (217) 7x2- 10907 © PPY: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Hlineis 60601 © (312) 814-3000) ¢ “TPY: (800) 964-3013 Fax: (312) 814-3806 601 South University Avenue, Suite 102, Carbondate, Hlinois 62901 « (618) 529-6400 © PTY: (877) 675-9339 © Fax: (618) 529-6416 Rega Dr. Judy King Ms. Deborah J. Fortier July 11, 2018 Page 2 [A] copy of the First Amendment to the Cook County Health and Hospitals System CountyCare Participating Community Mental Health Center Provider Ancillary Agreement between CCHHS- CountyCare and the Community Counseling Centers of Chicago (C4), executed or signed by CEO J.J. Shannon on May 15, 2015, that shows the C4 monthly capitated rate per,m ember per month that CCHHS- CountyCare agreed to pay C4 On March 29, 2018, the County denied that request as an unduly burdensome repeated request pursuant to section 3(g). of F OIA (5 ILCS 140! 3(g) (West. 2016)), stating: In your new request, dated March 28, 2018, you are requesting the . same contract document that you previously requested ii na FOIA | request to CCHHS you submitted on May 22, 2015. CCHHS timely responded to that request on June 1, 2015 and provided y3ou with the responsive document, with redactions. In addition, CCHHS has previously respondedt o the Office of the Illinois Attorney General Request for Review-2015 PAC 35697 regarding the CCHHS response to your prior request for this same document. ° Your new March 28, 2018 request is a repeated request for this © same document and it is therefore denied pursuant (t o Section 3 (g) | of the FOIA (5 ILCS 140).?! a In the prior Request for Review, 2015 PAC 35697,° this office determined that in response to Dr. King's May 22, 2015, FOIA request, CCHHS had improperly redacted the}p er.m ember per month capitation rate (PMPM capitation rate) from the same amendment to the agreement pursuant to section 7(1)(g) of FOTA (5 ILCS 140/7(1)(g) (West 2014)). On March 30, 2018, Dr. King submitted this Request for Review contesting, CCHHS's denial of her second request.’ She argued: : ‘E-mail from Judy King to Deborah Fortier (March, 28, 2018). \"E-mail from Deborah J. F ortier, Assistant General. Counsel, Office of the General Counsel, Cook County Health & Hospitals System, to [Judy] King (March 29, 2018)... “ ‘IIL Att'y Gen. PAC Req, Rev. Ltr. 35697, issued March 92018, f-< ! ‘Letter from Judy King to Public Access Counselor (March 30, 2018). Dr. Judy King Ms. Deborah J. Fortier July 11, 2018 Page 3 When CCHHS provided a copy of the same named document in 2015, CCHHS redacted the important numerical figures from the document essentially denying a portion of the document. These - redactions were determined improper by the Public Access Bureau. As such, the present request is for records improperly and partially denied previously. See 2015 PAC 35697.\"1 On April 6, 2018, this office forwarded a copy of the Request for Review to CCHHS and asked it to \"provide this office with a detailed explanation for the assertion that [CCHHS] previously properly responded to the same request in light of Ill. Att'y Gen. PAC Req. Rev. Ltr. 35697.\"° CCHHS did not respond. On May 3, 2018, this office sent a second letter to CCHHS seeking the same information.” On May 21, 2018, CCHHS submitted its response that stated, among other things, that “this response and attachment are submitted for PAC review only, and not for public release[.]\"® Although CCHHS submitted its response under a claim of confidentiality, FOIA requires that this office provide the requester with an opportunity to respond.” For that reason, on June 7, 2018, this office notified Dr. King that CCHHS submitted its answer under a claim of confidentiality and asked if she wished to reply.’° On that same date, she replied that she did not ‘Letter from Judy King to Public Access Counselor (March 30,2018). “Letter from Marie Hollister, Assistant Attorney General, Public Access Bureau, to Deborah J. Fortier, Assistant General Counsel, Office of the General Counsel, Cook County Health & Hospitals System (April 6, 2018), at 2. \"Letter from Marie Hollister, Assistant Attorney General, Public Access Bureau, to Deborah J. Fortier, Assistant General Counsel, Office of the General Counsel, Cook County Health &: Hospitals System (May 3, 2018). . , SE-mail from Deborah J. Fortier, Assistant General Counsel, Office of the General Counsel, Cook County Health & Hospitals System, to Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (May 21, 2018).. ; . °See 5 ILCS 140/9.5(d) (West 2016) (\"The Public Access Counselor shall forward a copy of the answer to the person submitting the request for review, with any alleged confidential information to which the request pertains redacted from the copy.\"). ; °E-mail from Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Attorney Genera—l State of Illinois, to J King (June 7, 2018). . Dr. Judy King Ms. Deborah J. Fortier July 11, 2018 Page 4 understand how CCHHS's entire response could be confidential.’ On June 28, 2018, Dr. King sent an e-mail to this office and CCHHS with her written reply attached.'* The Public Access Bureau properly extended the time within which to issue a binding opinion on May 23, 2018, by 30 business days, to July 11, 2018. 3 ANALYSIS “All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2016). FOIA requirest ha\"t[e ]ach public body shall make available to any person for inspection or copying all public records, except as otherwise providedi n Sections 7 and 8.5 of this Act.\" 5 ILCS 140/3(a) (West 2016). The exemptions from disclosure are to be narrowly construed. Lieber v. Board of Trustees:o r Southern Illinois University, 176 Ill. 2d 401, 407 (1997). The issue here involves the portion of the records containing the capitation rate. “Capitation” is defined as: \"A method of paying a healthcare provider based on the number of members in a health-beneplfiant that the provider contracts to treat. « The health plan's sponsor agrees to pay a fixed amount per person each period, regardless of what services are provided.\" Black's Law Dictionary (10th ed. 2014), available at Westlaw BLACKS. AS further explained in guidance issued by the American College of Physicians: Capitation ii s a fixed amount of money per patient ~ per unit of time paid in advance to the physician for the delivery of health care services. The actual amount of money paid is determined by the ranges of services that are pro [...] 15, 2015, showing the monthly capitated rate per member per month that CCHHS-CountyCare agreed to pay C4. In response to Dr. King’s previous request for a copy of the same contract amendment, CCHHS had redacted the same PMPM capitation rate pursuant to section 7(1)(g) of FOIA; this office subsequently determined that CCHHS had improperly denied that information. Ill. Att'y Gen. PAC Reg. Rev. Ltr. 35697, issued March 9, 2018. “Although this office could not locate any Federal court decisions analyzing whether capitation rates are exempt from disclosure under FOIA, Federal courts have reached conflicting conclusions about somewhat similar records. See e.g. Public Citizen Health Research Group v. National Institutes of Health, 209 F. Supp. 2d 37, ' 44-46 (D.D.C, 2002) (royalty rates in a Federal agency's licensing agreement with a private company exempt from disclosure under the provision in Federal FOIA (5 U.S.C. § 552(b)(4) (1994)) that permits an agency to withhold — \"trade secrets and commercial or financial information obtained from a person and privileged or confidential{.]\") But see e.g., Racal-Milgo Government Systems, Inc., y. Small Business Administration, 559 F. Supp. 4, 6 (D.D.C. 1981) (\"Adequate information enables the public to evaluate the wisdom and efficiency of federal programs and expenditures, * * * That the supplier and the Government intended the [per unit} price information to remain confidentiali s not determinative.\"), Notably, Federal FOIA does not have a provision similar to section 2.5 of Illinois FOIA or section 67.708(c) of Pennsylvania's Right-to-Know Law which generally require disclosure of records relating to the use of public funds. Accordingly, because the Commonwealth Court of Pennsylvania analyzed the same type of records at issue in this matter under statutory provisions that most closely correspond to thosei n Illinois FOIA, this office follows the Pennsylvania court's approach. Dr. Judy King Ms. Deborah J. Fortier July 11, 2018 Page 13 2) On March 29, 2018, CCHHS denied Dr. King's second FOIA request for the amendment to the agreement as an unduly burdensome repeated request pursuant to section 3(g) of FOIA, arguing that it had previously responded to the same request. 3) On March 30, 2018, the Public Access Bureau received Dr. King's Request for Review in which she contested CCHHS's assertion that her request was an unduly burdensome repeated request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2016)). _ 4) On April 6, 2018, this office forwarded a copy of the Request for Review to CCHHS and asked it to provide a written response addressing the assertion that it previously properly responded to the same request in light of Ill. Att'y Gen. PAC Req. Rev. Ltr. 35697. CCHHS did not respond. On May 3, 2018, this office sent a second letter to CCHHS seeking the same information. 5) On May 21, 2018, this office received CCHHS's response, which it designated as confidential. On June 7, 2018, this office notified Dr. King that CCHHS submitted its response under a claim of confidentiality and asked if she wished to reply. On June 28, 2018, Dr. King submitted her written reply. 6) On May 23, 2018, this office extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f} of FOIA, to July 11, 2018. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 7) A request is an unduly burdensome repeated request under section 3(g) of FOIA only if-the public body has either previously provided the requester with copies of the responsive records or has properly denied a prior request for the same records. 8) CCHHS did not previously provide Dr. King with the PMPM capitation rate she sought or properly deny her request for that information, as explained in II. Att'y Gen. PAC Reg. Rev. Ltr. 35697. Therefore, CCHHS improperly denied Dr. King's second request for the same information as an unduly burdensome repeated request under section 3(g). 9) Section 2.5 of FOIA provides that \"records relating to the obligation, receipt, and use of public funds of * * * units of local government * * * are public records subject to inspection and copying by the public.” CCHHS is a unit of local government and the PMPM capitation rate determines the amount of public funds it spends for mental health services based on the number of CountyCare enrollees who have certain coverage. _Dr. Judy King Ms. Deborah J. Fortier July 11, 2018 Page 14 10) CCHHS has not sustained its burden of demonstrating by clear and convincing evidence that the PMPM capitation rate is exempt from disclosure as a trade secret or commercial or financial information furnished under a claim of confidentiality pursuant to section 7(1)(g) of FOIA. A public body must demonstrate that disclosing information would cause competitive harm in order to withhold the information pursuant to section 7(1)(g). CCHHS did not do so in this instance. For the reasons stated above, it is the opinion of the Attorney General that CCHHS improperly denied Dr. King's Freedom of Information Act request in violation of the requirements of the FOIA. Accordingly, CCHHSi s directed to take immediate action to comply with this binding opinion by providing Dr. King with a copy of the responsive amendment to the agreement that includes the PMPM capitation rate. ) | This opinion shall] be considered afi nal decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a ‘complaint for administrative review in the Circuit Court of Cook County within 35 days of the date of this decision naming the Attorney General of Illinois and Dr. Judy King as defendants. See 5 ILCS 140/11.5 (West 2016). Sincerely, LISA MADIGAN ATTORNEY GENERAL | By: Chee Berl atti Michael J. Luke Counsel to the Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 18-008) upon: Dr. Judy King 945 West George Street, Suite 218 Chicago, Illinois 60657 Judyking15@gmail.com Ms. Deborah J. Fortier Assistant General Counsel Office of the General Counsel Cook County Health & Hospital System 1900 West Polk Street, Suite 104 Chicago, Illinois 60612 dfortier@cockcountybhs.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on July 11, 2018. Aad £Q SARAH L. PRATT ~ Public Access Counselor SARAH L, PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Hlinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under FOIA, a public body may only reject a request as an improper repeated request under section 3(g) if it had already provided or properly denied the same records in response to a prior, substantially identical request; simply having received an earlier request that went unanswered does not trigger that provision. Separately, section 7(1)(g)'s trade-secrets/proprietary-information exemption does not cover financial terms like a fixed per-recipient capitation rate in a contract with a public body, because such figures reflect how public funds are being spent rather than a private company's confidential competitive information. Because neither basis for withholding applied, the agency's denial was improper.","card_headline":"A contract amendment with a capitation rate","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":106,"orig_master_id":19080,"dup_master_id":19307,"dup_sha256":"ccff68e4e3ac4ce52fa9922be865180fea3234ddf58d04c80dfe73e6eb678c36","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2018,"date_issued":"2018-10-02","case_number":"2018 PAC 53879","request_numbers":null,"title":"Improper Discussion of Budget and Layoffs in Closed Session","filename":"PUBLIC ACCESS OPINION 18-012 (Request for Review - 2018 PAC 53879).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 18-012 (Request for Review - 2018 PAC 53879).pdf","word_count":2355,"summary":"The Attorney General issued a binding opinion issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) The opinion concludes that the Board of Trustees (Board) of Western [Illinois University (University) violated section 2(a) of OMA by improperly discussing its budget, layoffs, and related matters in closed session during its June 28, 2018, meeting .","plain_summary":"The requester, a faculty union president, sought review of a university board's closed session in which it discussed the university's budget and layoffs, arguing that the board improperly relied on the closed-session exception for discussing specific employees. The Public Access Counselor held that the exception for specific employees does not extend to general discussions of budgetary matters or categories of employees, and that only a brief portion of the closed session concerning one employee's contract fell within the exception. The board was directed to disclose the recording and minutes of the closed-session discussion of budget and layoff matters, apart from the narrow, properly closed portion.","holding":"The Board of Trustees of Western Illinois University violated section 2(a) of the Open Meetings Act by discussing budget and layoff matters in closed session that were not within the scope of the section 2(c)(1) exception for specific employees.","legal_question":"Whether the Board of Trustees of Western Illinois University violated the Open Meetings Act by discussing budget and layoff matters in a closed session.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2(a), 5 ILCS 120/1, 5 ILCS 120/2(b), 5 ILCS 120/2, 5 ILCS 120/2(c), 5 ILCS 120/7, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Trustees of Western Illinois University","requesting_party":"Thompson and Ms. Fuller","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"closed session","subject_description":"The propriety of discussing university budget and layoff decisions in a closed session.","ocr_status":"ok","ocr_quality":90.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2018-Binding-PAC-Opinions/18-012.pdf","sha256":"3fa97d26378d6766ee99c7b675bd873c316e96b8661d3bc5056f4b986cd2aac1","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","university board","budget","layoffs","open meetings act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL October 2, 2018 PUBLIC ACCESS OPINION 18-012 (Request for Review 2018 PAC 53879) OPEN MEETINGS ACT: Improper Discussion of Budget and Layoffs in Closed Session Mr. William Thompson President, Western Illinois University Chapter University Professionals of Illinois P.O. Box 414 Macomb, Illinois 61455-0414 The Honorable Carolyn Ehlert Fuller Chair, Board of Trustees Western Illinois University 1 University Circle Macomb, Illinois 61455 Dear Mr. Thompson and Ms. Fuller: This is a binding opinion issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2016)). For the reasons discussed below, this office concludes that the Board of Trustees (Board) of Western [Illinois University (University) violated section 2(a) of OMA (5 ILCS 120/2(a) (West 2017 Supp.)) by improperly discussing its budget, layoffs, and related matters in closed session during its June 28, 2018, meeting. BACKGROUND On July 3, 2018, Mr. William Thompson, President of the Western IIlinois University Chapter of the University Professionals of Illinois, filed a Request for Review with 500 South Second Street, Springfield, IHinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 © Fax: (312) 814-3806 601 South Pniversitv Avenue. Suite 102. Carbondale. Minnis 62908 © (618) 529-6400 © TTY: (877) 675-9339 « Fax: (61K) 429-6416 <= Mr. William Thompson The Honorable Carolyn Ehlert Fuller October 2, 2018 Page 2 this office alleging that the Board improperly discussed certain topics during its closed session on June 28, 2018.! Specifically, Mr. Thompson alleged that the Board discussed layoffs generally and/or whole classes of employees, rather than specific employees. In a July 9, 2018, e-mail, Mr. Thompson supplemented his original Request for Review by stating that he had learned that during the closed session, the \"Board had discussed and decided to reduce the salaries of all librarians who have a contract [greater than] 9 months.\" On July 12, 2018, this office forwarded a copy of the Request for Review to the Board and asked it to provide copies of the agenda, open and closed session minutes, and the closed session verbatim recording of the June 28, 2018, meeting for this office's confidential review, together with a written response to Mr. Thompson's allegations.? On July 19, 2018, this office received the requested materials from the Board's General Counse]. The minutes were in draft form, as they had not been approved. The response asserted that the Board “discussed specific employees during closed session staying within the scope of the exception that the Board publicly cited to go into closed session.\"* On July 20, 2018, a copy of the Board's response was sent to Mr. Thompson.? On July 22, 2018, Mr. Thompson replied by providing \"a list of all the employees who were laid off on {June] 28th or who received contract reductions[,]\" and arguing that those employees \"are members of a class.\"° 'Letter from William Thompson, WIU Chapter President of the University Professionals of Illinois, to PAC (July 3, 2018). E-mail from William Thompson, UP] @ WIU Chapter President, to Public Access (Bureau, Office of the Attorney General] (July 9, 2018). 3Letter from Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable Carolyn Ehlert Fuller, Chair, Board of Trustees, Western Illinois University (July 12, 2018). 4Letter from Elizabeth L. Duvall, General Counsel, Western Illinois University, to Marie Hollister, Assistant Attorney General, Public Access Bureau (July 18, 2018), [at 2]. Letter from Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Attorney General to William Thompson, President, University Professionals of INinois, Western Illinois University Chapter (July 20, 2018). 6E-mail from William Thompson to Marie Hollister and Elizabeth Duvall (July 22, 2018). . Mr. William Thompson The Honorable Carolyn Ehlert Fuller October 2, 2018 Page 3 On August 14, 2018, this office extended the time within in which to issue a binding opinion by 21 business days, to October 2, 2018, pursuant to section 3.5(e) of OMA.’ ANALYSIS OMA is intended \"to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2016). Section 2(a) of OMA provides that \"{a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" The section 2(c) exceptions \"are in derogation of the requirement that public bodies meet in the open, and therefore, the exceptions are to be strictly construed, extending only to subjects clearly within their scope.\" (Emphasis added.) 5 ILCS 120/2(b) (West 2017 Supp.). Section 2a of OMA (5 ILCS 120/2a (West 2016)) further provides, in pertinent part: A public body may hold a meeting closed to the public, or close a portion of a meeting to the public, upon a majority vote of a quorum present, taken at a meeting open to the public for which notice has been given as required by this Act. * * * The vote of each member on the question of holding a meeting closed to the public and a citation to the specific exception contained in Section 2 of this Act which authorizes the closing of the meeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of the meeting. (Emphasis added.) The agenda for the Board's June 28, 2018, regular meeting provided: \"The Board shall convene in closed session for the purpose of considering matters provided for in 5 ILCS 120/2c, including personnel, collective bargaining, litigation and real estate.\"* The draft open session minutes, however, do not reference the closed session. In addition, the draft minutes do not contain a citation to any specific exception contained in section 2 of OMA that authorized the Board to hold a closed session or show that a vote on entering into closed session occurred. 7Letter from Marie Hollister, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to William Thompson, President, University Professionals of Illinois, Western Illinois University Chapter, and Elizabeth L. Duvall, General Counsel, Western Illinois University Board of Trustees (August 14, 2018). 7 ‘Western Illinois University Board of Trustees, Agenda Item, \"Motion to Convene to Closed Session — 8:00 a.m. — Union Board Room\" (June 28, 2018). °Western Illinois University Board of Trustees, Meeting, June 28, 2018, Draft Minutes. Mr. William Thompson The Honorable Carolyn Ehlert Fuller October 2, 2018 Page 4 Nonetheless, the Board's response to this office stated that \"the Board of Trustees discussed specific employees during closed session[,]\" and the University's General Counsel confirmed, in a telephone conversation with an Assistant Attorney General in the Public Access Bureau, that the Board discussed the layoffs pursuant to section 2(c)(1) of OMA (5 ILCS 120/2(c)(1) (West 2017 Supp.)).!° The Board's response did not indicate that the Board held any closed session discussion of matters under the exceptions for collective bargaining, litigation, or real estate. Accordingly, this office will analyze the applicability of the section 2(c)(1) exception to the closed session discussion. Section 2(c)(1) of OMA Section 2(c)(1) of OMA permits a public body to close a portion of a meeting to discuss \"[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body * * * , including hearing testimony on a complaint lodged against an employee of the public body * * * to determine its validity.\" (Emphasis added.) In construing this exception, the Attorney General has concluded th [...] oyment status of certain employees of the village's police department, the board's closed session discussion about the decision was not within the scope of section 2(c)(1) because the board did not discuss the performance or conduct of any specific employees). Because the Board's June 28, 2018, closed session discussion concerned budgetary matters and groups of employees, with the exception of a discrete portion pertaining to a specific employee’ s contract, this office concludes that the Board violated section 2(a) of OMA by discussingi n closed session matters outside the scope of the section 2(c)(1) exception. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments presented, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On July 3, 2018, and supplemented with additional information on July 9, 2018, Mr. William Thompson, President of the Western Illinois University Chapter of the University Professionals of Illinois, submitted a Request for Review in which he alleged that the Western Illinois University Board of Trustees violated OMA during its June 28, 2018, meeting. Specifically, Mr. Thompson alleged that the Board discussed layoffs generally and/or whole classes of employees, rather than specific employees — matters that were outside the scope of any exception to the general requirement that public, bodies conduct business openly. Mr. — Thompson's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2016)). Mr. William Thompson —__ The Honorable Carolyn Ehlert Fuller October 2, 2018 | Page 6 2) On July 12, 2018, the Public Access Bureau sent a copoyf the Request for Review to the Board and asked it to provide this office with copies of the agenda, open and closed session minutes, and closed session verbatim recording of its June 28, 2018, meeting for this office's confidential review, together with a written response to Mr. Thompson's allegations. 3) Ina letter dated July 18, 2018, and received by this office on July 19, 2018, counsel for the Board provided the requested materials and a written response. The response stated that \"the Board discussed specific employees during closed session\" and properly stayed within the scope of the section 2(c)(1) exception in OMA. Mr, Thompson was provided with a copy of the Board's written response in a letter dated July 20, 2018. Mr. Thompson replied on July 22, 2018, by providing \"a list of all the employees who were laid off on [June] 28th or who received contract reductions{,]\" and argued that those employees \"are members of a class.\" - 4) On-August 14, 2018, this office properly extended the time within which to issue a binding opinion by 21 business days, to October 2, 2018, pursuant to section 3.5(€) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to Mr. Thompson's Request for Review. 5) Section 2(a) of OMA requires that all meetings of public bodies be open to the public unless the subject of the meeting is covered by one of the limited exceptions enumerated in section 2(c) of OMA. Section 2(c)(1) of OMA permits a public body to close a portion of a meeting to discuss \"[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body[.}\" 6) By its plain language, section 2(c)(1) applies to discussions concerning specific employees. This exception does not permit a public body to discuss in closed session budgetary matters and other considerations applicable to categories of employees. 7) During its June 28, 2018, closed session, the Board primarily discussed budgeting and layoffs, rather than the performance or conduct of any specific employees, except for a brief discussion of a particular employee's contract. Accordingly, the Attorney General concludes that the Board violated OMA by discussingi n closed session matters outside the scope of section 2(c){1). 8) This finding compels the further finding that the Board violated section 2(a) of OMA, which requires that all meetings of public bodies be open to the public unless excepted by section 2(c), because the public was excluded from the improper closed session discussion. In accordance with these findings of fact and conclusions of law, the Board is , directed to remedy these violations by: (1) disclosing to Mr. Thompson and making available to Mr. William Thompson The Honorable Carolyn Ehlert Fuller October 2, 2018 Page 7 the public a copy of the closed session minutes for and verbatim recording of the closed session portioonf. its June 28, 2018, meeting related to budgetary matters and categories of employees, except for the discrete portion concerning a specific employee's contract; and (2) conducting its future meetings in full compliance with OMA. As required by section 3.5(e) of OMA, the Board shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA (5 ILCS 120/7.5 (West 2016)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. William Thompson as defendants. See 5 ILCS 120/7.5 (West 2016). Very truly yours, LISA MADIGAN ATTORNEY GENERAL Michael J. Luke Counsel to the Attorney General cc: Ms. Elizabeth L. Duvall General Counsel _ Western Illinois University . Sherman Hall 208, University Circle Macomb, Illinois 61455-1390 _ CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 18-012) upon: Mr. William Thompson President, Western Illinois University Chapter University Professionals of Illinois P.O. Box 414 Macomb, Illinois 61455-0414 wat100.thompson@gmail.com The Honorable Carolyn Ehlert Fuller Chair, Board of Trustees Western Illinois University | University Circle Macomb, Illinois 61455 CJ-EhlertFuller2@wiu.edu Ms. Elizabeth L. Duvall General Counsel Western Illinois University Sherman Hall 208, University Circle Macomb, Illinois 61455-1390 el-duvall@wiu.edu by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on October 2, 2018. SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Western Illinois University Board of Trustees discussed budget cuts and layoffs in a closed session during its June 28, 2018 meeting. The Illinois Attorney General found that this discussion did not fall within the exception for discussing specific employees under the Open Meetings Act, and therefore the Board violated the Act by improperly closing that portion of the meeting.","card_headline":"Closed-session discussion of budget and layoff decisions","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":107,"orig_master_id":19081,"dup_master_id":19308,"dup_sha256":"19db308f39a9be40493fc8311d69879c069583f48469b01eb57c2758f5a0a38c","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2018,"date_issued":"2018-10-18","case_number":"2018 PAC 53997","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 18-014 (Request for Review - 2018 PAC 53997).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 18-014 (Request for Review - 2018 PAC 53997).pdf","word_count":2100,"summary":"The Cook County Assessor's Office violated section 3.3(d) of FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Greg Gaura . Mr. Gaura requested information regarding the 2017 property tax exemptions for a specific parcel of property located in Cook County .","plain_summary":"The requester sought property tax exemption records, including completed exemption applications, for a specific parcel from a county assessor's office, which never responded despite the requester's repeated follow-up and the FOIA officer's assurance that a response was coming. The Public Access Counselor held that the assessor's office violated FOIA's requirement to comply with, extend, or deny a request within five business days, which also barred it from later treating the request as unduly burdensome. The assessor's office was directed to provide all records responsive to the request, subject only to permissible redactions under a proper written denial.","holding":"The Cook County Assessor's Office violated FOIA by failing to provide a timely response to the requester's FOIA request.","legal_question":"Whether a public body violates section 3(d) of FOIA by failing to provide any response to a written request for public records.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Cook County Assessor's Office","requesting_party":"Gaura and Mr. Kos","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"FOIA response","subject_description":"The request sought information regarding 2017 property tax exemptions and related documentation for a specific parcel of property.","ocr_status":"ok","ocr_quality":89.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2018-Binding-PAC-Opinions/18-014.pdf","sha256":"fd2b75c99d717730a969b683da1d223249613578d00f339b5d77f6443a5b2c5a","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","property tax","FOIA request","public records"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan. ATTORNEY GENERAL October 18, 2018 PUBLIC ACCESS OPINION 18-014 (Request for Review 2018 PAC 53997) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Greg Gaura 18 Foxhurst Lane Millbrook, Illinois 60536 Mr. Mark Kos Freedom of Information Act Officer Cook County Assessor's Office . 118 North Clark Street Chicago, Illinois 60602 Dear Mr. Gaura and Mr. Kos: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5() (West 2016)). For the reasons discussed below, this office concludes that the Cook County Assessor's Office (Assessor's Office) violated section 3{d) of FOIA (5 ILCS 140/3(d) (West 2016)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Greg Gaura. : BACKGROUND On June 22, 2018, Mr. Gaura submitted a FOIA request to the Assessor's Office seeking certain information regarding the 2017 property tax exemptions for a specific parcel of property located in Cook County. Mr. Gaura provided the Property Index Number for the property in question and then sought: 500 South Second Street, Springfield, Ilineis 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Pax: (217) 782-7046 100 West Randoiph Street, Chicago, Hlineis 60601 * (312) 814-3000 + TTY: (800) 964-3013 © Fax: (312) 814-3806 60) South Tiniveretry Avenne tide 197 Carkardsle THEeale SUE] «8 (RIS S43 LAT 2g TTR (979: £7S OTIS 6 Dae (LID SIO LALC eee Mr. Greg Gaura Mr. Mark Kos October 18, 2018 Page 2 the persons [sic] name the exemptions are stated for. Also I would like a copy of the completed 2017 Homeowner & Senior Citizen Exemption Document and the Senior Freeze Exemption Document that was submitted for this property.\" On July 11, 2018, Mr. Gaura e-mailed the Public Access Bureau a Request for Review alleging that the Assessor's Office had failed to respond to his FOIA request.? On July 18, 2018, the Public Access Bureau forwarded a copy of the Request for Review to the Assessor's Office, together with a letter asking it to advise this office whether it had received and responded to Mr. Gaura’s FOIA request. If it had received the request but not yet responded to Mr. Gaura, the July 18, 2018, letter requested that the Assessor's Office do so and provide this otfice with a copy of its response.? The Assessor's Office did not respond to the Public Access Bureau's July 18, 2018, correspondence. On July 30, 2018,* and August 1, 2018,° Mr. Gaura informed this office via e- mail that he had not yet received a response from the Assessor's Office. On August 2, 2018, the Public Access Bureau sent a second copy of the Request for Review to the Assessor's Office via . e-mail and the United States Postal Service, and asked it to respond by advising this office whether it had received or responded to Mr. Gaura's request. If it had received the request but not yet responded, this office asked it to respond and to provide this office with a copy of its response.® In an August 2, 2018, telephone conversation with an Assistant Attorney General in 'Cook County. Assessor's Office, Freedom of Information Department, WEB BASED FOIA REQUEST form, submitted by Greg Gaura by certified mail (une 22, 2018). . 2B-mail from Greg Gaura to Sarah Pratt [Public Access Cotinselor, Office of the Attorney General] Guly 11, 2018). . 3Letter from Laura S.. Harter, Assistant Attomey General, Public Access Bureau, Office of the Attorney General, to Mark Kos, Freedom of Information Officer, Cook County Assessor's Office (July 18, 2018). 4E-mail from Greg Gauta to [Jodi] Carnes, {Paralegal Public Access Bureau, Office of the Attorney General] (July 30, 2018). SE-mail from Greg Gaura, to [Jodi] Carnes, {Paralegal, Public Access Bureau, Office of the Attorney General] (August 1, 2018). ‘ SLetter from Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Mark Kos, Freedom of Information Officer, Cook County Assessor's Office (August 2, 2018). - Mr. Greg Gaura Mr. Mark Kos October 18, 2018 Page 3 the Public Access Bureau, Mr. Mark Kes, the FOIA Officer for the Assessor's Office, stated that he had received Mr. Gaura's FOIA request and this office's letters related to Mr. Gaura's Request for Review and that the Assessor's Office would respond.’ On August 20, 2018, the AAG contacted Mr. Gaura by e-mail and inquired whether.he had received a response from the Assessor's Office. Mr. Gaura stated that he had __ not received a response.’ As of the date of the issuance of this binding opinion, this office has not received a written response from the Assessor's Office or confirmation from Mr. Gaura that he has received a response to his June 22, 2018, FOIA request. On September 6, 2018, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days, to October 22, 2018, pursuant to section 9.5(f) of FOIA,'® ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOLA].\" 5 ILCS 140/1 (West 2016). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2016)), \"[a]ll records in the custodoyr possession of a public body are presumed to be open to inspection or copying.” Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.” Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its - receipt of the request, unless the time for response is properly — ’Telephone conversation between Laura S. Harter, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, and Mark Kos, Freedom of Information Offil eer, Cook County Assessor's Office (August 2, 2018). 8F-mail from Laura S. Harter, Assistant Attormey General, Public Access Bureau, Office of the Attorney General, to [Greg] Gaura (August 20, 2018). °E-mail from Greg Gaura to [Laura] Harter, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (August 20, 2018). Letter from Laura S. Harter, Assistant Attomey General, Public Access Bureau, Office of the Attorney General, to Greg Gaura, and Mark Kos, Freedom of Information Act Officer, Cook County Assessor's Office (September 6, 2018). Mr. Greg Gaura Mr. Mark Kos October 18, 2018 Page 4 extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. .Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond toa request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). The Assessor's Office did not respond to Mr. Gaura's FOIA request within five business days of its receipt by either complying with his request, extending the time for its response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2016)), or denying the request in writing. The Assessor's Office's failure to comply with the requisite procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On June 22, 2018, Mr. Greg Gaura submitted a FOIA request to the Cook County Assessor's Office seeking copies of property tax exemption records pertaining to a specific Property Index Number. Mr. Gaura did not receive a response to his request. 2) On July 11,2018, Mr. Gaura submitted a Request for Review to the Public Access Counselor and the Public Access Bureau because the Assessor's Office had not responded to his FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2016)). 3) On July 18, 2018, the Public Access Bureau forwarded a copy of Mr. Gaura's Request for Review to the Assessor's Office, together with a letter asking the Assessor's Office to advise this office whether it had received and responded to Mr. Gaura's June 22, 2018, FOIA request. The Assessor's Office did not respond to this office's inquiry. 4) On August 2, 2018, this office sent the Assessor's Office an additional copy of the Request for Review and this office's July 18, 2018, letter, along with a letter inquiring as to the status of the Assessor's Office's response to this office. In an August 2, 2018, telephone Mr. Greg Gaura Mr. Mark Kos October 18, 2018 Page 5 conversation with an AAG in the Public. Access Bureau, the Assessor's Office's FOIA Officer stated that the Assessor's Office intended to respond to Mr. Gaura’s FOIA request and this office's letters. 5) On August 20, 2018, Mr. Gaura confirmed to this office by e-mail that the Assessor's Office had not responded to his request. 6) On September 6, 2018, this office extended the time within which to issue a binding opinion by 30 business days, to October 22, 2018, pursuant to section 9.5(D of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 7) As of the date of the issuance of this binding opinion, this office has not received confirmation that the Assessor's Office has responded to Mr. Gaura's request, nor has this office received a written response to its inquiries. Therefore, it is the opinion of the Attorney General that the Assessor's Office has violated section 3(d)} of FOIA by failing, within five business days after receiving Mr. Gaura's June 22, 2018, FOIA request, to provide the requested records, to extend the time for its response pursuant to section 3(e) of FOIA, or to deny the request in whole or in part. Accordingly, the Assessor's Office is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Gaura with all records responsive to his June 22, 2018, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2017 Supp.), as amended by Public Act 100-732, effective August 3, 2018).!' If the Assessor's Office . determines that any portion of the responsive records is exempt from disclosure under section 7, it is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2016). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. .735.ILCS 5/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a , “Because the Assessor's Office did not comply with the statutory requirements for responding to Mr. Gaura’ 's FOIA request, the Assessor's Office is precluded from treating the request as unduly burdensome or imposing copying fees for.the responsive records. 5 ILCS 140/3(d) (West 2016) Mr. Greg Gaura Mr. Mark Kos October 18, 2018 Page 6 complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Greg Gaura as defendants. See 5 ILCS 140/11.5 (West 2016). Sincerely, LISA MADIGAN ATTORNEY GENERAL By: Lenten Michael J. Luke Counsel to the Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 18-014) upon: Mr. Greg Gaura 18 Foxhurst Lane Millbrook, Illinois 60536 ggaura4224@aol.com Mr. Mark Kos Freedom of Information Act Officer Cook County Assessor's Office 118 North Clark Street Chicago, Illinois 60602 mkos@cookcountyassessor.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on October 18, 2018. SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Gaura requested information about property tax exemptions for a specific parcel of land, but the Cook County Assessor's Office never responded to him. The Attorney General's office ruled that this silence violated the Freedom of Information Act, which requires public bodies to respond to requests within a set number of days. The Assessor's Office is now legally required to provide the requested information or a valid legal denial.","card_headline":"Property tax exemption records for a parcel","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":108,"orig_master_id":19082,"dup_master_id":19310,"dup_sha256":"e3e29819e65a2625d70e648829fe196642831f845767f710f9945a7282a8536b","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2018,"date_issued":"2018-12-31","case_number":"2018 PAC 55035","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 18-017 (Request for Review - 2018 PAC 55035).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 18-017 (Request for Review - 2018 PAC 55035).pdf","word_count":1953,"summary":"Chicago Police Department failed to respond to a FOIA request submitted by Ms. Tracey Thompson . Ms. Thompson requested seven categories of records concerning a vehicle accident that occurred at a specific address on July 16, 2018 . CPD confirmed receipt of the FOIA request later that day, and furnished Ms.","plain_summary":"The requester sought seven categories of records concerning a specific vehicle accident from a police department, which acknowledged receipt but never issued a substantive response, citing body-worn camera video still under internal review months later. The Public Access Counselor held that the department violated FOIA's requirement to comply with, extend, or deny a request within five business days, which also barred it from later treating the request as unduly burdensome. The department was directed to provide all records responsive to the request, subject only to permissible redactions under a proper written denial.","holding":"The Chicago Police Department violated section 3(d) of FOIA by failing to comply with, deny, or otherwise respond to the requester's FOIA request.","legal_question":"Whether the Chicago Police Department violated section 3(d) of FOIA by failing to respond to a request for records within the statutory timeframe.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Police Department","requesting_party":"Thompson and Ms. Valente","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"police records","subject_description":"The requester sought seven categories of records related to a vehicle accident that occurred on July 16, 2018.","ocr_status":"ok","ocr_quality":89.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2018-Binding-PAC-Opinions/18-017.pdf","sha256":"f168727f2b6ca16a1fe0da8869cbf7b002095b20507b9e554d7c9e72481e81ff","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","failure to respond","FOIA request","statutory deadline"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL December 31, 2018 PUBLIC ACCESS OPINION 18-017 (Request for Review 2018 PAC 55035) FREEDOM OF INFORMATION ACT; | Duty to Respond to FOIA Requests Ms. Tracey Thompson | P.O. Box 379364 | Chicago, Illinois 60637-9364 | | Ms. Charise Valente General Counsel | Chicago Police Department 3510 South Michigan Avenue Chicago, Illinois 60653 Dear Ms. Thompson and Ms. Valente: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) : of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the Chicago Police Department (CPD) violated section 3(d) of FOTIA (5 ILCS 140/3(d) (West 2016)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOJA request submitted by Ms. Tracey Thompson. BACKGROUND On July 27, 2018, Ms. Thompson submitted a FOIA request to CPD seeking seven categories of records concerning a vehicle accident that occurred at a specific address on July 16, 2018.! CPD confirmed receipt of the FOIA request later that day, and furnished Ms. - 'E-mail from Tracey Thompson to foia@chicagopolice.org (July 27, 2018). 500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Mlinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806 601 South University Avenue. Suite 102. Carbondale. Illinois 67901 « (6123 579-6400 «© TTY: (2773 675.9320 «© Fav (KIRLSIGDGAIGK - On October 4, 2018, Ms. Katie Manifold Baird, on behalf of Abels & Annes, P.C., and its client, Mr. Demarcus Peoples, submitted a Request for Review to the Public Access Counselor contesting CPD's denial of the responsive body camera video footage.° Specifically, Ms. Baird's Request for Review states: The recording at issue was made pursuant to a motor vehicle collision[.] * * * Asa result of the motor vehicle collision, Mr. Peoples was injured and suffered bodily harm[.] Mr. Peoples is the subject of the encounter at issue. He is a victim in this matter as he sustained bodily harm due to the actions of 'FOIA request from David Abels, Abels & Annes, P.C., to Chicago Police Department, Freedom of Information Officer, Office of Legal Affairs, Unit 114 (September 18, 2017). Mr. Abels’ FOIA request attached a copy of traffic report R.D. 2018 JB432652. The traffic report indicates that the traffic crash in question occurred on September 12, 2018. We have assumed that Mr: Abels’ letter dated September 18, 2017, contained a scrivener's error and that the correct date on the letter should have been September 18, 2018. \"FOIA request from David Abels, Abels & Annes, P.C., to Chicago Police Department, Freedom of Information Officer, Office of Legal Affairs, Unit 114 (September 18, 201[8]). 3FOIA request from David Abels, Abels & Annes, P.C., to Chicago Police Department, Freedom of Information Officer, Office of Legal Affairs, Unit 114 (September 18, 201[8]). ‘Letter from A. Marlan, Freedom of Information Act Officer, Chicago Police Department, Office of Legal Affairs, Unit 114, to David Abels (September 25, 2018), at 1. >Letter from A. Marlan, Freedom of Information Act Officer, Chicago Police Department, Office of Legal Affairs, Unit 114, to David Abels (September 25, 2018), at 1. Letter from Katie Manifold Baird, Abels & Annes, P.C., to Public Access Counselor, Office of the Attorney General (October 4, 2018). Ms. Katie Manifold Baird Ms. Charise Valente January 9, 2019 Page 3 another motorist. Mr. Peoples retained my office as his attorneys and has imbued us with the authority to act on his behalf.!7! On October 12, 2018, the Public Access Bureau sent a copy of the Request for Review to CPD. The Public Access Bureau also sent CPDa letter requesting unredacted copies of the responsive body camera recordings for its confidential review, together with a detailed explanation of the legal and factual bases for the assertion that the Body Camera Act specifically prohibits disclosure of the requested recordings.®? The Public Access Bureau further asked CPD to “please address the applicability of section 10-20(b)(3) [of the Body Camera Act] (50 ILCS 706/10-20(b)(3) (West 2016)).\"” On October 19, 2018, the Public Access Bureau received the responsive body camera footage and a written answer from CPD; the answer did not address the applicability of section 10-20(b)(3).!° Instead, CPD argued that a body camera recording is not subject to disclosure pursuant to FOIA unless it is flagged in accordance with section 10-20(b) of the Body Camera Act.'! On that same date, after reviewing CPD's answer, an Assistant Attorney General (AAG) in the Public Access Bureau contacted CPD by e-mail and provided CPD with copies of two non-binding determination letters, wherein this office previously rejected the assertion that body camera footage must first be flagged in order to be subject to disclosure to the subject or the subject's attorney (Ill. Att'y Gen. PAC Req. Rev. Ltr. 41069 41070, issued July 20, 2016; II]. Att'y Gen. PAC Req. Rev. Ltr. 46719, issued August 16, 2017). The AAG also asked CPD if the two determination letters would change its position on the disclosure of the requested records'. Letter from Katie Manifold Baird, Abels & Annes, P.C., to Public Access Counselor, Office of the Attorney Genera! (October 4, 2018), at 2. ’Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Charise Valente, General Counsel, Chicago Police Department (October 12, 2018). Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Charise Valente, Genera] Counsel, Chicago Police Department (October 12, 2018), at 2. ‘Letter from Sarah Bown, Freedom of Information Act Officer, Chicago Police Department, Office of Legal Affairs, Unit 114, to Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (October 19, 2018). \"Letter from Sarah Bown, Freedom of Information Act Officer, Chicago Police Department, Office of Legal Affairs, Unit 114, to Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (October 19, 2018). '2-mail from Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to [Sarah] Bown, [Peter] Edwards, [Kimberly] Woods, and [Dana] O'Malley (October 19, 2018). _ Ms. Katie Manifold Baird Ms. Charise Valente January 9, 2019 Page 4 On October 22, 2018, the Public Access Bureau forwarded to Ms. Baird a copy of CPD's written answer and notified her of her opportunity to reply.'? On October 29, 2018, Ms. Baird submitted a reply.'* Ms. Baird's reply sought to distinguish the provisions in the Body Camera Act that relate to the [...] P.C., submitted a FOIA request to CPD seeking, among other things, copies of body camera recordings related to a September 12, 2018, motor vehicle collision. *°Because this conclusion is dispositive, this office will not analyze Ms. Baird's argument that Mr. Peoples’ complaint requires the recordings to be deemed flagged under sections 10-20(b)(1) and 10-20(b)(2) of the Body Camera Act. Ms, Katie Manifold Baird Ms. Charise Valente January 9, 2019 Page 11 2) On September 25, 2018, CPD denied the portion of Mr, Abels’ request seeking body camera recordings, citing section 7(1)(a) of FOIA in connection with section 10-20(b) of the Law Enforcement Officer- Worn Body Camera Act. 3) On October 4, 2018, the Public Access Bureau received a Request for Review from Ms. Katie Manifold Baird, on behalf of Abels & Annes, P.C., and its client, Mr. Demarcus Peoples, contesting CPD's denial of the responsive body camera recordings. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2016)). 4) On October 12, 2018, the Public Access Bureau sent a copy of the Request for Review to CPD and asked it to provide copies of the withheld body camera recordings for this office's confidential review. This office also asked CPD to provide a detailed explanation of the factual and legal bases for the assertion that the Body Camera Act specifically prohibits disclosure of the recordings. 5) On October 19, 2018, this office received copies of the body camera recordings together with CPD's written answer, in which CPD argued that body camera footage is not subject to disclosure pursuant to FOIA unless it is flagged for one of the reasons listed in sections 10-20(b)(1) and 10-20(b)(2) of the Body Camera Act. 6) On October 22, 2018, the Public Access Bureau forwarded a copy of CPD's written answer to Ms. Baird and notified her of her opportunity to reply. 7) On October 29, 2018, Ms. Baird submitted a reply to CPD's answer. 8) On November 28, 2018, this office extended the time within which to issue a binding opinion by 30 business days, to January 16, 2019, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 9) Although CPD cited the more general section 7(1)(a) of FOIA, section 7. 5(cc) of FOIA expressly exempts from disclosure \"[r]ecordings made under the Law Enforcement Officer-Worn Body Camera Act, except to the extent authorized under that Act.\" 10) Section 10-20(b) of the Body Camera Act provides a series of exceptions to the Body Camera Act's general prohibition against the disclosure of body camera recordings under FOIA, any one of which may be satisfied in order for a body camera recording to be disclosed. Ms. Katie Manifold Baird Ms. Charise Valente January 9, 2019 Page 12 11) Section 10-20(b)(3) of the Body Camera Act provides that a law enforcement agency such as CPD \"shall disclose, in accordance with the Freedom of Information Act, the recording to the subject of the encounter captured on the recording or to the subject's attorney, or the officer or his or her legal representative.\" 12) Section 10-20(b) does not specify that only \"flagged\" recordings are subject to disclosure to the subject of the encounter captured on the recordings or to the subject's attorney, or the officer or his or her legal representative. Construing section 10-20(b)(3) of the Body Camera Act as being limited to certain flagged recordings based on the preceding sections of the statute would improperly read into the statute a limitation not expressed by the General Assembly and render a portion of section 10-20(b)(3) superfluous. Construing section 10- 20(b)(3) of the Body Camera Act as permitting both the subject of the recording and the officer, and their legal representatives, to obtain the footage in accordance with FOIA, regardless of whether it has been flagged, would render no part of the statute superfluous and would be harmonious with the remainder of the statute. Accordingly, the latter construction must be adopted. 13) It is undisputed that Mr. Peoples is a subject of the body camera recordings at issue and that he is represented by Abels & Annes, P.C. The firm requested the recordings on his behalf. Under section 10-20(b)(3) of the Body Camera Act, the recordings are subject to disclosure to Abels & Annes, P.C. Therefore, it is the opinion of the Attorney General that CPD's denial of the body camera recordings responsive to the Abels & Annes law firm's Freedom of Information Act request violated the requirements of FOIA. Accordingly, CPD is directed to take immediate and appropriate action to comply with this opinion by disclosing to Mr. Abels and Ms. Baird copies of the responsive body camera recordings, after \"remov[ing] identification of any person that appears on the recording[s] and is not the officer, a subject of the encounter, or directly involved in the encounter.\" 50 ILCS 706/10-20(b) (West 2016). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a Ms. Katie Manifold Baird Ms. Charise Valente January 9, 2019 ' Page 13 complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois, Abels & Annes, P.C., Mr. David Abels, and Ms. Katie Manifold Baird as defendants. See 5 ILCS 140/11.5 (West 2016). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: Michael J. Luke Counsel to the Attorney General CC: Ms. Sarah Bown Freedom of Information Act Officer Chicago Police Department Office of Legal Affairs, Unit 114_ 3510 South Michigan Avenue Chicago, Illinois 60653 CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 19-001) upon: Ms. Katie Manifold Baird Abels & Annes, P.C. 100 North LaSalle Street, Suite 2207 Chicago, Illinois 60602 katie@abelsannes.com Ms. Charise Valente General Counsel Chicago Police Department 3510 South Michigan Avenue Chicago, Illinois 60653-1020 pacola@chicagopolice.org Ms. Sarah Bown Freedom of Information Act Officer Chicago Police Department Office of Legal Affairs, Unit 114 3510 South Michigan Avenue Chicago, Illinois 60653 sarah.bown@chicagopolice.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on January 9, 2019. SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A law firm requested body camera footage from the Chicago Police Department for a client involved in a traffic accident. The police department denied the request, citing a FOIA exemption and the Law Enforcement Officer-Worn Body Camera Act. The Attorney General found that the denial was improper because section 10-20(b)(3) of the Body Camera Act requires disclosure of such recordings to the subject of the encounter or the subject's attorney. The opinion concluded that the police department violated FOIA.","card_headline":"Police body-camera footage of a motor vehicle accident","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":116,"orig_master_id":19090,"dup_master_id":19317,"dup_sha256":"c810021d17c718aa00604f933fab14b529020a8192c565c76415d7913a75bf7f","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2019,"date_issued":"2019-07-25","case_number":"2019 PAC 58242","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 19-006 (Request for Review - 2019 PAC 58242).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 19-006 (Request for Review - 2019 PAC 58242).pdf","word_count":1835,"summary":"The Attorney General issued a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) The opinion concludes that the Village of Dolton (Village) violated section 3(d) of FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request .","plain_summary":"The requester, a union representative, sought a range of labor-related records from a village, including bargaining unit seniority lists, budgets, collective bargaining agreements, and wage and benefits information, but received no response. The Public Access Counselor held that the village violated FOIA's requirement to comply with, extend, or deny a request within five business days, and that its failure to respond also barred it from later claiming the request was unduly burdensome. The village was directed to provide the requester with all records responsive to the request.","holding":"The Village of Dolton violated section 3(d) of FOIA by failing to comply with, deny, or otherwise respond to the requester's FOIA request within the statutory timeframe.","legal_question":"Whether the Village of Dolton violated section 3(d) of FOIA by failing to respond to a FOIA request within the statutory time period.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Dolton","requesting_party":"Stomper and Ms. Duggan","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"failure to respond","subject_description":"The requester sought a seniority list, the Village budget, financial reports, and a report of Village employees.","ocr_status":"ok","ocr_quality":89.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2019-Binding-PAC-Opinions/19-006.pdf","sha256":"530fa639d64dd7b6a94ca837326399268758746bcd77b6586c94690210c31135","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","Village of Dolton","public records"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL, ATTORNEY GENERAL July 25, 2019 PUBLIC ACCESS OPINION 19-006 (Request for Review 2019 PAC 58242) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Richard Stomper Field Representative Illinois Fraternal Order of Police Labor Council 5600 South Wolf Road Western Springs, Illinois 60058 The Honorable Mary Kay Duggan Village Clerk Village of Dolton 14122 Chicago Road Dolton, Illinois 60419-1042 Dear Mr. Stomper and Ms. Duggan: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom ofI nformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the Village of Dolton (Village) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2016)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Richard Stomper. BACKGROUND On April 9, 2019, Mr. Stomper, in his capacity as Field Representative for the Illinois Fraternal Order of Police Labor Council, submitted a FOIA request to the Village via e- mail seeking copies of: 500 South Second Strccr, Springfield, [llimois 62701 © (217) 782- 1090-6 “TY: (877) 344-3461 © or 100 Wese Randolph Street, Chicagn, Ulinois 60608 © (342) 8LE-3O00 © TFY: (800) 964-3013 © Bas: (5 4.3816 601 South University Ave., Carbondale, [L.62901 © (618) 529-6400°* “I°T'Y:(877) 675-9339 # Fax (O18) 52!IAG CHAD ~ Mr. Richard Stomper The Honorable Mary Kay Duggan July 25, 2019 Page 2 1) A current command staff bargaining unit seniority list; 2) The Village's latest budget; 3) The Village's Comprehensive Annual Financial Report (CAFR) for fiscal years: 2013-14, 2014-15, 2015-16, 2016-17, 2017-18; 4) A current report oft he Village's expenditures and revenues, budgeted versus actual, across all funds; 5) All collective bargaining agreements between the Village and all unions other than the Illinois FOP Labor Council covering years 2008 to date; 6) Documents showing the command staff bargaining unit members' health insurance designation as to plan type and tier; 7) Documents showing the total health insurance premium costs for all plans and tiers for calendar years 2013-19; 8) Documents showing the command staff bargaining unit members actual and scheduled hour of work for calendar years 2013, 2014, 2015, 2016, 2017, 2018; 9) Documents showing the command staff sick leave and compensatory time balances; 10) The Village's most recent bond issue, including the summary evaluation pages; [and] 11) Documents showing the wage increases awarded to the Village's non-union employees from 2013 to date.!') On May 21, 2019, Mr. Stomper e-mailed a Request for Review to the Public Access Bureau alleging that the Village had failed to respond to his April 9, 2019, FOIA request.? On May 28, 2019, the Public Access Bureau forwarded a copy of the Request for Review to the Village and asked whether it had responded to Mr. Stomper's FOIA request.> The May 28, 2019, letter also requested that, if the Village had not yet responded to Mr. Stomper, it do so and provide this office with a copy of the response. The Village did not respond to the Public Access Bureau's May 28, 2019, correspondence. ‘FOIA request from Richard Stomper, Field Representative, Illinois Fraternal Order of Police Labor Council, to [Mary Kay] Duggan (April 9, 2019). 2E-mail from Richard Stomper, Field Representative, Illinois Fraternal Order of Police Labor Council, to [Deputy Bureau] Chief [Joshua] Jones (May 21, 2019). 3Letter from Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Mary Kay Duggan, Village Clerk, Village of Dolton (May 28, 2019). Mr. Richard Stomper The Honorable Mary Kay Duggan July 25, 2019 Page 3 On July 3, 2019, Mr. Stomper informed this office by e-mail that he still had not received a response to his FOIA request from the Village.‘ On July 25, 2019, an Assistant Attorney General in the Public Access Bureau left a message for the Village's FOIA officer seeking to confirm that the Village had received the FOIA request from Mr. Stomper.’ Later on that same date, the FOIA officer returned the call and verified that the Village had received the FOIA request from Mr. Stomper, but stated that because of the volume of records involved, the Village could not provide a timeframe for issuing its response to Mr. Stomper.® Pursuant to section 9.5(f) of FOIA, on July 18, 2019, this office extended the time within which to issue a binding opinion by 30 business days, to August 30, 2019. As of the date oft he issuance of this binding opinion, this office has not received ‘a written response from the Village or confirmation from Mr. Stomper that he has received a response to his April 9, 2019, FOIA request. ANALYSIS “It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2016). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2016)), \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.” Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2016)) provides that \"[eJach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 oft his Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt oft he request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days afer its receipt shall be considered “E-mail from Richard Stomper, Field Representative, IIlinois Fraternal Order of Police Labor Council, to [Joshua] Jones (July 3, 2019). Voicemail from Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to the Honorable Mary Kay Duggan, FOIA Officer, Village of Dolton (Suly 25, 2019) “Telephone conversation between the Honorable Mary Kay Duggan, FOIA Officer, Village of Dolton, and Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (July 25, 2019), Mr. Richard Stomper The Honorable Mary Kay Duggan July 25, 2019 Page 4 a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). The Village did not respond to Mr. Stomper's FOIA request within five business days after its receipt by either complying with his request, extending the time for its response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2016)), or denying the request in writing. The Village's failure to comply with the requisite procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On April 9, 2019, Mr. Richard Stomper, as Field Representative for the Illinois Fraternal Order of Police Labor Council, submitted a FOIA request to the Village of Dolton seeking copies ofv arious records related to collective bargaining. Mr. Stomper did not receive a response to his request. 2) On May 21, 2019, Mr. Stomper submitted a Request for Review to the Public Access Bureau because the Village had not responded to his FOIA request. The Request for Review was timely filed and otherwise complies with the requirements ofs ection 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2016)). 3) On May 28, 2019, the Public Access Bureau forwarded a copy of Mr. Stomper's Request for Review to the Village along with a letter asking the Village to advise this office whether it had responded to Mr. Stomper's April 9, 2019, FOIA request. The Village did not respond to this office's inquiry. 4) On July 18, 2019, this office extended the time within which to issue a binding opinion by 30 business days, to August 30, 2019, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 5) As oft he date of the issuance oft his binding opinion, this office has not received a response to its inquiry nor has this office received any confirmation that the Village has responded to Mr. Stomper's request. Mr. Richard Stomper The Honorable Mary Kay Duggan July 25, 2019 Page 5 Therefore, it is the opinion oft he Attorney General that the Village has violated section 3(d) of FOIA by failing, within five business days after receiving Mr. Stomper's April 9, 2019, FOIA request, to provide copies of the requested records, to extend the time for its response pursuant to section 3(e) of FOIA, or to deny the request in whole or in part. Accordingly, the Village is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Stomper with copies of all records responsive to his April 9, 2019, FOIA request.” This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date oft his decision naming the Attorney General of Illinois and Mr. Richard Stomper as defendants. See 5 ILCS 140/11.5 (West 2016). Sincerely, KWAME RAOUL ATTORNEY GENERAL Brent Stratton Chief Deputy Attorney General *Because the Village did not comply with the statutory requirements for responding to Mr. Stomper's FOIA request, the Village is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d) (West 2016). CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy oft he foregoing Binding Opinion (Public Access Opinion 19-006) upon: Mr. Richard Stomper Field Representative Illinois Fraternal Order of Police Labor Council 5600 South Wolf Road Western Springs, Illinois 60058 rstomper@fop.org The Honorable Mary Kay Duggan Village Clerk Village of Dolton 14122 Chicago Road Dolton, Illinois 60419-1042 mduggan@vodolton.org by causing a true copy thereotof be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on July 25, 2019. STEVE SILVERMAN Bureau Chief Public Access Bureau STEVE SILVERMAN Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Richard Stomper requested various financial and personnel records from the Village of Dolton, but the Village never responded to his request. The Attorney General ruled that the Village broke the law by ignoring the request and ordered them to provide the records. Because the Village failed to respond on time, they are now prohibited from charging fees for the documents.","card_headline":"A village's seniority list, budget, financial reports, and employee report","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":117,"orig_master_id":19091,"dup_master_id":19319,"dup_sha256":"990e1540110e985ecf444e946193fa4f349309b76a212b27ae45b14261d04353","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2019,"date_issued":"2019-05-17","case_number":"2019 PAC 56876","request_numbers":null,"title":"Public Recital of the Nature of the Matter Under Consideration Prior to Taking Final Action","filename":"PUBLIC ACCESS OPINION 19-004 (Request for Review - 2019 PAC 56876).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 19-004 (Request for Review - 2019 PAC 56876).pdf","word_count":2419,"summary":"The Board of Education violated OMA during its January 28, 2019, meeting by failing to provide an adequate public recital of the business being conducted before taking final action on a resolution . This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA)","plain_summary":"The requester, a newspaper, sought review of a school board's vote to approve a resolution authorizing a formal disciplinary notice to a teacher after the board announced only the resolution's number and title before voting, and the superintendent stated the underlying details had been discussed only in closed session. The Public Access Counselor held that the board violated the Open Meetings Act's requirement of a public recital sufficient to identify the business being conducted, because identifying an unnamed teacher subject to discipline did not give the public adequate notice of the transaction. The board was directed to reconsider and re-vote on the resolution at a properly noticed meeting that names the teacher and describes the action being taken.","holding":"The Board of Education violated section 2(e) of the Open Meetings Act by failing to provide a sufficient public explanation of the nature of the resolution it voted upon during its January 28, 2019, meeting.","legal_question":"Whether a public body violates section 2(e) of the Open Meetings Act by failing to provide an adequate public recital of the nature of the matter under consideration prior to taking final action on a resolution.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/1, 5 ILCS 120/2(e), 735 ILCS 5/3, 5 ILCS 120/7","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"President Board of Education","requesting_party":"Egbert and Mr. Thompson","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"meeting notice","subject_description":"The Board of Education failed to provide a sufficient public explanation of a resolution regarding a 'Notice to Remedy' before voting on it.","ocr_status":"ok","ocr_quality":90.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2019-Binding-PAC-Opinions/19-004.pdf","sha256":"ca25a77749ba2159b6d5287e740910e6a07e2abd6dc28e6eb8548a1d82801ad3","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["public meeting","school board","transparency","voting","resolution"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL May 17, 2019 PUBLIC ACCESS OPINION 19-004 (Request for Review 2019 PAC 56876) . OPEN MEETINGS ACT: Public Recital of the Nature of the Matter Under Consideration Prior to Taking Final Action Mr. Jeff Egbert Pinckneyville Press 111 South Walnut Street Pinckneyville, Illinois 62274 Mr. Greg Thompson, President Board of Education of Pinckneyville High School District 101 600 East Water Street Pinckneyville, Illinois 62274 Dear Mr. Egbert and Mr. Thompson: This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2016)). For the reasons discussed below, this office concludes that the Board of Education (Board) of Pinckneyville Community High School District 101 (District) violated OMA during its January 28, 2019, meeting by failing to provide an adequate public recital of the business being conducted before taking final action on a resolution. BACKGROUND On February 18, 2019, the Public Access Bureau received a Request for Review from Mr. Jeff Egbert, on behalf of Pinckneyville Press, alleging that during its January 28, 2019, 500 South Sccond Street, Springfield, Illinois 62701 © (217) 782-1090 © IVY: (877) 844-5461 « Fax: (217) 782-7046 100 West Randolph Street, Chicago, Ilinois 60601 © (312) 814-3000 © L’T'Y: (800) 964-3013 © Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © TTY: (877) 675-9339 © Fax (618) 529-6416 * Mr. Jeff Egbert Mr. Greg Thompson. May 17, 2019 Page 2 meeting, the Board voted on \"Resolution 2019-1 authorizing a Notice to Remedy,! but gave no public details of the business being publicly conducted by the board.\"* Mr. Egbert statedi n his Request for Review that \"[a]fter [the superintendent was] questioned about the lack of transparency, [the] school superinterident * * * [said] 'we read it in closed session.'\"? Mr. Egbert provided this office with copies of the agenda for the January 28, 2019, meeting, the \"Board Meeting Newsletter,” which contains a summary of the meeting, and a digital audio recording of . that portion of the meeting during which the Board discussed and voted on Resolution No. 2019- I. : On February 28, 2019, the Public Access Bureau forwarded a copy of the Request for Review to the president of the Board, together with a letter asking the Board to, among other things, clarify whether it voted on a motion to approve Resolution No. 2019-1 at its January 28, 2019, meeting. Ifthe Board voted to approve the resolution, the Public Access Bureau requested a description of the information the Board provided to the public regarding the resolution, and an explanation of whether the information provided to the public was sufficient to inform the public of the business being conducted before action was taken. In addition, the Public Access Bureau requested copies of the agenda, minutes, and recordings of the January 28, 2019, meeting, as well as Resolution No. 2019-1, and the Notice to Remedy that underlies the resolution.‘ On March 4, 2019, counsel for the Board, Mr. Stuart E. Morgenstern, provided a written response on behalf of the Board, copies of the January 28, 2019, meeting agenda, open -session and closed session minutes for that meeting, and the verbatim recording of the closed = - session, as well as copies of Resolution No. 2019-1 and the Notice to Remedy.? Mr. Morgenstern explained that during the January 28, 2019, meeting the Board approved Resolution No. 2019-1, and that \"[i]n order to inform the public the resolution number and the title of the 'A notice to remedy \"notifies a teacher that, unless his or her conducti s corrected, he or she may face charges subject to dismissal.\" Board of Education of Rockford School District No. 205 y, Illinois Educational Labor Relations Board, 165 Ill. 2d 80, 91 (1995). 7E-mail from Jeff Egbert, Pinckneyville Press, to Public Access [Bureau, Office of the Attorney General] (February 18, 2019). *E-mail from Jeff Egbert, Pinckneyville Press to Public Access [Bureau, Office of the Attorney General] (February 18, 2019). “Letter from Edie Steinberg, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Greg Thompson, President, Board of Education of Pinckneyville Community High School District 101 (February 28, 2019), at 1-2. *Letter from Stuart E. Morgenstern, Morgenstern Law Office, P.C., to Edie Steinberg, Office of the Attorney General, Assistant Attorney General, Public Access Bureau (March 4, 2019). Mr. Jeff Egbert Mr. Greg Thompson May 17, 2019 Page 3 resolution were read aloud in open session.\"® On March 12, 2019, Mr. Egbert contacted this office regarding the status of his Request for Review. Later that same day, this office forwarded a copy of the Board's response letter to Mr. Egbert.’ Mr. Egbert did not provide a written reply. On Apri! 15, 2019, this office properly extended the time within which to issue a binding opinion by 21 business days, to May 20, 2019, pursuant to section 3.5(e) of OMA.® ANALYSIS The public policy of this State, as declared in section 1 of OMA (5 ILCS 120/1 (West 2016)), is that \"public bodies exist to aid in the conduct of the people's business and that the people have a right to be informed as to the conduct of their business.\" Section 2(e) of OMA (5 ILCS 120/2(e) (West 2017 Supp.), as amended by Public Act 100-646, effective July 27, 2018) requires that \"[f]inal action [at a meeting] * * * be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted.\" The issue raised by Mr. Egbert's Request for Review is whether the Board's public announcement at its January 28, 2019, meeting of the \"resolution number and the title of the resolution” was a sufficient public recital of the nature of the matter being considered to inform the public of the business being conducted as required by section 2(e) of OMA. The minutes of the January 28, 2019, meeting indicate that the Board provided the following information: It was moved by Brian Kellerman and seconded by Jennifer Robb to approve Resolution No. 2019-1 authorizing a Notice to Remedy be served to the teacher named therein. Roll call: Lisa Stanton, yes; Greg Thompson, yes; Jennifer Robb, yes; Jeff Suchomski, yes; Brian Kellerman, yes; Greg Bigham, yes; and Kyle Pursell, yes. Motion carried.”] Letter from Stuart E. Morgenstern, Morgenstern Law Office, P.C., to Edie Steinberg, Office of the Attorney General, Assistant Attorney General, Public Access Bureau (March 4, 2019), \"Letter from Edie Steinberg, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Jeff Egbert, Pinckneyville-Press (March 12, 2019). Letter from Edie Steinberg, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Jeff Egbert, Pinckneyville Press, and Stuart E. Morgenstern, Morgenstern Law Office, P.C, (April 15, 2019). *Pinckneyville Community High School District 101 Board of Education, Meeting, January 28, 2019, Minutes 2. Mr. Jeff Egbert ° Mr. Greg Thompson May 17, 2019 Page 4 Additionally, the audio recording of this portion of the meeting establishes the following exchange between the Board and Mr. Egbert: BOARD PRESIDENT: | would entertain a motion to approve resolution number 2019-1 authorizing a Notice to Remedy to be served on the teacher named therein. BOARD MEMBER: So moved. * Ok MR. EGBERT;: As a point of order don't you have to disclose what you are voting on? DISTRICT SUPERINTENDENT: It's Resolution 2019[-1]. Do you want me to read the resolution? MR. EGBERT: * * * Yeah. DISTRICT SUPERINTENDENT: We read it in closed session. It is moot. DISTRICT'S ATTORNEY: I don't know that the resolution has to be read. * KK MR. EGBERT: The law says you have to tell the public the business you are conducting. DISTRICT SUPERINTENDENT: It is a Notice to Remedy.!!©! In Board of [...] the performance of public employees, especially when their performance warrants a Notice to Remedy and involves conduct that, if not corrected, may result in discipline or dismissal. See Ill. Att'y Gen. Pub. Acc. Op. No. 13-016 at 5. Because the District has numerous teachers in its employ, a public recital stating that the Board would take action on a resolution authorizing a Notice to Remedy to be served on an unidentified teacher did not provide sufficient detail to identify a particular transaction. Accordingly, this office concludes that, in violation of section 2(e), the Board did not adequately \"inform the public of the business being conducted[ ]\" before voting on the resolution. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On January 28, 2019, the Pinckneyville Community High School District 101 Board of Education held a regular meeting. During the meeting, the Board voted to adopt Resolution No. 2019-1, authorizing a Notice to Remedy. Prior to voting to adopt the resolution, the Board read aloud only the resolution number and the title of the resolution. 2) On February 18, 2019, Mr. Jeff Egbert, on behalf of Pinckneyville Press, submitted a Request for Review to the Public Access Counselor alleging that at the January 28, 2019, meeting, the Board did not provide a public recital that sufficiently informed the public of the business being conducted before voting to approve Resolution No. 2019-1, authorizing a Notice to Remedy. Mr. Egbert's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2016)). 3) On February 28, 2019, the Public Access Bureau forwarded a copy of the Request for Review to the president of the Board, The Public Access Bureau requested that the Board provide a detailed written response to the allegations raised by Mr. Egbert's Request for Review. The Public Access Bureau also requested copies of the agenda, minutes, and recordings of the January 28, 2019, meeting, as well as Resolution No. 2019-1, and the pertinent Notice to Remedy. Mr. Jeff Egbert Mr. Greg Thompson May 17, 2019 Page 7 4) On March 4, 2019, Mr. Stuart E. Morgenstern, counsel for the Board, provided a written response to the Public Access Bureau. The response also included copies of the agenda, minutes of the meeting's open and closed sessions, the audio recording of the closed session discussion, Resolution No. 2019-1, and the Notice to Remedy. On March 12, 2019, the Public Access Bureau forwarded a copy of the Board's written response to Mr. Egbert; he did not reply. 5) On April 15, 2019, this office properly extended the time within which to issue a binding opinion by 21 business days, to May 20, 2019, pursuant to section 3.5(e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 6) Section 2(e) of OMA provides that \"[flinal action shall be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted.\" To adequately inform the public of the business being conducted, a public body's public recital must include sufficient detail to identify the particular transaction that is the subject of final action. It is undisputed that on January 28, 2019, the Board did not provide a public recital identifying the employee to be issued the Notice to Remedy before the Board voted to adopt the resolution authorizing that Notice to Remedy. 7) Because the Board did not identify the employee to whom the Notice to - Remedy was to be issued, the Board failed to provide sufficient detail to identify the particular transaction. Consequently, the Board did not adequately inform the public of the nature of the business it was conducting before taking final action on the resolution, as required by section 2(e) of OMA. : Therefore, it is the opinion of the Attorney General that the Pinckneyville Community High School District 101 Board of Education violated the Open Meetings Act. In accordance with these findings of fact and conclusions of law, the Board is directed to take appropriate action to comply with this opinion by reconsidering and re-voting on Resolution No. 2019-1, the Notice to Remedy previously addressed on January 28, 2019. Before voting, the Board must provide at least 48 hours' notice of the intended action on a properly posted agenda and provide a public recital of the nature oft he matter being considered and the business being conducted with sufficient detail for the public to be able to identify the particular transaction, including reciting the name of the teacher being served the Notice of Remedy. This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County Mr. Jeff Egbert Mr. Greg Thompson May 17, 2019 Page 8 within 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Jeff Egbert as defendants. See 5 ILCS 120/7.5 (West 2016). Sincerely, KWAME RAOUL ATTORNEY GENERAL By: harkee_. Michael J. Luke Counsel to the Attorney General CC: Mr. Keith Hagene, Superintendent Pinckneyville Community High School District 101 600 East Water Street Pinckneyville, Illinois 62274 Mr. Stuart E. Morgenstern Morgenstern Law Office, P.C. One West Laurel Street P.O. Box 470 Pinckneyville, Illinois 62274 CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 19-004) upon: Mr. Jeff Egbert Pinckneyville Press 111 South Walnut Street Pinckneyville, Illinois 62274 iinewsman2@yahoo.com Mr. Greg Thompson, President Board of Education of Pinckneyville High School District 101 600 East Water Street Pinckneyville, Illinois 62274 gregorydthompson1966@gmail.com Mr. Keith Hagene, Superintendent Pinckneyville Community High School District 101 600 East Water Street _ Pinckneyville, Illinois 62274 khagene@pchspanthers.com Mr. Stuart E. Morgenstern Morgenstern Law Office, P.C. One West Laurel Street P.O. Box 470 Pinckneyville, Illinois 62274 semlaw@frontier.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on May 17, 2019. J vw AL Galf- SARAHL.PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A school board voted on a resolution during a public meeting but failed to explain to the public what the resolution was actually about before voting. The Attorney General's office ruled that this violated the Open Meetings Act, which requires public bodies to provide enough information so that the public understands the business being conducted. This ensures that government actions remain transparent and accountable to the community.","card_headline":"Board's vote on a \"Notice to Remedy\" resolution","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":118,"orig_master_id":19092,"dup_master_id":19320,"dup_sha256":"7b021be0e987608bd82d9a0add3f3598408deddc38ef20ffd24868785dd3bd95","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2019,"date_issued":"2019-05-29","case_number":"2019 PAC 56867","request_numbers":null,"title":"Disclosure of Police Department's Extradition Calendar","filename":"PUBLIC ACCESS OPINION 19-005 (Request for Review - 2019 PAC 56867).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 19-005 (Request for Review - 2019 PAC 56867).pdf","word_count":2368,"summary":"The Attorney General issued a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) The opinion concludes that the Chicago Police Department (CPD) violated the requirements of FOIA by improperly denying Mr. Derek B, Webb's January 28, 2019, FOIA request for a copy of one of the CPD's extradition calendars .","plain_summary":"The requester sought a copy of a police department's monthly extradition-unit staffing calendar, which the department withheld as predecisional and deliberative draft material. The Public Access Counselor held that the calendar was purely factual -- a listing of officers and their assigned duties for each day -- and that the department failed to show how its disclosure would reveal the give-and-take of any internal deliberation. The department was directed to disclose the calendar.","holding":"The Chicago Police Department improperly withheld the requested extradition calendar because it did not qualify as a predecisional or deliberative document under section 7(1)(f) of FOIA.","legal_question":"Whether an extradition calendar constitutes a 'predecisional' or 'draft' document exempt from disclosure under section 7(1)(f) of FOIA.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/71, 5 ILCS 140/1, 5 ILCS 140/7, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(f)","public_body":"City of Chicago","requesting_party":"Mr. Derek B. Webb","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"police records","subject_description":"The request sought a monthly extradition calendar used by the Chicago Police Department.","ocr_status":"ok","ocr_quality":89.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2019-Binding-PAC-Opinions/19-005.pdf","sha256":"d219035f179c5dd166aa485ed66cb61e58e5fb9955fd31bac656e6ef3373512c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police records","predecisional","draft documents","FOIA request"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL M29a, 2y019 PUBLIC ACCESS OPINION 19-005 (Request for Review 2019 PAC 56867) FREEDOM OF INFORMATION ACT: Disclosure of Police Department's Extradition Calendar Mr. Derek B. Webb 6033 North Sheridan Road Chicago, Illinois 60660 Ms. Dana O'Malley Assistant General Counsel Chicago Police Department 3510 South Michigan Avenue Chicago, Illinois 60653-1020 Dear Mr. Webb and Ms. O'Malley: This ts a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons discussed below, this office concludes that the Chicago Police Department (CPD) violated the requirements of FOIA by improperly denying Mr. Derek B, Webb's January 28, 2019, FOIA request for a copy of one of the CPD's extradition calendars. BACKGROUND: On that date, Mr. Webb submitted a FOIA request to CPD seeking a copy of the 500 South Second Sercet, Springfield, Iinois 62701 © (217) 782-1090 « TTY: (877) 844-5461 © Fax: (217) 782-7046 100 Wese Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © F'VY: (800) 964-3013 « Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © ‘IY: (877) 675-9339 © Fax (618) 529-6416 *GaaiiD— Mr. Derek B. Webb Ms. Dana O'Malley May 29, 2019 Page 2 \"2019 Extradition Calendar Unit 166 — January 2019.\"2 On February 11, 2019, CPD denied the request pursuant to section 7(1)(f) of FOIA (5 ILCS 140/71) (West 2017 Supp.), as amended by Public Act 100-732, effective August 3, 2018), stating that \"[e]xtradition monthly calendars contain recommendations regarding assignments and are not an official CPD document. As such they are being withheld from production as predecisional or draft material[.]\"? On February 15, 2019, Mr. Webb submitted a Request for Review to the Public Access Counselor contesting CPD's denial of the calendar.’ On February 20, 2019, the Public Access Bureau sent CPD a copy of the Request for Review. The Public Access Bureau also sent CPDa letter requesting a copy of the withheld calendar for this office's confidential review, together with a detailed explanation of the legal and factual bases for the assertion that the calendar is exempt from disclosure under section 7(1)(f) of FOIA. On March 8, 2019, the Public Access Bureau received a written answer from CPD that was attached to an e-mail that carried a notation indicating that the e-mail and any attachments to it were confidential.© On March 11, 2019, CPD furnished the Public Access Bureau with a copy of the withheld calendar, which was submitted to the Public Access Bureau 'Freedom of Information Request Form from Derek B. Webb to Chicago Police Department (undated). Unit 166 refers to a part of the CPD's Field Services Section. Among the duties of Unit 166 is processing all phases of the extradition process to and from the State of Illinois involving CPD. Personnel of Unit 166's Extradition Section are often required to attend court and relate information regarding prisoners to the judge. Report of the Inspector General's Office: Review of Opportunities for Civilianization in the Chicago Police Department, Office of the Inspector General, City of Chicago, at 26-29 (January 2013), https://news. wttw.com/sites/default/files/IG%20Report%200n%20Opportunities%20for%20Civilianization%20in% 20CPD.pdf 3Letter from A. Marlan, Freedom of Information Act Officer, Chicago Police Department, Office of Legal Affairs, Unit 114, to Derek Webb (February 11, 2019), at [1]. 4E-mail from Derek B. Webb to Public Access [Bureau, Office of the Attorney General] (February 18, 2019). Letter from Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Charise Valente, General Counsel, Chicago Police Department (Februa2r0y, 2019). Letter from Vaughn C. Ganiyu, Associate Staff Attorney, Chicago Police Department, Office of Legal Affairs — Unit 114, to Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (March 8, 2019). Mr. Derek B. Webb Ms. Dana O'Malley May 29, 2019 Page 3 for its confidential review.’ On March 12, 2019, an Assistant Attorney General in the Public Access Bureau asked the attorney who provided CPD's written answer whether any portions of | CPD's March 8, 2019, answer were not confidential and could be provided to Mr. Webb.® On March 12, 2019, CPD provided the Public Access Bureau with a redacted copy of its written answer suitable for sending to Mr. Webb.? On March 14, 2019, the Public Access Bureau forwarded to Mr. Webb the redacted copy of CPD's written answer'® and notified him of his opportunity to reply.!! Mr. Webb did not reply. . Pursuant to section 9.5(f) of FOIA, on April 15, 2019, this office extended the time within which to issue a binding opinion by 30 business days, to May 29, 2019.'* ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2016). \"All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2016). The exemptions from disclosuré contained in section 7 of FOIA (5 ILCS 140/7 (West 2016), as amended by Public Act 100-732, effective August 3, 2018) are to be narrowly construed. See Lieber v. Board of Trustees of Southern Ilinois University, 176 Ill. 2d 401, 407 (1997). 7E-mail from Vaughn C.-Ganiyu, Associate Staff Attorney, Chicago Police Department, Office of Legal Affairs, to Assistant Attorney General Hartman (March 11, 2019). E-mail from Matthew S. Hartman, Assistant Attorney General, Public Access Bureau, to [Vaughn] Ganiyu (March 12, 2019). *E-mail from Vaughn C, Ganiyu, Associate Staff Attorney, Chicago Police Department, Office of Legal Affairs, to Assistant Attorney General Hartman (March 12, 2019), \"Section 9.5(d) of FOIA (5 ILCS 140/9.5(d) (West 2016)) provides, in pertinent part: \"The Public Access Counselor shall forward a copy of the answer to the person submitting the request for review, with any alleged confidential information to which the request pertains redacted from the copy.\" ‘Letter from Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Derek B. Webb (March 14, 2019). Letter from Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Derek B. Webb and Dana O'Malley, Assistant General Counsel, Chicago Police Department (April 15, 2019). Mr. Derek B. Webb Ms. Dana O'Malley May 29, 2019 Page 4 Section 7(1)(f) of FOIA Section 7(1)(f) of FOIA exempts from inspection and copying \"[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.\" The section 7(1)(f) exemption applies to \"inter- and intra-agency predecisional and deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). Based on the deliberative process exemption in Federal FOIA,'> section 7(1)(f) is \"intended to protect the communications process and encourage frank and open discussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App. 3d at 248. '* Section 7(1)(f) does not exempt from disclosure purely factual material unless it is inextricably intertwined with predecisional and deliberative communications. Watkins v. McCarthy, 2012 IL App (1st) 100632, 936, 980 N.E.2d 733, 743 (2012). Rather, the scope of section 7(1)(f) only \"protects the opinions that public officials for [...] ts release \"Would expose no suggestions, no recommendations, no proposals, and no other aspect of the agency communications, and it is not apparent how disclosure of this information might in any way discourage candid discussion within the _agency.\"). In addition, Mr. Webb's FOIA request for the January 2019 calendar was received by CPD on January 28, 2019, therefore by the time a response was required on February 3, 2019, it does not appear likely that additional updating or correcting of the January calendar would occur. ‘Letter from Vaughn C. Ganiyu, Associate Staff Attorney, Chicago Police Department, Office of Legal Affairs, Unit 114, to Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (March 8, 2019), at [3]. ‘Letter from Vaughn C. Ganiyu, Associate Staff Attorney, Chicago Police Department, Office of Legal Affairs — Unit 114, to Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (March 8, 2019), [at] 3. '8Letter from Vaughn C. Ganiyu, Associate Staff Attorney, Chicago Police Department, Office of Legal Affairs— Unit 114, to Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (March 8, 2019), at [3]. Mr. Derek B. Webb Ms. Dana O'Malley May 29, 2019 . Page 6 This office's review of the calendar at issue confirmed that the entries are strictly factual and do not reveal the thoughts or opinions of CPD personnel or provide insight into CPD's decision-making process concerning policy within the extradition section. Accordingly, this office concludes that CPD has not sustained its burden of demonstrating by clear and convincing evidence that the extradition calendar is exempt from disclosure pursuant to section 7(1)(f) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the available information, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On January 28, 2019, the CPD received Mr. Derek B. Webb's FOIA request seeking a copy of the extradition calendar for Unit 166 for January 2019. On February 11, 2019, CPD denied Mr. Webb's request for the calendar citing as its basis section 7(1)(f) of FOIA. 2) On February 15, 2019, the Public Access Bureau received a Request for Review from Mr. Webb contesting CPD's denial of the disclosure of the requested calendar. The Request for Review was timely filed and otherwise complies with the requirements of section 9,5(a) of FOIA(5 ILCS 140/9.5(a) (West 2016)). 3) On February 20, 2019, the Public Access Bureau sent a copy of the Request for Review to CPD and asked it to provide a copy of the withheld calendar for this office's confidential review. This office also asked CPD to provide a detailed explanation of the factual and legal bases for the assertion that the calendar is exempt from disclosure pursuant to section 71) of FOTA. 4) On March 8, 2019, CPD provided a written answer. On March 11, 2019, this office received a copy of the withheld calendar for its confidential review. In a March 12, 2019, e-mail, the CPD clarified that only certain portions of its March 8, 2019, answer were asserted to be confidential and provided a redacted copy of its written answer. The CPD also presented its argument that the calendar was exempt from disclosure under section 7(1)(f) of FOIA because it was both predecisional and deliberative. 5) On March 14, 2019, the Public Access Bureau forwarded a non-confidential version of CPD's written answer to Mr. Webb and notified him of the opportunity to reply; he did not reply. 6) On April 15, 2019, this office extended the time within which to issue a binding opinion by 30 business days, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. Mr. Derek B. Webb Ms. Dana O'Malley May 29, 2019 Page 7 7) Section 7(1)(f) exempts from inspection and copying \"[p]reliminary drafts, notes, recommendations, memoranda and other. records in which opinions are expressed, or policies or actions are formulated[.]\" Section 7(1)(f) does not exempt from disclosure purely factual information unless it is inextricably intertwined with predecisional and deliberative communications and would provide insight into the substance of those communications if disclosed. 8) The withheld calendar consists of a listing of the officers in the extradition section of CPD and their corresponding work schedule and duties for a particular calendar day during the month of January 2019. CPD asserted that the calendar was predecisional because it was subject to change and deliberative because it formed the basis for a decision by the sergeant within the extradition section. However, the entries on the calendar are purely factual, and CPD has not demonstrated how disclosure of the entries on the calendar would provide insight into the give and take of the deliberative process between the officers and the sergeant in the extradition section. Under these circumstances, the calendar is not exempt from disclosure pursuant to section 7(1)(f) of FOIA. Therefore, it is the opinion of the Attorney General that CPD's denial of the extradition monthly calendar responsive to Mr. Webb's Freedom of Information Act request violated the requirements of FOIA. Accordingly, CPD is directed to take immediate and appropriate action to comply with this opinion by disclosing to Mr. Webb a copy of the responsive calendar. | This opinion shall be considered a final decision of an administrative agency for: the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2016). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Derek B. Webb as defendants. See 5 ILCS 140/11.5 (West 2016). Very truly yours, KWAME RAOUL ATTORNEY GENERAL By: Michael J. Luke Counsel to the Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 19-005) upon: - Mr. Derek B. Webb 6033 North Sheridan Road Chicago, Illinois 60660 derek webb.local654@yahoo.com Ms. Dana O'Malley Assistant General Counsel Chicago Police Department 3510 South Michigan Avenue Chicago, Illinois 60653-1020 pacola@chicagopolice.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on May 29, 2019. Sn dA SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Webb requested a monthly extradition calendar from the Chicago Police Department, but the department refused to provide it, claiming it was a draft document used for internal recommendations. The Attorney General's office reviewed the request and determined that the calendar was not a draft or predecisional document, meaning the police department had no legal basis to withhold it. The department was ordered to release the record.","card_headline":"A police department's monthly extradition calendar","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":119,"orig_master_id":19093,"dup_master_id":19321,"dup_sha256":"025cab6da8908cd888ddff9d3477d26352d77fe1ebcc4c010da2ce59e0054f06","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2019,"date_issued":"2019-10-01","case_number":"2019 PAC 59187","request_numbers":null,"title":"Right to Address Public Officials at a Public Meeting","filename":"PUBLIC ACCESS OPINION 19-009 (Request for Review - 2019 PAC 59187).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 19-009 (Request for Review - 2019 PAC 59187).pdf","word_count":2472,"summary":"Ms. Shari Thurman submitted a Request for Review alleging that the Council violated OMA by prohibiting her from speaking during the public comment portion of its July 1, 2019, meeting . Ms. Thurman alleged that she stood up to speak when the Mayor asked if there were any other comments and noted her desire to address the Council, but the Mayor refused to yield the floor to her, and instead said, 'no ma’am, I listened to you for two months and you have no standing to be here'","plain_summary":"The requester, a member of the public who did not reside within the city, sought review after a mayor refused to let her speak during a city council's public comment period, telling her she had \"no standing\" because she was not a resident. The Public Access Counselor held that the council had no established and recorded rule restricting public comment to residents, and further concluded that even such a rule would violate the Open Meetings Act's right to address public officials. The council was directed to refrain from limiting public comment to city residents at future meetings.","holding":"The City Council violated section 2.06(g) of the Open Meetings Act by prohibiting a member of the public from addressing the Council during the public comment portion of its meeting.","legal_question":"Whether the City Council violated section 2.06(g) of the Open Meetings Act by prohibiting a member of the public from addressing the Council during the public comment portion of a meeting.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/1, 5 ILCS 120/2, 5 ILCS 70/1, 65 ILCS 5/1, 65 ILCS 5/3, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Rushville","requesting_party":"Thurman and Ms. Briney","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"public comment","subject_description":"The right of a member of the public to address a public body during the public comment portion of a meeting.","ocr_status":"ok","ocr_quality":90.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2019-Binding-PAC-Opinions/19-009.pdf","sha256":"04bcf7d0a105ba7ca029cd3d08581668e7b0791f85e343dc2dbb84b767d8b87c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["public comment","right to speak","city council","OMA"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL October 1, 2019 PUBLIC ACCESS OPINION 19-009 (Request for Review 2019 PAC 59187) OPEN MEETINGS ACT: Right to Address Public Officials at a Public Meeting Ms. Shari Thurman 21349 Beardstown Road Rushville, Illinois 62681 The Honorable Stacey Briney City Clerk/CMC City of Rushville 111 East Washington Rushville, Illinois 62681 Dear Ms. Thurman and Ms. Briney: This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2018)). For the reasons discussed below, this office concludes that the City Council (Council) of the City of Rushville (City) violated OMA during its July 1, 2019, meeting by prohibiting a member of the public from addressing the Council during the public comment portion of the meeting. BACKGROUND In a letter dated August 1, 2019, that was e-mailed to and received by the Public Access Bureau on August 2, 2019, Ms. Shari Thurman submitted a Request for Review alleging that the Council violated OMA by prohibiting her from speaking during the public comment portion of its July 1, 2019, meeting.!. Ms. Thurman alleged that she stood up to speak when the Mayor asked if there were any other comments and noted her desire to address the Council, but ‘Letter from Shari Thurman to Sarah Pratt, Public Access Counselor, Office of the Attorney General (August 1, 2019). 500 South Second Sacer, Springfield, Mlineis 62701 © (217) 782-1090 © PTY: (877) 844-5461 © Fax: (217) 782-7046 100 Wese Randolph Street, Chicago, Mlinois 60601 ¢ (312) 814-3000 © T’FY: (800) 964-3013 © Fax: (312) 814-3806 60t South University Ave. Carbondale, IL 62901 © (618) 529-6400 © I’ 'Y: (877) 675-9339 © Fax (618) 529-6416 «GiiD— Ms. Shari Thurman The Honorable Stacey Briney October 1, 2019 Page 2 the Mayor refused to yield the floor to her, and instead responded \"'no ma’am, I listened to you for two months and you have no standing to be here, you don't live in this town, you don't vote in this town and you have no reason to be here. I have-heard two months of it and I'm not hearing anymore!'\"? Ms. Thurman further stated that she asked the Council members if the Mayor could do that, and while the Council members discussed the issue, she sat down. A Council member told her that the Council would \"ask for legal [counsel] to see if the Mayor can do this.\"? On August 7, 2019, the Public Access Bureau forwarded a copy of the Request for Review to the City Clerk, Ms. Stacey Briney, together with a letter asking the Council to respond to the allegation in the Request for Review.’ In particular, the Public Access Bureau asked the Council to address: (1) whether the Council heard public comment at its July 1, 2019, meeting; and (2) whether Ms. Thurman was prohibited from speaking at the meeting.’ In addition, this office asked the Council whether it had established and recorded rules governing public comment, and, if so, to provide copies of the rules, as well as copies of the agenda, minutes, and recordings, if any, of the July 1, 2019, meeting.° On August 12, 2019, Ms. Briney provided a written answer on behalf of the Council and copies of the July 1, 2019, meeting agenda and a certified copy of the minutes.’ The answer stated that \"[t]he regular meetings are not recorded, either audio or video, by the City _ Clerk or any alderman.\"*® On August 15, 2019, the Public Access Bureau forwarded a copy of the Council's answer to Ms. Thurman.” Ms. Thurman did not provide a written reply. On *Letter from Shari Thurman to Sarah Pratt, Public Access Counselor, Office of the Attorney General (August I, 2019). Although Ms, Thurman's letter to this office contained a Rushville mailing address, she did not dispute the Mayor's assertion that she does not reside within the City's corporate boundaries. 3Letter from Shari Thurman to Sarah Pratt, Public Access Counselor, Office of the Attorney General (August 1, 2019). , ‘Letter from Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Stacey Briney, City Clerk, City of Rushville (August 7, 2019). ‘Letter from Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Stacey Briney, City Clerk, City of Rushville (August 7, 2019), at 1. . Letter from Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Stacey Briney, City Clerk, City of Rushville (August 7, 2019), at 1. 7Letter from Stacey L. Briney, City Clerk/CMC, City of Rushville, to Assistant Attorney General Matt Hartman (August 12, 2019). , ’Letter from Stacey L. Briney, City Clerk/CMC, City of Rushville, to Assistant Attorney General Matt Hartman (August 12, 2019). *Letter from Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Shari Thurman (August 15, 2019). Ms. Shari Thurman The Honorable Stacey Briney October 1, 2019 Page 3 August 15, 2019, the Public Access Bureau received a flash drive from Ms. Thurman containing a video recording of the July 1, 2019, meeting.!° Ms. Thurman did not identify the source of the recording. ANALYSIS Under OMA, \"[iJt is the public policy of this State that public bodies exist to aid in the conduct of the people's business.\" 5 ILCS 120/1 (West 2018). Section 2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2018)) provides that \"[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.\" The Council's answer to this office stated that it \"has adopted Roberts Rules of Order. Public Comment appears on every council agenda and the rule is a person is limited to five (5) minutes with a maximum of thirty (30) minutes per topic.\"'' (Emphasis in original.) Other than the agenda item for \"Public Comments” that appears on the July 1, 2019, Council meeting agenda, !* the Council did not provide this office with a copy of its rules for public comment, or any evidence indicating that it has established and recorded such arule.'? Further, the information provided by the Council does not indicate whether the version of Robert's Rules of Order that it has adopted addresses public comment or requires a member of the public to reside within the City's corporate boundariesi n order to authorize him or her to speak at public meetings of the Council. To answer the allegations in this Request for Review, the Council simply referenced the portion of the July 1, 2019, meeting minutes in which Ms. Thurman's request to participate in public comment was discussed. The minutes provide: 'Oe] tter from Shari Thurman to Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (August 13, 2019). Because the flash drive was not provided to the Council and because the underlying facts of this matter are not disputed, this office need not consider this recordingi n reaching its conclusionsi n this matter. ‘ILetter from Stacey L. Briney, City Clerk/CMC, City of Rushville, to Assistant Attorney General ‘Matt Hartman (August1 2, 2019). . \"Public Comments — (limited to 5 minutes per person — 30 minutes per“ enint (Emphasis in original). Rushville City Council Agenda, Agenda Item 3 (July 1, 2019). '3\"The plain language of section 2.06(g) requires that a public body's rules governing public comment must be ‘established’ as well as recorded by the public body. Black's Law Dictionary defines ‘establish’ as: 'To settle, make, or fix firmly; to enact permanently.’ Black's Law Dictionary (10th ed. 2014), available at Westlaw BLACKS. ‘Enact’ is defined as ‘[t]o make into law by authoritative act; to pass.’ Black's Law Dictionary (10th ed. 2014), available at Westlaw BLACKS.\" III. Att'y Gen. Pub. Acc. Op. No. 19-002, issued January 9, 2019, at 5-6 (concluding that a public body violated OMA by enforcing a 15 minute time limit on public comment when it had not established such a rule). . Ms. Shari Thur [...] r the first amendment to the United States Constitution. See e.g., LA. Rana Enterprises, Inc. v. City of Aurora, 630 F. Supp. 2d 912, 922-23 (N.D. Ill. 2009) (examining whether the application of city council's rules for public comment violated plaintiff's first amendment rights). Such rules must be reasonably necessary to protect a significant governmental interest such as maintaining order and decorum at meetings, and must tend to accommodate, rather than to unreasonably restrict, the right to address public officials. See, e.g., Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 6-7 (rule requiring submission of a request to address a public body at least five working days in advance of a meeting was unreasonable under section 2.06(g)). Finally, this office has stated that \"a person's right to comment at an open meeting | is not contingent upon where he or she resides.” II]. Att'y Gen. Pub. Acc. Op. No. 14-009, issued September 4, 2014, at 7 (concluding that a public body violated OMA by making the speaker feel that she was required to publicly state her home address before addressing the public body). Indeed, the actions of a public body may have a substantial, and in some instances, greater impact on the residents of surrounding areas than on those residing within the public body's corporate boundaries. Accordingly, the Council violated section 2.06(g) of OMA by improperly prohibiting Ms. Thurman from addressing the Council during its July 1, 2019, meeting. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the AttorneyG eneral finds that: 1) On July 1, 201 9, Ms. Shari Thurman attended the regular meeting of the City Council of the City of Rushville. 2) Ina letter dated August 1, 2019, and e-mailed to the Public Access Bureau on August 2, 2019, Ms. Thurman submitted a Request for Review to the Public Access Counselor 'SA review of the Illinois Municipal Code (65 ILCS 5/1-1-1 (West 2018)) indicates that while a city council is authorized to determine its own procedural rules, the Code does not provide guidance on the standards that should be satisfied by the procedural rules so adopted. See generally 65 ILCS 5/3.1-40-15 (West 2018). Ms. Shari Thurman The Honorable Stacey Briney October 1, 2019 Page 6 alleging that the Council prohibited her from speaking during the public comment portion of its July 1, 2019, meeting because she did not reside in the City. Ms. Thurman's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2018)). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 3) On August 7, 2019, the Public Access Bureau forwarded a copy of the Request for Review to the City Clerk and asked the Council to provide a detailed written response to the allegations raised by Ms. Thurman's Request for Review. The Public Access Bureau also requested a copy of any Council rules governing public comment, along with copies of the agenda, minutes, and recording, if any, of the July 1, 2019, meeting. 4) On August 12, 2019, City Clerk Stacey L. Briney provided a written answer to the Public Access Bureau on behalf of the Council. The answer included copies of the agenda and minutes of the meeting. The Council did not provide this office with a copy of its rules governing public comment, but the answer stated that the Council had adopted Roberts Rules of Order. A review of the Council's meeting agendas indicates that the Council routinely lists public comment as an agenda item with a notation that the comments are \"limited to 5 minutes per person- 30 minutes per topic[.]\" 5) On August 15, 2019, the Public Access Bureau sent a copy of the Council's answer to Ms. Thurman; she did not reply. | 6) Section 2.06(g) of OMA provides that \"[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.\" 7) The Council acknowledged that during its July 1, 2019, meeting, Ms. Thurman was prohibited from speaking because she did not reside within the City, despite the protests of multiple members of the Council who requested that the Mayor allow Ms. Thurman to address the Council. 8) Although the Council is authorized under section 2.06(g) of OMA to establish and record rules relating to public comment, the Council did not provide this office with any evidence that it had established and recorded a rule that a speaker must reside in the City of Rushville to provide public comment. 9) Even if the Council had an established and recorded a rule limiting public comment to City residents, such a rule would violate section 2.06(g) of OMA. Therefore, it is the opinion of the Attorney General that the City Council of the City of Rushville violated section 2.06(g) of the Open Meetings Act when it prohibited an individual from addressing the Council on the grounds that the individual was not a resident of the City. In accordance with these findings of fact and conclusions of law, the Council is Ms. Shari Thurman — The Honorable Stacey Briney October 1,2019 — Page 7 directed to take appropriate action to comply with this opinion by refraining from applying unestablished and unrecorded rules to restrict public comment at future meetings. In particular, the Councili s directed to refrain from limiting public comment to City residents. This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-1 01 et seq. (West 2018). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Shari Thurman as defendants. See 5S ILCS 120/7.5 (West 2018). Sincerely, KWAME RAOUL ATTORNEY. GENERAL ‘Brent D. Stratton Chief Deputy Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 19-009) upon: Ms. Shari Thurman 21349 Beardstown Road Rushville, Illinois 62681 shari.thurman@vistraenergy.com The Honorable Stacey Briney City Clerk/CMC City of Rushville 111 East Washington Rushville, Illinois 62681 stacey@rushvilleillinois.us by causing a true copy thereof to be sent electronically to the addresses as listed above and by’ causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on October 1, 2019. AP~Qhiat SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A citizen complained that a City Council Mayor refused to let her speak during the public comment section of a meeting, claiming she had 'no standing.' The Attorney General's office ruled that this violated the Open Meetings Act, which guarantees the public the right to address government officials at public meetings. This means public bodies cannot arbitrarily silence citizens during designated public comment periods.","card_headline":"Public comment access at a city council meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":120,"orig_master_id":19094,"dup_master_id":19324,"dup_sha256":"88423d5b2a8c80056c2e082df384130cec61b649e784a1e7a62a8fff944407fe","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2019,"date_issued":"2019-09-23","case_number":"2019 PAC 58468","request_numbers":null,"title":"Reports of Manganese Throughputs Submitted to a City Public Health Department Are Not Exempt From Disclosure under Section 7(1)(g) of FOIA","filename":"PUBLIC ACCESS OPINION 19-007 (Request for Review - 2019 PAC 58468).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 19-007 (Request for Review - 2019 PAC 58468).pdf","word_count":2334,"summary":"The City of Chicago violated the requirements of FOIA by improperly denying a March 29, 2019, FOIA request submitted by the Northwestern University Pritzker School of Law Environmental Advocacy Clinic (Advocacy Clinic) The Attorney General issued a binding opinion issued by the Attorney General .","plain_summary":"The requester, an environmental law clinic, sought a company's manganese throughput reports filed with a city health department, which the department withheld as confidential commercial information that could cause the company competitive harm. The Public Access Counselor held that although the reports were commercial information submitted under a claim of confidentiality, the department failed to prove by clear and convincing evidence that disclosure would actually cause competitive harm, since the reports revealed nothing about the company's revenue, expenditures, or customers. The department was directed to disclose the withheld reports.","holding":"The City of Chicago improperly withheld records concerning manganese throughputs by incorrectly asserting that the information was exempt under Section 7(1)(g) of FOIA.","legal_question":"Whether reports of manganese throughputs submitted to a municipal public health department are exempt from disclosure under Section 7(1)(g) of FOIA as trade secrets or commercial/financial information.","disposition":"violation_found","primary_statute":"5 ILCS 140/7(1), 5 ILCS 140/1, 5 ILCS 140/9, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(g)","public_body":"City of Chicago","requesting_party":"Northwestern University Pritzker School of Law Environmental Advocacy Clinic","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"environmental records","subject_description":"Records regarding the amount of manganese entering and leaving a business facility submitted to a public health department.","ocr_status":"ok","ocr_quality":89.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2019-Binding-PAC-Opinions/19-007.pdf","sha256":"96046918bee6f8b54b3a90544f2e0ee860c785bd10ff8a4e1731d29e691aec74","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["manganese","environmental records","trade secrets","public health","FOIA denial"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL ) September 23, 2019 PUBLIC ACCESS OPINION 19-007 (Request for Review 2019 PAC 58468) FREEDOM OF INFORMATION ACT: Reports of Manganese Throughputs Submitted to a City Public Health Department Are Not Exempt From Disclosure under Section 7(1)(g) of FOIA Ms. Nancy C. Loeb Director Environmental Advocacy Clinic Bluhm Legal Clinic Northwestern University Pritzker School of Law 375 East Chicago Avenue Chicago, Illinois 60611-3069 Mr. Marc Augustave Senior Counsel Department of Law City of Chicago 30 North LaSalle Street, Suite 1720 Chicago, Illinois 60602 _Dear Ms, Loeb and Mr. Augustave: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 TLCS 140/9.5(f (West 2018)). For the reasons discussed below, this office concludes that the City of Chicago (City) Department of Public Health (Department) violated the requirements of FOIA by improperly denying a March 29, 2019, FOIA request submitted by the Northwestern University Pritzker School of Law Environmental Advocacy Clinic (Advocacy Clinic) seeking records concerning the amount of manganese that enters and leaves a business's facility. 500 South Second Streee, Springfield, [inois 62701 © (217) 782-1090 © P'VY: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Hlinois 60601 © (312) 814-3000 © TTY: (800) 964-3013 ¢ Fax: (312) 814-3806 601 South University Ave., Carbondale, LL 62901 © (618) 529-6400 © TTY: (877) 675-9339 © Fax (618) 529-6416 -GeaiD>~ Ms. Nancy C. Loeb Mr. Mare Augustave September 23, 2019 Page 2 BACKGROUND On March 29, 2019, Ms. Deborah Chizewer, on behalf of the Advocacy Clinic,' submitted a FOIA request to the Department: This is a request regarding manganese throughput!?! in Chicago. Please produce all Chicago Department of Public Health (\"CDPH\") records pertaining to manganese throughput in Chicago, submitted in accordance with Municipal Code of Chicago § 17-9- 0117-D(5). * * * Please produce all records [of] any and all manganese throughput information possessed by the CDPH to date, including, but not limited to * * * quarterly reports. This request includes, but is not limited to, information possessed by CDPH regarding manganese throughput at the facilities listed below: o Watco Transloading, LLC, 2926 E. 126\" St. o S.H. Bell, 10218 South Avenue O o NASCO, 9301 S. Kreiter Ave.!?! On April 12, 2019, the Department provided the Advocacy Clinic with the requested manganese reports for Watco Transloading, LLC (Watco) and NASCO, as well as two 'Ms. Chizewer submitted the FOIA request, on behalf of the Advocacy Clinic, that underlies this binding opinion. Ms. Chizewer and Nancy C. Loeb, Director of the Advocacy Clinic, jointly submitted the Request for Review related to the City's FOIA response. During the pendency of this Request for Review, Ms. Chizewer left the Advocacy Clinic to pursue other professional opportunities. Accordingly, this binding opinion is addressed only to Ms. Loeb on behalf of the Advocacy Clinic. 7A \"throughput\" is \"the amount of manganese-bearing material received at a facility in a given calendar month, plus the amount of non-packaged manganese-bearing material leaving the facility in that same month, divided by 2.\" (Emphasis in original.) CHI., ILL. CODE § !7-9-0117-D(5)(d) (2019). 7FOIA request from Deborah Chizewer, Montgomery Environmental Law Fellow, Environmental Advocacy Center, Bluhm Legal Clinic, Northwestern University Pritzker School of Law, to Freedom of Information Officer, Chicago Department of Public Health (March 29, 2019), at 1-2. Ms. Nancy C. Loeb Mr. Mare Augustave September 23, 2019 Page 3 other manganese-bearing material operators.*”, That same day, the Department sent a letter to the Advocacy Clinic via e-mail denying the request for manganese records (manganese reports) from S.H. Bell, citing section 7(1)(g) of FOIA (5 ILCS 140/7(1)(g) (West 2018)).° The denial included a statement from S.H. Bell explaining why the information in the manganese reports should not be disclosed. On June 10, 2019, Ms. Nancy C. Loeb and Ms. Chizewer, on behalf of the Advocacy Clinic, jointly submitted a Request for Review to the Public Access Counselor contesting the Department's withholding from disclosure S.H. Bell's manganese reports.’ On June 12, 2019, the Public Access Bureau sent the Department a copy of the Request for Review and a letter requesting copies of the withheld manganese reports for this office's confidential review. The letter also requested a detailed explanation of the legal and factual bases for the assertion that the records are exempt from disclosure under section 7(1)(g) of FOIA. On June 20, 2019, the Public Access Bureau received a written answer from the Department.’ Along with its written answer, the Department furnished the Public Access Bureau with copies of the withheld manganese reports. On June 21, 2019, the Public Access Bureau forwarded to Ms. Chizewer a copy of the Department's written answer and notified her of the ‘E-mail from Jennifer (Hesse), cdphfoia@cityofchicago.org, to Debbie [Chizewer] (April 12, 2019). ‘The Department later sent a supplemental response consisting of manganese reports filed by a fifth company, after confirming that the company was not claiming that the reports were confidential. E-mail from Jennifer (Hesse), cdphfoia@cityofchicago.org, to Deborah Gail Musiker [Debbie Chizewer] (April 23, 2019). Letter from Jennifer Hesse, Attorney, Department of Public Health, City of Chicago, to Deborah Chizewer, Montgomery Environmental Law Fellow, Environmental Advocacy Center, Bluhm Legal Clinic, Northwestern University Pritzker School of Law (April 12, 2019), at [1-2]. ‘Letter from Nancy C. Loeb, Director, and Debbie Chizewer, Montgomery Foundation Environmental Law Fellow, Environmental Advocacy Clinic, Bluhm Legal Clinic, Northwestern University Pritzker School of Law, to Sarah Pratt, Public Access Counselor, Office of Illinois Attorney General (June 10, 2019). ’Letter from Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Jennifer Hesse, Attorney, Department of Public Health, City of Chicago (June 12, 2019). Letter from Marc Augustave, Senior Counsel, City of Chicago, Department of Law, to Matt Hartman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (June 20, 2014}. The Department's written answer to this office was dated June 20, 2014. We have assumed that the indicated date contains a scrivener’s error as the answer was received at the Office of the Attorney General via e-mail on June 20, 2019, and expressly states that it is “in response to your June 12, 2019, letter.” Ms. Nancy C. Loeb Mr. Mare Augustave September 23, 2019 Page 4 Advocacy Clinic's opportunity to reply.'° On July 8, 2019, Ms. Loeb and Ms. Chizewer jointly submitted a written reply on behalf of the Advocacy Clinic.!! Pursuant to section 9.5(f) of FOIA, on August 7, 2019, this office extended the time within which to issue a binding opinion by 30 business days, to September 23, 2019.'? ANALYSIS \"It is a fundamental] obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2018). \"All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2018). The exemptions from disclosure contained in section 7 of FOIA (S$ ILCS 140/7 (West 2018) are to be narrowly construed. See Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997). Under FOIA, bare assertions without a detailed rationale do not satisfy a public body's burden of demonstrating that [...] y General, Public Access Bureau, Office of the Illinois Attorney General (June 20, 2014), at 4. Ms. Nancy C. Loeb Mr. Mare Augustave September 23, 2019 Page 12 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the available information, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On March 29, 2019, Ms. Deborah Chizewer, on behalf of the Advocacy Clinic, submitted a FOIA request to the Department seeking a copy of, among other things, the quarterly manganese reports filed by Watco, S.H. Bell, and NASCO. On April 12, 2019, the Department denied the Advocacy Clinic's request for reports from S.H. Bell citing as its basis section 7(1}(g) of FOIA. The Department provided the Advocacy Clinic with copies of the reports from Watco, NASCO, and three other business organizations. 2) On June 10, 2019, the Public Access Bureau received a joint Request for Review from Ms, Chizewer and Nancy C. Loeb, on behalf of the Advocacy Clinic, contesting the Department's denial of the disclosure of the manganese reports from S.H. Bell. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2018)). 3) On June 12, 2019, the Public Access Bureau sent a copy of the Request for Review to the Department and asked it to provide copies of the withheld reports for this office's confidential review. This office also asked the Department to provide a detailed explanation of the factual and legal bases for the assertion that the reports are exempt from disclosure pursuant to section 7(1)(g) of FOIA. 4) On June 20, 2019, the Department provided a written answer along with copies of the withheld manganese reports for the Public Access Bureau's confidential review. The Department also argued that the reports were exempt from disclosure under section 7(1)(g) of FOIA because the reports were furnished to the Department under a claim that they were confidential and proprietary and because disclosure of the reports would cause S.H. Bell competitive harm. 5) On June 21, 2019, the Public Access Bureau forwarded the Department's written answer to the Advocacy Clinic and notified it of the opportunity to reply. On July 8, 2019, Ms. Loeb and Ms. Chizewer, on behalf of the Advocacy Clinic, jointly submitted a reply. 6) On August 7, 2019, this office extended the time within which to issue a binding opinion by 30 business days, to September 23, 2019, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 7) Section 7(1}(g) of FOIA exempts from disclosure \"[t]rade secrets and commercial or financial information obtained from a person or business where the trade secrets Ms. Nancy C. Loeb Mr. Mare Augustave September 23, 2019 Page 13 or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business, and only insofar as the claim directly applies to the records requested.” 8) A public body that withholds a record pursuant to section 7(1)(g) must demonstrate that (1) the record contains a trade secret, commercial, or financial information; (2) it was obtained from a person or business where the trade secrets or commercial or financial information was furnished under a claim that it was either proprietary, privileged, or confidential; and (3) disclosure of the trade secrets or commercial or financial information would cause competitive harm to that person or business. 9) The withheld manganese reports consist of the amount of manganese-bearing material in tons received and shipped by S.H. Bell each month and the manganese content of that material. The Department established that the reports contain commercial information and that _S.H. Bell provided the reports under a claim that they were both proprietary and confidential. However, the Department has not provided clear and convincing evidence to establish that the disclosure of the reports would cause competitive harm to S.H. Bell. Although the Department has raised concerns that disclosure of the reports may harm S.H. Bell's competitive position, the Department has not established that S.H. Bell actually faces competition or provided specific facts demonstrating the competitive harm to S.H. Bell that would result from disclosing the limited information in the reports, which reveals nothing about the business's revenue, expenditures, and customers. Under these circumstances, the manganese reports from S.H. Bell are not exempt from disclosure pursuant to section 7(1)(g) of FOIA. Therefore, it 1s the opinion of the Attorney General that the Department's withholding from disclosure the S.H. Bell manganese reports responsive to the Advocacy Clinic's Freedom of Information Act request violated the requirements of FOIA. Accordingly, the Department is directed to take immediate and appropriate action to comply with this opinion by disclosing to the Advocacy Clinic copies of the responsive manganese reports. Ms. Nancy C. Loeb Mr. Marc Augustave September 23, 2019 Page 14 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2018). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Nancy C. Loeb, of the Northwestern University Pritzker School of Law Environmental Advocacy Clinic, as defendants. See 5 ILCS 140/11.5 (West 2018). Very truly yours, KWAME RAOUL ATTORNEY GENERAL nen D.“ Stratton Chief Deputy Attorney General CERTIFICATE OF SERVICE Steven J. Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 19-007) upon: Ms. Nancy C. Loeb Director Environmental Advocacy Clinic Bluhm Legal Clinic Northwestern University Pritzker School of Law 375 East Chicago Avenue Chicago, Illinois 60611-3069 n-loeb@northwestern.edu Mr. Marc Augustave Senior Counsel Department of Law City of Chicago 30 North LaSalle Street, Suite 1720 Chicago, Illinois 60602 marc.augustave@cityofchicago.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on September 23, 2019. ie ' STEVEN J. SILVERMAN se Bureau Chief Public Access Bureau - STEVEN J. SILVERMAN Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Northwestern University Environmental Advocacy Clinic requested records from the City of Chicago regarding the amount of manganese handled by a local business. The City refused to release the records, claiming they were exempt from disclosure. The Attorney General ruled that the City's denial was improper and that the records must be disclosed because they do not fall under the claimed exemption.","card_headline":"Manganese throughput reports submitted to a public health department","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":121,"orig_master_id":19095,"dup_master_id":19322,"dup_sha256":"cb53079244975a42f95345f2b86bc3f5211b587c7140a0e8257d36168a719383","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2019,"date_issued":"2019-10-30","case_number":"2019 PAC 59091","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 19-011 (Request for Review - 2019 PAC 59091).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 19-011 (Request for Review - 2019 PAC 59091).pdf","word_count":2208,"summary":"The Cook County Assessor's Office failed to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Brian J. Massimino . The Attorney General issued a binding opinion issued by the Attorney General .","plain_summary":"The requester, an attorney, sought decades of permit applications, denials, and related correspondence for several properties from a county assessor's office but received no response despite repeated follow-up. The Public Access Counselor held that the assessor's office violated FOIA's requirement to comply with, extend, or deny a request within five business days, and that its silence also barred it from later treating the request as unduly burdensome. The assessor's office was directed to provide all responsive records, subject only to permissible redactions under a proper written denial.","holding":"The Cook County Assessor's Office violated section 3(d) of FOIA by failing to respond to the requester's FOIA request within the statutory timeframe.","legal_question":"Whether the Cook County Assessor's Office violated section 3(d) of FOIA by failing to respond to a request for records within the required statutory period.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Cook County Assessor's Office","requesting_party":"Massimino and Mr. Kos","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"FOIA response","subject_description":"The request sought permit applications, permits, denials, and correspondence for five specific properties in Lincolnwood, Illinois.","ocr_status":"ok","ocr_quality":89.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2019-Binding-PAC-Opinions/19-011.pdf","sha256":"449a7c887636ac6402123ebbea92de69908f23e4060509994ff6ec453d1394b5","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","statutory deadline","public records"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL October 30, 2019 PUBLIC ACCESS OPINION 19-011 (Request for Review 2019 PAC 59091) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Brian J. Massimino Lavelle Law 141 West Jackson Boulevard, Suite 2800 Chicago, Illinois 60604 Mr. Mark Kos . Freedom of Information Act Officer Cook County Assessor's Office 118 North Clark Street Chicago, Illinois 60602 Dear Mr. Massimino and Mr. Kos: This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(@) (West 2018)). For the reasons discussed below, this office concludes that the Cook County Assessor's Office (Assessor's Office) violated section 3(d} of FOIA (5 ILCS 140/3(d) (West 2018), as amended by Public Act 101-081, effective July 12, 2019) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Brian J. Massimino. BACKGROUND On July 9, 2019, Mr. Massimino, on behalf of Lavelle Law, e-mailed a FOIA request to the Assessor's Office seeking \"all applications for permits, permits, denials of permits 500 Souch Second Steet, Springicld, inois 62701 * (217) 782-1090 * TT (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Hiinois 60601 © (312) 814-3000 © TTY: (800) 964-3013 * Fux: (312) 614-3806 601 South University Ave., Carbondale, 1L 62901 * (618) 529-6400 = TTY: (877) 675-9239 © Fax (618) 529-6416 «@SamD~ Mr. Brian J. Massimino Mr. Mark Kos October 30, 2019 Page 2 and correspondence related to\"! five specified properties located at five indicated street addresses in Lincolnwood, Illinois for the period of January 1, 1950, to July 9, 2019, the date the FOIA request was submitted. On July 16, 2019,’ and July 18, 2019, Mr. Massimino e-mailed the Assessor's Office asking for status updates on the response to his FOLA request. Mr. Massimino also stated that he attempted to determine the status of his request by telephone, but he was unable to leave a message because \"the system indicated that your office [the Assessor's Office] [was] out of storage[.]\"TM ‘ On July 26, 2019, Mr. Massimino submitted a Request for Review to the Public Access Bureau alleging that the Assessor's Office had failed to respond to his FOIA request.’ On August 1, 2019, the Public Access Bureau forwarded a copy of the Request for Review to the Assessor's Office and asked whether it had received and responded to Mr. Massimino's FOIA request.® The August 1, 2019, letter also requested that, if the Assessor's Office had received the request but not yet responded to Mr. Massimino, it do so and provide this office with a copy of its response. The Assessor's Office did not respond to the Public Access Bureau's August 1, 2019, correspondence. On August 22, 2019, Mr. Massimino inquired whether this office had received a response from the Assessor's Office.’ An Assistant Attorney General (AAG) in the Public Access Bureau informed Mr. Massimino that the Assessor's Office had not responded to this office's correspondence.® On August 23, 2019, the Public Access Bureau sent a second copy of Mr. Massimino's Request for Review to the Assessor's Office via e-mail and the United States Postal Service, and again asked it to respond to the FOIA request and to provide this office with _ Request for Records [submitted to Cook County Assessor's Office] by Brian Massimino, Exhibit A (July 9, 2019). : °E-mail from Brian Massimino to foia@cookcountyassessor.com (July 16, 2019). 38-mail from Brian Massimino to foia@cookcountyassessor.com (July 18, 2019). “E-mail from Brian Massimino to foia@cookcountyassessor.com (July 18, 2019). *Letter from Brian J. Massimino, Attorney at Law, Lavelle Law, Ltd. to Sarah Pratt, Public Access Counselor, Office of the Attorney General (uly 26, 2019). ‘Letter from Laura S, Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Mark Kos, FOIA Officer, Cook County Assessor's Office (August 1, 2019). \"E-mail from Brian Massimino to [Laura] Harter (August 22, 2019). 4E.mail from Laura $. Harter, Deputy Bureau Chief, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Brian Massimino (August 22, 2019). Mr. Brian J. Massimino Mr. Mark Kos October 30, 2019 Page 3 a copy of its response.’ The Assessor's Office did not respond to the Public Access Bureau's August 23, 2019, correspondence. , On September 6, 2019, Mr. Massimino informed this office that he still had not received a response from the Assessor's Office.\"° On September 6, 2019, an AAG in the Public Access Bureau left a voicemail message for Mr. Mark Kos, the FOIA Officer for the Assessor's Office, asking him to contact this office regarding Mr. Massimino’s Request for Review.!! Mr. Kos did not contact this office. On September 23, 2019, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days, to November 6, 2019, pursuant to section 9.5(f of FOIA,” In an October 28, 2019, telephone conversation with an Assistant Attorney General in the Public Access Bureau, Mr. Massimino stated that he had still not received a response to his July 9, 2019, FOIA request.'3 As of the date of the issuance of this binding opinion, this office has not received a written response from the Assessor's Office or confirmation from Mr. Massimino that he has received a response to his July 9, 2019, FOIA request. ANALYSIS “Ht is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2018). Under section 1.2 of FOLA (5 ILCS 140/1.2 (West 2018)), “[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Mark Kos, FOLA Officer, Cook County Assessor's Office (August 23, 2019). ‘°B-mail from Brian J. Massimino, Attorney at Law, [Lavelle Law], to [Laura] Harter (September 6, 2019). \"Voice message from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Mark Kos, FOIA Officer, Cook County Assessor's Office (September 6, 2019). \"Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Brian Massimino, Lavelle Law, and Mark Kos, FOIA Officer, Cook County Assessor's Office (September 23, 2019). . '° Telephone conversation between Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, and Brian J. Massimino (October 28, 2019). Mr. Brian J. Massimino Mr. Mark Kos October 30, 2019 Page 4 Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2018), as amended by Public Act 101-081, effective July 12, 2019) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of’ this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). : ' The Assessor's Office did not respond to Mr. Massimino's FOIA request within five business days after its receipt by either complying with his request, extending the time for its response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2018), as amended by Public Act 101-081, effective July 12, 2019), or denying the request in writing. The Assessor's Office's failure to comply with the requisite procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS | After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: : 1} On July 9, 2019, Mr. Brian Massimino, on behalf of Lavelle Law, submitted a FOIA request to the Cook County Assessor's Office seeking copies of applications for permits, permits, denials of permits, and related correspondence for five specified properties located at five indicated street addresses in Lincolnwood, Illinois, for the time period of January 1, 1950, to July 9, 2019. Mr. Massimino did not receive a response to his request. 2) On July 26, 2019, Mr. Massimino submitted a Request for Review to the Public Access Counselor and the Public Access Bureau because the Assessor's Office had not responded to his FOIA request.. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2018)). Mr. Brian J. Massimino Mr. Mark Kos October 30, 2019 Page 5 3) On August 1, 2019, the Public Access Bureau forwarded a copy of Mr. Massimino's Request for Review to the Assessor's Office along with a letter asking the Assessor's Office to advise this office whether it had received and responded to Mr. Massimino's July 9, 2019, FOIA request. The Assessor's Office did not respond to this office's inquiry. — 4) On August 23, 2019, this office sent the Assessor's Office an additional copy of the Request for Review and this office's August 1, 2019, letter, along with a letter inquiring as to the status of the Assessor's Office's response to this office. The Assessor's Office did not respond to that inquiry, either. ' 5) On September 23, 2019, this office extended the time within which to issue a binding opinion by 30 business days, to November 6, 2019, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. ' 6) As of the date of the issuance of this binding opinion, this office has not received a response to its inquiries nor has this office received any information indicating that the Assessor's Office has responded to Mr. Massimino’s request. Therefore, it is the opinion of the Attorney General that the Assessor's Office has violated section 3(d) of FOIA by failing, within five business days after receiving Mr. Massimino's July 9, 2019, FOIA request, to provide copies of the requested records, to extend the time for its response pursuant to section 3(e) of FOIA, or to deny the request in whole or in part. Accordingly, the Assessor's Office is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Massimino with all records responsive to his July 9, 2019, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2018), as amended by Public Act 101-455, effective August 23, 2019).\"4 If the Assessor's Office determines that any portion of the responsive records is exempt from disclosure under section 7, it is directed to isste a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2018)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 ef seq. (West 2018). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County “Because the Assessor's Office did not comply with the statutory requirements for responding to Mr. Massimino's FOIA request, the Assessor's Office is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d)} (West 2018), as amended by Public Act 101- 081, effective July 12, 2019. Mr. Brian J. Massimino Mr, Mark Kos October 30, 2019 Page 6 within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Brian J. Massimino as defendants. See 5 ILCS 140/11.5 (West.2018). Sincerely, KWAME RAOUL . ATTORNEY GENERAL By: Brent D, Stratton: . Chief Deputy Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 19-011) upon: Mr. Brian J. Massimino Lavelle Law 141 West Jackson Boulevard, Suite 2800 Chicago, Illinois 60604 bmassimino@lavellelaw.com Mr. Mark Kos Freedom of Information Act Officer Cook County Assessor's Office 118 North Clark Street Chicago, Illinois 60602 mark.kos@cookcountyil.gov by causing a true copy thereofto be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Iinois on October 30, 2019. saw ALG SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62761 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Massimino requested records from the Cook County Assessor's Office, but the office never provided a response or a denial. The Attorney General's office determined that this silence violated the Freedom of Information Act, which requires public bodies to respond to requests within a specific timeframe. The Assessor's Office is now legally required to provide the requested records or a proper denial.","card_headline":"Permit applications and correspondence for five properties","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":122,"orig_master_id":19323,"dup_master_id":19096,"dup_sha256":"40a64fbf1b44f3fb24e34165f7c4c88e910016146a545f9073c658c1c8abeaca","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2019,"date_issued":"2019-09-24","case_number":"2019 PAC 58547","request_numbers":null,"title":"Basis for Withholding Police Report Narratives","filename":"PUBLIC ACCESS OPINION 19-008 (Request for Review - 2019 PAC 58547).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 19-008 (Request for Review - 2019 PAC 58547).pdf","word_count":2375,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request by Mr. Felix Sarver for police reports from the City of Joliet Police Department.","plain_summary":"The requester, a newspaper reporter, sought police reports concerning two arrests, and the police department redacted nearly all of the narrative sections citing exemptions for private information, personal privacy, fair-trial interference, and confidential sources. The Public Access Counselor held that most of the redactions were improper because arrests are matters of legitimate public interest and the department did not show a specific fair-trial risk, but agreed that the department could redact private information such as phone numbers and addresses, dates of birth, unarrested suspects' identifying details, and the names of two witnesses. The department was directed to disclose the narrative sections subject only to those narrower, authorized redactions.","holding":"The City of Joliet Police Department violated FOIA by improperly redacting information from police report narratives.","legal_question":"Did the City of Joliet Police Department comply with the Freedom of Information Act in redacting information from police reports?","disposition":"violation_found","primary_statute":"5 ILCS 140, 5 ILCS 140/7, 5 ILCS 140/3, 5 ILCS 140/2, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)","7(1)(d)"],"public_body":"City of Joliet Police Department","requesting_party":"Sarver and Ms. Spano","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The redaction of narrative sections within police arrest reports.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2019-Binding-PAC-Opinions/19-008.pdf","sha256":"301120048395d6b540c33db01fd1e1c89248173f8541a8d60b1eaa2b4efdfe53","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","redaction","FOIA","arrest records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STA' T' E OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL September 24, 2019 PUBLIC ACCESS OPINION 19-008 Request for Review 2019 PAC 58547) FREEDOM OF INFORMATION ACT: Basis for Withholding Police Report Narratives Mr. Felix Sarver News Reporter The Herald -News 2175 Oneida Street Joliet, Illinois 60435 Ms. Sabrina Spano Assistant Corporation Counsel City ofJoliet 150 West Jefferson Street Joliet, Illinois 60432 Dear Mr. Sarver and Ms. Spano: This is a binding opinion issued by the Attorney General pursuant to section 9.5( 0 of the Freedom of Information Act (FOIA) (5 ILCS 140/ 9.5( 0 (West 2018)). For the reasons discussed below, this office concludes that the City ofJoliet Police Department ( Department) violated the requirements ofFOIA by improperly redacting certain information from the narrative sections ofthe police reports responsive to Mr. Felix Sarver's June 3, 2019, FOIA request. BACKGROUND On June 3, 2019, Mr. Sarver, on behalf of The Herald -News, submitted a FOIA request to the Department seeking copies ofpolice reports concerning the arrests oftwo named 500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • T'I'Y: (877) 844-5461 • Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806 601 South University Ave., Carhondale, IL 62901 • ( 618) 529-6400 • TAN: (877) 675-9339 • Fax (618) 529- 6416 • Mr. Felix Sarver Ms. Sabrina Spano September 24, 2019 Page 2 persons on May 29, 2019.1 On June 10, 2019, the Department provided him with copies of records related to each ofthe two case numbers assigned to the arrests. Among the records produced were one case report and six officer supplement reports related to case No. 19-6803 and one case report related to case No. 19- 8362. The Department redacted certain information from the records pursuant to sections 7( 1)( b), 7(1)( c), 7(1)( d)(iii), and 7(1)( d)(iv) ofFOIA (5 ILCS 140/7( 1)( b), ( 1)( c), ( 1)( d)( iii), (1)( d)( iv) (West 2018)). 2 In particular, the Department redacted the entire \" NARRATIVE\" sections ofeach ofthe reports, with the exception ofone of the officer supplement reports related to case No. 19-6803 ( document No. 11- 19- 0006803- 006) and the case report related to case No. 19-8362 ( document No. 11- 19- 0008362- 001), which disclosed the first sentence and the first two sentences ofthe narrative section ofthe respective reports. On June 13, 2019, Mr. Sarver submitted a Request for Review to the Public Access Bureau contesting the Department's \" redactions ofthe narratives in the[ ] police reports\" that he received.3 Although the Department had redacted other discrete information from the records, this Request for Review addresses only the redaction ofthe narrative portions ofthe reports. On June 19, 2019, the Public Access Bureau sent a copy ofthe Request for Review to the Department and asked it to provide copies ofthe responsivepolice reports for this office's confidential review.4 The June 19, 2019, letter also requested that the Department provide a detailed explanation of the factual and legal bases for redacting the narratives. 5 On June 28, 2019, the Department furnished the requested materials to this office, adding an assertion of section 7( 1)( a) of FOIA (5 ILCS 140/7( 1)( a) ( West 2018)) based on Illinois Supreme Court Rule 415(c) (effective October 1, 1971). 6 On July 1, 2019, the Public Access Bureau 1FOIA Records Centersubmission from Felix Sarverto City ofJoliet Police Department (June 3, 2019). 2E -mail from Sergeant Chris Botzum, Administration, Joliet Police Department, to Felix [ Sarver] June 10, 2019). 3FOIA — Request for Review by Public Access Counselor ( PAC) submission by Felix Sarver (June 13, 2019). Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General, to Sabrina Spano, Assistant Corporation Counsel, City ofJoliet (June 19, 2019), at 1. 5Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General, to Sabrina Spano, Assistant Corporation Counsel, City ofJoliet (June 19, 2019), at 1- 2. Letter from Sabrina Spano, Assistant Corporation Counsel, City ofJoliet, to Joshua M. Jones Deputy Bureau Chief— Public Access Bureau, Office ofthe AttorneyGeneral (June 28, 2019). Mr. Felix Sarver Ms. Sabrina Spano September 24, 2019 Page 3 forwarded a copy ofthe Department' s written response to Mr. Sarver; he did not reply to that response. Pursuant to section 9.5 ofFOIA, on August 12, 2019, this office extended the time within which to issue a binding opinion by 30 business days, to September 24, 2019.8 ANALYSIS All records in the custody or possession ofa public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden ofproving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/ 1. 2 ( West 2018). Section 3( a) ofFOIA ( 5 ILCS 140/3( a) ( West 2018), as amended by Public Act 101- 081, effective July 12, 2019) further provides that \"[ e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 ofthis Act.\" The exemptions fromdisclosure contained in section 7 ofFOIA (5 ILCS 140/7 ( West 2018)) are to be construed narrowly. See Lieber v. Board of Trustees ofSouthern Illinois University, 176 I11. 2d 401, 407 ( 1997). Section 7(1)( a) of FOIA Section 7( 1)( a) of FOIA exempts from inspection and copying \"[ i] nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" ( Emphasis added.) \"[ Agri exemption restricting the expansive nature ofthe FOIA's disclosure provisions must be explicitly stated -that is, such a proposed disclosure must be specifically prohibited.\" ( Emphasis in original.) Better Gov' tAss' n v. Blagojevich, 386 Ill. App. 3d 808, 816 ( 4th Dist. 2008). In its answer to this office, the Department asserted that \"[ t]he request is for information in pending criminal cases in the Will County Circuit Court[,]\" and that \"the Will County State's Attorney's Office objects to releasing reports on pending cases.\" 9 The Department cited Illinois Supreme Court Rule 415( c), which provides that \"[ a]ny materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purposes ofconducting his side ofthe case, and shall be subject to such other terms and conditions as the court may provide.\" The Department argued that disclosure ofthe Letter from Joshua M. Jones, DeputyBureau Chief, PublicAccess Bureau, Office ofthe Attorney General, to Felix Sarver, News Reporter, The Herald -News ( July 1, 2019). Letter from Joshua M. Jones, DeputyBureau Chief, Public Access Bureau, to Felix Sarver, News Reporter, TheHerald -News, andSabrina Spano, Assistant Corporation Counsel, City ofJoliet (August 12, 2019). 9Letter from Sabrina Spano, Assistant Corporation Counsel, City ofJoliet, to Joshua M. Jones Deputy Bureau Chief— Public Access Bureau, Office ofthe Attorney General (June 28, 2019), at I. Mr. Felix Sarver Ms. Sabrina Spano September 24, 2019 Page 4 materials would interfere with discovery in the underlying cases, citing People v. Schmidt, 56 I11. 2d 572 ( 1974), People v. Teller, 207 Ill. App. 3d 346, 349 (2d Dist. 1991), and People v. Shores, 2012 IL App (5th). 100196, ¶41, 975 N.E.2d 774, 782 (2012). Each ofthose cases, however, involved parties seeking discovery materials for their own pending criminal or civil cases. See also Turner v. Joliet Police Department, 2019 IL App ( 3d) 170819, 114- 16, 123 N.E.3d 1147, 1151 ( 2019) (Department did not violate FOIA by denying defendant's request for discovery materials from his pending criminal case pursuant to section 7( 1)( a) based on Rule 415( c)). In contrast, Mr. Sarver is a news reporter who i [...] al review. This office also asked the Department to provide a detailed explanation ofthe factual and legal bases for redacting the narratives. 5) On June 28, 2019, the Department furnished the requested materials to this office. The Department asserted that the information it redacted from the narratives was also exempt from disclosure under section 7(1)( a) ofFOIA. 6) On July 1, 2019, the Public Access Bureau forwarded a copy ofthe Department' s written answer to Mr. Sarver; he did not reply to that response. 7) Pursuant to section 9.5 ofFOIA, on August 12, 2019, this office extended the time within which to issue a binding opinion by 30 business days, to September 24, 2019. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 7( 1)( a) of FOIA exempts from disclosure \"[ i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law[,]\" and Illinois Supreme Court Rule 415( c) provides that \"[ a]ny materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purposes ofconducting his side of the case, and shall be subject to such other terms and conditions as the court may provide.\" Rule 415( c) does not specifically prohibit disclosure of any portion ofthe narratives to Mr. Sarver because he is not a criminal defendant seeking discovery materials for his criminal case. The Department may properly redact only information obtained through LEADS pursuant to section 7( 1)( a). 9) Section 7( 1)( b) ofFOIA exempts from disclosure.\"[ p]rivate information, unless disclosure is required by another provision ofthis Act, a State or federal law or a court order.\" The Department redacted from the narratives home or personal telephone numbers, a motorvehicle number, and a home address. Because these items meet the definition of \"private information\" in section 2(c-5) FOIA, the Department's redaction ofthis discrete information pursuant to section 7( 1)( b) did not violate FOIA. The Department did not sustain its burden to redact any other information from the narratives pursuant to section 7( 1)( b). 10) Section 7( 1)( c) ofFOIA exempts from disclosure \"[ p] ersonal information contained within public records, the disclosure ofwhich would constitute a clearly unwarranted invasion ofpersonal privacy, unless the disclosure is consented to in writing by the individual subjects ofthe information.\" Because the narratives document arrests and because arrests are legitimate matters of public interest that outweigh arrestees' privacy rights, the Department failed to prove that any information in the narratives discussing the circumstances surrounding the arrests is exempt from disclosure under section 7( 1)( c). The Department may properly redact from the narratives only dates of birth and information that would unavoidably identify any Mr. Felix Sarver Ms. Sabrina Spano September 24, 2019 Page 12 suspects who had not been arrested or charged at the time ofthe request pursuant to section 7( 1)( c). 11) Section 7(1)( d)(iii) ofFOIA exemptsfrom disclosure law enforcement records when their disclosure would \" create a substantial, likelihood that aperson will be deprived ofa fair trial or impartial hearing.\" There is no indication that a trial or adjudication related to the records at issue was imminent at the time ofMr. Sarver' s request, and the Department did not explain how or why disclosure ofthe particular narratives at issue would deprive the specific defendants of fair trials or impartial hearings. Therefore, the Department did not sustain its burden to redact any information from the narratives pursuant to section 7( 1)( d)( iii). 12) Section 7( 1)( d)( iv) ofFOIA exempts 'from disclosure law enforcement records when their disclosure would \" unavoidably disclose the identity ofa confidential source, confidential information furnished only by the confidential source, or persons who file complaints with or provide information to administrative, investigative, law enforcement, or penal agencies[.]\" The information in the narratives that does not consist ofwitness identities and witness statements is not within the scope ofsection 7( 1)( d)(iv), nor does the exemption encompass information provided by criminal suspects under questioning by law enforcement. The Department did not demonstrate that all ofthe information in the narratives relating to the actual witness statements is exempt from disclosure. The Department may properly redact only the names ofthe two witnesses in case No. 19-8362 pursuant to section 7( 1)( d)(iv). 13) Although the Department did not cite section 7( 1)( d)(vi) ofFOIA, that exemption permits a police departmentto withhold information that would \"endanger the life or physical safety of law enforcement personnel or any other person.\" Under this exemption, the Department may properly redact from the reports ofcasejNo. 19-6803 information that would identify any undercover officers. Therefore, it is the opinion ofthe Attorney General that the Department's response to Mr. Sarver' s Freedom of Information Act request violated the requirements ofFOIA. Accordingly, the Department is directed to take immediate and appropriate action to comply with this opinion by disclosing to Mr. Sarver copies ofthe narrative sections ofthe responsive police reports, subject only to the redactions authorized above. Mr. Felix Sarver Ms. Sabrina Spano September 24, 2019 Page 13 This opinion shall be considered a final decision ofan administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3- 101 et seq. ( West 2018). An aggrieved party may obtain judicial review ofthe decision by filing a complaint for administrative review in the Circuit Court ofCook or Sangamon County within 35 days ofthe date ofthis decision naming the Attorney General ofIllinois and Felix Sarver as defendants. See 5 ILCS 140/ 11. 5 ( West 2018). Very truly yours, KWAME RAOUL ATTORNEY GENERAL By: Brent b.'Sfratton Chief DeputyAttorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy ofthe foregoing Binding Opinion (Public Access Opinion 19-008) upon: Mr. Felix Sarver News Reporter The Herald -News 2175 Oneida Street Joliet, Illinois 60435 fsarver@shawmedia. com Ms. Sabrina Spano Assistant Corporation Counsel City ofJoliet 150 West Jefferson Street Joliet, Illinois 60432 sspano@jolietcity. org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereofin correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on September 24, 2019. Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested police reports from the City of Joliet, but the city blacked out parts of the narrative sections. The Illinois Attorney General's office reviewed the request and ruled that the city did not provide a valid legal reason for those redactions. The city was ordered to release the information because police report narratives are generally public records unless a specific exemption applies.","card_headline":"Redacted narrative sections of police arrest reports","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":123,"orig_master_id":19325,"dup_master_id":19097,"dup_sha256":"bf45febda2be00a2b85c3e4991137099a666b89803b22a084dec670d618e9906","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2019,"date_issued":"2019-07-01","case_number":"2019 PAC 58962","request_numbers":null,"title":"Disclosure of Body Camera Footage of an Arrestee' s Death","filename":"PUBLIC ACCESS OPINION 19-010 (Request for Review - 2019 PAC 58962).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 19-010 (Request for Review - 2019 PAC 58962).pdf","word_count":2468,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request for body camera footage related to an in-custody death. It concludes that the City of Waukegan improperly denied the request.","plain_summary":"The requester, a community advocate, sought dashboard and body camera recordings of an in-custody death, which a city withheld citing multiple law-enforcement exemptions tied to open state police and other investigations into the incident. The Public Access Counselor held that because the recordings were flagged under the Law Enforcement Officer-Worn Body Camera Act as involving death or bodily harm, they were subject to disclosure unless the city proved an exemption applied, and the city's assertions of investigative harm and fair-trial risk lacked the specific facts required to meet that burden. The city was directed to provide the requester with copies of the body camera recordings, subject only to redactions required by the Body Camera Act.","holding":"The City of Waukegan violated FOIA by improperly denying the request for body camera recordings.","legal_question":"Did the City of Waukegan violate the Freedom of Information Act by denying the request for body camera footage?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7, 50 ILCS 706, 5 ILCS 140, 50 ILCS 727, 50 ILCS 706/10, 735 ILCS 5","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(d)"],"public_body":"City of Waukegan Waukegan City Hall","requesting_party":"Blanks","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought body camera and dash camera recordings related to the in-custody death of an individual during an attempted arrest.","ocr_status":"ok","ocr_quality":89.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2019-Binding-PAC-Opinions/19-010.pdf","sha256":"20c6f9107786cfbe9e01165a61a402faede9062253d694355a3c46b2cdfdf1fc","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["body camera","police records","in-custody death","FOIA denial"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL October 29, 2019 PUBLIC ACCESS OPINION 19-010 Request for Review 2019 PAC 58962) FREEDOM OF INFORMATION ACT: Disclosure of Body Camera Footage of an Arrestee' s Death Mr. Chris J.D. Blanks 409 Oak Street Waukegan, Illinois 60085 Mr. Douglas Dorando Daniels, Long & Pinsel, LLC The Daniels Law Building 19 North County Street Waukegan, Illinois 60085 Honorable Janet E. Kilkelly, City Clerk City of Waukegan Waukegan City Hall 100 N. Martin Luther King, Jr. Avenue Waukegan, Illinois 60085 Dear Mr. Blanks, Mr. Dorando, and Ms. Kilkelly: This is a binding opinion issued by the Attorney General pursuant to section 9.5( 1) ofthe Freedom of Information Act ( FOIA) ( 5 ILCS 140/9.5( 1) ( West 2018)). Forthe reasons discussed below, this office concludes that the City of Waukegan (City) violated the requirements of FOIA by improperly denying Mr. Chris Blanks' FOIA request seeking copies of law enforcement officer -worn body camera recordings concerning an in -custody death occurring on June 27, 2019. 500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • \" FIT: (800) 964-3013 • Fax: ( 312) 814- 3806 601 South University Ave., Carbondale, IL 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax (618) 529-6416 e Mr. Chris J.D. Blanks Mr. Douglas Dorando Honorable Janet E. Kilkelly October 29, 2019 Page 2 BACKGROUND On July 1, 2019, Mr. Blanks submitted, and the City received, a FOIA request seeking copies of \"all dash Cam, body camera video and audio recordings leading up to as well as the attempted arrest and death ofAvion Cotton * * * [ on] Thursday, June 27, 2019.\" I On July 10, 2019, the City's corporation counsel provided copies ofcertain information related to the incident ofJune 27, 2019, but denied the requested video and audio recordings pursuant to sections 7( 1)( d)( i) and 7( 1)( d)(vii) of FOIA ( 5 ILCS 140/7( 1)( d)( i), ( 1)( d)(vii) (West 2018)), stating that there was \" an open criminal investigation[.]\" 2 The City's FOIA response also cited the Law Enforcement Officer -Worn Body Camera Act (Body Camera Act) (50 ILCS 706/ 10- 1 et seq. ( West 2018)) as a basis for withholding the video and audio recordings. In a letter dated July 15, 2019, and received by the Public Access Bureau on July 18, 2019, Mr. Blanks submitted a Request for Review to the Public Access Counselor.3 On July 22, 2019, the Public Access Bureau sent a copy ofthe Request for Review to the law firm ofDaniels, Long & Pinsel, which serves as the City's corporation counsel. The PublicAccess Bureau also sent the City's corporation counsel a letter 'requesting unredacted copies ofthe responsive audio and video recordings for this office' s confidential review, together with a detailed explanation ofthe legal and factual bases for the asserted exemptions:4 By letter dated August 1, 2019, the City's corporation counsel provided this office with unredacted copies ofthe responsive body -camera recordings, and certain related records. Freedom ofInformation Act Request form with attachment from Christopher J. D. Blanks to Office ofthe City Clerk, Waukegan ( July 1, 2019). 2Letter from Douglas Dorando, Attorney, Daniels, Long & Pinsel, LLC, to Chris Blanks (July 10, 2019). 3Letter from Chris \" Brotha\" Blanks, Founding Chief President and CEO, Black Abolition Movement for the Mind, to Public Access Counselor (PAC) (July 15, 2019). 3This office notes that the City's response to Mr. Blanks provided him with copies ofsome records, in addition to withholding the body worn camera videos and certain other records. Mr. Blanks explained to this office that his Request for Review only disputes the denial ofbody camera videos. ( Telephone conversation between Josh Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General, and Chris Blanks August 9, 2019)). Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General, to Douglas Dorando, Attorney, Daniels, Long & Pinsel, LLC (July22, 2019). Mr. Chris J.D. Blanks Mr. Douglas Dorando Honorable Janet E. Kilkelly October 29, 2019 Page 3 The City's corporation counsel also sent this office two versions of the City's written answer: one for this office's confidential reviews and a redacted version for forwarding to Mr. Blanks.6 The answer cited sections 7( 1)( d)( i), 7( 1)( d)( ii), 7( 1)( d)( iii), 7( 1)( d)( iv), 7( 1)( d)(v), 7( 1)( d)(vi), and 7( 1)( d)(vii) of FOIA (5 ILCS 140/ 7( 1)( d)( i) through 7( 1)( d)( vii) (West 2018)), asserting that there are two open investigations\" related to Mr. Cotton \" ofwhich premature disclosure would inhibit impartial resolution.\" 7 The City identified one ofthe two investigations as \" being conducted by the Illinois State Police (ISP) into the in custody death ofMr. Cotton.\" 8 The City asserted thatthis \"investigation will determine the potential culpability ofthe Waukegan Police Officers involved in this incident and it is up to the Lake County State's Attorneys Office * * * to determine whether any criminal conduct occurred.i9 The City redacted all ofits explanation concerning the other investigation. On August 8, 2019, the Public Access Bureau forwarded to Mr. Blanks a copy of the City's redacted response and notified him ofhis opportunity to reply.10 Mr. Blanks replied in an e-mail submitted later that same day, arguing that disclosure ofthe recordings should not be left to the discretion of the Lake County State' s Attorneys Office or the City.' 1 In an August 9, 2019, telephone conversation with an Assistant Attorney General AAG) in the Public Access Bureau, Mr. Blanks clarified that his reference to \" audio recordings\" in his FOIA request concerned the audio aspects ofany dashboard camera or body camera videos showing Mr. Cotton being taken into custody ( rather than other records such as police radio SSee 5 ILCS 140/9.5(d) ( West 2018) (\" The Public Access Counselor shall forward a copy ofthe answer to the person submitting the request for review, with any alleged confidential information to which the request pertains redacted from the copy.\"). 6Letter from Douglas S. Dorando, Attorney, Daniels, Long & Pinsel, LLC, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General ( August 1, 2019). 7Letter from Douglas S. Dorando, Attorney, Daniels, Long & Pinsel, LLC, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General ( August 1, 2019), at 1. 8Letter from Douglas S. Dorando, Attorney, Daniels, Long & Pinsel, LLC, to Joshua M. Jones, DeputyBureau Chief, Public Access Bureau, Office ofthe Attorney General ( August 1, 2019), at 1. 9Letter from Douglas S. Dorando, Attorney, Daniels, Long & Pinsel, LLC, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General (August 1, 2019), at 1. 10Letter from Josh Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General, to Chris Blanks (August8, 2019). E-mail from Chris \"Brotha\" Blanks to [ Joshua] Jones ( August 8, 2019). Mr. Chris J.D. Blanks Mr. Douglas Dorando Honorable Janet E. Kilkelly October 29, 2019 Page 4 traffic). 12 Given that the City'sAugust 1, 2019, answer to this office addressed a much broader category ofrecords than those video and audio recordings, on August 9, 2019, the Public Access Bureau forwarded a copy of Mr. Blanks' reply to the City's corporation counsel along with a letter asking the City to clarify: ( 1) \" whether there are any dash cam videos depicting any portion ofthe pursuit ofMr. Cotton through his removal from the scene\"; and (2) \" which ( or at a minimum, how many) ofthe officers\" at the scene had \" viewed any ofthe footage depicting the pursuit of Mr. Cotton through his removal from the scene\" or potentially had access to any ofthe dash cam or bod [...] ion to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General 'finds that: 1) On July 1, 2019, Mr. Chris Blanks submitted a FOIA request to the City seeking copies ofall dashboard camera and body camera recordings depicting the lead up to and attempted arrest and death ofMr. Avion Cotton on June 27, 2019. 2) On July 10, 2019, the City denied the request pursuant to sections 7( 1)( d)( i) and 7(1)( d)(vii) ofFOIA. 3) In a letter dated July 15, 2019, and received by the Public Access Bureau on July 18, 2019, Mr. Blanks submitted a Request for Review contesting the City's denial ofhis FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5( a) ofFOIA ( 5 ILCS 140/9.5( a) ( West 2018)). 4) OnJuly 22, 2019, the Public Access Bureau forwarded a copy ofMr. Blanks' Request for Review to the City's corporation counsel and asked it to provide unredacted copies ofthe responsive recordings for this office's confidential review, together with a detailed explanation of the legal and factual basis for the asserted exemptions. 5) On August 1, 2019, this office received copies ofthe recordings and two versions of the City's written answer: a complete version for this office's confidential review and a redacted version for forwarding to Mr. Blanks. The City cited sections 7( 1)( d)( i), 7( 1)( d)(ii), 7( 1)( d)(iii), 7( 1)( d)(iv), 7( 1)( d)(v), 7( 1)( d)(vi), and 7( 1)( d)(vii) ofFOIA. 40Letter from Douglas S. Dorando, Attorney, Daniels, Long & Pinsel, LLC, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General (August 15, 2019), at 3. Mr. Chris J.D. Blanks Mr. Douglas Dorando Honorable Janet E. Kilkelly October 29, 2019 Page 17 6) On August 8, 2019, the Public Access Bureau forwarded to Mr. Blanks a copy ofthe City's redacted answer and notified him of his opportunity to reply. On that same date, Mr. Blanks submitted a reply to the City's answer. 7) On August 9, 2019, after Mr. Blanks confirmed that he was seeking only body camera recordings, the Public Access Bureau sent a second letter to the City posing follow-up questions and inviting the City to submit a supplemental answer tailored to the specific scope of this Request for Review. 8) Also on August 9, 2019, the City sent this office a letter from the 'Lake County State's Attorney, who asserted that the body camera recordings were exempt from disclosure under sections 7( 1)( a), 7( 1)( d)( i), 7( 1)( d)( iii), and 7( 1)( d)(vii) ofFOIA. 9) Later on August 9, 2019, this office forwarded a copy ofthe Lake County State's Attorneys letter to Mr. Blanks and notified him ofhis opportunity to reply. Later still on that date, Mr. Blanks submitted a reply. 10) On August 15, 2019, this office received the City's answer to this office's August 9, 2019, follow up letter. 11) On August 16, 2019, this office forwarded a copy ofthe City's supplemental answer to Mr. Blanks and again notified him ofhis opportunity to reply. On August 20, 2019, Mr. Blanks notified this office that he wished to add nothing further. 12) On September 5, 2019, pursuant to section 9.5(f) ofFOIA, this office extended the time within which to issue a binding opinion by 30 business days, to October 29, 2019. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 13) Section 10-20(b) ofthe Law Enforcement Officer -Worn Body Camera Act provides that body camera recordings that are flagged \" due to the filing ofa complaint, discharge ofa firearm, use offorce, arrest or detention, or resulting death or bodily harm\" must be disclosed pursuant to FOIA unless one or more ofthe exemptions in FOIA applies. The body camera recordings at issue were flagged and therefore subject to disclosure unless the City proves by clear and convincing evidence that they are exempt. 14) Section 7( 1)( a) of FOIA exempts from inspection and copying \"[ i] nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" The Police and Community Relations Improvement Act Mr. Chris J.D. Blanks Mr. Douglas Dorando Honorable Janet E. Kilkelly October 29, 2019 Page 18 does not specifically prohibit disclosure ofthe body camera recordings. Therefore, section 7( 1)( a) is inapplicable as a basis for withholding the requested records. 15) Section 7( 1)( d) of FOIA contains seven exemptions for law enforcement records. Although it cited all seven exemptions, the City set forth arguments for only sections 7( 1)( d)( i), 7( 1)( d)( iii), 7( 1)( d)( vi), and 7( 1)( d)( vii). 16) Section 7(1)( d)( vi) ofFOIA exempts from disclosure law enforcement records only to the extent that disclosure would \"endanger the life or physical safety oflaw enforcement personnel or any other person[.]\" The City did not explain how disclosure would pose a risk to the life or physical safety ofany person. 17) Sections 7( 1)( d)(i) and 7( 1)( d)(vii) ofFOIA exempt from disclosure law enforcement records only to the extent that disclosure would \" interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient ofthe request\" or \"obstruct an ongoing criminal investigation by the agency that is the recipient ofthe request[,]\" respectively. The City did not set forth facts as to how disclosure ofthese particular body camera recordings would interfere with any ongoing investigation or other law enforcement proceedings. 18) Section 7( 1)( d)( iii) ofFOIA exempts from disclosure law enforcement records only to the extent that disclosure would \"create a substantial likelihood that aperson will be deprived ofa fair trial or an impartial hearing.\" The City neither asserted that there will likely be a trial or hearing regarding the police interaction with Mr. Cotton depicted in the responsive body camera recordings, nor did it set forth facts demonstrating a substantial likelihood that disclosure will deprive a person ofa fair trial or an impartial hearing. Therefore, it is the opinion ofthe Attorney General that the City's denial ofthe body camera recordings responsive to Mr. Blanks' Freedom of Information Act request violated the requirements ofFOIA. Accordingly, the City is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Blanks with copies ofthe body camera recordings responsive to his July 1, 2019, FOIA request, subject only to redactions required by the Body Camera Act. This opinion shall be considered a final decision ofan administrative agency for the purposes ofadministrative review under the Administrative Review Law. 735 ILCS 5/ 3- 101 et seq. ( West 2018). An aggrieved party may obtain judicial review ofthe decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A citizen requested body camera footage from the City of Waukegan regarding an in-custody death. The City denied the request, citing exemptions under FOIA sections 7(1)(d)(i) through (vii) and claiming that premature disclosure would inhibit impartial resolution of open investigations. The Attorney General concluded that the City violated FOIA by improperly denying the request and ordered the footage to be disclosed.","card_headline":"Police body-camera and dash-camera recordings of an in-custody death","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":124,"orig_master_id":19098,"dup_master_id":19326,"dup_sha256":"7c47914dea60b6c7bb63c75e303a11c30f528f5bbbfde9e68c579b264421cca6","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2019,"date_issued":"2019-11-13","case_number":"2019 PAC 59426","request_numbers":null,"title":"Taking Final Action on Matter Not Sufficiently Identified on Meeting Agenda","filename":"PUBLIC ACCESS OPINION 19-012 (Request for Review - 2019 PAC 59426).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 19-012 (Request for Review - 2019 PAC 59426).pdf","word_count":2482,"summary":"The City Council (Council) of Newton (City) violated OMA during its August 20, 2019, meeting by approving an ordinance to increase application fees for permits without providing advance notice of that final action . This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act .","plain_summary":"The requester, a resident, sought review of a city council's meeting agenda after the council voted to raise permit application fees fivefold under an agenda item that listed only an ordinance number and a municipal code section, without describing its subject matter. The Public Access Counselor held that the agenda violated the Open Meetings Act's requirement that final-action items disclose the general subject matter of the business to be conducted, since referencing only an ordinance and code section gave the public no indication that a fee increase was being considered. The council was directed to reconsider its action at a properly noticed meeting with an agenda that identifies the general subject matter of the ordinance.","holding":"The City Council violated the Open Meetings Act by approving an ordinance that was not sufficiently identified on the meeting agenda as required by section 2.02(c).","legal_question":"Whether a public body violates section 2.02(c) of the Open Meetings Act by taking final action on an ordinance that was not sufficiently identified on the meeting agenda.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/1, 5 ILCS 120/2, 5 ILCS 120/2(e), 5 ILCS 120/7, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Newton","requesting_party":"Short and Mr. Bolander","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"meeting notice","subject_description":"The failure of a city council to provide adequate notice on a meeting agenda regarding an ordinance to increase permit fees.","ocr_status":"ok","ocr_quality":90.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2019-Binding-PAC-Opinions/19-012.pdf","sha256":"c275730e1c4a58cd2dc3dc9ee6e507d426f669429d78143a670ad9e973829fbc","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["meeting agenda","public notice","final action","transparency"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL November 13, 2019 PUBLIC ACCESS OPINION 19-012 (Request for Review 2019 PAC 59426) OPEN MEETINGS ACT: Taking Final Action on Matter Not Sufficiently Identified on Meeting Agenda Mr. Larry Short 601 East Decatur Newton, Illinois 62448 The Honorable Mark A. Bolander Mayor City of Newton 108 North Van Buren Street, Room A ‘Newton, Illinois 62448 Dear Mr. Short and Mr. Bolander: This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2018)). For the reasons discussed below, this office concludes that the City Council (Council) of the City of Newton (City) violated OMA during its August 20, 2019, meeting by approving an ordinance to increase application fees for permits without providing advance notice of that final action on the meeting agenda. 1 BACKGROUND oo : In an e-mai! dated August 21, 2019, and received by the Public Access Bureau on August 22, 2019, Mr. Larry Short submitted a Request for Review alleging that the Council violated OMA by failing to identify on its August 20, 2019, meeting agenda the general subject matter of an ordinance that the Council acted upon at that meeting.’ Specifically, Mr. Short cited 'E-mail from Larry Short to Public Access [Bureau, Office of the Attorney General] (August 21, 500 South Second Serect, Springfield, Illinois 62701 © (217) 782-1090 © “VY: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Strect, Chicago, [inois 60601 © (312) 814-3000 © TY: (800) 964-3013 « Fax: (312) 814-3806 601 South University Ave.. Carbondale, IL 62901 © (618) 529-6400 © TTY: (877) 675-9339 © Fax (618) 529-6416 « Mr. Larry Short The Honorable Mark A. Bolander November 13, 2019 Page 2 Agenda item 8.d., which states: \"Consider and act on Ordinance 19-11 to Amend Section 33-4-4 (F).\"2. Mr. Short further stated: I find it interesting that every other agenda item is very descriptive and you know exactly what it pertains to except item nq\" . The reason is that section 33-4-4 (f) pertains to permit fees | and while I have not seen ordinance 19-11 I assume it is [an] | increase in fees and they want to hide it.?! | | | On August 28, 2019, the Public Access Bureau forwarded a copy of the Request for Review to the City's mayor, the Honorable Mark Bolander, and asked him to provide copies of the Council's August 20, 2019, meeting agenda and meeting minutes, and a copy of the ordinance that Mr. Short referenced for the agenda item in question. This office also asked the Council for a written response which, if the Council confirmed that it had taken final action on that ordinance during its August 20, 2019, meeting, would also respond to Mr. Short's allegation that the agenda item did not provide sufficient advance notice of the general subject matter of that final action.* The Public Access Bureau received the requested materials from the Council on September 17, 2019. Mayor Bolander's answer, dated September 9, 2019, acknowledged that the Council took final action on the ordinance at its August 20, 2019, meeting but asserted that the relevant agenda item provided sufficient advance notice of that action.” On September 19, 2019, the Public Access Bureau forwarded a copy of the Council's answer to Mr. Short.© Mr. Short did not provide a written reply. On October 17, 2019, pursuant to section 3.5(e) of OMA, this office properly extended the time within which to issue a binding opinion by 21 business days, to November 19, 2019.’ *Newton City Council, Meeting, Agenda Item 8.d. (August 20, 2019). E-mail from Larry Short to Public Access [Bureau, Office of the Attorney General] (August 21, 2019). The application fees for permits were increased from $100.00 to $500.00. “Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attomey General, to the Honorable Mark Bolander, Mayor, City of Newton (August 28, 2019). . | ‘Letter from Mark A. Bolander, Mayor, City of Newton, to Office of the Attorney General of the State of Illinois, Public Access Bureau (September 9, 2019). SLetter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to Larry Short (September 19, 2019). ‘Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to Larry Short and the Honorable Mark A. Bolander, Mayor, City of Newton (October 17, 2019). Mr. Larry Short The Honorable Mark A. Bolander November 13, 2019 Page 3 ANALYSIS Under OMA, it is \"the public policy of this State that its citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in anyway.” 5 ILCS 120/1 (West 2018). OMA provides that \"[a]n agenda for each regular meeting shall be posted at the principal office of the public body and at the location where the meeting is to be held at least 48 hours in advance of the holding of the meeting[ ]\" and that \"[a] public body that has a website that the full-time staff of the public body maintains shall also post on its website the agenda of any regular meetings of the governing body of that public body.\" 5 ILCS 120/2.02(a) (West 2018). Section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2018)) further provides that \"[a]ny agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.\" (Emphasis added.) \"The primary objective * * * when construing the meaning of a statute is to _ascertain and give effect to the intent of the legislature.\" DeLuna v. Burciaga, 223 IU. 2d 49, 59 (2006). “The most reliable indicator of legislative intent is the statutory language, given its plain and ordinary meaning.\" Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL 110012, 956, 969 N.E.2d 359, 372 (2012). When statutory language is clear and unambiguous, a reviewing body \"may not depart from the plain language by reading into the statute exceptions, limitations, or conditions that the legislature did not express.\" Hayashi v. Illinois Dep't of Financial and Professional Regulation, 2014 IL 116023, 416, 25 N.E.3d 570, 576 (2014). If the language of a statute is clear and unambiguous, it should be interpreted without resorting to aids of statutory construction. In re B.L.S., 202 Ill. 2d 510, 515 (2002). However, \"[w]here the language of the statute is ambiguous, it is appropriate to examine the legislative history.” Jn re B.L.S., 202 Ill. 2d at 517, . | OMA does not contain a definition of the phrase \"general subject matter,\" nor is there a commonly understood meaning for the phrase. \"General\" is defined, as \"[r]elating to, concerned with, or applicable to the whole or every member of a class or category[,|\" and \"[iJnvolving only the main features of something rather than details or particulars.\" The American Heritage Dictionary 552 (2d coll. ed. 1982). \"Subject matter\" is defined as \"[t]he issue presented for consideration; the thing in which a right or duty has been asserted; the thing in dispute.\" Black's Law Dictionary (11th ed. 2019), available at Westlaw BLACKS. The commonly understood meanings of the indicated terms do little to clarify the amount of information section 2.02(a) requires a public body to provide on its meeting agenda for topics upon which it anticipates taking final action. Although the modifier \"general\" signifies that an agenda item may identify a broad subject matter, the word is inherently ambiguous. } Mr. Larry Short _ The Honorable Mark A. Bolander November 13, 2019 Page 4 Accordingly, this office will consider the statute's legislative history to construe the meaning of \"general subject matter.\" The Senate debate on House Bill No. 4687, which as Public Act 97-827, effective January 1, 2013, added section 2 ,02(c) of OMA, indicates that the General Assembly intended this provision to ensure that agendas provide sufficient det [...] olution 19-06 Council Resolution of Support for CDB Grant.\"'° The subject matter of agenda item 8.d. is conspicuously absent. Because this agenda item merely identified the number of an ordinance and indicated that it would amend a section of an unspecified compilation, this office concludes that the Council did not satisfy the requirements of section 2.02(c) of OMA by setting forth the general subject matter of the Council's final action that increased application fees for permits from $100.00 to $500.00. Although section 2.02(c) did not require the Council to identify the amount of the increase on the agenda, at a minimum, the agenda should have indicated that the Council would consider an } ordinance amending the City Code and concerning permit application fees. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor’ s review, and the applicable law, the Attorney General finds that: 1) In an e-mail dated August 21, 2019, and received by the Public Access Bureau on August 22, 2019, Mr. Larry Short submitted a Request for Review alleging that the Newton City Council violated OMA by failing to provide on its August 20, 2019, meeting agenda sufficient advance notice of final action taken on an ordinance concerning application fees for permits. Mr. Short alleged that the agenda item did not set forth the general subject matter of the ordinance. Mr. Short's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3. S(a) (West 2018)). | 2) On August 28, 2019, the Public Access Bureau forwarded a copy of the Request for Review to the City's mayor and asked him to provide copies of the Council's August 20, 2019, meeting agenda and meeting minutes as well as a copy of the ordinance referenced ii n the agenda item in question. This office also requested a written response io Mr. Short's allegation that the agenda item did not provide sufficient advance notice of the general subject matter of that final action, if the Council took final action on the agendai tem referencedi n his Request for Review. 'SNewton City Council, Meeting, Agenda Items 8.a. though c. (Augu2s0t, 2019). Mr. Larry Short, = The Honorable Mark A. Bolander November 13, 2019 Page 7 3) On September 17, 2019, this office received the requested materials from the City's mayor. Oo | ° : 4) On September 19, 2019, the Public Access Bureau forwarded a copy of the City's written answer.to Mr. Short. Mr. Short did not provide a written reply. 5) On October 17, 2019, pursuant to section 3.5(e) of OMA, this office properly extended the time within which to issue a binding opinion by 21 business days, to November 19, 2019. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 6) Section 2.02(c) of OMA provides that \"{a]ny agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.\" 7) The term \"general subject matter\" is ambiguous. The Senate debate on House Bill No. 4687, which as Public Act 97-827, effective January 1, 2013, added section 2.02(c) to OMA, indicates that the General Assembly intended this provision to ensure that agendas provide sufficient detail to notify members of the public of the types of final actions public bodies anticipated taking at their meetings. 8) Agenda item 8.d. for the Council's action to approve the ordinance raising the fee provided: \"Consider and act on Ordinance 19-11 to Amend Section 33-4-4 (F).\" 9) During the August 20, 2019, meeting, the Council passed a motion to approve the ordinance. The ordinance amended the City Code to raise the application fee for permits from $100.00 to $500.00. 10) Agenda item 8.d. provided only an ordinance number and identified a \"Section,\" but did not identify the underlying document of which the \"Section\" was a part. The agenda did not identify the general subject matter—application fees for permits—of the ordinance or the City Code provision amended by.t he ordinance that the Council approved. 11) Information in the City Code posted on the City's website is not sufficient to justify the Council's August 20, 2019, agenda. The agenda item in question did not incorporate by reference the City Code provision to be amended or contain a hyperlink to that provision. Moreover, the plain language of section 2.02(c) requires that the agenda itself identify the general subject matter of the Council's final action. Mr. Larry Short The Honorable Mark A. Bolander November 13, 2019 Page 8 Therefore, it is the opinion of the Attorney General that the City Council of the City of Newton violated section 2.02(c) of the Open Meetings Act in connection with its August 20, 2019, meetinbgy approving an ordinance to increase application fees for permits without including the general subject matter of that final action on the meeting agenda. In accordance with these findings of fact and conclusions of law, the Council is directed to remedy this violation by reconsidering its August 20, 2019, final action on the fee ordinance at a properly noticed meeting for which the agenda contains the general subject matter of that ordinance. As required by section 3.5(e) of OMA, the Council shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA (5 ILCS 120/7.5 (West 2018)). : This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2018). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Larry Short as defendants. See 5 ILCS 120/7.5 (West 2018). . Sincerely, KWAME RAOUL | ATTORNEY GENERAL ¢ Brent D. Stratton 7 -Chief Deputy Attorney General | CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 19-012) upon: Mr. Larry Short 601 East Decatur Newton, Illinois 62448 larry@newtonil.com The Honorable Mark A. Bolander Mayor City of Newton 108 North Van Buren Street, Room A Newton, Illinois 62448 | mark@rexvault.com | by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on November 13, 2019. | halal SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Iflinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The City of Newton held a meeting where they voted to raise permit fees, but the agenda for that meeting did not clearly state that this vote would happen. The Illinois Attorney General's office ruled that this violated the Open Meetings Act, which requires public bodies to give clear notice of the topics they plan to vote on so the public can participate. This means the City failed to follow transparency laws designed to keep citizens informed about government actions.","card_headline":"A city council's meeting agenda notice for a permit fee ordinance","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":125,"orig_master_id":19099,"dup_master_id":19327,"dup_sha256":"273c4e125f51a72fdd51216f4ba61f3e5a52285c89786f45b90b8bc3f61eef4f","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2020,"date_issued":"2020-02-10","case_number":"2019 PAC 60592","request_numbers":null,"title":"Duty to Approve Meeting Minutes Within Time Period Specified by OMA","filename":"PUBLIC ACCESS OPINION 20-001 (Request for Review - 2019 PAC 60592).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 20-001 (Request for Review - 2019 PAC 60592).pdf","word_count":2481,"summary":"The Board of Trustees of the. Village of Sauk Village (Village) violated OMA because it did not approve minutes of three meetings within the time periods specified by OMA . This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act .","plain_summary":"The requester, a resident, sought review after a village board of trustees approved the minutes of three earlier meetings held between two and three months after those meetings took place. The Public Access Counselor held that the board violated the Open Meetings Act's requirement to approve minutes within 30 days of a meeting or by its second subsequent regular meeting, whichever is later, rejecting the board's argument that an unusually heavy meeting schedule and staffing shortages excused the delay. The board was directed to develop protocols ensuring minutes are approved within the statutory deadline going forward.","holding":"The Board of Trustees of the Village of Sauk Village violated section 2.06(b) of the Open Meetings Act by failing to approve meeting minutes within 30 days or at the second subsequent regular meeting, whichever is later.","legal_question":"Whether the Board of Trustees of the Village of Sauk Village violated section 2.06(b) of the Open Meetings Act by failing to approve minutes of three meetings within the statutory timeframe.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2, 5 ILCS 120/1, 5 ILCS 120, 735 ILCS 5/3, 5 ILCS 120/7","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Sauk Village","requesting_party":"LaRock and Mr. Burgess","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"meeting minutes","subject_description":"Approval of meeting minutes for three September 2019 meetings was delayed beyond the statutory deadlines.","ocr_status":"ok","ocr_quality":90.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2020-Binding-PAC-Opinions/20-001.pdf","sha256":"4c866c8ef69a61232e32d4d56eb1592fc3adae15a27e035cf3011ea0259f670e","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["meeting minutes","OMA violation","minutes approval","statutory deadline","public access"],"truncated_suspect":0,"site_category":"Meeting Minutes","full_text_pre_clean":"| | , OFFICE OF THE ATTORNEY GENERAL , STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL February 10, 2020 PUBLIC ACCESS OPINION 20-001 (Request for Review 2019 PAC 60592) OPEN MEETINGS ACT: Duty to Approve Meeting Minutes Within Time Period Specified by OMA Mr. Steve LaRock 2444 Apache Avenue Sauk Village, Illinois 60411 The Honorable Derrick Burgess Mayor ! Village of Sauk Village 21801 Torrence Avenue Sauk Village, Illinois 60411 Dear Mr. LaRock and Mr. Burgess: This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2018)). For the reasons discussed below, this office concludes that the Board of Trustees (Board) of the. Village of Sauk Village (Village) violated OMA because it did not approve minutes of three meetings within the time periods specified by OMA. 500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © I’ 'Y: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Strect, Chicago, Hlinois 60601 ¢ (312) 814-3000 © TTY: (800) 964-3013 © Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © I’T'Y: (877) 675-9339 © Fax (618) 529-6416 “Cain Mr. Steve LaRock The Honorable Derrick Burgess February 10, 2020 : Page 2 | t ( | { i | BACKGROUND | On November 13, 2019, Mr. Steve LaRock submitted a Request for Review to the Public Access Bureau via e-mail alleging that the Board violated section 2.06(b) of OMA (5 ILCS 120/2.06(b) (West 2018)).' Specifically, Mr. LaRock asserted that at the Board's November 12, 2019, regular meeting, the Board approved the minutes of its September 10, 2019, regular meeting, its September 10, 2019, special meeting, and its September 17, 2019, Committee of the Whole meeting, but that the approval of these minutes was not within the time periods specified by OMA.* Mr. LaRock provided this office with a copy of the agenda for the November 12, 2019, meeting, which contains the following item: 4) APPROVAL OF MINUTES a. Motion to Approve the Journal of Proceedings for the Special Meeting of September 10, 2019 b. Motion to Approve the Journal of Proceedings for the Regular Board Meeting of September 10, 2019 Motion to Approve the Journal of Proceedings for the Committee Meeting of September 17, 2019\"! On November 18, 2019, the Public Access Bureau forwarded a copy of the Request for Review to the Village’ s mayor, the Honorable Derrick Burgess, and asked the Board for \"a written answer to Mr. LaRock's allegation that it did not approve the minutes of its September 10, 2019, meeting in a timely manner.\"* This office also. asked the Board to \"verify how many regular meetings the Board held from September 10, 2019, through November 12, 2019.\"° The Public Access Bureau received the Board's answer from Village Administrator, Mr. Christopher A. Williams. ;In his December 11, 2019, e-mail, Mr. Williams stated that \"we acknowledge the minutes were not approved and posted at our standard frequency because of the 'E-mail from Steve LaRock to Public Access Counselor, Office of the Attorney General (November 13, 2019). 2E-mail from Steve LaRock to Public Access Counselor, Office of the Attorney General (November 13, 2019). , 3Village of Sauk Village Board of Trustees, Agenda IItt em 4, Approval of Minutes (November 12, 2019). ! ‘Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to the Honorable Derrick Burgess, Mayor, Village of Sauk Village (November 18, 2019), at 1. SLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to the Honorable Derrick Burgess, Mayor, Village of Sauk Village (November 18, 2019), at 1. j Mr. Steve LaRock | The Honorable Derrick Burgess February 10, 2020 ! Page 3 | significant increase in meetings. \"© He asserted that it was \"impossible to meet the tenets of OMA relative to completing minutes within a thirty (30) day period\" given the volume of meetings and staffing shortages.’ Mr. Williams attached a \"Chart of Meetings from 05/21/2019 — 11/19/2019,\" which reflects that the Board held the following meetings: (1) regular meetings on September 10, 2019, September 24, 2019, October 8, 2019, and October 22, 2019;° (2) special meetings on September 10, 2019, September 26, 2019, and October 15, 201 9; and (3) Committee — of the Whole meetings.on September 17, 2019, October 1, 2019, October 15, 2019, November 5, 2019, and November 12, 2019. On December 12, 2019, an Assistant Attorney General (AAG) in the Public Access Bureau sent Mr. Williams an e-mail asking \"although my letter addressed the September 10, 2019, regular Board meeting in particular, am I correct to assume that your response also pertains to the September 10, 2019, special meeting and September 17, 2019, Committee of the Whole meeting?”® On that same date, Mr. Williams responded in the affirmative.'® Also on that same date, this office forwarded to Mr. LaRock copies of the Board's answer and Mr. Williams' confirmation about the special meetings and Committee of the Whole meetings.'' Later still on that date, Mr. LaRock submitted a reply.'!* He attached Board and Commitiee of the Whole meeting agendas from throughout 2019 and alleged that they illustrate a pattern of the Board approving minutes past the statutory deadline. On January 3, 2020, the Public Access Bureau properly extended the time within which to issue a binding opinion by 21 business days, to February 10, 2020, pursuant to section 3.5(e) of OMA.\" E-mail from hope Williams to [Joshua] Jones (December 11, 2019). 7E-mail from Christopher A Williams to [Joshua] Jones (December. 11, 2019). Although the chart does not list a regular Board meeting for November 12, 2019, on December 19, 2019, Mr. Williams confirmed via e-mail that the Board held a regular meeting on that date and voted to approve the three sets of minutes at issue. E-mail from Chris Williams to Joshua Jones (December.1 9, 2019). op. mail from Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Village Administrator Christopher Williams (December 12, 2019). , ae Ao. 10. mail from Chris Williams to Jostiua Jones (December 12, 2019). \"Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Buieau, Office of the Attorney General, to Steve LaRock (December 12, 2019); e-mail from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Steven LaRock (December 12,.2019). 2B-mail from Steve LaRock to the Public Access Counselor, Deputy Bureau Chief Jones, and others copied herein (December 12, 2019). Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, to Steve LaRock and Christopher A Williams, Village Administrator, Village of Sauk Village. Mr. Steve LaRock | The Honorable Derrick Burgess February 10, 2020 | Page 4 , ! ANALYSIS Under OMA, \"Lilt iis the public policy of this State that public bodies exist to aid in the conduct of the people’ S business and that the people have a rii ght to be informed as to the conduct of their business.\" 5 ILCS 120/1 (West 2018). Section 2. 06(a) of OMA (5 ILCS 120/2.06(a) (West 2018)) provides that \"{a]ll public bodies shall keep written minutes of all their meetings, whether open or closed[.]\" Section 2.06(b) adds that \"[a] public body shall approve the minutes ofi ts open meeting within 30 days after that meeting or at the public body's second subsequent regular meeting, whichever is later.\" (Emphasis added.) Section 2.06(b) also requires minutes to be made available for public inspection within 10 days after approval by the public body. Thus, thei ssue herei s whether the Board's approval of minutes of the three meetings in question complied with this provision. In construing a statute, the primary objective is to ascertain and give effect to the intent of the General Assembly. Southern Illinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). \"[T]he surest and most reliabl [...] ublic pay to include: all legislative, executive, administrative or advisory bodies of the State,. counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any: subsidiary bodies of any of the foregoing including init not limited to committees and subcommittees which are supportedi n whole or in’ part by tax revenue, or which expend tax revenue, except the General As sembly and committees or'commissions thereof-. i | ‘to, ' Mr. Steve LaRock | The Honorable Derrick Burgess February 10, 2020 i Page 6 . { | | Because the Board did not approve the minutes of the three meetings until November 12, 2019, which was after the. statutory deadline for doing so, the Board violated section 2.06(b) of OMA. : ‘FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor'sS review, and the applicable. law, the Attorney General finds that: 1) On November 13, 2019, Mr. Steve LaRock submitted a Request for Review alleging that the Sauk Village Board of Trustees violated OMA by failing to approve the minutes ofi ts September 10, 2019, regular meeting, September 10, 2019, special meeting, and September 17, 2019, Committee of the Whole meeting within the statutory time periocis. He stated that an item on the agenda for the Board's November 12, 2019, regular meeting listed the approval of those three sets of minutes. Mr. LaRock's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2018)). 2) On November 18, 2019, the Public Access Bureau forwarded a copy of the Request for Review to the Village's mayor and asked the Board to provide a written answer to Mr. LaRock's allegation that it did not approve the minutes of its September 10, 2019, regular meeting in a timely manner. This office asked the Board to confirm in its answer the number of regular meetings it held between September 10, 2019, and November 12, 2019. 3) On December 11, 2019, this office received from the Village Administrator a written answer and a chart of Board meetings covering the relevant time period: 4) On December 12, 2019, an Assistant Attorney General ii nn:t he Public Access Bureau asked the Village Administrator to verify whether the Board's answer also pertained to the September 10, 2019, special meeting and the September 17, 2019, Conamittee of the Whole meeting. HeT esponded that it'did. | a - 5) Also on December 12, 2019, the Public Access Bureau forwarded a copy of the Board's written answer and follow-up clarification to Mr. LaRock. Hef eplied later that day. 6) On Ja nuary | 3, 2020, the Public Access Bureau properly extended the time within which to issue a binding opinion by 21 business days, to February1 0, 2020, pursuant to section 3.5(e) of OMA. Therefore, the Attorney General may properlyi ssue a binding opinion with respect to this matter. 7) Section 2. 06(b) of OMA. provides that \"[a} public body shall approve the minutes of its open meeting within 30 days after that meeting or att the publii c body's second subsequent regular meeting, whichever ii s later.\" _ Mr. Steve LaRock 7 The Honorable Derrick Burgess February 10, 2020 a Page7. , 8) The language of section 2. 06(b) is clear. .A public body has 30 days after a meeting or until its second subsequent regular meeting, whichever 1i s later, to approve the meeting minutes. | 9) The Committee of the Wholei s not a publi ¢ body separate from the Board for purposes of OMA,; it is the same public body meeting in a different format. 10) Itis undisputed that the Board did not approve the minutes of its September 10, 2019, regular meeting, September 10, 2019, special meeting, or September 17, 2019, Committee of the Whole meeting within 30 days after each meeting. Because the Board held two subsequent regular meetings after each of those three meetings before the 30-day periods had elapsed, the deadline for the Board to approve each set of minutes was 30 days after the respective meetings. ! \\ 11) Although the Board claimed that it was impossible to approve the minutes in a timely manner because of the frequency of its meetings and staffing shortages, section 2.06(b) of OMA does not contain an exception to the requirement to approve meeti ng minutes within 30 days after a meeting or by the;public body's second subsequent regular meeting, whicheveri s later. | . Therefore, itist he opinion of the Attorney General that the Board of Trustees of the Village of Sauk Village violated section 2. 06(b) of the Open Meetings Act because it did not approve minutes of its September 10, 2019, regular meeting, September 10, 2019, special meeting, or September-17, 2019, Committee of the. Whole meeting until November 12, 2019, which was after the statutory time period for doing so had expired. In accordance with these findings of fact and conclusions of law, the Boardi s directed to develop protocols to ensure that it approves all meeting minutes within 30 days of those meetings or at its second subsequent regular meeting, whichever is later. As required by section 3. 5(e) of OMA, the Board shall either take necessary action as soon as practicalt o comply. with the directives of this opinion.or shall initiate administrative review under section 7. 5 of OMA (5 ILCS 120!‘ 7. 5 (West 2018)). Mr. Steve LaRock The Honorable Derrick Burgess February 10, 2020 | Page 8 1 | This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seg. (West 2018). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative'review in the Circuit Court of Cook County or Sangamon County i within 35 days of the date ofthis decision, naming the Attorney General of Illinois and Steve LaRock as defendants. See 5 ILCS 120/7.5 (West 2018). Sincerely, | KWAME RAOUL : ATTORNEY GENERAL ! _ | Brent D. Stratton Chief Deputy Attorney General. CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 20-001) upon: , | Mr. Steve LaRock | 2444 Apache Avenue | Sauk Village, Illinois 60411 | Steve. larock0265@comcast.net The Honorable Derrick Burgess | Mayor Village of Sauk Village 21801 Torrence Avenue Sauk Village, Illinois 60411 Dburgess@Sauk Village.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on February 10, 2020. | Public Access Counselor | | SARAH L. PRATT | Public Access Counselor | Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 (217) 557-0548 |","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Open Meetings Act requires a public body to approve meeting minutes within 30 days of the meeting or at its second subsequent regular meeting, whichever is later. In this case, the Board held meetings in September 2019 but did not approve those minutes until its November 12, 2019 meeting, which fell after both the 30-day window and the second subsequent regular meeting (which would have been an October meeting). Because the Board had an opportunity to approve the minutes at an earlier meeting but failed to do so, it violated the statutory deadline. The Attorney General concluded that the delay was not justified and the Board must ensure future compliance.","card_headline":"Delayed approval of meeting minutes","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":126,"orig_master_id":19328,"dup_master_id":19100,"dup_sha256":"4f62e1f1ea8d0de29e9791dfba16161cd7d510d7c4b338f7783ac0f563a23b6d","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2019,"date_issued":"2019-09-12","case_number":"2019 PAC 59799","request_numbers":null,"title":"Obligation to Preserve Records After Receiving a FOIA Request","filename":"PUBLIC ACCESS OPINION 19-013 (Request for Review - 2019 PAC 59779).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 19-013 (Request for Review - 2019 PAC 59779).pdf","word_count":2542,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a Freedom of Information Act (FOIA) request made by Ms. Ginger Noel to the City of Bunker Hill, which was denied.","plain_summary":"The requester, a resident, sought a recording of a village committee gathering, but after the village attorney declared that the gathering had not been a valid meeting because it lacked a quorum, the city clerk deleted the recording and shredded her notes rather than responding to the request. The Public Access Counselor held that the recording was a public record in the city's possession at the time of the request, that no provision of FOIA authorizes destroying responsive records after a request is received, and that the city therefore violated FOIA both by failing to properly respond and by destroying the record. The city was directed to determine whether the deleted recording can be retrieved and to adopt protocols for properly responding to and preserving records after a FOIA request is received.","holding":"The City of Bunker Hill violated FOIA by failing to provide the requested record.","legal_question":"Did the City of Bunker Hill violate the Freedom of Information Act by failing to provide the requested record?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 120, 5 ILCS 140, 5 ILCS 140/3, 50 ILCS 205, 50 ILCS 205/7, 185 ILCS 160, 735 ILCS 5","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":[],"public_body":"City of Bunker Hill","requesting_party":"Noel and Ms. Whitworth","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"record preservation","subject_description":"The dispute concerned a taped recording of a City Committee of the Whole meeting that was requested under FOIA and subsequently destroyed by the City.","ocr_status":"ok","ocr_quality":90.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2019-Binding-PAC-Opinions/19-013.pdf","sha256":"e22fa7782a07318392cdd24dd605e072b385b2f7b0defa13c80a5315bf577d6c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["record destruction","meeting recording","FOIA denial","duty to preserve records","committee of the whole"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL December 31, 2019 PUBLIC ACCESS OPINION 19-013 Request for Review 2019 PAC 59799) FREEDOM OF INFORMATION ACT: Obligation to Preserve Records After Receiving a FOIA Request Ms. Ginger Noel 12568 Staunton Bunker Hill Rd Bunker Hill, Illinois. 62014 The Honorable Rhonda K. Whitworth City Clerk and FOIA Officer City of Bunker Hill 801 South Franklin Street Bunker Hill, Illinois 62014 Dear Ms. Noel and Ms. Whitworth: This is a binding opinion issued by the Attorney General pursuant to section 9.5( 0 of the Freedom of Information Act (FOIA) ( 5 ILCS 140/9.5(0 (West 2018)). For the reasons discussed below, this office concludes that the City ofBunker Hill (City) violated FOIA by failing to provide the requested record in response to a FOIA request submitted by Ms. Ginger Noel. BACKGROUND On September 12, 2019, Ms. Noel submitted a FOIA request to the City seeking taped minutes from [ the] Committee of [the] Whole meeting on\" September 11, 2019. 1 On September 19, 2019, the City returned the Freedom of Information Request Form to Ms. Noel with the following note handwritten in the margin: \" Attorney Verticchio said on 09/18/2019 that Freedom ofInformation Request Form submitted by Ginger Noel to The City ofBunker Hill September 12, 2019). 500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046 100 west Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax (618) 529-6416 • Ms. Ginger Noel The Honorable Rhonda K. Whitworth December 31, 2019 Page 2 meeting 09/ 11/ 2019 wasn't a meeting be no quorum. Its [ sic] all VOID. [ N]o need to fulfill this. request. 12 On September 20, 2019, Ms. Noel submitted a Request for Review to the Public Access Bureau contesting the denial ofher FOIA request.3 On October 4, 2019, an Assistant Attorney General ( AAG) in the Public Access Bureau spoke by telephone with Ms. Rhonda K. Whitworth, the City Clerk and FOIA Officer for the City. During that conversation, Ms. Whitworth informed the AAG that the City no longer had a copy ofthe requested recording because it was deleted after receiving Ms. Noel's FOIA request.4 On October 9, 2019, the Public Access Bureau sent a letter to the City asking whether the City currently possessed or maintained the requested recording. Ifit did not, the City was asked whether it possessed or maintained the requested recording at the time it received Ms. Noel's FOIA request, and to explain whether the recording was deleted after the City received the FOIA request.5' 6 A copy ofthe October 9, 2019, letter to the City Clerk was also sent to Ms. Noel. On October 10, 2019, Ms. Noel sent an e-mail informing this office that: I submitted [ a FOIA] request on 9/ 12, I was given a handwritten copy ofthe minutes from that meeting. I submitted a FOIA for the tape, and 5 business days later it was denied, stating the city attorney said their [ sic] was no meeting so no need to fill the request. I was not informed that the tape was erased at that time I was given the denial. The meeting was posted as a Committee of the Whole meeting, only 3 members were present and the City Response from the City ofBunker Hill written on the City ofBunker Hill Freedom of, Information Request Form submitted by Ginger Noel (September 19, 2019). 3E -mail from Ginger Noel to Public Access [ Bureau, Office ofthe Attorney General] ( September 20, 2019). This office notes that the propriety ofthe September 11, 2019, meeting under the Open Meetings Act (5 ILCS 120/ 1 et seq. ( West 2018)) is not at issue here and is not addressed in this opinion. Telephone conversation between Rhonda K. Whitworth, City Clerk and FOIA Officer, and Edie Steinberg, Assistant Attorney General, Public Access Bureau, Office ofthe Attorney General October 4, 2019). 5Letter from Edie Steinberg, Assistant Attorney General, Public Access Bureau, Office ofthe Attorney General, toRhonda K. Whitworth, City Clerk and FOIA Officer, City ofBunker Hill (October 9, 2019). The Public Access Bureau inadvertently failed to attach a copy ofMs. Noel's Request for Review when it sent the City the October 9, 2019, letter ofinquiry; Ms. Noel's Request for Review was forwarded to the City on October 30, 2019, see footnote 8. Ms. Ginger Noel The Honorable Rhonda K. Whitworth December 31, 2019 Page 3 Clerk. They proceeded to have the meeting which was recorded and minutes were taken. * * * How can the City Clerk erase a recording ofminutes of a meeting that was in fact held[?] * * * I believe this is a direct violation ofthe FOIA Act, in that my right to know was not granted nor was any part ofthe [ A]ct noted in the denial, giving reason for the denial.l71 On October 11, 2019, the City Clerk responded to this office on behalf ofthe City. The response confirmed that: ( 1) on September 12, 2019, the City received Ms. Noel's FOIA request; ( 2) on September 18, 2019, the City Attorney stated during open session ofa City Council meeting \" that the Committee of the Whole Meeting on September 11, 2019 was not a meeting because there was not a quorum[;]\" ( 3) after the September 18, 2019, City Council meeting adjourned, the City Clerk asked the City Attorney ifMs. Noel' s FOIA request should be completed, and he responded \" no, it's all NULL and VOID, no need to fulfill the FOIA request\"; 4) the City Clerk asked the City Attorney if she could delete her recording related to the September 11, 2019, gathering that was scheduled to be a meeting ofthe Committee ofthe Whole and shred her notes related to that gathering, and \" he replied yes\"; ( 5) on September 19, 2019, the City Clerk responded to Ms. Noel (she believed by e-mail although she could 'not locate a copy ofthe e-mail in the City's files);8 and (6) on September 19, 2019, the City Clerk deleted the requested recording and shredded her notes related thereto. 9 On October 15, 2019, the Public Access Bureau forwarded a copy ofthe'City's response to Ms. Noel. 10 Ms. Noel did not provide a written reply. On November 1, 2019, at this office's request, Ms. Noel provided copies ofthe eight pages ofhandwritten notes ofthe gathering that she received from the City Clerk and reiterated her concern that the City Clerk, . . E-mail from Ginger [Noel] to [ Edie] Steinberg ( October 10, 2019). 80n October 30, 2019, an Assistant Attorney General ( AAG) in the Public Access Bureau e- mailed a copy ofthe Request for Review to the City Clerk and asked her ifthe note handwritten in the margin of Ms. Noel's FOIA request form was the City's response to that FOIA request. E-mail from Edie Steinberg, Assistant Attorney General, Public Access Bureau, Office ofthe Attorney General, to [ Rhonda] Whitworth ( October 30, 2019). That same day, in an e-mail to the AAG, the City Clerk confirmed that the City's response, written by her, was noted in the margin ofMs. Noel'sFOIA request. E-mail from Rhonda Whitworth to Edie Steinberg ( October 30, 2019). Letter from Rhonda K. Whitworth, City Clerk, City ofBunker Hill, to Edie Steinberg, Assistant Attorney General, Public Access Bureau ( October 11, 2019). 10Letter from Edie Steinberg, Assistant Attorney General, Public Access Bureau, Officeofthe Attorney General, to Ginger Noel (October 15, 2019). Ms. Ginger Noel The Honorable Rhonda K. Whitworth December 31, 2019 Page 4 who is also the City's FOIA officer, destroyed the recording.\" On November 14, 2019; this office properly extended the time within which to issue a binding opinion by 30 business days, to January 2, 2020. 12 ANALYSIS It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [ FOIA].\" 5 ILCS 140/ 1 ( West 2018). Under section 1. 2 of FOIA (5 ILCS 140/ 1. 2 (West 2018)), \"[ a]ll reco [...] of important public records for access by the public.\"). In addition, decisions by courts in other jurisdictions have recognized that a public body has a duty to preserve records for which it has received a FOIA request. For example, in Walloon Lake Water System, Inc. v. Melrose Township, 163 Mich. App. 726, 732, 415 N.W.2d 292, 295 (Mich. Ct. App. 1987), the Michigan Court ofAppeals held that the Michigan FOIA19 imposes a \" duty to provide access\" to those public records that have been created and that this obligation \" inherently includes the duty to preserve and maintain such records until access has been provided or a court executes an order finding the record to be exempt from disclosure.\" In that case, the plaintiffsubmitted a request to a township for a copy ofa letter but, instead of furnishing the letter or providing a written explanation for denying that request, the township supervisor \" merely relinquished possession ofthe document, thereby defeating the purposes of the FOIA.\" Walloon Lake Water System, 163 Mich. App. at 732- 33, 415 N.W.2d at 295- 96. The court observed that \"[ t]he Legislature could not have intended for a public body which seeks to prevent disclosure to takejustice into its own hands in such 'a manner.\" Walloon Lake Water System, 163 Mich. App. at 733, 415 N.W.2d at 296; see also Judicial Watch, Inc. v. U.S. Dep't ofCommerce, 34 F. Supp. 2d 28, 44-46 (D.D.C. 1998) ordering supervised discovery aimed at \" identifying instances of unlawful destruction and removal of documents by\" agency after receiving a FOIA request); SafeCard Services, Inc. v. r S.E. C, 926 F.2d 1197, 1201 ( D.C. Cir. 1991) (\" Ifthe agency is no longer in possession ofthe document, for a reason that is not itself suspect, then the agency is not improperly withholding that document.\" ( Emphasis added.)); Chambers v. U.S. Dep't ofInterior, 568 F.3d 998, 1004 D.C. Cir. 2009) (\" an agency is not shielded from liability ifit intentionally transfers or destroys a document after it has been requested under FOIA or the Privacy Act.\"). Accordingly, this office concludes that the City violated section 3( a) of FOIA by failing to provide the requested recording ofthe gathering that was scheduled to be a meeting of the City's Committee ofthe Whole, after receiving Ms. Noel's request for that record. Further, 185 ILCS 160/ 1 etseg. (West 2018). 19M. C.L. § 15. 231 et seq. ( West 1984). Ms. Ginger Noel The Honorable Rhonda K. Whitworth December 31, 2019 Page 8 the City violated section 9(a) ofFOIA by failing to provide a response to Ms. Noel's request that met the requirements ofthat section. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor' s review, and the applicable law, the Attorney General finds that: 1) On September 12, 2019, Ms. Ginger Noel submitted a FOIA request to the City of Bunker Hill seeking a copy ofthe taped minutes from the City's September 11, 2019, Committee ofthe Whole gathering. 2) On September 12, 2019, the City received Ms. Noel' s FOIA request. At the time it received Ms. Noel's FOIA request, the City possessed the requested recording.. 3) On September 19, 2019, upon the advice ofcounsel, the City deleted the recording, thereby denying Ms. Noel's FOIA request. 4) On September 20, 2019, Ms. Noel submitted a Request for Review and asked the Public Access Bureau to review the City's denial. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5( a) ofFOIA (5 ILCS 140/9.5( a) West 2018)). 5) On October 9, 2019, the Public Access Bureau sent a letterto the City asking whether the City currently possessed or maintained the requested recording, and, ifnot, to explain whether the City possessed or maintained the requested recording at the time it received the FOIA request. 6) On October 11, 2019, this office received the City's written answer, stating that it received Ms. Noel's FOIA request on September 12, 2019, and on September 19, 2019, it responded to her FOIA request. The written answer also stated that the City deleted the recording on September 19, 2019. 7) On October 15, 2019, the Public Access Bureau forwarded a copy ofthe. City's written answer to Ms. Noel. Ms. Noel did not provide a written reply. 8) On November 14, 2019, this office properly extended the time within which to issue a binding opinion by 30 business days, to January 2, 2020. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. Ms. Ginger Noel The Honorable Rhonda K. Whitworth December 31, 2019 Page 9 9) The requirements of FOIA apply to \" public records,\" which section 2(c) of FOIA defines to include all records, including recordings and other documentary materials in the possession ofapublic body, which pertain to the transaction ofpublic,business. 10) Because the City possessed the recording ofthe September 11, 2019, gathering that was scheduled to be a Committee ofthe Whole meeting at the time it received Ms. Noel's request and because the recording pertains to the transaction ofpublic business, the recording was a public record subject to the requirements of FOIA. 11) Section 3( a) of FOIA provides that \"[ e] ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 ofthis Act.\" 12) No provision ofFOIA authorizes a public body to destroy responsive records after receiving a FOIA request. 13) Ifa public body is in possession ofresponsive public records at the time it receives a FOIA request, section 3( a) ofFOIA requires the public body to either provide those records to the requester or issue a proper denial in accordance with section 9(a) ofFOIA. Therefore, it is the opinion of the Attorney General that the City has: ( 1) violated section 9(a) of FOIA by replying that it was not required to fulfill Ms. Noel's September 12, 2019, FOIA request rather than by providing Ms. Noel with a copy of the recording or issuing a denial in keeping with the requirements ofthat section; and (2) destroying the recording ofthe gathering after it was requested by Ms. Noel. Accordingly, the City is hereby directed to take immediate and appropriate action to comply with this opinion by: ( 1) ascertaining whether it can retrieve the deleted recording, and ifso, providing a copy to Ms. Noel; (2) creating protocols to ensure that in the future (a) the City appropriately complies with a request for public records by providing records or denying records in the manner set forth in the Act, and (b) the City preserves responsive records after receiving a FOIA request for those records. This opinion shall be considered a final decision ofan administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/ 3- 101 et seq. ( West 2018). An aggrieved party may obtain judicial review of the decision by filing a","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under FOIA, once a public body receives a request for an existing record, it must either produce the record or issue a proper written denial citing an exemption within the statutory timeframe -- it cannot simply declare the request invalid and take no further action. Here, the City told the requester that no responsive record existed because the underlying gathering wasn't a valid 'meeting,' but then the recording of that gathering was destroyed after the request was received. Because a public body has an affirmative duty to preserve any record reasonably related to a pending FOIA request, destroying the recording after receiving the request compounded the initial failure to properly respond, and both actions independently violated FOIA regardless of whether the gathering itself was subject to the Open Meetings Act.","card_headline":"A taped recording of a committee meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":127,"orig_master_id":19101,"dup_master_id":19329,"dup_sha256":"e53d9263c8adf4f0b3db6a19f8af02ad6024913ae1b6636f4c7aea18d2e8730c","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2020,"date_issued":"2020-02-11","case_number":"2019 PAC 60399","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 20-002 (Request for Review - 2019 PAC 60399).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 20-002 (Request for Review - 2019 PAC 60399).pdf","word_count":2456,"summary":"Kankakee County violated section 3(d) of FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Scott J. Schweickert . The County did not — respond to the Public Access Bureau's December 3, 2019, correspondence .","plain_summary":"The requester, an attorney, sought copies of a county's agreements with a fuel services company and any authorizing ordinances or resolutions, but received no response despite months of follow-up. The Public Access Counselor held that the county violated FOIA's requirement to comply with, extend, or deny a request within five business days, noting that its failure to respond also barred it from later treating the request as unduly burdensome. The county was directed to provide all records responsive to the request, subject only to permissible redactions under a proper written denial.","holding":"Kankakee County violated the Freedom of Information Act by failing to respond to a request for records and subsequently failing to respond to the Public Access Counselor's inquiries.","legal_question":"Whether a public body violates FOIA by failing to respond to a request for public records and failing to respond to the Public Access Counselor's subsequent request for information regarding the complaint.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Kankakee County","requesting_party":"Schweickert and Mr. McCabe","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"failure to respond","subject_description":"The requester sought copies of agreements and authorizing ordinances between the County and World Fuel Services, Inc.","ocr_status":"ok","ocr_quality":90.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2020-Binding-PAC-Opinions/20-002.pdf","sha256":"fee97992786e1c91b474100e0bec7ace7acb536acb9c58263795ef4dd00cf3d1","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","public records","Kankakee County"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL February 11, 2020 PUBLIC ACCESS OPINION 20-002 (Request for Review 2019 PAC 60399) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Scott J. Schweickert Schweickert Law Group, LLC re 2101 Marquette Road me Eaten Peru, Illinois 61354 : Mr. Ken McCabe Freedom of Information Act Officer Kankakee County 3000 South Justice Way Kankakee, Illinois 60901 Dear Mr. Schweickert and Mr. McCabe: _ This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act-(FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons discussed below, this office concludes that Kankakee County (County) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2018), as amended by Public Act 101-081, effective July 12, 2019) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Scott J. Schweickert. BACKGROUND On October 21, 2019, Mr. Schweickert, on behalf of Schweickert Law Group, LLC, e-mailed a FOIA request to the County seeking copies of: 500 South Second Street, Springficld, Mlinois 62701 © (217) 782-1090 © TTY: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Hlinois 60601 * (312) 814-3000 ¢ TTY: (800) 964-3013 © Fax: (312) 814-3806 _ 601 South University Ave., Carbondale, IL 62901 * (618) 529-6400 © TTY: (877) 675-9339 © Fax (618) 529-6416 «Gaur Mr. Scott J. Schweickert Mr. Ken McCabe February 11, 2020 Page 2 1.) Any and all agreements, including any amendments thereto, between Kankakee County and World Fuel Services, Inc. 2.) Any and all Ordinances/Resolutions passed by Kankakee County which authorizes [sic] the execution of any agreement and/or amendment between Kankakee County , and World Fuel Services, Inc.|\"! On October 29, 2019, Mr. Schweickert e-mailed the County to iriform it that the response to his FOIA requést was overdue.” ~ On October 30, 2019, Mr. Schweickert submitted a Request for Review to the Public Access Bureau alleging that the County had failed to respond to his FOIA request.? On November 7, 2019, the Public Access Bureau forwarded a copy of the Request for Review to the County, along with a letter asking whether it had received and responded to Mr. Schweickert's FOIA request.* The November 7, 2019, letter also requested that, if the County had received the request but 'had not yet responded to Mr. Schweickert, it do so and provide this office with a copy-of its response. The County did not respond to the Public Access Bureau's November 7, 2019, correspondence. ~ On December 3, 2019, the Public Access Bureau sent a second copy of Mr. Schweickert's Request for Review to the County, and another letter asking it to respond to the FOIA request and to provide this office with a copy of its response.° The County did not — respond to the Public Access Bureau's December 3, 2019, correspondence. \\ | 'Letter from Scott J. Schweickert, Schweickert Law Group, LLC, to FOIA Officer (October 21, 2019). _ 7E-mail from Scott J. Schweickert, Schweickert Law Group, LLC, to kmccabe@k3county.net (October 29, 2019). i 3FOIA — Request for Review by Public Access Counselor (PAC) form signed by Scott J. Schweickert, e-mailed to Public Access [Bureau, Office of the Attorney General] (October 30, 2019). _ ‘Letter from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Ken McCabe, FOIA Officer, Kankakee County (November 7, 2019). Letter from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Ken McCabe, FOIA Officer, Kankakee County (December 3, 2019). i Mr. Scott J. Schweickert Mr. Ken McCabe February 11, 2020 Page 3 | On December 12, 2019, Mr. Schweickert sent an e-mail to Mr. McCabe anid another FOIA requester and copied an Assistant Attorney General (AAG) in the Public Access Bureaoun his e-mail. Specifically, Mr. Schweickert noted that earlier that day, he had received an e-mail from Mr. McCabe that was addressed to another FOIA requester. Althougthhe e-mail from Mr. McCabe contained the subject line \"FOIA response PAC 60399,\" which is the case number of this Request for Review, it concerned a different FOIA request. Mr. Schweickert's e- mail advised Mr. McCabe that he appeared to have been sent the e-maili n error,b ut pointed out that he still had not received a responsef rom the County to his FOIA request. 6 Later on December 12, 2019, Mr. McCabe responded to Mr. Schweickebryt stating that'the County was still \"trying to locate the documents you requested\" and apologized for \"the mix up and the delay in getting your request filled.\"” On December 13, 2019, the AAG e-mailed Mr. McCabe and Mr. Schweickert, stating that the Public Access Bureau had not yet received a response from the County, either.2> The AAG's December 13, 2019, e-mail also included copies of the November 7, 2019, and the December 3, 2019, correspondence from this office and noted that if the Public Access Bureau did not receive a response promptly, the officé would be compelled to conclude that the County had violated FOIA.° The County did not respond to this e-mail correspondence. | On December 19, 2019, an AAG in the Public Access Bureau spoke with Mr. McCabe, who verified that the County had received the FOIA request from Mr. Schweickert and confirmed that he had received at least one letter from this office concerning this Request for — Review.'® Mr. McCabe stated that he spoke to Mr. Schweickert after receiving the FOIA request to better understand what records Mr. Schweickert sought.'' He informed the AAG that because he and other County employees were still searching for the requested records, he could not E-mail from Scott J. Schweickert, Schweickert Law Group, LLC, to Ken McCabe and Jake Lee, copy to Shannon Barnaby (December 12, 2019). \"E-mail from Ken McCabe to Scott Schweickert (December 12, 2019). E-mail from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to [Scott] Schweickert, [Ken] McCabe, and the other FOIA requester (December 13, 2019). °E-mail from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to [Scott] Schweickert and [Ken] McCabe (December 13, 2019). _ Telephone conversation between Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, and Ken McCabe, FOIA Officer, Kankakee County (December 19, 2019). '' Telephone conversation between Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, and Ken McCabe, FOIA Officer, Kankakee County (December 19, 2019). Mr. Scott J. Schweickert Mr. Ken McCabe February 11, 2020 Page 4 provide a specific time frame fori ssuing a response to Mr. Schweickert, but anticipated that the County would respond soon.'? Mr. McCabe also informed the AAG that he had told Mr. Schweickert that the County was still searching for responsive records. !7 On December 27, 2019, Mr. Schweickert notified this office that he still had not received a response from the County.\" ) On December 27, 2019, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days, to February 11, 2020, pursuant to section 9.5(f) of FOIA.'° On January 7, 2020, and January 21, 2020, Mr. Schweickert confirmed that he still had not received a response to his October 21, 2019, FOIA request.!® !7 | As of the date of the issuance of this binding opinion, this office has not received a written response from the County or confirmation from Mr. Schweickert that he has received a response to his October 21, 2019, FOIA request. ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2018). Under section 1 [...] spection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to - respond to a request received may not treat the request as unduly . burdensome under subsection (g). ' The County did not respond tt o Mr. Schweickert's FOIA request within five business days after its receipt by either complying with his request, extending the time for its response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2018), as amended by Public Act 101-081, effective July 12, 2019), or denying the request in writing. The County’ s failure to comply with ‘the requisite procedures violated section 3(d) of FOIA.' | FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On October 21, 2019, Mr. Scott Schweickert, on behalf of Schweickert Law Group, LLC, submitted a FOIA request to Kankakee County seeking copies of any agreements between Kankakee County and World Fuel Services, Inc., and any ordinances or resolutions passed by Kankakee County that authorized the execution of such agreements. Mr. Schweickert did not receive a response to his request. 2) On October 30, 2019, Mr. Schweickert submitted a Request for Review to the Public Access Counselor and the Public Access Bureau because the County had not responded to his FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2018)). Mr. Scott J. Schweickert Mr. Ken McCabe February 11,2020 Pageo . 3) On November 7, 2019, the Public Access Bureau forwarded a copy of Mr. Schweickert's Request for Review to the County, along with a letter asking the County to advise this office whetheri t had received and responded to Mr. Schweickert S October 21, 2019, FOIA request. The County did not respond to this office's inquiry. 4) On December 3, 2019, this office sent the County an additional copy of the Request for Review and this office's November 7, 2019, letter, along with a letter inquiring as to the status of the County's response to this office. The County did not respond to thati nquiry, either. 5) On December 19, 2019, the County's FOIA Officer, Mr. Ken McCabe, confirmed for an AAG in the Public Access Bureau that the County had received Mr. Schweickert's October 21, 2019, FOIA request as well as correspondence from this office concerning Mr. Schweickert's Request for Review. Mr. McCabe indicated that the County was searching for responsive records and would respond soon. 6) On December 27, 2019, this office extended the time within which to.i ssue a binding opinion by 30 business days, to February 11, 2020, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properlyi ssue a binding opinion with respect to this matter. 7) On January 7, 2020, and January 21, 2020, Mr. Schweickert confirmed for this office that the County had not responded to his Tequest. — 8) As of the date of the issuance of this binding opinion, this office has not - received a response to its inquiries nor has this office received any information indicating that the County has responded to Mr. Schweickert's request. |” Therefore, it is the opinion of the Attorney General that the County has violated section 3(d) of FOIA by failing, within five business days after receiving Mr. Schweickert's October 21, 2019, FOIA request, to provide copies of the requested records, to extend the time for its response pursuant to section 3(e) of FOIA, or to deny the request in whole or in part. Accordingly, the County is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Schweickert with all records responsive to his October 21, 2019, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2018), as amended by Public Acts 101-434, effective January 1, 2020; 101-452, effective January 1, 2020; 101-455, effective August 23, 2019).'8 If the County determines that '8Because the County did not comply with the statutory requirements for responding to Mr. Schweickert's FOIA request, the Countyi s precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d) (West 2018), as amended by Public Act 101-081, effective July 12, 2019. Mr. Scott J. Schweickert. Mr. Ken McCabe February 11, 2020 Page 7 any portion of the responsive records is exempt from disclosure under section 7, it is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2018)). - . . This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2018). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Scott J. Schweickert as defendants. See 5 ILCS 140/11.5 (West 2018). | roe | a. Sincerely,” 7 | KWAME RAOUL ; ATTORNEY. GENERAL- Brent D. Stratton 7! Chief Deputy Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 20-002) upon: Mr. Scott J. Schweickert Schweickert Law Group, LLC 2101 Marquette Road Peru, Illinois 61354 sjs@ganassin.com Mr. Ken McCabe Freedom of Information Officer ' Kankakee County | 3000 South Justice Way | Kankakee, Illinois 60901 ! kmecabe@k3county.net | by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be | deposited in the United States mail at Springfield, Illinois on February 11, 2020. SARAH L. PRATT ! Public Access Counselor SARAHL.PRATT Public Access Counselor | Office of the Attorney General 500 South Second Street | Springfield, Illinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Schweickert requested copies of agreements and ordinances between Kankakee County and World Fuel Services, Inc. The County never responded to the request and ignored follow-up inquiries from the Attorney General's office. The PAC ruled that the County's total silence was a violation of the law.","card_headline":"Agreements and ordinances with a fuel services company","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":128,"orig_master_id":19330,"dup_master_id":19102,"dup_sha256":"4b605f45c54c2d999b177b19a435b0851ba79b4e4871567b0e5af61cb3115d2d","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2020,"date_issued":"2020-06-02","case_number":"2020 PAC 62037","request_numbers":null,"title":"South Loop Elementary School Local School Council violated OMA by discussing principal evaluation in closed session","filename":"PUBLIC ACCESS OPINION 20-004 (Request for Review - 2020 PAC 62037).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 20-004 (Request for Review - 2020 PAC 62037).pdf","word_count":2405,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a complaint about a closed session meeting held by the South Loop Elementary School Local School Council. The opinion concludes that the Council violated the Open Meetings Act by discussing the evaluation process of the school's principal in closed session.","plain_summary":"The requester, a member of a school's local school council, sought review after the council entered closed session, citing the exception for discussing specific employees, to discuss the general process and timeline for evaluating the school's principal rather than the principal's individual performance. The Public Access Counselor held that the closed-session exception for specific employees does not extend to general discussions of evaluation procedures applicable to a category of employees, so the council violated the Open Meetings Act's requirement that meetings be open unless a narrow exception applies. The council was directed to disclose the recording of the unauthorized portions of its closed-session discussion.","holding":"The South Loop Elementary School Local School Council violated section 2(a) of the Open Meetings Act.","legal_question":"Did the South Loop Elementary School Local School Council violate the Open Meetings Act by discussing the principal's evaluation process in closed session?","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2(a), 5 ILCS 120/1, 5 ILCS 120/2(b), 5 ILCS 120/2(c), 5 ILCS 120, 5 ILCS 120/2, 5 ILCS 120/7, 735 ILCS 5","foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)"],"public_body":"South Loop Elementary School Local School Council","requesting_party":"McKechnie and Ms. Siddique","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Council improperly discussed the procedural schedule and process for evaluating a school principal in a closed session.","ocr_status":"ok","ocr_quality":89,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2020-Binding-PAC-Opinions/20-004.pdf","sha256":"4d753dc9e6824b8bb681a71d6898e04459be657415a1d6ab3bb6ae923a0677d5","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","principal evaluation","Open Meetings Act","school council"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL A'I\" I'ORNEY GENERAL June 2, 2020 PUBLIC ACCESS OPINION 20-004 Request for Review 2020 PAC 62037) OPEN.MEETINGS A T: Discussion of the Proc ss for Evaluating an Employee in Closed Session Ms. Kathryn McKechnie 1530 South State Street Chicago, Illinois 60605 Ms. Saadia Siddique Chair South Loop Elementary School Local School Council 1212 South Plymouth Court Chicago, Illinois 60605 Dear Ms. McKechnie and Ms. Siddique: This binding opinion is issued pursuant to section 3.5( e) ofthe Open Meetings Act ( OMA) (5 ILCS 120/3. 5(e) ( West 2018)). For the reasons discussed below, this office concludes that the South Loop Elementary School Local School Council ( Council) violated section 2(a) of OMA ( 5 ILCS 120/2(a) ( West 2018), as amended by Public Acts 101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019) during its February 12, 2020, meeting by improperly discussing in closed session the schedule and process for evaluating the school's principal. BACKGROUND On March 5, 2020, Ms. Kathryn McKechnie, a member ofthe Council, submitted a Request for Review to the Public Access Counselor alleging that the Council convened a 500 South Second Smet, Springfield, Illinois 62701 • ( 217) 782- 1090 • \" 1\" 1'Y: (877) 844-5461 • Fax: (217) 782-7046 100 west Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806 601 South Universit} Ave., Carbondale, IL 62901 • ( 618) 529-6400 •' 1\" FY: (877) 675-9339 • Fax (618) 529-6416. • Ms. Kathryn McKechnie Ms. Saadia Siddique June 2, 2020 Page 2 closed session meeting to discuss \"how we were going to proceed with the principal evaluation for this school year. We did not spend any time discussing her performance, just how we were going to incorporate the parent and teacher/ staff surveys into the process.\"' Ms. McKechnie further alleged that she \" brought up [ her] objection to going into closed session and was told that Julissa Cruz at the Local School Council Relations office said it was fin[e] to go into closed session to discuss anything that relates to the principal evaluation.\"2 Ms. McKechnie attached to her e-mail a recording of the closed session meeting in question. On that same date, Ms. McKechnie sent a second e-mail to the Public Access Counselor clarifying that the meeting at issue occurred on February 12, 2020.3 On March 13, 2020, the Public Access Bureau sent a copy ofthe Request for Review to the Council and requested that the Council provide a written response to the allegations, along with copies ofthe agenda, open and closed session minutes for the February 12, 2020, meeting, and the verbatim recording of the closed session ofthat meeting for this office's confidential review.4 On March 17, 2020, the Chair ofthe Council furnished this office with copies of the agenda, open and closed session minutes, and the closed session verbatim recording, as well as the Council' s written response. 5 The Council also provided a copy of an e-mail exchange between Jennifer Rakstad, another member ofthe Council, and Julissa Cruz, an employee ofthe Chicago Public Schools, containing e-mails dated December 12 and December 13, 2019, addressing some questions related to the principal evaluation process. 6 On March 27, 2020, the E-mail from Kathryn McKechnie to Public Access [ Bureau, Office ofthe Attorney General] March 5, 2020). 2E -mail from Kathryn McKechnie to Public Access [ Bureau, Office ofthe Attorney General] March 5, 2020). 3E -mail from Kathryn McKechnie to Public Access [Bureau, Office ofthe Attorney General] March 5, 2020). , Letter from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Office ofthe Attorney General, to Saadia Siddique, President, South Loop Elementary School Local School Council ( March 13, 2020). Letter from Saadia Siddique, South Loop Elementary School LSC Chair, to Leah Bartlett [ sic], Deputy Public Access Counselor, Public Access Bureau, Office ofthe Attorney General, State ofIllinois (March 17, 2020). 6E -mail from Jennifer L. Rakstad to Julissa [ Cruz] ( December 12, 2019); e-mail from Julissa Cruz to [ Jennifer Rakstad] ( December 13, 2019); e-mail from Jennifer L. Rakstad to Julissa Cruz ( December 13, 2019). Ms. Kathryn McKechnie Ms. Saadia Siddique June 2, 2020 Page 3 Public Access Bureau forwarded a copy ofthe Council's response letterto Ms. McKechnie.7 She replied on April 2, 2020.8 On May 4, 2020, this office extended the time within which to issue a binding opinion by 21 business days, to June 3, 2020, pursuant to section 3. 5( e) of OMA.9 ANALYSIS OMA is intended \"to ensure that the actions ofpublic bodies be taken openly and that their deliberations be conducted openly.\" 5 ILCS 120/1 ( West 2018). Section 2(a) ofOMA provides that \"[ a]ll meetings ofpublic bodies shall be open to the public unless excepted in subsection ( c) and closed in accordance with Section 2a.\" The section 2(c) exceptions \" are in derogation ofthe requirement that public bodies meet in the open, and therefore, the exceptions. are to be strictly construed, extending only to subjects clearly within their scope.\" 5 ILCS 120/2(b) ( West 2018), as amended by Public Acts 101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019; see also Henry v. Anderson, 356 I11. App. 3d 952, 996 (4th Dist. 2005) (\" exceptions to the requirement of open meetings are to be strictly construed.\"). With respect to the vote to enter closed session, the open session meeting minutes of the Council provide: \" Motion to start the closed session to discuss the private details of the Principal Evaluation[.] . 1o, 11The Council stated in its response to this office that the motion to go into closed session was made pursuant to section 2(c)( 1) of OMA (5 ILCS 120/2(c)( 1) ( West 2018), as amended by Public Acts 101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019), and argued that its closed session discussion fell within the scope ofthat exception. Letter from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Office ofthe Attorney General, to Kathryn McKechnie (March 27, 2020). Letter from Kathryn J. McKechnie, [ South Loop Elementary School Local School Council] Community Member, to Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Office ofthe Attorney General, State ofIllinois ( April 2, 2020). Letter from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Office ofthe Attorney General, to Kathryn McKechnie and Saadia Siddique, Chair, South Loop Elementary School Local School Council ( May 4, 2020). 10South Loop Elementary School Local School Council, Meeting, February 12, 2020, Minutes 1. Section 2a ofOMA ( 5 ILCS 120/ 2a (West 2018)) provides that \"[ t]he vote ofeach member on the question ofholding a meeting closed to the public and a citation to the specific exception contained in Section 2 ofthis Act which authorize the closing ofthe meeting to the public shall be publicly disclosed at the time ofthe vote and shall be recordedand entered into the minutes ofthe meeting.\" ( Emphasis added.) Ms. Kathryn McKechnie Ms. Saadia Siddique June 2, 2020 Page 4 Section 2(c)( 1) permits a public body to discuss in closed session: The appointment, employment, compensation, discipline, performance, or dismissal ofspecific employees, * * * of the public body or legal counsel for the public body, including hearing testimony on a complaint lodged against an employee * * * of the public body or against legal counsel for the public body to determine its validity. ( Emphasis added.) In construing this section, the Attorney General has concluded that \" language referencing 'specific employees' signifies that the General Assembly did not intend to permit public bodies to hold general discussions concerning categories ofemployees in closed session pursuant to section 2(c)( 1).\" Ill. Att'y Gen. Pub. Acc. Op. No. 16-013, issued Decembe [...] iscussion to the public. The Council has argued that making public \" any discussion ofthe closed session meeting does not serve the public interest[ ]\" because the Council members \" opted for no change to the process of Principal evaluation[.]\" 7 This office disagrees. There is a significant public interest in a public body's discussion ofthe process for evaluating a high-ranking school administrator such as a principal, regardless ofwhether thosedeliberations result in a change in policy. Even ifa lesser public interest was involved, the intent of OMA is to ensure that a public body' s \" deliberations be conducted openly.\" ( Emphasis added.) 5 ILCS 120/1 ( West 2018). When a public body deliberates in closed session about matters that do not fall within the scope ofthe exception that was relied on to close the meeting, it is appropriate for the public body to remedy that violation by making the verbatim recording ofthose deliberations public. Deliberations on matters that do not fall within the closed session exceptions must be conducted openly not only when they result in policy change, but also when they do not. In short, a decision to retain an existing policy will be significant to those who may seek to clarify, modify or repeal that policy. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor' s review, and the applicable law, the Attorney General finds that: Letter from Saadia Siddique, South Loop Elementary School LSC Chair, to Leah Bartleet [sic], Deputy Public Access Counselor, Public Access Bureau, Office ofthe Attorney General ( March 17, 2020), at 2. Ms. Kathryn McKechnie Ms. Saadia Siddique June 2, 2020 Page 7 1) On March 5, 2020, Ms. Kathryn McKechnie, a member of the South Loop Elementary School Local School Council, submitted a Request for Review alleging that during its February 12, 2020, meeting, the Council entered closed session to discuss the school's principal evaluation process and incorporation of surveys into that process. The Request for Review was timely filed and otherwise complied with the requirements ofsection 3.5( a) of OMA. 2) On March 13, 2020, the Public Access Bureau sent a copy ofthe Request for Review to the Council. The Public Access Bureau requested copies ofthe open and closed session minutes, agenda, and the closed session verbatim recording ofthe February 12, 2020, meeting. This office also requested a written response to the allegations in the Request for Review. 3) In a letter dated March 17, 2020, the Chair of the Council provided this office with copies of the closed session verbatim recording, open and closed session minutes, and the agenda ofthe February 12; 2020, meeting, along with a written response. The response asserted that the Council properly entered into closed session pursuant to section 2(c)( 1) of OMA to discuss the principal evaluation process and specific individual ratings ofthe principal. 4) On March 27, 2020, the Public Access Bureau forwarded a copy ofthe Council's response letter to Ms. McKechnie. She replied on April 2, 2020. 5) On May 4, 2020, this office extended the time within which to issue a binding opinion by 21 business days, to June 3, 2020, pursuant to section 3.5(e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 6) Section 2(a) of OMA requires that all meetings ofpublic bodies be open to the public unless the subject ofthe meeting is covered by one ofthe limited exceptions enumerated in section 2(c) of OMA. Section 2(c)( 1) ofOMA permits a public body to enter closed session to discuss \"[ t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees, * * * or legal counsel for the public body[.]\" 7) By its plain language, section 2(c)( 1) applies to discussions concerning specific employees. This exception does not permit a public body to discuss in closed session considerations applicable to categories ofemployees, such as the process for evaluating their performance. 8) During its February 12, 2020, closed session, the Council primarily discussed the process for evaluat ng the current principal, including the score calculation process and the timing of certain steps, rather than the actual performance or evaluation scores of the principal. Ms. Kathryn McKechnie Ms. Saadia Siddique June 2, 2020 Page 8 Although the Council a so held a short discussion concerning the principal's scores, that discussion was isolated and can be segregated from its discussion about the evaluation process. 9) Accordingly, the Attorney General concludes that the Council discussed in closed session matters outside the scope of section 2(c)( 1). This finding compels the conclusion that the Council violated section 2(a) ofOMA, which requires that all meetings ofpublic bodies be open to the public unless excepted by section 2(c). In accordance with these findings of fact and conclusions of law, the Council is directed to remedy this violation by disclosing to Ms. Kathryn McKechnie and making publicly available the verbatim recording ofthe unauthorized portions ofthe closed session discussion from the February12, 2020, meeting. As required by section 3.5(e) ofOMA, the Council shall either take necessary action as soon as practical to comply with the directives ofthis opinion, or shall initiate administrative review under section 7.5 ofOMA (5 ILCS 120/7.5 ( West 2018)). This opinion shall be considered a final decision ofan administrative agency for the purposes ofadministrative review under the Administrative Review Law. 735 ILCS 5/ 3- 101 et seq. ( West 2018). An aggrieved party may obtainjudicial review ofthe decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days ofthe date ofthis decision naming the Attorney General ofIllinois and Ms. Kathryn McKechnie as defendants. See 5 ILCS 120/ 7.5 ( West 2018). Sincerely, KWAME RAOUL ATTORNEY GENERAL ri AAA/T-14,.J_ val/2-- By: Brent D. Stratton Chief Deputy Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy ofthe foregoing Binding Opinion (Public Access Opinion 20-004) upon: Ms. Kathryn McKechnie 1530 South State Street Chicago, Illinois 60605 kathrynj.mckechnie@gmail. com Ms. Saadia Siddique Chair South Loop Elementary School Local School Council 1212 South Plymouth Court Chicago, Illinois 60605 saadia. siddique@gmail. com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a t ue copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on June 2, 2020. SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office ofthe Attorney General 500 South Second Street' Springfield, Illinois 62761 217) 557- 0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A member of the South Loop Elementary School Local School Council complained that the Council held a closed-door meeting to discuss the process for evaluating the school principal. The Attorney General ruled that the Council violated the Open Meetings Act because the law does not allow closed sessions for discussing the evaluation process itself, even if the actual performance review is not discussed. This means public bodies must keep discussions about evaluation procedures open to the public.","card_headline":"Closed-session discussion of a principal evaluation process","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":129,"orig_master_id":19103,"dup_master_id":19331,"dup_sha256":"37c962d215ef2592af2a4c76d80f73b628b672f0332c1c1280f55190cb734d36","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2020,"date_issued":"2020-07-07","case_number":"2020 PAC 62350","request_numbers":null,"title":"Disclosure of Police Dashboard Camera Video, Dispatch Audio, and Written Critique","filename":"PUBLIC ACCESS OPINION 20-005 (Request for Review - 2020 PAC 62350).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 20-005 (Request for Review - 2020 PAC 62350).pdf","word_count":2509,"summary":"Attorney General KWAME RAOUL: Winnebago County Sheriff's Office violated the requirements of FOJA by improperly withholding records responsive to Jeff Kolkey's FOIA request . The Rockford Register Star staff member requested a copy of any squad car camera footage before, during and after the Feb, 8, 2016, police chase and fatal crash that killed [a named | individual], emergency dispatch audio concerning that chase, crash .","plain_summary":"The requester, a newspaper reporter, sought squad car video, dispatch audio, and a written critique concerning a fatal police chase, which a sheriff's office withheld on the ground that disclosure could taint the jury pool in a related pending civil wrongful-death lawsuit. The Public Access Counselor held that the sheriff's office's assertion was conclusory and failed to explain with specific facts how disclosure of records -- most of which did not even depict the crash, and a critique containing no detailed narrative or witness statements -- would create a substantial likelihood of an unfair trial. The sheriff's office was directed to disclose the requested records.","holding":"The Winnebago County Sheriff's Office violated FOIA by improperly withholding responsive records, as the requested materials were not exempt from disclosure.","legal_question":"Whether the Winnebago County Sheriff's Office improperly withheld police dashboard camera video, dispatch audio, and internal reports concerning a fatal police chase under the Freedom of Information Act.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(1), 5 ILCS 140/3(e), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/7, 5 ILCS 140/8, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(d)","public_body":"County of Winnebago","requesting_party":"Kolkey and Mr. Kamer","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"police records","subject_description":"The request sought records related to a 2016 fatal police chase, including dashcam footage, dispatch audio, and internal reviews.","ocr_status":"ok","ocr_quality":89,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2020-Binding-PAC-Opinions/20-005.pdf","sha256":"790661266d364d66cdb3eed4350b682e976b28f1ce03218c7bcbb6a0bccbf714","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police records","dashcam footage","FOIA","public records","Sheriff's Office"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"! _OFFICE|OF THE ATTORNEY GENERAL | ! STATE OF ILLINOIS KWAME RAOUL | ATTORNEY GENERAL | } July 7, 2020 PUBLIC ACCESS OPINION 20-005 | (Request for Review 2020 PAC 62350) FREEDOM OF INFORMATION ACT: Disclosure of Police Dashboard Camera Video, Dispatch Audio, and Written Critique | | Mr. Jeff Kolkey ! Staff Writer ! Rockford Register Star | 99 East State Street Rockford, Illinois 61104 | Mr. Matk Karner Deputy Chief ) Winnebago County Shetiff's Ofifice 650 West State Street | Rockford, Illinois 61102 | | | | Dear Mr. Kolkey and Mr. Kamer: | This binding opinion ii s issued pursuant to section 9. 5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9, 5(f) (West 2018)). For the reasons discussed below, this office concludes that the Winnebago County Sheriff's Office (Sheriff's Office) violated the requirements of FOJA by improperly withholding records responsive to Mr. Jeff Kolkey's FOIA request. | | : | I . | | BACKGROUND On March 9, 2020, Mr. Kolkey, on behalf of the Rockford Register Star, submitted a FOIA request to the Sheriff's Office seeking: | , | ; j 500 South Second Street, Springfi Id, Hlinois 62701© (217) 782-1090 © I’ I’Y: (877) 844-5461 © Fax: (217) 782-7046 100 West Rand olph Strect, Chicago, IIllinois 60601© (312) 814-3000 © TTY: (800) 964-3013« Fax: (312) 814- $806 . 601 South University Ave. Carbondale, IL 62901« (618) 529-6400 © I’T'Y: (877) 675-9339 © Fax (618) 529-6416 +@&er>~ | l | | Ir, | | | Mr. Jeff Kolkey - Mr. Mark Karner _ 7 July 7, 2020 | Page 2 | | | 7 | [a] copy of any squad car camera footage before, during and after the Feb, 8, 2016, police chase and fatal crash that killed [a named | individual], emergency dispatch audio concerning that chase, crash ) ! ' and incident, and| any written critique, review or report concerning | the attempted traffic stop and fatal crash. i. | On March 16, 2020, the Sheriffs Office acknowledged receipt of the FOIA request and requested an extension of five days.’ On March 23, 2020, the Sheriff's Office denied ther equest pur suant|to section 7(1)(€) (ii) of FOIA (5 ILCS 140/7(1)(d)Gii) (West 2018), as amended by — Public Acts 101-434, effective January 1, 2020; 101-452, effective January 1, 2020; 101-455, effective! August 23, 2019)? ‘The Sheriff's Office asserted that \"disclosure would deprive both the County of Winnebago’ and Sheriff's Deputy Christopher Moski of their rights to a fair trial or an impartial adjudication, The trial ijs pendingi n 2016-L-239, Lambert v. Winnebago County[.\" 4 The Sheriff's Office further asserted that release of the requested records \"would seriously interfere with the fairness of the proceedings since a jury trial is demanded and disclosure of the documents sought could prejudice the pool of potentialj urors who would adjudicate the case.\"° | Mr. Kolkeys ubline a Request for Review to the Public Access Bureau on March 23, 2020, contesting the denial of his request.° Mr. Kolkey noted that the requested records were the subject of an earlier Request for Review, file No. 2016 PAC 40205, where the Sheriff's Office had denied a request for the same records citing section 7(1)(d)(iii), among other. | | ‘ | | 'E-mail from Jeff Kolkey, Staff Writer, Rockford Register Star, to Sgt. [Tammie] Stanley (March 9, 2020). | | : . | | \"Letter from! Deputy Chief Mark Karner, Winnebago County Sheriff's Department, to Jeff [Kolkey] (March 16, 2020). Although the Sheriff's Office did not provide a reason for the extension, FOIA authorizesa public body to unilaterallylextend its response time by five business days for any of seven enumerated reasons set'out in section 3(e) of FOIA. | See 5 ILCS 140/3(e)(i) through 3(e)(vii) (West 2018), as amended by Public Act |101-081, effective July 12, 2019. | 3Letter from |Deputy Chief Mark Karner, Office of the Sheriff, Winnebago County, to Jett Kolkey, Rockford Register Star (March 23, 2020). |. ‘Letter from ‘Deputy Chief Mark Karner, Office of the Sheriff, Winnebago County, to Jeff Kolkey, Rockford Register Star (March 23, 2020), at 1. : | *Letter from Deputy Chief Mark Karner, Office of the Sheriff, Winnebago County, to Jeff Kolkey, Rockford Register Star (March 23, 2020),-at | | SE-mail from Jeff Kolkey, Staff Writer, Rockford Register Star, to Public Access [Bureau, Office of the Attorney General] (March 23, 2020). ; | | ', | | | Mr. JeffiKolkey Mr. Mark Karner July.7, 2020 Page 3 bases.’ In a non- binding determination, the Public Access Counselor concluded that the Sherriff's Office had improperly denied Mr. Kolkey's request. Ill. Att'y Gen. Req. Rev. Ltr. 40205, issued December 27, 2019. Mr. Kolkey asserted that the second denial by the Sheriff's Office \"{a]ppears to cite the same discredited ‘fair trial' grounds as [the response to] the original FOIA request, but instead uses a wrongful death civil trial as the basis of the denial instead of a criminal trial.\"® ! | On April 3, 2020, the Public Access Bureau sent a copy of the Request for Review to the Sheriff's Office and asked it to provide copies of the withheld dashboard video, dispatch audio, and written critique for this office's confidential review.? The April 3, 2020, letter also asked the Shetiff's Offfice to provide a detailed explanation of the factual and lega-l bases for the applicability of section 7) Gi) to those records.!° On April 14, 2020, the Sheriff's Office e-mailed this office copies ofi ts written answer dated April 13, 2020, the second amended complainti n Lambert}v . Winnebago County Sheriff's Office, Case No. 16-L-239 (Circuit Court, Winnebago County), and the written critique of the incident.!! The Sheriffs Office submitted copies of the remaining requested materials via the United States Postal. Service.!?- On April 15, 2020, the Public Access Bureau forwarded a copy of the Sheriff's Office's written response to Mr. Kolkey;!* he did not reply. | | | | I. | _7E-mail from Jeff Kolkey, Staff Writer, Rockford Register Star, to Public Access [Bureau, Office of the Attomey General] (March 23, 2020). | 8E-mail from Jeff Kolkey, Staff Writer, Rockford Register Star, to Public Access [Bureau, Office of the Attorney General] (March 23, 2020). | *Letter from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Deputy Chief Mark Karner, Winnebago County Sheriffs Office (April 3, 2020), at | OL etter from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Deputy Chief Mark Karner, ‘Winnebago County Sheriff's Office (April 3, 2020), at | | 'TE-mail from Deputy Chief Mark Karner to Attorney [Teresa] Li[m] (April 14, 2020). | \"Letter fromm Mark Karner, Deputy Chief and FOIA Officer, Office of the Winnebago County Sheriff, to Teresa Lim, Assistant Attorney General (April 13, 2020). The Public Access Bureau received the remaining requested materials on April 17, 2020. 3Letter from TeresajLim, Assistant Attorney General, Public Access Bureau, Office of the Acorns General, to Jeff Kolkey, Staff Writer, Rockford Register Star (April 15, 2020). i i 1 i i } | | | | Mar. Mr. Mark Karner July 7, 2020 - Page 4 ‘ ! | | Pursuant to secticon 9.5(f) of FOIA, on May 15, 2020, this office properly extended the time within which to issue a binding opinion by 30 business days, to July7, 2020.'4 | | ANALYSIS | \"All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2018). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2018), as amended by Public Act 101-081, effective July 12, 2019) further provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise providedi n Sections 7 and 8. 515] of this Act.\" The exemptions from disclosure containedi n section 7 of FOIA (5 ILCS 140/7 (West 2018)) are to be construe [...] nt, nor explained with specificity how disclosure of the records at issue would create a substantial likelihood that any person would be deprivedo fa fair trial. Although the lawsuit pertains to the fatal traffic accident thati s the general subject matter of the records, the Sheriff's Office did not provide facts illustrating how the detailsi n the records, if disclosed, would seriously interfere with the fairness of those proceedings. The written critique does not include highly detailed information such as a narrative of the incident or witness statements, and most of the videos do not depict the fatal traffic accident. The one video that does include footage of the accident was recorded from a considerable distance. The Sheriff's Office's claim - that release of the records coulditaint the jury pool is conclusory—the possibility that the.records may be disseminated to the public by Mr. Kolkey and viewed by possible jurors is insufficient to demonstrate the applicability of|the section 7(1)(d)(iii) exemption. See, e.g., Dow Jones Co. v. FIE.R.C), 219 F.R.D. 167, 175 (C.D. Cal. 2003) (finding that the \"defendant has failed to demonstrate that disclosure of the appendix would generate pretrial publicity that could deprive the companies or any of their employees of their right to a fair trial\" under the corresponding Exemption 7(B) of Federal FOIA); Playboy Enterprises, Inc. v. U.S. Dep't of Justice, 516 F. Supp. 233, 246 (D.D.C. 1981), aff'd iin part, modifiedin part sub nom. Playboy Enterprises, Inc. v. Dep't of Justice, 677 F.2d 931 (D.C. Cir. 1982) (finding \"the degree of publicity that might come about as a result of the disclosure of [a task force report]i s speculative at best\" with regard to defendant’ s claims concerning the applicability of Exemption 7(B) to the report). Because the Sheriff's| Office did not set forth/clear and convincing evidence that disclosure of the records at issue would create a substantial likelihood that any person would be deprived of a fair trial under the circumstances surrounding the Lambert v. Wirinebago County case, the Sheriff's Office did not sustain its burden to withhold the records pursuant to section 7(1)(d)(iii) of FOIA. | . | | FINDINGS AND CONCLUSIONS | After full examination and giving due consideration to the available information, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: | 1) On March 9, 2020, Mr. Jeff Kolkey, on behalf of the Rockford Register Star, submitted a FOIA request to the Winnebago County Sheriffs Office seeking copies of the squad Mr. Jeff/Kolkey | Mr. Mark Karner July 7, 2020 Page 8 i . | car video, dispatch audio, and written critique of an attempted traffic stop and fatal traffic accident that occurred on February 8, 2016. 2) On March 23! 2020, the Sheriff's Office denied the request in its entirety pursuant to section TC )(a) Gait) of FOIA. | . | ; 3) On March 23} 2020, Mr. Kolkey submitted a Request for Review to the Public Access Bureau contesting the denial by the Sheriff's Office of his request. The Request for Review was timely filed'and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILcs!140/9,5 (a) (West 2018)). | 4) On April 3, 2020, the Public Access Bureau sent a copy of the Request for Review to the Sheriff's Office and asked it to provide copies of the responsive squad car video, dispatch|audio, and written critique for this office's confidential review. This office also asked the Sheriff's Office to provide a'detailed explanation of the factual and legal bases for withholding those records. | } | i | i| 5) On April 14, 2020, the Sheriff's Office furnished a written answer and a copy ofa written critique by e-mail; the remaining requested materials were submitted via the United States Postal Service and received by this office on April 17, 2020. 6) On April 15, 2020, the. Public Access Bureau forwarded a copy of the Sherifi's Office's written answer to Mr. Kolkey; he did not reply to the response. | 7) Pursuant to section 9.S (f) of FOIA, on May 15, 2020, this office extended the ‘ time within which to issue a binding opinion by 30 business days, to July 7, 2020. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. | | | 8) Section 7(1)(4) (ii) of FOIA exempts from disclosure law enforcement records when their disclosure would ' ‘create a substantial likelihood that a person will be deprived of a fair trial'or impartial hearing.\" The Sheriff's Office identified a pending civil lawsuit related to | the fatal traffic accident and provided a conclusory assertion that disclosure of the requested _ records would taint thejju ry pool for that case. However, it did not explain with specific facts how disclosure of the records atlissue would deprive the defendantsi n that matter of a fair trial. Therefore, the Sheriff's Office did not sustain its burden of demonstrating by clear and: convincing evidence that the records are exempt from disclosure pursuant to section 7(1)(d)(iit). Therefore, it is tHe opinion of the Attorney General that the Sheriff's Office's response-to Mr. Kolkey's Freedom of Information Act request violated the requirements of | | | | i | { { | \\ Mr. Jeff/Kolkey ! Mr. Mark Karner July 7, 2020 Page 9 | . . FOIA. Accordingly, the, Sheriff's Office is directed to take immediate and appropriate action to comply with this opinion by disclosing to Mr. Kolkey copies of the responsive records. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 201 8), Ana ggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Jeff Kolkey as defendants. See 5ILCS 140/ 11!5 (West 2018). Very truly yours, KWAME RAOUL ATTORNEY GENERAL Brent D. Stratton| Chief Deputy Attorney General CERTIFICATE OF SERVICE | Sarah L. Pratt, Pyiblic Access Counselor, hereby certifies that she has served a copy of the foregoing Binding C)pinion (Public Access Opinion 20-005) upon: Mr. Jeff Kolkey aff Writer St Rockford Register Star 99 East State Street Rockford, Illinois 61104 jko Ikey@rrstar.com Mr. Mark Karner Deputy Chief Winnebago County Sheriff's Office 650 West State Street — . Rockford, Illinois 61102 KarnerM@WCSO-ILus by causing a true copy thereof t) be sent electronically to the addresses as listed above and by | causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be i , deposited in the United States mail at Springfield, Illinois on July 7, 2020. ; 1 \\ { { | SARAH L. PRATT | 1 Public Access Counselor i | SARAH L. PRATT : Public Access Counselor - Office of the Attorney General 500 South Second Street, Springfield, Illinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested police dashcam footage, dispatch audio, and internal reports regarding a 2016 fatal police chase. The Sheriff's Office refused to provide the records, but the Attorney General ruled that the office violated the law by withholding them. The Sheriff's Office is now required to release the requested documents to the reporter.","card_headline":"Dashcam footage, dispatch audio, and internal reviews of a fatal police chase","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":130,"orig_master_id":19332,"dup_master_id":19104,"dup_sha256":"3702f5d3137ecf6511e99d374d23f39e43567f67f22b53d1a1103cc19e48eb12","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2020,"date_issued":"2020-05-08","case_number":"2020 PAC 61510","request_numbers":null,"title":"Disclosure ofApplications for Adult Use Cultivation Center Licenses","filename":"PUBLIC ACCESS OPINION 20-003 (Request for Review - 2020 PAC 61510).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 20-003 (Request for Review - 2020 PAC 61510).pdf","word_count":2301,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a FOIA request for applications for adult use cultivation center licenses. It concludes that the Illinois Department of Agriculture violated FOIA by improperly redacting portions of the requested applications.","plain_summary":"The requester, a newspaper, sought cannabis cultivation license applications from a state agency, which redacted the names and addresses of company principals and board members, citing confidentiality provisions of a separate medical cannabis law and privacy exemptions. The Public Access Counselor held that the medical cannabis confidentiality provisions did not extend to applications submitted under the adult-use cannabis licensing law, which instead makes such applications subject to FOIA and requires public disclosure of licensee names and operating addresses, though dates of birth were properly withheld as highly personal. The agency was directed to provide the requester with the applications' names and addresses that had been improperly redacted.","holding":"The Illinois Department of Agriculture violated FOIA by improperly redacting portions of applications for adult use cultivation center licenses.","legal_question":"Did the Illinois Department of Agriculture violate the Freedom of Information Act by improperly redacting information from the requested applications?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7, 410 ILCS 130, 20 ILCS 3305/7, 5 ILCS 140, 5 ILCS 140/3, 410 ILCS 705, 410 ILCS 705/20","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(a)"],"public_body":"Illinois Department of Agriculture","requesting_party":"Mr. Robert McCoppin (Chicago Tribune)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The disclosure of information contained within applications for adult use cannabis cultivation center licenses.","ocr_status":"ok","ocr_quality":89.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2020-Binding-PAC-Opinions/20-003.pdf","sha256":"7abbd8a380eea1123e6e7e4c4e2ec1b63ac60bfaf0773aec99e2bc3f28519b1b","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["cannabis license","FOIA redaction","public records","cultivation center"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAI, May 8, 2020 PUBLIC ACCESS OPINION 20-003 Request for Review 2020 PAC 61510) FREEDOM OF INFORMATION ACT: Disclosure ofApplications for Adult Use Cultivation Center Licenses Mr. Brendan J. Healey Baron Harris Healey 225 West Washington Street, Suite 2200 Chicago, Illinois 60606 Mr. John Teefey General Counsel Illinois Department ofAgriculture P.O. Box 19281 Springfield, Illinois 62794- 9281 Dear Mr: Healey and Mr. Teefey: This is a binding opinion issued by the Attorney General pursuant to section 9.5( 1) of the Freedom of Information Act (FOIA) ( 5 ILCS 140/9.5( 1) ( West 2018)). For the reasons discussed below, this office concludes that the Illinois Department ofAgriculture (Department) violated the requirements of FOIA by improperly redacting portions of applications for adult use cultivation center licenses requested by Mr. Robert McCoppin. 500South Second Street. Springfield. Illinois 62701 • ( 217) 782- 1090 •' ITV: (877) 844-5461 • Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois60601 • ( 312) 841-3000 •' IiA:: ( 800) 964-3013 • Fax: (312) 814-3806 601 South University Ave., Carbondale. II, 62901 • 1618) 529-6400 •'!' I'V': ( 877) 675-9339 • Fax (618) 329-6416 Mr. Brendan J. Healey Mr. John Teefey May 8, 2020 Page 2 BACKGROUND On December 6, 2019, Mr. McCoppin, on behalf ofthe Chicago Tribune, e- mailed a FOIA request to the Department seeking \" a copy of all applications for adult use cannabis cultivation center licenses.\"' The request added: While I understand that you may want to redact some information for privacy, such as social security numbers, I would expect you to please include the names and addresses of each principal officer and board member under (7),I2I as required in the statute, and in keeping with the intent ofsponsors to provide transparency to this newly legal industry. 131 On Department 26, 2019, the Department' s FOIA Officer furnished copies ofthe responsive applications to Mr. McCoppin but redacted \"private information\" pursuant to section 7( 1)( b) of FOIA (5 ILCS 140/7( 1)( b) ( West 2018), as amended by Public Act 101- 455, effective August 23, 2019). On January 27, 2020, Mr. Brendan J. Healey, counsel for the Chicago Tribune, submitted a Request for Review disputing the redactions of (1) names of owners, principal officers, and board members ofcannabis cultivation centers, (2) facility addresses, and (3) dates ofbirth ofprincipal officers and board members ofcannabis cultivation centers.' On January 31, 2020, the Public Access Bureau forwarded a copy of the Request for Review to the Department, along with a letter asking it to provide this office with unredacted copies ofthe applications furnished to Mr. McCoppin and a detailed explanation ofthe factual and legal bases for the applicability ofthe section 7( 1)( b) exemption to each category of E-mail from RobertMcCoppin, Chicago Tribune, to [Pam] Harmon (December 6, 2019). Section 20- 10(b)( 7) ofthe Cannabis Regulation and Tax Act (added by Public Act 101- 027, effective June 25, 2019; amended by Public Act 101- 593, effective December 4, 2019, to be codified at410 ILCS 705/20- 10(6)(7)) requires a medical cannabis cultivation center seeking the issuance ofan Early Approval Adult Use Cultivation Center License to submit an application that includes \"[ t]he name, address, social security number, and dateofbirth ofeach principal officer andboard member ofthe cultivation center[.]\" E-mail from Robert McCoppin, Chicago Tribune, to [Pam] Harmon (December6, 2019). 4E -mail from Pam Harmon, FOIA Officer, Illinois Department ofAgriculture, to [Robert] McCoppin ( December 26, 2019). 5Letter from Brendan J. Healey, Baron Harris Healey, to Sarah Pratt, Public Access Counselor, Public Access Bureau, Office ofthe Attorney General (January 27, 2020), at 1. Mr. Brendan J. Healey Mr. John Teefey May 8, 2020 Page 3 information that was redacted, with the exception of social security numbers. 6 On February 6, 2020, the Department requested a 30 -day extension to respond. The request stated that the Department had \" recently posted information on its website that includes the names and addresses of all currently licensed 'early approval adult use cultivation centers[,]\"' which it believed to be partially responsive to McCoppin' s request, and that it was \" anticipating legislation that may address its ability to disclose the additional requested information, which is currently confidential.\"' The Department cited section 145(a) ofthe Compassionate Use of Medical Cannabis Program Act (Medical Use Act) (added by Public Act 101- 363, effective August 9, 2019, to be codified at 410 ILCS 130/ 145( a)) as its basis for redacting information from the requested applications.8 In atelephone conversation with an Assistant General Counsel for the Department, an Assistant Attorney General (AAG) in the Public Access Bureau stated that this office could not grant a 30 -day extension for the Department to submit its response to the Request for Review; the Assistant General Counsel stated that the Department would respond by February 13, 2020.9 On February 13, 2020, the AAG spoke with the Department' s General Counsel, who requested that the Department be allowed to respond by February 21, 2020; the AAG did not object: 9 On February 21, 2020, the Department provided this office with a written response, but did not furnish unredacted copies ofthe applications as requested by this office in its January 31, 2020, letter ofinquiry. t I In addition to the Department's argument that it had withheld personal financial information, signatures, home addresses, and social security numbers pursuant to section 7(1)( b) ofFOIA, the response asserted for the first time that: ( 1) dates of birth are exempt from disclosure pursuant to section 7( 1)( c) of FOIA (5 ILCS 140/7( 1)( c) ( West Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office ofthe Attorney General, to Pam Harmon, FOIA Officer, Illinois Department of Agriculture ( January 31, 2020). E-mail from John Teefey, General Counsel, Illinois Department ofAgriculture, to Steven Silverman ( February 6, 2020). EE -mail from John Teefey, General Counsel, Illinois Department ofAgriculture, to Steven Silverman ( February 6, 2020). Telephone conversation between Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, and Albert Coll, Assistant General Counsel, Illinois Department ofAgriculture (February 7, 2020). 10Telephone conversation between Steve Silverman, Bureau Chief, Public Access Bureau, Office ofthe Attorney General, and John Teefey, General Counsel, Illinois Department ofAgriculture (February 13, 2020). Letter from John Teefey, General Counsel, Illinois Department ofAgriculture, to Steve Silverman, Esq., Bureau Chief, Public Access Bureau, Illinois Attorney General,• Kwame Raoul ( February 21, 2020). Mr. Brendan J. Healey Mr. John Teefey May 8, 2020 Page 4 2018), as amended by Public Act 101- 455, effective August 23, 2019); 12 and (2) names of cultivation centers' principal officers and board members and street addresses ofcultivation centers are exempt from disclosure pursuant to section 7(1)( a) of FOIA (5 ILCS 140/7( 1)( a) West 2018), as amended by Public Act 101- 455, effective August 23, 2019). The response further stated, \"[ i] n light ofthe lack ofclarity in the law, the Department requests that the Public Access Bureau issue a binding opinion so that the Departmeht can conform its actions to an authoritative interpretation. i13 On February 24, 2020, this office forwarded a copy of the Department's response to Mr. Healey;14 he submitted a reply on March 5, 2020.18 On March 27, 2020, this office extended the time within which to issue a binding opinion by 30 business days, to May 8, 2020, pursuant to section 9.5( f) of FOIA. 16 With respect to the records requested by this office for confidential review, on [...] imely filed and otherwise complies with the requirements ofsection 9.5( a) ofFOIA. 5 ILCS 140/ 9.5( a) ( west 2018)). 4) On January 31, 2020, the Public Access Bureau forwarded a copy ofthe Request for Review to the Department, along with a letter asking it to provide unredacted copies ofthe applications furnished to Mr. McCoppin and a detailed explanation of the factual and legal Mr. Brendan J. Healey Mr. John Teefey May 8, 2020 Page 13 bases for the applicability ofsection 7( 1)( b) to each category ofinformation that was redacted, with the exception ofsocial security numbers. 5) On February 21, 2020, the Department provided this office with a written response, but did not furnish unredacted copies ofthe applications that this office requested in its January 31, 2020, letter ofinquiry. The response asserted that: ( 1) names of cultivation centers' principal officers and board members and street addresses ofcultivation centers are exemptfrom disclosure pursuant to section 7( 1)( a) ofFOIA; (2) personal financial information, signatures, home addresses, and social security numbers are exempt from disclosure pursuant to section 7( 1)( b); and ( 3) dates ofbirth are exempt from disclosure pursuant to section 7(1)( c) of FOIA. Despite multiple subsequent requests for unredacted copies ofthe applications over the ensuing 8 weeks, the Department did not provide the requested records to this office, citing an inability to access the records because ofoperational limitations. 6) On February 24, 2020, this office forwarded a copy ofthe Department' s response to Mr. Healey; he submitted areply on March 5, 2020. 7) On March 27, 2020, this office extended thetime within which to issue a binding opinion by 30 business days, to May 8, 2020, pursuant to section 9.5( 0 of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 8) On April 17, 2020, the Department' s General Counsel asserted that the addresses redacted from the applications were business addresses rather than residential addresses, and that they were not redacted as \" private\" information under section 7( 1)( b) of FOIA, but instead were redacted based on confidentiality provisions in the Compassionate Use ofMedical Cannabis Act. 9) Section 7( 1)( a) ofFOIA exempts from inspection and copying \"[ i] nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" 10) Sections 145( a) and 145( a)( 2) ofthe Compassionate Use ofMedical Cannabis Act prohibit the Department from disclosing information received and records kept by the Department for purposes ofadministering that Act, including applications by or on behalfof cannabis cultivations centers. The Department asserted that this provision also prohibits it from disclosing applications submitted under the Cannabis Regulation and Tax Act because section 20- 10(b)(3) ofthat Act provides that ifa medical cannabis cultivation center licensee seeks early approval ofan adult use cultivation center license, the adult use cultivation center license application must be submitted by the same person who holds the medical cannabis cultivation center' s registration. Mr. Brendan J. Healey Mr. John Teefey May 8, 2020 Page 14 11) The Cannabis Regulation and Tax Act does not prohibit disclosure of applications submitted by applicants for adult use cultivation center licenses. To the contrary, 55-30(a) ofthe Cannabis Regulation and Tax Act provides that information furnished by businesses and licensees \" is subject to the provisions and limitations contained in the Freedom of Information Act [.]\" Section 55- 30( 0 ofthe Cannabis Regulation and Tax Act further requires that the Department publish and update information identifying the name of the persons or entities that hold licenses under the Cannabis Regulation and Tax Act, as well as the addresses where the entities operate. 12) Under its plain language, the confidentiality provisions ofsection 145( a) and 145( a)( 2) ofthe Compassionate Use of Medical Cannabis Act are inapplicable to applications submitted for adult use cultivation center licenses because the Department did not receive those applications for the purpose ofadministering the Compassionate Use ofMedical Cannabis Act. Ifthe General Assembly intended to prohibit disclosure ofapplications for adult use cultivation center licenses submitted under the Cannabis Regulation and Tax Act, itcould have done so expressly. It did not. Accordingly, the Department did not sustain its burden ofdemonstrating that the information redacted from the applications is exempt from disclosure pursuant to section 7( 1)( a) of FOIA. 13) Section 7( 1)( c) exempts from inspection and copying \"[ piersonal information contained within public records, the disclosure ofwhich would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects ofthe information.\" The exemption defines \"unwarranted invasion ofpersonal privacy\" as \" the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information.\" 14) Dates ofbirth are highly personal information. No legitimate public interest in disclosure of dates ofbirth ofprincipal officers and board members ofadult use cultivation centers outweighs those individuals' privacy rights. Thus; the-_Dcpartment did not improperly redact dates ofbirth from the applications pursuant to section7( 1)( c). Therefore, it is the opinion ofthe Attorney General that the Department has violated section 3( d) ofFOIA by redacting names and addresses from the applications for adult use cultivation center licenses requested by Mr. McCoppin. Accordingly, the Department is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. McCoppin with copies ofthe applications that contain the information that was improperly redacted. CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy ofthe foregoing Binding Opinion ( Public Access Opinion 20-003) upon: Mr. Brendan J. Healey Baron Harris Healey 225 West Washington Street, Suite 2200 Chicago, Illinois 60606 bhealey@bhhlawfirm.com Mr. John Teefey General Counsel Illinois Department ofAgriculture 425 East State Street Rockford, Illinois 61104 John.Teefeyna illinois.gov by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed atrue copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on May 8, 2020. STEVE SILVERMAN Bureau Chief STEVE SILVERMAN Bureau Chief Public Access Bureau Office ofthe Attorney General 100 West Randolph Street, 1 lth Floor Chicago, Illinois 60601 312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested applications for cannabis cultivation center licenses from the Illinois Department of Agriculture. The Department redacted significant portions of these applications, claiming they were private. The Attorney General ruled that the Department's redactions were improper and ordered them to release the requested information.","card_headline":"Applications for cannabis cultivation center licenses","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":131,"orig_master_id":19333,"dup_master_id":19105,"dup_sha256":"5fda1de1a4fa1194bb8355617fcf7fecc03bd4ce339130c6767515720620be80","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2020,"date_issued":"2020-07-27","case_number":"2020 PAC 62579","request_numbers":null,"title":"Records Directly Related to Providing Medical Care to Inmates in Possession ofThird Party Contracted to Provide Medical Care to Inmates are Public Records of Illinois Department of Corrections","filename":"PUBLIC ACCESS OPINION 20-006 (Request for Review - 2020 PAC 62579).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 20-006 (Request for Review - 2020 PAC 62579).pdf","word_count":2398,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request made by Mr. Roshan Abraham for records related to head injuries of inmates in the custody of the Illinois Department of Corrections.","plain_summary":"The requester sought aggregate data on inmate head injuries and related medical-evaluation policies from a state prison agency, which said it did not possess the records and that its outside healthcare contractor had refused to provide its policies, claiming they were confidential trade secrets. The Public Access Counselor held that records held by a contractor performing a governmental function on the agency's behalf are public records of the agency, and that the agency failed to prove the contractor's policies actually qualified as trade secrets or that disclosure would cause competitive harm. The agency was directed to obtain the data and policies from its contractor and provide them to the requester.","holding":"The Illinois Department of Corrections violated FOIA by improperly denying the FOIA request.","legal_question":"Did the Illinois Department of Corrections violate FOIA by denying the request for records related to inmate head injuries?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(g), 5 ILCS 140, 5 ILCS 140/7(1), 735 ILCS 5, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(g)","public_body":"Illinois Department of Corrections","requesting_party":"Abraham and Mr. Diers","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"public records","subject_description":"The request sought aggregate data on inmate head injuries and policies regarding injury evaluation within correctional facilities.","ocr_status":"ok","ocr_quality":89.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2020-Binding-PAC-Opinions/20-006.pdf","sha256":"dc1819fdb864134e9bdb4d53fd6d20ed15f6bd4b789aa4d8a4ceb09b8511459c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["inmate records","third-party contractor","medical records","public records definition"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL July 27, 2020 PUBLIC ACCESS OPINION 20- 006 Request for Review 2020 PAC 62579) FREEDOM OF INFORMATION ACT: Records Directly Related to Providing Medical Care to Inmates in Possession ofThird Party Contracted to Provide Medical Care to Inmates are Public Records of Illinois Department of Corrections Mr. Roshan Abraham 121 Oakwood Drive Syosset, New York 11791 Mr. Joel M. Diers Freedom ofInformation Office Illinois Department of Corrections 1301 Concordia Court, P.O. Box 19277 Springfield, Illinois 62794- 9277 Dear Mr. Abraham and Mr. Diers: This binding opinion is issued pursuant to section 9.5( 0 ofthe Freedom of Information Act (FOIA) ( 5 ILCS 140/9.5(0 (West 2018)). For the reasons discussed below, this office concludes that the Illinois Department of Corrections ( IDOC) violated the requirements of FOIA by improperly denying Mr. Roshan Abraham's FOIA request for copies ofcertain aggregate data on head injuries incurred by inmates in IDOC custody during an indicated period oftime and policies for evaluating certain injuries ofIDOC inmates and IDOC employees incurred within the correctional facilities. 500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTYY:: (877) 844-5461 • Fax: ( 217) 782-7046 100 \\ vest Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • 1TY: (800) 964-3013 • Fax: (312) 814-3806 • 601 South University Avc.,'Carbondalc, IL 62901 • ( 618) 529-6400 • \" 1'\" 1'Y: (877) 675-9339 • Fax (618) 529-6416 • Mr. Roshan Abraham Mr. Joel M. Diers July 27, 2020 Page 2 BACKGROUND On March 15, 2020, Mr. Abraham submitted a FOIA request to IDOC seeking: access to and a copy ofaggregate data on head injuries incurred since 2015 by inmates while in Illinois Department Corrections custody, including time and place ofinjury, type or severity of injury and cause ofinjury. We are also requesting records reflecting the Department's policies, since 2015, regarding evaluating concussions or traumatic brain injury for inmates and correctional officers or other employees whenthese injuries happen within correctional facilities.' On March 23, 2020, IDOC responded that it did \"not maintain or possess aggregate data\" or \"the requested policies.\" 2 With respect to whether its healthcare vendor, Wexford Health Sources, Inc. ( Wexford), may have responsive records IDOC stated: w]hen requesting such policies from [ Wexford], IDOC has been told the requested policies and procedures, to the extent they exist and/or are otherwise reasonably described by the requestor, are consistent with Judge Schmidt's November 14, 2017 ruling granting Wexford's motion for summaryjudgment in Serio v. IDOC, 2015 -MR -683,[31 confidential and proprietary business documents .exempt from disclosure pursuant to the Freedom of Information Act's trade secret exemption, 5 ILCS 140/7(g) [ sic]. 141 IDOC further asserted that \"[ a]s Judge Schmidt observed, Wexford Health Sources deems and consistently designates such policies and procedures confidential and proprietary information not Public Records Request from Roshan Abraham to Lisa Weitekamp, Illinois Department of Corrections ( March 15, 2020). 2Letter from Lisa Weitekamp, Freedom ofInformation Officer, Illinois Department ofCorrections, to Roshan Abraham ( March 23, 2020). 3Serio v. IllinoisDepartment ofCorrections, DocketNo. 2015 -MR -000683 (Circuit Court, Sangamon County) was an unrelated lawsuit granting Intervenor -Wexford summary judgment on a claim that documents requested from IDOC under FOIA were exempt as trade secrets under section 7(g) ofFOIA Letter from Lisa Weitekamp, Freedom ofInformation Officer, Illinois Department ofCorrections, to Roshan Abraham ( March 23, 2020), at 1. Mr. Roshan Abraham Mr. Joel M. Diers July 27, 2020 Page 3 subject to FOIA, as is permitted under the contract with IDOC/[ Illinois Department of Healthcare and Family Services]/[ Wexford]. i5' 6 IDOC' s response did not address whether Wexford might possess records containing data concerning head injuries. In an e-mail transmitted on Sunday, April 12, 2020, Mr. Abraham submitted a Request for Review contesting the denial of the records responsive to his FOIA request. He argued that the responsive records in the possession of Wexford are public records subject to disclosure by IDOC pursuant to section 7(2) of FOIA (5 ILCS 140/ 7(2) ( West 2018), as amended by Public Acts 101- 434, effective January 1, 2020; 101- 452, effective January 1, 2020; 101- 455, effective August 23, 2019).8 He also argued that IDOC had not met its burden ofdemonstrating competitive harm under the section 7( 1)( g) exemption ( 5 ILCS 140/7(1)( g) ( West 2018), as amended by Public Acts 101- 434, effective January 1, 2020; 101- 452, effective January 1, 2020; 101- 455, effective August 23, 2019), citing City ofChicago v. Janssen Pharmaceuticals, Inc., 2017 IL App ( 1st) 150870, 78 N.E.3d 446 (2017).9 Further, Mr. Abraham argued that in Rushton v. Department of Corrections, 2019 IL 124552, _ N.E.3d _ ( 2019), the Illinois Supreme Court affirmed that records held in Wexford's possession relating to the medical care of inmates are public documents subject to production under FOIA.i10 On April 15, 2020, the Public. Access Bureau sent a copy ofthe Request for Review to IDOC. The Public Access Bureau also sent IDOC a letter requesting unredacted copies ofall ofthe responsive records \"whether they are in IDOC's direct possessionor must be obtained from Wexford\" for this office' s confidential review and \" a detailed written explanation of the legal and factual bases for IDOC' s response to the request.\" The letter also asked IDOC to describe any communications with Wexford about these particular records and to specify how each element of section 7( 1)( g) applies.\"\" 5Letter from Lisa Weitekamp, Freedom ofInformation Officer, Illinois Department ofCorrections, to Roshan Abraham (March 23, 2020). 6IDOC later confirmed that it did not have a copy ofthe referenced order. E-mail from Joel M. Diers to Joshua Jones ( May 6, 2020). 7E -mail from Roshan Abraham to Sarah Pratt (April 12, 2020). E-mail from Roshan Abraham to Sarah Pratt (April 12, 2020). 9E -mail from Roshan Abraham to Sarah Pratt (April 12, 2020). 16E -mail from Roshan Abraham to Sarah Pratt (April 12, 2020). Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General, to Lisa Weitekamp, Freedom ofInformation Officer, Illinois Department ofCorrections ( April 15, 2020), at2. Mr. Roshan Abraham Mr. Joel M. Diers July 27, 2020 Page 4 On April 21, 2020, IDOC provided a written answer but did not provide copies of records for this office to review:12 On that same date, this office forwarded a copy ofIDOC's answer to Mr. Abraham and notified him of his opportunity to reply. 13 On April 30, 2020, Mr. Abraham submitted. a reply. 14 On June 8, 2020, this office asked IDOC whether it had sought records from Wexford in response to the particular FOIA request at issue in this matter or had relied on Wexford's past refusals to provide records to IDOC in denying Mr. Abraham's FOIA request.15 Later that same day, IDOC replied that it \"relied upon previous rejections from Wexford to provide [ IDOC] with policies\" when responding in this matter. 16 On June 10, 2020, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days, to July 27, 2020, pursuant to section 9.5( f) of FOIA.'? ANALYSIS Section 1 of FOIA ( 5 ILCS 140/ 1 ( West 2018)) declares that it is \" the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs ofgovernment and the official acts and policies ofthose who represent them as public officials and public employees consistent with the terms of this Act.\" Under FOIA, a]ll records in the custody or possession ofa public body are presumed to be open to inspection or [...] l indicating that disclosure ofthe records would cause competitive harm. IDOC's reference to the circuit court order in Serio, which IDOC admitted that it had not reviewed, is plainly insufficient to demonstrate that the records Mr. Abraham 26Letter from Joel M, Diers, Freedom ofInformation Office, Illinois Department ofCorrections, to Josh Jones, Office ofthe Illinois Attorney General ( April 21, 2020), at [2]. Mr. Roshan Abraham Mr. Joel M. Diers July 27, 2020 Page 9 requested are exempt from disclosure under section 7( 1)( g). See Delgado v. Board ofElection Commissioners, 224 Ill. 2d 481, 488 ( 2007) (\" Under Illinois law, the decisions of circuit courts have no precedential value[.]\"). Therefore, IDOC did not sustain its burden ofproving by clear and convincing evidence that any responsive records in the physical custody ofWexford are exempt from disclosure pursuant to section 7( 1)( g) ofFOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor' s review, and the applicable law, the Attorney General finds that: 1) On March 15, 2020, Mr. Roshan Abraham submitted a FOIA request to IDOC seeking copies ofaggregate data on head injuries incurred by inmates since 2015 while in IDOC custody, and records reflecting IDOC' s policies since 2015 regarding evaluating inmates and IDOC employees for concussions or traumatic brain injuries that occur within prisons. 2) On March 23, 2020, IDOC responded that it did not possess the requested aggregate data or policies. IDOC stated that when requesting such policies from Wexford, its healthcare vendor, Wexford has responded that the policies were exempt from disclosure under section 7(1)( g) ofFOIA and the circuit court's ruling in Serio v. IDOC. 3) In an e-mail transmitted after business hours on April 12, 2020, and received by the Public Access Bureau on April 13, 2020, Mr. Abraham submitted a Request for Review contesting IDOC's denial ofrecords responsive to his FOIA request in the possession of Wexford. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5( a) of FOIA (5 ILCS 140/9.5( a) ( West 2018)). 4) On April 15, 2020, the Public Access Bureau forwarded a copy ofMr. Abraham' s Request for Review to IDOC and asked it to provide unredacted copies ofthe. responsive records, whether in IDOC' s possession or in the possession of Wexford, for this office's confidential review, and a detailed written explanation ofthe legal and factual bases for IDOC's response to the request, describing any communications with Wexford about the requested records and specifying how each element of section 7(1)( g) applies. 5) On April 21, 2020, this office received a written answer from IDOC but did not receive copies ofthe requested records. 6) On that same date, the Public Access Bureau forwarded to Mr. Abraham a copy of IDOC's answer and notified him of his opportunity to reply. On April 30, 2020, Mr. Abraham submitted a reply to IDOC' s answer. Mr. Roshan Abraham Mr. Joel M. Diers July 27, 2020 Page 10 7) On June 10, 2020, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to July 27, 2020, pursuant to section 9.5( f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 7(2) of FOIA provides that \"[ a] public record that is not in the possession ofapublic body but is in the possession ofa party with whom the agency has contracted to perform a governmental function on behalf ofthe public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record ofthe public body, for purposes of this Act.\" IDOC has contracted with Wexford to perform the governmental function ofproviding medical care to inmates on its behalf. Because the data and policies Mr. Abraham requested directly relate to that governmental function, any such records in the possession of Wexford are public records of IDOC for purposes of FOIA. 9) Section 7( 1)( g) of FOIA exempts from inspection and copying \"[ tirade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business, and only insofar as the claim directly applies to the records requested.\" IDOC demonstrated neither that the requested records qualify as trade secrets, or commercial or financial information, within the scope ofsection 7( 1)( g), nor that disclosure would cause competitive harm. Accordingly, IDOC did not prove by clear and convincing evidence that the responsive records are exempt from disclosure under section 7( 1)( g).. Therefore, it is the opinion ofthe Attorney General that IDOC violated the requirements ofFOIA by denying records responsive to Mr. Abraham's Freedom ofInformation Act request which are in the possession of Wexford. Accordingly, IDOC is hereby directed to take immediate and appropriate action to comply with this opinion by obtaining from Wexford and providing to Mr. Abraham copies ofany data and policies responsive to his March 15, 2020, FOIA request. This opinion shall be considered a final decision ofan administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/ 3- 101 et seq. ( West 2018). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within Mr. Roshan Abraham Mr. Joel M. Diers July 27, 2020 Page 11 35 days ofthe date ofthis decision naming the Attorney General ofIllinois and Mr. Roshan Abraham as defendants. See 5 ILCS 140/11. 5 ( West 2018). Very truly yours, KWAME RAOUL ATTORNEY GENERAL By: Brent D. Stratton ChiefDeputy Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion ( Public Access Opinion 20-006) upon: Mr. Roshan Abraham 121 Oakwood Drive Syosset, New York 11791 roshan. abraham@gmail. com Mr. Joel M. Diers Freedom of Information Office Illinois Department of Corrections 131 Concordia Court, P.O. Box 19277 Springfield, Illinois 62794- 9277 Joel. Diers@illinois. gov by causing a true copy thereofto be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereofin correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on July 27, 2020. SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office ofthe Attorney General 500 South Second Street Springfield, Illinois 62701 217) 557- 0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Roshan Abraham requested data on inmate head injuries from the Illinois Department of Corrections (IDOC). IDOC denied the request, arguing that the records were held by a private company they hired to provide medical care, not by the state itself. The Attorney General ruled that records created or maintained by a contractor for a public body are considered public records, and IDOC must provide them.","card_headline":"Aggregate inmate head injury data and evaluation policies","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":132,"orig_master_id":19106,"dup_master_id":19334,"dup_sha256":"3a8b303e56a42939b65226f3005828863e1475d02f8e08d02d0f9533f5914376","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2020,"date_issued":"2020-11-24","case_number":"2020 PAC 64741","request_numbers":null,"title":"Requirement for the Public to Contemporaneously Hear All Discussion, Testimony, and Roll Call Votes in a Meeting Held Remotely Pursuant to a Public Health Emergency","filename":"PUBLIC ACCESS OPINION 20-007 (Request for Review - 2020 PAC 64741).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 20-007 (Request for Review - 2020 PAC 64741).pdf","word_count":2431,"summary":"The Board of Trustees (Board) of the Village of Roanoke (Village) violated OMA during its remotely held September 8, 2020, meeting by muting a discussion of public business . The Honorable Michael Smith will be referred to as Mayor and Board President for purposes of this binding opinion .","plain_summary":"The requester alleged that a village board of trustees muted part of the open-session discussion during a remotely held meeting without ever announcing it was entering closed session. The Public Access Counselor held that because members of the public could not hear the muted discussion between village officials, the board violated the Open Meetings Act's requirement that a remote meeting allow the public to contemporaneously hear all discussion. The board was directed to make the complete verbatim recording of the open-session portion of the meeting publicly available.","holding":"The Village of Roanoke Board of Trustees violated the Open Meetings Act by muting a discussion of public business during a remote meeting, which prevented the public from hearing the proceedings.","legal_question":"Whether a public body violates the Open Meetings Act by muting the microphones of participants during a remote meeting, thereby preventing the public from contemporaneously hearing the discussion of public business.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2(a), 5 ILCS 120/7(e), 5 ILCS 120/1, 20 ILCS 3305/7, 5 ILCS 120/7, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Roanoke","requesting_party":"Shirey and Mr. Smith","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"remote meeting","subject_description":"The muting of public discussion during a remote board meeting conducted via Zoom.","ocr_status":"ok","ocr_quality":90.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2020-Binding-PAC-Opinions/20-007.pdf","sha256":"2c4422ac7406566ee38f36c4f514c3cd205dd688f5bc4957091f4ae0bb35c611","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["remote meeting","Zoom meeting","public participation","transparency","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"sAsSTs V seH e nt a enEnOP Es OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL Novembe24r,. 2020 PUBLIC ACCESS OPINION 20-007 (Request for Review 2020 PAC 64741) OPEN MEETINGS ACT: Requirement for the Public to Contemporaneously Hear All Discussion, Testimony, and Roll Call Votes in a Meeting Held Remotely Pursuant to a Public Health Emergency Mr. Brian Shirey 406 North Jefferson Street Roanoke, Illinois 61561 The Honorable Michael Smith Mayor and Board President Village.of Roanoke | 101 North Main Street . ; Roanoke, Illinois 61561 | | | i _ Dear Mr. Shirey and Mr. Smith: | This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2018)). For the reasons discussed below, this office concludes that the Board of Trustees (Board) of the Village of Roanoke (Village) violated OMA during its remotely held September 8, 2020, meeting by muting a discussion of public business. 500 South Second Street, Springfield, Mlinois 62701 « (217) 782-1090 © ‘I”I'Y: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © ‘ITY: (800) 964-3013 © Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © I” I'Y: (877) 675-9339 © Fax (618) 529-6416 +@eaast— Mr. Brian Shirey The Honorable Michael Smith November 24, 2020 Page 2 BACKGROUND On September 10, 2020, Mr. Brian Shirey submitted a Request for Review to the Public Access Bureau via e-mail alleging that the Board muted a discussion during its September 8, 2020, meeting, which was conducted electronically using the Zoom video conferencing platform.’ Mr. Shirey asserted that at the meeting, Board \"President Mike Smith? asked Trustee Jeremy Hilton to 'mute all mikes' of the ZOOM meeting.”*? He stated that this request occurred \"during a discussion with the Roanoke Village Ambulance Chief, Renee Arnold.\"* Mr. Shirey contended that the Board did not announce that it was entering closed session or provide an explanation for muting the audio component of the meeting. Mr. Shirey further asserted that \"the Village is still NOT allowing public presence at board meetings.\"*> (Emphasis in original.) He stated that Board President Smith had cited \"the displacement of the village office because of flooding and th[eiJr inability to accommodate additional public access\" as the reasons for not permitting public presence.® On September 16, 2020, the Public Access Bureau forwarded a copy of the Request for Review to the Mayor, together with a letter asking the Board to respond in writing to the allegations raised in the Request for Review.’ The Public Access Bureau noted in its letter that this office had construed Mr. Shirey's claims as alleging violations of sections 2(a) and 'E-mail from Brian Shirey to Public Access [Bureau, Office of the Attorney General] (September 10,2020). *Correspondence submitted by legal counsel for the Village refers to Mr. Smith's Village office as Mayor. Mr. Shirey's Request for Review refers to Mr. Smith as the Village President. Copies of Village Board minutes submitted for this office's review refer to Mr. Smith as the Mayor. A review of the village's website indicates that Mr. Smithi s referred to as Mayor and Board President (http://roanokeil. org/villageboard/). To avoid any confusion, for purposes of this binding opinion, Mr. Smith will be referred tto as the Mayor, except in language quoted from Mr. Shirey's Request for Review. 3E-mail from Brian Shirey to Public Access [Bureau, Office of the Attorney General] (September 10, 2020). 4E-mail from Brian Shirey to Public Access [Bureau, Office of the Attorney General] (September 10, 2020). . 5E-mail from Brian Shirey to Public Access [Bureau, Office of the Attorney General] (September 10, 2020). i SE-mail from Brian Shirey to Public Access (Bureau, Office of the Attorney General] (September 10, 2020). \"Letter from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Michael Smith, Board President, Village of Roanoke Board of Trustees (September 16, 2020). Mr. Brian Shirey The Honorable Michael Smith November 24, 2020 Page 3 7(e)(4) of OMA (5 ILCS 120/2(a) (West 2018), as amended by Public Acts 101-031, effective June 28, 2019; 101-459, effective August 23, 2019; 5 ILCS 120/7(e)(4) (West 2018), as amended by Public Act 101-640, effective June 12, 2020). The Public Access Bureau asked the Board to include a description of the manner in which the public was allowed to connect to this meeting and to provide a copy of the notice explaining how the public could access the meeting remotely.” Additionally, the Public Access Bureau asked the Board to provide copies of the agenda, minutes, and verbatim recording of the September 8, 2020, meeting!°. On September 24, 2020, legal counsel for the Village e-mailed a written response on behalf of the Board,'! along with a copy of the September 8, 2020, meeting agenda, and draft minutes of the open session portion of that meeting. The Board also submitted a copy of the verbatim record of the open session portion of the Board's September 8, 2020, meeting, as well as a written transcript of the muted discussion.!2 On September 25, 2020, this office forwarded a copy of the Village's written response to Mr. Shirey;!? he did not reply. On November 5, 2020, the Public Access Bureau properly extended the time within which to issue a binding opinion by 21 business days, to December 10, 2020, pursuant to section 3.5(e) of OMA.'4 8Letter from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Michael Smith, Board President, Village of Roanoke Board of Trustees (September 16, 2020). t *Letter from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Michael Smith, Board President, Village of Roanoke Board of Trustees (September 16, 2020). ] ‘Letter from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Michael Smith, Board President, Village of Roanoke Board of Trustees (September 16, 2020). \"Letter from Scott A. Brunton, Miller, Hall & Triggs, LLC, to Teresa Lim, Assistant Attorney General, Office of the Illinois Attorney General, Public Access Bureau (September 24, 2020). | !2On or about September 29, 2020, the Public Access Bureau received a copy of the verbatim record of the open session portion of the Board's September 8, 2020, meeting and a written transcript of the muted discussion. 3Letter from Teresa Lim, Assistant Attorney General, Public, Access Bureau, Office of the Attorney General, to Brian Shirey (September 25, 2020). '41_etter from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Brian Shirey and the Honorable Michael Smith, Board President, Village of Roanoke Board of Trustees (November 5, 2020). Mr. Brian Shirey The Honorable Michael Smith November 24, 2020 Page 4 ANALYSIS OMaAi s intended \"to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly.” 5 ILCS 120/1 (West 2018). Section 2(a) of OMA (5, ILCS 120/2(a) (West 2018), as amended by Public Acts 101-031, effective June 28, 2019; 101- 459, effective August 23, 2019) provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" On March 9, 2020, pursuant to his authority undet section 7 of the IIlinois Emergency Management Agency Act (20 ILCS 3305/7 (West 2018)), the Governor of Illinois \"declare[d] all counties in the State of Illinois as a disaster area[ ]\" in response to the outbreak of COVID-19.'> The Disaster Proclamation became effective immediately on March 9, 2020, to \"remain in effect for 30 days.\"'© Because of the continued spread and resurgence of COVID-19 in the State, the Governor has since issued additional Disaster Procl [...] ey General, Public Access Bureau (September 24, 2020), at 3. Mr. Brian Shirey The Honorable Michael Smith _ November 24, 2020 Page 9 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On September 10, 2020, Mr. Brian Shirey submitted a Request for Review alleging that the Village of Roanoke Board of Trustees violated OMA during the open session portion ofi ts September 8, 2020, remotely-held meeting by muting a discussion among Village officials and personnel. He also alleged that the Board violated OMA because it prohibited members of the public from physically attending meetings. Mr. Shirey's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2018)). | | 2) On September 16, 2020, the Public Access Bureau forwarded a copy of the Request for Review to the Village's Mayor and asked the Board to provide copies of the notice, agenda, minutes, and verbatim recording of its September 8, 2020, meeting for this office's confidential review, together with a written answer to Mr. Shirey's allegations. This office also asked the Board to describe the manner in which the public was allowed to connect to the meeting and to provide a copy of the public notice explaining how the public could access the meeting remotely. 3) On September 24, 2020, the Board's counsel provided a written answer and copies of the Board's September 8, 2020, meeting agenda and draft minutes. 4) On September 25, 2020, the Public Access Bureau forwarded a copy of the Board's written answer to Mr. Shirey. He did not reply. | { ) 5) On or about September 29, 2020, the Public Access Bureau received a copy of the verbatim record of the open session portion of the Board's September 8, 2020, meeting and a written transcript of the muted portion of the meeting. | 6) On November 5, 2020, the Public Access Bureau properly extended the time within which to issue a binding opinion by 21 business days, to December 10, 2020, pursuant to section 3.5(e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. | I 7) Section 2(a) of OMA provides that \"[{a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance. with Section 2a.\" 8) Section 7(e) of OMA provides that a meeting ofa public body \"may be conducted by audio or video conference, without the physical presence of a quorum of the Mr. Brian Shirey The Honorable Michael Smith November 24, 2020 Page 10 members[ ]\" provided that ten enumerated conditions are satisfied. Among the conditions are that the \"the Governor or the Director of the Illinois Department of Public Health has issued a disaster declaration related to public health concerns because of a disaster as defined in Section 4 of the Illinois Emergency Management Agency Act[,]\" and \"the head of the public body * * * determines that an in-person meeting or a meeting conducted under this Act is not practical or prudent because of a disaster[.]\" 5 ILCS 120/7(e)(1), 7(e)(2) (West 2018), as amended by Public Act 101-640, effective June 12, 2020). 9) Thee requirements of sections 7(e)(1) and 7(¢)(2) of OMA for holding a remote meeting were satisfied for the meeting at issue. The Governor had issued a Disaster Proclamation on August 21, 2020, in response to the ongoing COVID-19 pandemic. That proclamation was in effect at the time of the Board's September 8, 2020, meeting. The Board's response to this office stated that the Village's mayor had determined that full in-person meetings were not practical or prudent in light of the ongoing pandemic. It is undisputed that the Board livestreamed its September 8, 2020, meeting via the Zoom platform, and that the livestream was accessible to the public. 10) Section 7(e)(4) of OMA provides that if \"attendance at the regular meeting location is not feasible due to the disaster, * * * the public body must make alternative arrangements and provide notice pursuant to this Section of such alternative arrangements in a manner to allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or a web-based link{.]\" | 11) The Board acknowledged that it muted a discussion between the Village Mayor and Village Clerk during the open session portion of the livestreamed meeting. 12) Because members of the public could not hear the muted discussion, the Board violated section 7(e)(4)'s requirement that it provide the public with access to the meeting in a manner that allows the public to contemporaneously hear all discussion. Therefore, it is the opinion of the Attorney General that the Board of Trustees of the Village of Roanoke violated section 7(e)(4) of the Open Meetings Act. In accordance with these findings of fact and conclusions of law, the Board is directed to remedy this violation by making publicly available the complete verbatim record of the open session portion of the September 8, 2020, meeting. As required by section 3.5(e) of OMA, the Board shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA (5 ILCS 120/7.5 (West 2018)). This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 Mr. Brian Shirey _ The Honorable Michael Smith November 24, 2020 Page 11 et seq. (West 2018). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Brian Shirey as defendants. See 5 ILCS 120/7.5 (West 2018). Sincerely, KWAME RAOUL ATTORNEY GENERAL By: hurt 9°) Hath Brent D. Stratton Chief Deputy Attorney General CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 20-007) upon: Mr. Brian Shirey 406 North Jefferson Street Roanoke, Illinois 61561 shireykat@yahoo.com The Honorable Michael Smith Mayor and Board President Village of Roanoke 101 North Main Street Roanoke, Illinois 61561 roanoke@mchsi.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on November 24, 2020. SARAH L. PRATT— Public Access Counselor | SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"During a remote Zoom meeting, the Village of Roanoke Board of Trustees muted the microphones of participants, making it impossible for the public to hear the discussion. The Attorney General's office ruled that this violated the Open Meetings Act, which requires that all public business discussed during a meeting—even a remote one—must be audible to the public. This ensures government transparency and accountability by preventing officials from conducting private discussions during a public meeting.","card_headline":"Muting a public discussion during a remote board meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":133,"orig_master_id":19107,"dup_master_id":19335,"dup_sha256":"85a9814759b18aa0b4ac89015f63bb039a609d1d39863fe8b2405ebb5b3873b7","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2020,"date_issued":"2020-12-21","case_number":"2020 PAC 64668","request_numbers":null,"title":"Juvenile Court Act of 1987 Does Not Prohibit Disclosure of Police Records Where a Minor is a Victim","filename":"PUBLIC ACCESS OPINION 20-008 PDF document (Request for Review 2020 PAC 64668).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 20-008 PDF document (Request for Review 2020 PAC 64668).pdf","word_count":2413,"summary":"This document is a binding public access opinion regarding a Freedom of Information Act request made by Mr. Adam Horowitz for police records involving a minor victim. The opinion concludes that the Ogle County Sheriff's Office improperly withheld the requested records.","plain_summary":"The requester, an attorney representing the father of a minor sexual-assault victim, sought a police report about the assault, which a sheriff's office withheld in full under the Juvenile Court Act because a minor was named in the report. The Public Access Counselor held that the Act's confidentiality provisions protect records concerning minors suspected of offenses, not minor victims, and that because the alleged suspect was an adult, the Act did not authorize withholding the report. The sheriff's office was directed to disclose the requested police reports.","holding":"The Ogle County Sheriff's Office violated FOIA by improperly withholding records.","legal_question":"Does the Juvenile Court Act of 1987 prohibit the disclosure of police records where a minor is a victim?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(1), 705 ILCS 405/1, 5 ILCS 140/3(a), 5 ILCS 140/7, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(a)","public_body":"Ogle County Sheriff's Office","requesting_party":"Horowitz and Ms. Becker","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought a 2013 police report concerning an alleged sexual assault of a minor.","ocr_status":"ok","ocr_quality":89.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2020-Binding-PAC-Opinions/20-008.pdf","sha256":"4ad9730b9e7116b0248fc21544e03b9d8cf985c6a4457ac080004328dba764a4","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","minor victim","Juvenile Court Act","FOIA request"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL i December 21, 2020 PUBLIC ACCESS OPINION 20-008 | (Request for Review 2020 PAC 64668): FREEDOM OF INFORMATION ACT: | Juvenile Court Act of 1987 Does Not Prohibit Disclosure of Police Records Where a Minor is a Victim Mr. Adam Horowitz Horowitz Law . OS 110 East Broward Boulevard, Suite 1850_ Fort Lauderdale, Florida 33301 Ms. Mindy. Becker ok Administrative Secretary ] Ogle County Sheriff's Office 202 South Ist Street _ Oregon, Illinois 61061 Dear Mr. Horowitz and Ms. Becker: 1 | This isa binding opinion issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons discussed below, this office concludes that the Ogle County Sheriff's Office's (Sheriff's Office) violated the requirements of FOIA by improperly withholding records responsive to Mr. Adam Horowitz's FOIA request. j t } i] t 500 South Second Street, Springfield, Hlinois 62701: (217) 782-1090 © I’1'Y: (877) 844-5461 ¢ Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 © TTY: (800) 964-3013 © Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 ¢ (618) 529-6400 © ‘T’I'Y: (877) 675-9339 © Fax (618) 529-6416 *@aaat>= | Mr. Adam Horowitz | Ms. Mindy Becker | December 21, 2020 Page 2 BACKGROUND On or about September 1, 2020, Mr. Horowitz, on behalf of Horowitz Law, submitted a FOIA request to the Sheriff's Office seeking a copy of a police report from July 2013, which involved the alleged sexual assault of a named minor.! Mr. Horowitz's FOIA request indicated that he sought the records on behalf of his client, the father of the minor named in the police report, for a civil matter.?, On September 3, 2020, the Sheriff's Office denied the request in.its entirety pursuant to section.7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (West 2018), as amended by Public Acts 101-434, effective January 1, 2020; 101-452, effective January 1, 2020; 101-455, effective August 23, 2019) stating it was prohibited from \"disclosing juvenile reports. \"3 On September 4, 2020, Mr. Horowitz submitted a Request for Review disputing the denial.‘ This office construed the denial by the Sheriff's Office as asserting that the Juvenile Court Act of 1987 (J CA) (705 ILCS 405/1-1 et seg. (West 2018)) prohibited disclosure of the police report that Mr. Horowitz requested. On September 15, 2020, an Assistant Attorney General (AAG)i n the Public Access Bureau contacted the Sheriff's Office by e-mail and provided a copy of a non- binding determination letter in which this' office concluded that the JCA did not prohibit the disclosure of records concerning crimes committed by adults against minors (Ill. Att'y Gen. PAC Req. Rev. Ltr. 26360, issued March 19, 2015, at 4).> The AAG asked the Sheriff's Office if the determination would change its position on the disclosure of the requested records.® The Sheriff's Office did not respond. On Septembér 17, 2020, the Public Access Bureau forwarded a copy of the Request for Review to the Sheriff's Office and asked it to provide copies of the withheld police | | | 'Ogle County Sheriff's Offii ce's linois Freedom of Information Act Request form completed by Adam D. Horowitz, Esq. (undated). _ _7Ogle County Sheriff's Office's Illinois Freedom of Information Act Request form completed by Adam D. Horowitz, Esq. (uundated). | ‘ 3Letter from Mindy Becker, Administrative Secretary, Ogle County Sheriff's Office, to Adam D. Horowitz, Esq. (September 3, 2020). ‘Letter from Adam D. Horowitz, Horowitz Law, to Public Access Counselor, Office of the Attorney General (September 4, 2020). : E-mail from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Mindy] Becker, [Administrative Secretary, Ogle County Sheriff's Office] (September 15, 2020). E-mail from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the Attorney General to [Mindy] Becker, {Administrative Secretary, Ogle County Sheriff's Office] (September 15, 2020). . \\ | | Mr. Adam Horowitz | Ms. Mindy Becker December 21, 2020. ! Page3 { ; records for this office's confidential review.’ The September 17, 2020, letter also asked the Sheriff's Office to provide a detailed explanation of the factual and legal bases of the applicability of section 7(1)(a) of FOIA to those records.® On October 6, 2020, the Public Access Bureau received the Sheriff's Office's written answer but the submission did not include the withheld police records as requested by this office in its September 17, 2020, letter of inquiry.” Later that day, an AAG contacted the Sheriff's Office by e-mail and requested that the Sheriff's Office furnish the withheld records.'!? On October 7, 2020, this office forwarded a copy of the Sheriff's Office's answer to Mr. Horowitz.!! The Sheriff's Office provided a copy of the responsive police records to the Public Access Bureau on October 13, 2020.!2 The records consist of three related reports under the same incident number. f j During a telephone conversation with an AAG on October 21, 2020, Mr. Horowitz's paralegal indicated Mr. Horowitz would not submit a written reply but stood by his contention that the records are subject to disclosure because he is seeking them on behalf of the father of the minor named in the police report. 13 } i | i { | Letter from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the Attorney General to Mindy Becker, Administrative Secretary, Ogle County Sheriff's Office (September 17, 2020). | 8Letter from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Mindy Becker, Administrative Secretary, Ogle County Sheriff's Office (September 17, 2020). Letter from Mindy Becker, Administrative Secretary, Ogle County Sheriff's Office, to Office of the Attorney General, Shannon Barnaby, [Assistant Attorney General, Public Access Bureau} (September 29, 2020). ' \\ | '°E-mail from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Mindy] Becker (October 6, 2020). ' l i _ |'Letter from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Adam. Horowitz, Horowitz Law (October 7, 2020). ' { , 'B-mail from mbecker@oglecounty.org, [Mindy Becker, Administrative Secretary, Ogle County Sheriff's Office], to sbarnabys@tatea. itl.ugs., [Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (October 13, 2020). ; | '3Telephone conversation between Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, and Amy Dishowitz, Paralegal, Horowitz Law (October 21, 2020). ' } t I \\ t | Mr. Adam Horowitz Ms. Mindy Becker ! December 21, 2020 Page4 ' On November 5, 2020, this office extended the time within which to issue a binding opinion by 30 business days, to December 22, 2020, pursuant to section 9.5(f) of FOIA.'4 I I . ANALYSIS | All public records in the possession or custody of a public body \"are presumed to be open to inspection and copying\" and any public body that denies a public record \"has the burden of proving by clear and convincing evidence\" that the record is exempt from disclosure. 5S ILCS 140/1.2 (West 2018); see also Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2018), as amended by Public Act 101-081, effective July 12, 2019) further provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\". The exemptions from disclosure contained in section 7 of FOIA (5 ILCS 140/7 (West 2018), as amended by Public Acts 101-434, effective January 1, 2020; 101-452, effective January 1, 2020; 101-455, effect [...] police misconduct toward minors but rather, to protect the privacy of minors and allow them to lead responsible | and productive lives unencumbered by public records of their _ criminal conduct. NBC Subsidiary (WMAQ-TV), 2019 IL App | (1st) 181426, {428, 30, 145 N.E.3d at 78-79 (1st Dist. 2019). } As oreviously noted, the definition of juvenile law enforcement recordsi n section 1-3(8.2) of the JCA specifically excludes records identifying a minor who was the victim of an offense. Consequently, the JCA does not prohibit disclosure of police reports concerning a minor whoi s an alleged. victim, unless the suspect or perpetrator is also a juvenile. See NBC Subsidiary (WMAQ-TV), 2019 IL App (Ist) 181426, 931, 145 N.E.3d at 79 (1st Dist. 2019) (deciding the JCA \"governs the confidentiality of law enforcement records that focus on a minor as the subj ect of an investigation, arrest, or custodial detention.\"). Based on this office's confidential review of the reports in question, the minor namedi n the responsive police reports was an alleged victim, not a suspect. Therefore, the confidentiality provisions of the JCA are inapplicable to the police reports requested by Mr. Horowitz. | FINDINGS AND CONCLUSIONS | After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: | 1) On September 1, 2020,'Mr. Horowitz, on behalf of Horowitz Law, submitted a FOIA request to the Sheriff's Office seeking copies of a police report that Mr. Horowitz stated involved the alleged sexual assault of a named minor. Mr. Horowitz represents the father of the minor namedi n the police report. | + | 2) On September 3, 2020, the Sheriff's Office denied the request in its entirety pursuant to section 7(1)(a) of FOIA. 3) On September 4, 2020, Mr. Horowitz submitted a Request for Review to the ! | ! . | Mr. Adam Horowitz Ms. Mindy Becker December 21, 2020 Page 9 . Public Access Counselor contesting the denial by the Sheriff's Office of his request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2018)). 4) On September 17, 2020, the Public Access Bureau forwarded a copy of Mr. Horowitz's Request for Review to the Sheriff's Office and asked it to provide copies of the withheld police reports for this office's confidential review. This office also asked the Sheriff's Office to provide a detailed explanation of the factual and legal bases for the assertion that section 7(1)(a) specifically prohibits the disclosure of those records. 5) On October 6, 2020, the Public Access Bureau received the Sheriff's Office's written answer, which argued that it was prohibited from disclosing the requested reports because they referenced interviews with a juvenile. The Sheriff's Office provided copies of the withheld police reports to the Public Access Bureau on October 13, 2020. \\ \\ | 6) On October 7, 2020, this office forwarded a copy of the Sheriff's Office's answer to Mr. Horowitz; he did not submit a written reply to the response. 7) On November 5, 2020, this office extended the time within which to issue a binding opinion by 30 business days, to December 22, 2020, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Although the Sheriff's Office cited the exemption in section 7(1)(a) of FOIA which generally exempts records prohibited from being disclosed by State or Federal laws or rules and regulations implementing such laws, it did not cite any laws, rules, or regulations that prohibit disclosure of the police reports Mr. Horowitz requested. 9) The Public Access Bureau construed the Sheriff's Office's response to the request and answetor this office as asserting that the JCA prohibits disclosure of the police reports. Section 7.5(bb) of FOIA specifically exempts from disclosure \"information which is or was prohibited from disclosure by the Juvenile Court Act of 1987.\" 1 | 10) Section 1-7A of the JCA prohibits the disclosure of \"juvenile law enforcement records[,]\" except to authorized parties. | 11) Section 1-3(8.2) of the JCA defines \"juvenile law enforcement record,\" as those \"relating to a minor suspected of committing an offense, and records maintained by a law enforcement agency that identifies a juvenile as a suspect in committing an offense but does not include records identifying a juvenile as a victim, witness, or missing juvenile.\" Mr. Adam Horowitz Ms. Mindy Becker December 21, 2020 Page 10 | 12) The requested police reports concern a minor who was the victim of an alleged crime involving an adult suspect. The minor was not suspected of committing an offense. Therefore, the police reports aré not \"juvenile law enforcement records\" under the plain language of the definition of that term in section 1-3(8.2) of the JCA. Accordingly, the police reports are not exemipt from disclosure under sections 7(1)(a) or 7.5(bb) of FOTIA. Therefore, it is the opinion of the Attorney General that the denial of Mr. Horowitz\"' s Freedom of Information Act request by the Sherriff’'s Office violated the requirements of FOIA. Accordingly, the Sheriff's Officei s directed to take immediate and appropriate action to comply with this opinion by disclosing to Mr. Horowitz copies of the police reports responsive to his request. : ] This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2018). An aggrieved party: may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35,days of the date of this decision naming the Attorney General of Illinois and Mr. Adam Horowitz,as defendants. See 5 ILCS 140/11.5 (West 2018). ' Sincerely, : KWAME RAOUL | ABTTOiRNpEY Fralhr— | BBrentu D. sh | | Chief Deputy Attorney General CERTIFICATE OF SERVICE __ Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 20-008) upon: Mr. Adam Horowitz Horowitz Law 110 East Broward Boulevard, Suite 1850 , Fort Lauderdale, Florida 33301 ADAM@ADAMHOROWITZLAW.COM i Ms. Mindy: Becker | Administrative Secretary - Ogle County Sheriff's Office 202 South 1st Street _ Oregon, Illinois 61061 | mbecker@oglecounty.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by i | causing to be mailed.a true copy thereof in correctly addressed, prepaid envelopes to be | 1 deposited in the United States mail at Springfield, Illinois on December 21, 2020. { ( i , , SARAH L. PRATT \" Public Access Counselor SARAH L, PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 : (217) 557-0548 |","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Adam Horowitz requested a 2013 police report from the Ogle County Sheriff's Office involving a minor victim. The Sheriff's Office refused to release the records, citing the Juvenile Court Act. The Attorney General's office ruled that the Juvenile Court Act does not prohibit the disclosure of these police records and ordered the Sheriff's Office to provide them.","card_headline":"A police report of a sexual assault of a minor","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":134,"orig_master_id":19336,"dup_master_id":19108,"dup_sha256":"491cb717cf59d7bc2f940f22a15ac1d01f8c01fe711e90ee1f689007c495c409","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2020,"date_issued":"2020-12-29","case_number":"2020 PAC 65678","request_numbers":null,"title":"Disclosure ofArrest Reports and Corresponding Police Records","filename":"PUBLIC ACCESS OPINION 20-009 (Request for Review - 2020 PAC 65678).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 20-009 (Request for Review - 2020 PAC 65678).pdf","word_count":2353,"summary":"This document is a binding public access opinion regarding a FOIA request submitted by Mr. John Kraft on behalf of Edgar County Watchdogs, which sought access to police records related to an arrest. The opinion concludes that the Danville Police Department violated FOIA by denying access to the requested records.","plain_summary":"The requester, a watchdog organization, sought police and incident reports about a man's arrest and death, which a police department withheld in full on the theory that disclosure could interfere with the pending prosecution of two other people arrested from the same vehicle. The Public Access Counselor held that FOIA requires disclosure of basic arrest information within 72 hours regardless of a pending case, and that the department's bare assertion of interference did not meet its burden to withhold the reports in their entirety. The department was directed to provide the arrest reports and field case report, redacting only private information such as dates of birth.","holding":"The Danville Police Department violated FOIA by improperly denying access to the arrest reports and field case report.","legal_question":"Did the Danville Police Department violate the Freedom of Information Act by denying access to arrest reports?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7, 5 ILCS 140, 5 ILCS 140/2, 5 ILCS 140/9(a), 735 ILCS 5","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)","7(1)(b)","7(1)(c)"],"public_body":"Danville Police Department","requesting_party":"Kraft and Mr. Westphal","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought access to police and incident reports concerning the arrest of an individual.","ocr_status":"ok","ocr_quality":89.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2020-Binding-PAC-Opinions/20-009.pdf","sha256":"3e1d67fb4f85384f408f1c9f96dac9c601d0b080fe1601980f53cbfddb9cf6a7","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","arrest records","FOIA","public records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL December 29, 2020 PUBLIC ACCESS OPINION 20-009 Request for Review 2020 PAC 65678) FREEDOM OF INFORMATION ACT: Disclosure ofArrest Reports and Corresponding Police Records Mr. John Kraft Edgar County Watchdogs 7060 Illinois Highway Paris, Illinois 61944 Mr. William Westphal FOIA Administrator Danville Police Department 2 East South Street Danville, Illinois 61832 Dear Mr. Kraft and Mr. Westphal: This binding opinion is issued pursuant to section 9.5( f) ofthe Freedom of Information Act (FOIA) ( 5 ILCS 140/9.5( 0 (West 2018)). For the reasons discussed below, this office concludes that the Danville Police Department (Department) violated the requirements of FOIA by improperly denying access to the arrest reports and field case report responsive to Mr. John Kraft's FOIA request. BACKGROUND On October 23, 2020, Mr. Kraft, on behalfofEdgar County Watchdogs, Inc., submitted a FOIA request to the Department seeking, among other things, copies of \"all police and incident reports ofthe arrest/detainment ofANDRE WHITE between Sep 20 and Sep 500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 •' Ii'Y: (877) 844-5461 • Fax: ( 217) 782- 7046 100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 • ( 618) 529-6400 • TIN: (877) 675-9339 • Fax ( 618) 529-6416 • Mr. John Kraft Mr. William Westphal December 29, 2020 Page 2 26, 2020.\" ( Emphasis in original.)' The request also asserted: \" Section 2. 15 of the FOIA requires these reports to be release [ sic] within 72 hours of an arrest.\" ( Emphasis and underscoring omitted.) 2 On October 26, 2020, the Department provided Mr. Kraft with copies of records responsive to other parts ofhis FOIA request which are not the subject ofthis Request for Review, but denied all ofthe information about Mr. White's arrest pursuant to section 7( 1)( d)(i) of FOIA (5 ILCS 140/7( 1)( d)( i) (West 2018), as amended by Public Acts 101-434, effective January 1, 2020; 101- 452, effective January 1, 2020; 101- 455, effective August 23, 2019).3 Specifically, the Department denied \"report 2020-7719 pertaining to Possession ofa Controlled Substance ( Case # 2020CF652)[,]\" suggesting that prosecution of the case was pending. 4 On October 31, 2020, Mr. Kraft e-mailed the Department again asking it to disclose the responsive arrest reports.5 He contended that because Mr. White was deceased, Mr. White could not be subject to law enforcement proceedings. 6 On November 2, 2020, the Department responded that its \"denial letter is still applicable because there are more individuals than just the deceased involved.\" 7 The field case supplement report from Mr. White's death investigation, which the Department had disclosed to Mr. Kraft, revealed that two other persons from the same vehicle had been arrested in addition to Mr. White.8 In an e-mail submitted on Saturday, November 14, 2020, and received by the Public Access Bureau on Monday, November 16, 2020, Mr. Kraft submitted a Request for FOIA request from John Kraft, Edgar County Watchdogs, to bwestphal@danvillepd. org and Cyates@danvillepd.org (October 23, 2020). 2FOIA request from John Kraft, Edgar County Watchdogs, to bwestphal@danvillepd. org and Cyates@danvillepd. org (October 23, 2020). Letter from William Westphal, FOIA Administrator, Danville Police Department, to John Kraft October 26, 2020). Letter from William Westphal, FOIA Administrator, Danville Police Department, to John Kraft October 26, 2020). 5E -mail from John Kraftto Bill Westphal (October 31, 2020). 6E -mail from John Kraft to Bill Westphal ( October 31, 2020). E-mail from William Westphal, FOIA Administrator, Danville, IL Police Department, to John Kraft ( November 2, 2020). Field Case Report Supplement, Danville Police Department, Detective Wilson, Danville, Illinois, Case No. 2020- 00007721, September 28, 2020, 9:00 a.m. Mr. John Kraft Mr. William Westphal December 29, 2020 Page 3 Review contesting the denial ofthe arrest and incident reports related to the arrest ofMr. White.9 He argued that \" FOIA requires arrest reports be provided within 72 hours of an arrest. i10 On November 19, 2020, the Public Access Bureau sent a copy ofthe Request for Review to the Department. The Public Access Bureau also sent the Department a letter requesting unredacted copies ofthe withheld records for this office's confidential review, and a detailed written explanation ofthe legal and factual bases for the applicability ofthe asserted exemption.) 1 On that same date, the Department provided this office with the requested materials.12 Later on November 19, 2020, this office forwarded a copy ofthe Department's answer to Mr. Kraft and notified him of his opportunity to reply. 13 OnNovember 30, 2020, Mr. Kraft submitted a reply. 14 ANALYSIS Section 1 of FOIA (5 ILCS 140/ 1 ( West 2018)) declares that \" it is the public policy of the State ofIllinois that access by all persons to public records promotes the transparency and accountability of public bodies at all levels of government.\" Under FOIA, a]ll records in the custody or possession ofa public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/ 1. 2 ( West 2018). Bare assertions without a detailed rationale do not satisfy a public body's burden ofproving that exemptions are applicable. Rockford Police Benevolent andProtective Assn v. Morrissey, 398 Ill. App. 3d 145, 150-51 ( 2d Dist. 2010). Rather, \"[ t]he public body satisfies its burden when it provides a detailedjustification for the claimed exemption which addresses the specific 9E -mail from John Kraft to AG PAC ( November 14, 2020). 10E -mail from John Kraft to AG PAC (November 14, 2020). Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General, to William Westphal, FOIA Administrator, Danville Police Department (November 19, 2020). 12E -mail from William Westphal, FOIA Administrator, Danville, IL Police Department, to Public Access [ Bureau, Office ofthe Attorney General] ( November 19, 2020). 13Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General, to John Kraft, Edgar County Watchdogs (November 19, 2020). 14Letter from John Kraft, Edgar County Watchdogs, Inc., to [unspecified] ( November 30, 2020). Mr. John Kraft Mr. William Westphal December 29, 2020 Page 4 documents requested and allows for adequate adversarial testing.\" Turner v. JolietPolice Department, 2019 IL App (3d) 170819, ¶ 10, 123 N.E.3d 1147, 1150 ( 2019). As a threshold matter, section 2. 15( a) of FOIA (5 ILCS 140/ 2.15(a) ( West 2018), as amended by Public Act 101- 433, effective August 20, 2019) expressly requires public disclosure ofcertain basic information about each arrest within 72 hours ofthe arrest occurring: a) Arrest reports. The following chronologically maintained arrest and criminal history information maintained by State or local criminal justice agencies shall be furnished as soon as practical, but in no event later than 72 hours after the arrest, notwithstanding the time limits otherwise provided for in Section 3 of this Act: ( i) information that identifies the individual, including the name, age, address, and photograph, when and ifavailable; ( ii) information detailing any charges relating to the arrest; ( iii) the time and location of the arrest; ( iv) the name of the investigating or arresting law enforcement agency; ( v) ifthe individual is incarcerated, the amount ofany bail or bond; and ( vi) ifthe individual is incarcerated, the time and date that the individual was received into, discharged from, or transferred from the arresting agency' s custody. Section 2. 15(c) of FOIA (5 ILCS 140/2.15( c) ( [...] nation is conclusory, this office also finds that the Department has not sustained its burden ofproving by clear and convincing evidence that the field case report Mr. Kraft requested 'is exempt from disclosure in its entirety. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On October 23, 2020, Mr. John Kraft, on behalf ofEdgar County Watchdogs, Inc., submitted a FOIA request to the Danville Police Department seeking, among other things, copies ofpolice and incident reports concerning the arrest ofAndre; White. 2) On October 26, 2020, the Department denied that part of the request in its entirety pursuant to section 7(1)( d)(i) ofFOIA. On October 31, 2020, Mr. Kraft again asked the Department to disclose the responsive arrest reports. On November 2, 2020, the Department responded that it stood by its denial. 3) In an e-mail submitted on Saturday, November 14, 2020, and received by the Public Access Bureau on Monday, November 16, 2020, Mr. Kraft submitted a Request for Review contestingthe denial ofthe arrest and incident reports related to the arrest. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5( a) of FOIA (5 ILCS 140/9.5( a) ( West 2018)). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter 4) On November 19, 2020, the Public Access Bureau sent a copy ofthe Request for Review to the Department and requested unredacted copies of the withheld records for this Mr. John Kraft Mr. William Westphal December 29, 2020 Page 7 office' s confidential review, and a detailed written explanation ofthe legal and factual bases for the applicability ofthe asserted exemption. 5) On that same date, this office received those materials from the Department. 6) Later on November 19, 2020, the Public Access Bureau forwarded to Mr. Kraft a copy of the Department' s answer and notified him ofhis opportunity to reply. On November 30, 2020, Mr. Kraft submitted a reply to the Department' s answer. 7) Section 2.15(a) ofFOIA requires apolice department to publicly disclose certain basic information about each arrest within 72 hours ofthe arrest, subject to several exceptions provided in section 2.15(c) ofFOIA. The responsive records in this matter include three arrest reports. The Department did not prove that any ofthe exceptions in section 2.15(c) apply to any information in the three arrest reports. Therefore, the Department improperly withheld the arrest reports. 8) Section 7( 1)( d)( i) ofFOIA exempts from disclosure law enforcement records to the extent that disclosure would \" interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request[.]\" The Department' s statement that prosecutions are pending for two ofthe arrestees is insufficient to demonstrate that disclosure ofthe records would interfere with the prosecutions. Accordingly, the Department did not prove by clear and convincing evidence that the arrest reports and field case report are exempt from disclosure under section 7( 1)( d)( i). Therefore, it is the opinion of the Attorney General that the Danville Police Department violated the requirements ofFOIA by denying the arrest reports and field case report responsive to Mr. Kraft's Freedom ofInformation Act request. Accordingly, the Department is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Kraft with copies ofthe arrest reports and field case report responsive to his October 23, 2020, FOIA request. Pursuant to section 7(1)( b) ofFOIA (5 ILCS 140/7( 1)( b) West 2018), as amended by Public Acts 101-434, effective January 1, 2020; 101-452, effective January 1, 2020; 101- 455, effective August 23, 2019), the Department may properly redact Mr. John Kraft Mr. William Westphal December 29, 2020 Page 8 private information\" as that term is defined in FOIA. 17 The Department also may properly redact dates of birth as \" personal information\" pursuant to section 7(1)( c) ofFOIA (5 ILCS 140/ 7( 1)( c) ( West 2018), as amended by Public Acts 101- 434, effective January 1, 2020; 101- 452, effective January 1, 2020; 101-455, effective August 23, 2019).18 Ifthe Department chooses to redact this information from the copies ofthe reports it provides to Mr. Kraft, it must include a written denial that identifies the basis for each redaction and which otherwise complies with the requirements of section 9(a) ofFOIA (5 ILCS 140/9(a) ( West 2018)). This opinion shall be considered a final decision ofan administrative agency for the purposes ofadministrative review under the Administrative Review Law. 735 ILCS 5/ 3- 101 et seq. ( West 2018). An aggrieved party may obtain judicial review ofthe decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days ofthe date ofthis decision naming the Attorney General of Illinois and Mr. John Kraft as defendants. See 5 ILCS 140/ 11. 5 ( West 2018). Very truly yours, KWAME RAOUL ATTORNEY GENERAL By: Brent D. Stratton ChiefDeputy Attorney General Section 2(c-5) ofFOIA ( 5 ILCS 140/ 2( c-5) ( West 2018)) provides: Private information\" means unique identifiers, including a person's social security number, driver's license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility ofattribution to any person. 18111. Att'y Gen. Pub. Acc. Op. No. 16-009, issued November 7, 2016, at 12 (an individual's birth date is highly personal by itsvery nature andthe individual's right toprivacy outweighs any legitimate public interest in its disclosure). CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy ofthe foregoing Binding Opinion (Public Access Opinion 20-009) upon: Mr. John Kraft Edgar County Watchdogs 7060 Illinois Highway Paris, Illinois 61944 john@illinoisleaks. com Mr. William Westphal FOIA Administrator Danville Police Department 2 East South Street Danville, Illinois 61832 bwestphal@danvillepd. org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on December 29, 2020. SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office ofthe Attorney General 500 South Second Street Springfield, Illinois 62701 217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. John Kraft requested police records regarding a specific arrest from the Danville Police Department. The Department denied the request, but the Attorney General's office determined that under Illinois law, these arrest reports must be made public. The PAC ruled that the Department violated the Freedom of Information Act by withholding these documents.","card_headline":"Police arrest reports","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":135,"orig_master_id":19109,"dup_master_id":19337,"dup_sha256":"434c60deb382933a8fdba02407875063e64d2f1a6a451bb41086edde86c3c3fe","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2020,"date_issued":"2020-12-30","case_number":"2020 PAC 65331","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 20-010 (Request for Review - 2020 PAC 65331).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 20-010 (Request for Review - 2020 PAC 65331).pdf","word_count":2423,"summary":"The Cook County Assessor's Office (Assessor's — Office) violated section 3(d) of FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Ralph DiFebo . The request sought information regarding 'Public Records Request, Reference No. R003482-092920, from RFDFJR@GMAIL.COM to [Cook County Assessors's Office] (undated)","plain_summary":"The requester sought records showing who had applied to divide a parcel of real property and the related application materials from a county assessor's office, which never responded despite repeated follow-up letters, emails, and a voicemail from this office. The Public Access Counselor held that the assessor's office violated FOIA's requirement to comply with, extend, or deny a request within five business days. The assessor's office was directed to provide the requester with all records responsive to the request, subject only to permissible redactions.","holding":"The Cook County Assessor's Office violated section 3(d) of FOIA by failing to provide a timely response to the requester's FOIA request.","legal_question":"Whether the Cook County Assessor's Office violated section 3(d) of FOIA by failing to respond to a request for public records.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":[],"public_body":"Cook County Assessor's Office","requesting_party":"DiFebo and Mr. Kos","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"duty to respond","subject_description":"The failure of a public body to acknowledge or respond to a submitted FOIA request.","ocr_status":"reocr_tesseract","ocr_quality":89.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2020-Binding-PAC-Opinions/20-010.pdf","sha256":"105970b2eebfd92eadc03889ce8ca1d962c059bc2c577e67f9d9f3cedcd478d6","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA","failure to respond","public records request","Cook County Assessor"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL December 30, 2020 PUBLIC ACCESS OPINION 20-010 (Request for Review 2020 PAC 65331) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Ralph DiFebo- 11 10 Thomas Avenue Forest Park, Illinois 60130 Mr. Mark Kos _ Manager,.Freedom of Information Department Cook County Assessor's Office 118 North Clark Street, Suite 301 Chicago, Illinois 60602 Dear Mr. DiFebo and Mr. Kos: | : , - This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of. the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons discussed below, this office concludes that the Cook County Assessor's Office (Assessor's — Office) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2018), as amended by Public Act 101-081, effective July 12, 2019) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Ralph DiFebo. | BACKGROUND The information provided to this office indicates that on September 29, 2020, Mr. DiF ebo submitted and the Assessor's Office received an undated FOIA request using the Assessor's Office's online FOIA submission form.' The request sought information regarding 'Public Records Request, Reference No. R003482-092920, from RFDFJR@GMAIL.COM to [Cook County Assessor's Office] (undated). The Assessor's Office's online FOIA submission form can be accessed from https://www.cookcountyassessor.com/foia-freedom-information. 500 South Second Street, Springficld, Illinois 62701 © (217) 782-1090 © ‘TTY: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Strect, Chicago, Illinois 60601 © (312) 814-3000 © TTY: (800) 964-3013 © Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © T’I'Y: (877) 675-9339 © Fax (618) 529-6416 «GaautD>— | Mr. Ralph DiFebo Mr. Mark Kos December 30, 2020 Page 2 who had filed for a division of an identified parcel of real property and a copy of the recent application relating to the parcel that Mr. DiFebo identified by its Property Index Number. Mr. DiFebo also sought the new legal descriptions and drawings showing where the parcel's new boundaries would be located.? On October 21, 2020, Mr. DiFebo submitted a Request for Review to the Public Access Bureau alleging that the Assessor's Office had failed to respond to his FOIA request.? On October 30, 2020, by an e-mail sent to Mr. Mark Kos, Manager of the Freedom of Information Department of the Assessor's Office, the Public Access Bureau forwarded a copy of the Request for Review to the Assessor's Office along with a letter asking whether it had received and responded to Mr. DiFebo's FOIA request.* The October 30, 2020, letter also requested that, if the Assessor's Office had received the request but had not yet responded to Mr. DiFebo, it do so and provide this office with a copy ofi ts response.” The Assessor's Office did not respond to the Public Access Bureau's October 30, 2020, correspondence. | On November 12, 2020, the Public Access Bureau sent an e-mail to Mr. Kos, notifying him that the Public Access Bureau had forwarded Mr. DiFebo's Request for Review to him on October 30, 2020, and explaining that the Public Access Bureau had not yet received a response to that letter. Mr. Kos did not respond to the Public Access Bureau's November 12, 2020, e-mail message. | On December 3, 2020, the Public Access Bureau sent a second copy of Mr. DiFebo's Request for Review to the Assessor's Office, this time through the United States Postal Service, along with another letter asking it to respond to the FOIA request and to provide this i | ! | | *Public Records Request, Reference No. R003482-092920, from RFDFJR@GMAIL.COM to [Cook County Assessor's Office] (undated). 3E-mail from Ralph DiFebo to Sarah Pratt [Public Access Counselor, Office of the Attorney General] (October 21, 2020). ‘Letter from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Office of the Attorney General, to [Mark] Kos, Manager, Freedom of Information Department, Cook County Assessor's Office (October 30, 2020). { Letter from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Office of the Attorney General, to Mark Kos, Manager, Freedom of Information Department, Cook County Assessor's Office (October 30, 2020), at [1]. ) | SE-mail from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Illinois Attorney General's Office, to Mark Kos, [Manager, Freedom of Information Department, Cook County Assessor's Office] (November 12, 2020). ; ' t Mr. Ralph DiFebo Mr. Mark Kos December 30, 2020 Page 3 office with a copy of its response.’ The Assessor's Office did not respond to the Public Access Bureau's December 3, 2020, correspondence. | On December 15, 2020, the Public Access Bureau sent an e-mail to Mr. Kos, notifying him that the Public Access Bureau had not received responses to its previously sent letters or e-mail message, and that Mr. DiFebo had not yet received a response to his FOIA request. 8 Later that same day, Mr. Kos left a voicemail message for an Assistant Attorney General ii n the Public Access Bureau, stating that the Assessor's Office was preparing its response to the FOIA request, and it anticipated that it wouldi ssue a response within ten days.” | On December 18, 2020, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days, to February 3, 2021, pursuant to section 9.5(f) of FOIA.!° | ' As of the date of the issuance of this binding opinion, this office has not received a written response from the Assessor's Office in response to its inquiry letters nor confirmation from Mr. DiFebo that he has received a response to his September 29, 2020, FOIA request. | ANALYSIS | ! \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2018). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2018)), \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2018), as amended by Public Act 101-081, effective July 12, 2019) provides that \"[e]ach public body shall make available to any person for | ‘Letter from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Office of the Attorney General, to Mark Kos, Freedom of Information Officer, Cook County Assessor's Office (December 3, 2020). 1 ' | 8E-mail from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Illinois Attorney General's Office, to [Mark] Kos, [Manager, Freedom of Information Department, Cook County Assessor's Office] (December 15, 2020). *Voicemail message for Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, tHlinois Attorney General's Office, from Mark Kos, Manager, Freedom of Information Department, Cook County Assessor's Office (December 15, 2020). | '0]e tter from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Office of the Attorney General, to Ralph DiFebo and Mark Kos, Manager, Freedom of Information Department, Cook County Assessor's Office (December 18, 2020). ‘ \\ i Mr. Ralph DiFebo Mr. Mark Kos December 30, 2020 Page 4 inspection or copying all public records, except as otherwise providedin Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply : with a written request, extend the time for response, or deny a | . request within 5 business days after its receipt shall be considered : a denial of the request [...] a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly | burdensome under subsection (g). The Assessor’ Office did not respond to Mr. DiFebo's FOIA request within five business days after its receipt by either complying with his request, extending the time for its response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2018), as amended by Public Act 101-081, effective July 12, 2019), or denying the request in writing. The failure of the Assessor's Office to comply with the requisite procedures violated section 3(d) of FOIA. , FINDINGS AND CONCLUSIONS | | After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: | |! 1) On September 29, 2020, Mr. Ralph DiF ebo submitted and the Cook County Assessor's Office received a FOIA request seeking information regarding who filed for the division of an identified parcel of real property, along with a:copy of the application and the new legal descriptions and drawings regarding the new boundaries of the parcel. Mr. DiFebo did not receive a response to his FOIA request. | 2) On October 21, 2020, Mr. DiFebo submitted a Request for Review to the Public Access Counselor and the Public Access Bureau alleging the Assessor's Office had not responded to his FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2018)). | I t \\ 1 Mr. Ralph DiFebo Mr. Mark Kos December 30, 2020 Page 5 3) On October 30, 2020, the Public Access Bureau forwarded a copy of Mr. DiFebo's Request for Review to the Assessor's Office, along with a letter asking the Assessor's Office to advise this office whether it had received and responded to Mr. DiFebo's FOIA request. The Assessor's Office did not respond to this office's inquiry. | | 4) On November 12, 2020, the Public Access Bureau sent an e-mail to the Manager of the Assessor's Office's Freedom of Information Department, explaining that the Public Access Bureau had not received a response to its October 30, 2020, letter. The Assessor's Office did not respond to that e-mail. 5) On December 3, 2020, this office sent the Assessor's Office an additional copy of the Request for Review and this office's October 30, 2020, letter, along with a letteri nquiring as to the status of the Assessor's Office's response to this office. The Assessor's Office did not respond to that inquiry, either. | 6) On December 15, 2020, the Public Access Bureau sent a second e-mail message to the Manager of the Assessor's Office's Freedom of Information Department, explaining that the Public Access Bureau had not received a response to its inquiry letters or earlier e-mail message. Later that same day, the Manager of the Assessor's Office's Freedom of Information Department left a voicemail message for an Assistant Attorney General in the Public Access Bureau stating that the Assessor's Office's was preparing its response to Mr. DiFebo's request. 7) On December 18, 2020, this office extended the time within which to issue a binding opinion by 30 business days, to February 3, 2021, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. | \\ | 8) As of the date of the issuance of this binding opinion, this office has not received a written response to its inquiries nor has this office received any information indicating that the Assessor's Office has responded to Mr. DiFebo's request. | : Therefore, it is the opinion of the Attorney General that the Assessor's Office has violated section 3(d) of FOIA by failing, within five business days after receiving Mr. DiFebo's September 29, 2020, FOIA request, to provide copies of the requested records, to extend the time for its response pursuant to section 3(e) of FOIA, or to deny the request in whole or in part. Accordingly, the Assessor's Office is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. DiFebo with all records responsive to his September 29,'2020 request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2018), as amended by Public Acts 101-434, effective January 1, 2020; 101-452, [ | | \\ Mr. Ralph DiFebo Mr. Mark Kos December 30, 2020 Page 6 effective January 1, 2020; 101-455, effective August 23, 2019).'! If the Assessor's Office determines that any portion of the responsive records is exempt from disclosure under section 7, it is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2018)). | This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 c e o t m se p q. l a ( i W nt e f s o t r 2 a 0 d 1 m 8 i ) n . is A tr n a t a iv g e g r r i e e v v i e e d w p w ar it t h y m th a e y C o ir b c t u ai i n t j C u o d u i r c t i a o l f r C e o vi o e k w C o o f u t n he ty d o e r c i S s a io n n g a b m y o fi n l in C g o u a nty within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Ralph DiFebo as defendants. See 5 ILCS 140/11.5 (West 2018). ) Sincerely, KWAME RAOUL ATTORNEY GENERAL Brent D. Stratton | Chief Deputy Attorney General | { | oo | | | t 0 i M m 81 r p , . o D | e s i i ff n F e e g c b t c o i o v 's p e y F J i u O n l g y I A ' f 'B e 1 r 2 e e e , s c q 2 a f u o 0 u e 1 r s s 9 e t t h , , e t t h h r e e e A s A p s s s o s e e n s s s s s iv o o e r r ' ' s s r e O O co ffi ffi rd c c s e e . d i 5 s id p I L r n e C o c t S l u c d o 1 e m 4 d 0 p / f l 3 r y ( o d m w ) i ( t t W h re e t a h s t e i t n 2 s g t 0 a t 1 h tu 8 e t ) o , r e r a y q s u r a e e m q st u e a i n r s d e e m u d n e d n b u t y s l y P f o u b r u b r l r i d e c e s A p n o s c o n t m d 1 i e n 0 g 1 o - r to | | rere — CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 20-010) upon: Mr. Ralph DiFebo , 1110 Thomas Avenue Forest Park, Illinois 60130 — | rfdrjr@gmail.com Mr. Mark Kos Manager, Freedom of Information Department Cook County Assessor's Office ~118 North Clark Street, Suite 301 Chicago, Illinois 60602 | mkos@cookcountyassessor.com | by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be | deposited in the United States mail at Springfield, Illinois on December 30, 2020. Ju d LL. SARAH L. PRATT ; Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 (217) 557-0548","full_text_pre_reocr":"|:, - This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of. the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons discussed below, this office concludes that the Cook County Assessor's Office (Assessor's — Office) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2018), as amended by Public Act 101-081, effective July 12, 2019) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Ralph DiFebo. | BACKGROUND The information provided to this office indicates that on September 29, 2020, Mr. DiF ebo submitted and the Assessor's Office received an undated FOIA request using the Assessor's Office's online FOIA submission form.' The request sought information regarding 'Public Records Request, Reference No. R003482-092920, from RFDFJR@GMAIL.COM to [Cook County Assessor's Office] (undated). The Assessor's Office's online FOIA submission form can be accessed from https://www.cookcountyass\n\nos \n\nwho had filed for a division of an identified parcel of real property and a copy of the recent application relating to the parcel that Mr. DiFebo identified by its Property Index Number. Mr. DiFebo also sought the new legal descriptions and drawings showing where the parcel's new boundaries would be located.? On October 21, 2020, Mr. DiFebo submitted a Request for Review to the Public Access Bureau alleging that the Assessor's Office had failed to respond to his FOIA request.? On October 30, 2020, by an e-mail sent to Mr. Mark Kos, Manager of the Freedom of Information Department of the Assessor's Office, the Public Access Bureau forwarded a copy of the Request for Review to the Assessor's Office along with a letter asking whether it had received and responded to Mr. DiFebo's FOIA request.* The October 30, 2020, letter also requested that, if the Assessor's Office had received the request but had not yet responded to Mr. DiFebo, it do so and provide this office with a copy ofi ts response.” The Assessor's Office did not respond to the Public Access Bureau's October 30, 2020, correspondence. | On November 12, 2020, the Public Access Bureau sent an e-mail to Mr. Kos, notifying him that the Public Access Bureau had forwarded Mr. DiFebo's Request for Review to him on October 30, 2020, and explaining that the Public Access Bureau had not yet received a response to that letter. Mr. Kos did not respond to the Public Access Bureau's November 12, 2020, e-mail message. | On December 3, 2020, the Public Access Bureau sent a second copy of Mr. DiFebo's Request for Review to the Assessor's Office, this time through the United States Postal Service, along with another letter asking it to respond to the FOIA request and to provide this i | ! | | *Public Records Request, Reference No. R003482-092920, from RFDFJR@GMAIL.COM to [Cook County Assessor's Office] (undated). 3E-mail from Ralph DiFebo to Sarah Pratt [Public Access Counselor, Office of the Attorney General] (October 21, 2020). ‘Letter from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Office of the Attorney General, to [Mark] Kos, Manager, Freedom of Information Department, Cook County Assessor's Office (October 30, 2020). { Letter from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Office of the Attorney General, to Mark Kos, Manager, Freedom of Information Department, Cook County Assessor's Office (October 30, 2020), at [1].) | SE-mail from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Illinois Attorney General's Office, to Mark Kos, [Manager, Freedom of Information Department, Cook County Assessor's Office] (November 12, 2020).; ' t Mr. Ralph DiFebo Mr. Mark Kos \n\noffice with a copy of its response.’ The Assessor's Office did not respond to the Public Access Bureau's December 3, 2020, correspondence. | On December 15, 2020, the Public Access Bureau sent an e-mail to Mr. Kos, notifying him that the Public Access Bureau had not received responses to its previously sent letters or e-mail message, and that Mr. DiFebo had not yet received a response to his FOIA request. 8 Later that same day, Mr. Kos left a voicemail message for an Assistant Attorney General ii n the Public Access Bureau, stating that the Assessor's Office was preparing its response to the FOIA request, and it anticipated that it wouldi ssue a response within ten days.” | On December 18, 2020, the Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days, to February 3, 2021, pursuant to section 9.5(f) of FOIA.!° | ' As of the date of the issuance of this binding opinion, this office has not received a written response from the Assessor's Office in response to its inquiry letters nor confirmation from Mr. DiFebo that he has received a response to his September 29, 2020, FOIA request. | ANALYSIS | ! \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2018). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2018)), \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2018), as amended by Public Act 101-081, effective July 12, 2019) provides that \"[e]ach public body shall make available to any person for | ‘Letter from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Office of the Attorney General, to Mark Kos, Freedom of Information Officer, Cook County Assessor's Office (December 3, 2020). 1 ' | 8E-mail from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Illinois Attorney General's Office, to [Mark] Kos, [Manager, Freedom of Information Department, Cook County Assessor's Office] (December 15, 2020). *Voicemail message for Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, tHlinois Attorney General's Office, from Mark Kos, Manager, Freedom of Information Department, Cook County Assessor's Office (December 15, 2020). | '0]e tter from Leah Bartelt, Deputy Public Access Counselor, Public Access Bureau, Office of the Attorney General, to Ralph DiFebo and Mark Kos, Manager, Freedom of Information Department, Cook County Assessor's Office (December 18, 2020). ‘ \\ i Mr. Ralph DiFebo Mr. Mark Kos \n\ninspection or copying all public records, except as otherwise providedin Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply: with a written request, extend the time for response, or deny a |. request within 5 business days after its receipt shall be considered: a denial of the request [...] a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly | burdensome under subsection (g). The Assessor’ Office did not respond to Mr. DiFebo's FOIA request within five business days after its receipt by either complying with his request, extending the time for its response pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2018), as amended by Public Act 101-081, effective July 12, 2019), or denying the request in writing. The failure of the Assessor's Office to comply with the requisite procedures violated section 3(d) of FOIA., FINDINGS AND CONCLUSIONS | | After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: | |! 1) On September 29, 2020, Mr. Ralph DiF ebo submitted and the Cook County Assessor's Office received a FOIA request seeking information regarding who filed for the division of an identified parcel of real property, along with a:copy of the application and the new legal descriptions and drawings regarding the new boundaries of the parcel. Mr. DiFebo did not receive a response to his FOIA request. | 2) On October 21, 2020, Mr. DiFebo submitted a Request for Review to the Public Access Counselor and the Public Access Bureau alleging the Assessor's Office had not responded to his FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2018)). | I t \\ 1 Mr. Ralph DiFebo Mr. Mark Kos \n\n3) On October 30, 2020, the Public Access Bureau forwarded a copy of Mr. DiFebo's Request for Review to the Assessor's Office, along with a letter asking the Assessor's Office to advise this office whether it had received and responded to Mr. DiFebo's FOIA request. The Assessor's Office did not respond to this office's inquiry. | | 4) On November 12, 2020, the Public Access Bureau sent an e-mail to the Manager of the Assessor's Office's Freedom of Information Department, explaining that the Public Access Bureau had not received a response to its October 30, 2020, letter. The Assessor's Office did not respond to that e-mail. 5) On December 3, 2020, this office sent the Assessor's Office an additional copy of the Request for Review and this office's October 30, 2020, letter, along with a letteri nquiring as to the status of the Assessor's Office's response to this office. The Assessor's Office did not respond to that inquiry, either. | 6) On December 15, 2020, the Public Access Bureau sent a second e-mail message to the Manager of the Assessor's Office's Freedom of Information Department, explaining that the Public Access Bureau had not received a response to its inquiry letters or earlier e-mail message. Later that same day, the Manager of the Assessor's Office's Freedom of Information Department left a voicemail message for an Assistant Attorney General in the Public Access Bureau stating that the Assessor's Office's was preparing its response to Mr. DiFebo's request. 7) On December 18, 2020, this office extended the time within which to issue a binding opinion by 30 business days, to February 3, 2021, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. | \\ | 8) As of the date of the issuance of this binding opinion, this office has not received a written response to its inquiries nor has this office received any information indicating that the Assessor's Office has responded to Mr. DiFebo's request. |: Therefore, it is the opinion of the Attorney General that the Assessor's Office has violated section 3(d) of FOIA by failing, within five business days after receiving Mr. DiFebo's September 29, 2020, FOIA request, to provide copies of the requested records, to extend the time for its response pursuant to section 3(e) of FOIA, or to deny the request in whole or in part. Accordingly, the Assessor's Office is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. DiFebo with all records responsive to his September 29,'2020 request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2018), as amended by Public Acts 101-434, effective January 1, 2020; 101-452, [ | | \\ Mr. Ralph DiFebo Mr. Mark Kos \n\neffective January 1, 2020; 101-455, effective August 23, 2019).'! If the Assessor's Office determines that any portion of the responsive records is exempt from disclosure under section 7, it is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2018)). | This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 c e o t m se p q. l a (i W nt e f s o t r 2 a 0 d 1 m 8 i) n. is A tr n a t a iv g e g r r i e e v v i e e d w p w ar it t h y m th a e y C o ir b c t u ai i n t j C u o d u i r c t i a o l f r C e o vi o e k w C o o f u t n he ty d o e r c i S s a io n n g a b m y o fi n l in C g o u a nty within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Ralph DiFebo as defendants. See 5 ILCS 140/11.5 (West 2018).) Sincerely, KWAME RAOUL ATTORNEY GENERAL Brent D. Stratton | Chief Deputy Attorney General | { | oo | | | t 0 i M m 81 r p,. o D | e s i i ff n F e e g c b t c o i o v 's p e y F J i u O n l g y I A ' f 'B e 1 r 2 e e e, s c q 2 a f u o 0 u e 1 r s s 9 e t t h,, e t t h h r e e e A s A p s s s o s e e n s s s s s iv o o e r r ' ' s s r e O O co ffi ffi rd c c s e e. d i 5 s id p I L r n e C o c t S l u c d o 1 e m 4 d 0 p / f l 3 r y (o d m w) i (t t W h re e t a h s t e i t n 2 s g t 0 a t 1 h tu 8 e t) o, r e r a y q s u r a e e m q st u e a i n r s d e e m u d n e d n b u t y s l y P f o u b r u b r l r i d e c e s A p n o s c o n t m d 1 i e n 0 g 1 o - r to | | rere — CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 20-010) upon: Mr. Ralph DiFebo, 1110 Thomas Avenue Forest Park, Illinois 60130 — | rfdrjr@gmail.com Mr. Mark Kos Manager, Freedom of Information Department Cook County Assessor's Office ~118 North Clark Street, Suite 301 Chicago, Illinois 60602 | mkos@cookcountyassessor.com | by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be | deposited in the United States mail at Springfield, Illinois on December 30, 2020. Ju d LL. SARAH L. PRATT; Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 (217) 557-0548","plain_summary_pre_resummarize":"Mr. DiFebo submitted a public records request to the Cook County Assessor's Office, but the office never responded to him. The Illinois Attorney General's Public Access Counselor ruled that the Assessor's Office broke the law by ignoring the request. This means the agency is legally required to provide a formal response to the requester.","card_headline":"A county assessor's office's failure to respond to a FOIA request","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":136,"orig_master_id":19338,"dup_master_id":19110,"dup_sha256":"e467a1a38255292333c3902d3f7aee122bdb48ba062e25a0350e0cdb7ba5afc7","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2021,"date_issued":"2021-05-24","case_number":"2021 PAC 66968","request_numbers":null,"title":"Correspondence Shared With a Third Party © Who Represents Independent Interests Is Not Part of a Public Body's Deliberative Process","filename":"PUBLIC ACCESS OPINION 21-004 (Request for Review - 2021 PAC 66968) (May 24, 2021).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 21-004 (Request for Review - 2021 PAC 66968) (May 24, 2021).pdf","word_count":3216,"summary":"This document is a binding public access opinion regarding a Freedom of Information Act request made by Dr. Rodney B. Nelson to the City of Geneva, which was denied. The opinion concludes that the City violated FOIA by denying the request for communications with a third party.","plain_summary":"The requester, a nearby resident, sought communications between a city and a funeral home concerning the funeral home's pending zoning application, which the city withheld as predecisional and deliberative. The Public Access Counselor held that the deliberative-process exemption protects only inter- and intra-agency communications, not communications with a third party such as the funeral home that has its own independent interest in the zoning outcome. The city was directed to disclose the withheld communications.","holding":"The City of Geneva violated FOIA by improperly denying Dr. Rodney Nelson's request.","legal_question":"Did the City of Geneva violate the Freedom of Information Act by denying Dr. Nelson's request for communications with a third party?","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"City of Geneva","requesting_party":"Dr. Rodney B. Nelson","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"The request concerned communications between a municipality and a private applicant regarding a zoning change.","ocr_status":"ok","ocr_quality":90.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2021-Binding-PAC-Opinions/21-004.pdf","sha256":"e088e0c9d859df3cd57bb1ab711a52794b8d53c5ed26c109918cefcefb228eff","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["zoning","deliberative process","third party communications","FOIA request"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nMay 24, 2021\nPUBLIC ACCESS OPINION 21-004\n(Request for Review 2021 PAC 66968)\nFREEDOM OF INFORMATION ACT:\nCorrespondence Shared With a Third Party ©\nWho Represents Independent Interests Is\nNot Part of a Public Body's Deliberative Process\nDr. Rodney B. Nelson\n[street address redacted for site publication -- see original PDF]\nMr. David DeGroot\nDirector of Community Development\nCity of Geneva\n22 South First Street\nGeneva, Illinois 60134\nDear Dr. Nelson and Mr. DeGroot:\nThis is a binding opinion issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons discussed below, this\noffice concludes that the City of Geneva (City) violated the requirements of FOIA by improperly\ndenying Dr. Rodney Nelson's FOIA request for communications between the City and a third\nparty who represented independent interests.\nBACKGROUND\nOn February 1, 2021, Dr. Nelson submitted a FOIA request to the City seeking\ncopies of \"all communications between the City of Geneva and applicant Malone Funeral Home\nthat have taken place after the date of public notice of a hearing for a zoning change at Malones\n500 South Second Street, Springfield, Iilinois 62701 © (217) 782-1090 © T’T'Y: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Serect, Chicago, [linois 60601 © (312) 814-3000 © ‘I T'Y: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 ¢ (618) 529-6400 ° I'l: (877) 675-9339 © Fax (618) 529-6416 “ae\nDr. Rodney B. Nelson\nMr. David DeGroot\nMay 24, 2021\nPage 2\nFuneral Home.\" On February 10, 2021, the City denied Dr. Nelson's request pursuant to section\n7(1)() of FOIA (5 ILCS 140/7(1)(£) (West 2019 Supp.)).2 On February 11, 2021, Dr. Nelson\nmade an initial submission to file a Request for Review. This office received all of the\ndocumentation necessary to complete Dr. Nelson's Request for Review contesting the City's\ndenial on February 17, 2021.3\nOn February 24, 2021, the Public Access Bureau forwarded a copy of the Request\nfor Review to the City with a letter asking it to provide copies of the withheld records for this\noffice's confidential review.* The February 24, 2021, letter also asked the City to provide a\ndetailed explanation of the factual and legal bases for the applicability of section 7(1)(f) of FOIA\nto the withheld records.° On March 2, 2021, the City furnished the requested materials to this\noffice.© On March 3, 2021, we forwarded a copy of the City's answer to Dr. Nelson and notified\nhim of his opportunity to reply.’ Later on that same date, Dr. Nelson submitted a reply.®\n'E-mail from Rodney Nelson to foia@geneva.il.us (February 1, 2021).\nLetter from David DeGroot, AICP, Director of Community Development, [City of Geneva], to\nRodney Nelson (February 10, 2021).\n3E-mail from Rodney Nelson to Public Access [Bureau, Office of the Attorney General] (February\n17, 2021). Dr. Nelson's initial submission to the Public Access Bureau on February 11, 2021, did not include a copy\nof the FOIA request he submitted to the City. See Section 9.5(a) of FOIA (5 ILCS 140/9.5 (West 2018)) (stating a\n\"request for review must be in writing, signed by the requester, and include (i) a copy of the request for access to\nrecords and (ii) any responses from the public body.\").\n‘Letter from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to David DeGroot, Director of Community Development, City of Geneva (February 24, 2021).\nSLetter from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to David DeGroot, Director of Community Development, City of Geneva (February 24, 2021).\nSLetter from David DeGroot, AICP, Director of Community Development, [City of Geneva], to\nShannon Barnaby, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (March 2,\n2021).\nLetter from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Rodney Nelson (March 3, 2021). _\nE-mail from Rodney B. Nelson, M.D., to [Shannon] Barnaby, [Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General] (March 3, 2021).\nDr. RodneBy. Nelson\nMr. David DeGroot\nMay 24, 2021\nPage 3\nOn April 9, 2021, this office extended the time within which to issue a binding\nopinion by 30 business days, to May 24, 2021, pursuant to section 9.5(f) of FOIA.’\nANALYSIS\nAll public records in the possession or custody of a public body \"are presumed to\nbe open to inspection and copying\" and any public body that denies a public record \"has the\nburden of proving by clear and convincing evidence\" that the record is exempt from disclosure.\n5 ILCS 140/1.2 (West 2018); see also Southern Illinoisan v. Illinois Department of Public\nHealth, 218 Il. 2d 390, 415 (2006). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2019 Supp.))\nfurther provides that \"[e]ach public body shall make available to any person for inspection or\ncopying all public records, except as otherwise providedi n Sections 7 and 8.5 of this Act.\" The\nexemptions from disclosure containedi n section 7 of FOIA (5 ILCS 140/7 (West 2019 Supp.))\nare to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Il.\n2d 401, 407 (1997).\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" In its\nanswer to the Public Access Bureau, the City explained that the requested records consist of\n\"review comments from the City of Geneva, the City's storm water consultant WBK\nEngineering, and the City's consulting arborist Dave Coulter.\"!° The City stated that the .\ncomments addressed the applications submitted by Malone Funeral Home for a special use and\nseeking zoning variations for its proposed parking lot expansion.'' The City asserted that the\nrequested records are exempt from disclosure under section 7(1)(f) because:\nThe review comments are predecisional and deliberative as they\nare intended to allow City officials to freely express ideas to the\napplicant regarding application deficiencies, City requirements,\n*Letter from Shannon Barnaby, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Rodney Nelson and David DeGroot, Director of Community Development, City of Geneva\n(April 24, 2021).\n‘Letter from David DeGroot, AICP, Director of Community Development, [City of Geneva], to\nShannon Barnaby, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (March 2,\n2021), at 1.\n“Letter from David DeGroot, AICP, Director of Community Development, [City of Geneva], to\nShannon Barnaby, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (March 2,\n2021), at I.\nDr. Rodney B. Nelson\nMr. David DeGroot\nMay 24, 2021\nPage 4\nand/or recommendations to improve the applications prior to\nformal consideration by the Planning and Zoning Commission.\nThe review comments provide the applicant an opportunity to\nmake revisions to-the applications prior to scheduling them for a\nPlanning and Zoning Commission public hearing.\"\nIn his reply, Dr. Nelson asserted that the City is misusing the section 7(1)(f)\nexemption by withholding records that reflect \"city staff [ ] advising the applicant on\n‘improvements’ to the application” and \"coaching of the applicant by taxpayer employed\nstaff[.]\"'? He contended that the City's withholding of those records creates an unlevel playing\nfield for adjacent property owners, such as himself, who oppose the proposed use.\nIt is undisputed that the withheld communications from the City and the City's\nconsultants were shared with Malone Funeral Home, a third-party business. The courts have\nrepeatedly emphasized that section 7(1)(f) is limited to internal documents and records\nexchanged with third parties that represent the public body or otherwise do not have any\nindependent interests in the subject of the communications. See, e.g., Harwood v. McDonough,\n344 Ill. App. 3d 242, 248 (1st Dist. 2003); see also Ill. Att'y Gen. Pub. Acc. Op. No. 15-002,\nissued January 23, 2015, at 12-13 (finding e-mails exchanged between public body and concert\npromoter were not exempt from disclosure under section 7(1)(f) because concert promoter had\nits own financial interests in communicating with public body).\nIn Harwood, 344 Ill. App. 3d at 247-48, the Illinois Appellate Court, First\nDistrict, explained that section 7(1)(f) applies to \"inter- and intra-agency predecisional and\ndeliberative material,\" and is \"intended to protect the communications process and encourage\nfrank and open discussion among agency employees before a final decision is made.\" (Emphasis\nadded.) See also Chemical Weapons Working Group v. United States Environmental Protection\nAgency, 185 F.R.D. 1, 3 (D.D.C. 1999) (\"the critical question is whether ‘disclosure of the\nmaterials would expose an agency's decision-making process in such a way as to discourage\ncandid discussion within the agency and thereby undermine the agency's ability to perform its\nfunctions (citing Dudman Communications v. Dep't of the Air Force, 815 F.2d 1565, 1568 (D.C.\nCir. 1987)).\"\" Emphasis added.) The Harwood court further explained that section 7(1)(f) of the\nLetter from David DeGroot, Director of Community Development, [City of Geneva], to Shannon\nBarnaby, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (March 2, 2021), at 1-\n'3E-mail from Rodney Nelson to [Shannon] Barnaby, [Assistant Attorney General, Public Access\nBureau, Office of the Attorney General] (March 3, 2021).\nDr. Rodney B. Nelson\nMr. David DeGroot\nMay 24, 2021\nPage 5\nAct \"is the equivalent of the ‘deliberative process' exemption found in section 552(b)(5) of the\nfederal Freedom of Information Act[.]\" Harwood, 344 Ill. App. 3d at 247; see also Dumke v.\nCity of Chicago, 2013 IL App (ist) 121668, 914, 994 N.E.2d 573, 578 (2013). The court\nconcluded that a report prepared for government officials by an outside consultant was exempt\nbecause the consultant did not represent an interest of its own or of any other client. Harwood,\n344 Ill. App. 3d at 248.\nThe Harwood court approvingly cited Dep't of Interior v. Klamath Water Users °\nProtective Ass'n, 532 U.S. 1, 121 S. Ct. 1060, 1061 (2001),'* where the United States Supreme\nCourt considered whether the United States Department of Interior properly withheld, pursuant\nto section 552(b)(5) of the Federal FOIA,'° records of communications with a Native-American\nIndian tribe concerning a plan to allocate water resources. The Court stated that the exemption\nmay shield pre-decisional material prepared by a third-party consultant on behalf of a public\nbody if the third party \"does not represent an interest of its own, or the interest of any other\nclient, when it advises the agency that hires it. Its only obligations are to truth and its sense of\nwhat good judgment calls for, and in those respects the consultant functions just as an employee\nwould be expected to do.\" Klamath Water Users Protective Ass'n, 532 U.S. at 11, 121 S. Ct. at\n1067. By contrast, communications with third parties that have independent interests and that\nstand to benefit from the public body's final decision cannot be characterized as intra-agency\ncommunications. Klamath, 532 U.S. at 13-15, 121 S. Ct. at 1068-69. The Court concluded that .\nthe records in question did not fall within the scope of the deliberative process exemption\nbecause the tribe represented its own interests rather than the interests of the Department of\nInterior. Klamath, 532 U.S. at 15, 121 S. Ct. at 1069.\nIn State Journal-Register v. University of llinois Springfield, 2013 IL App (4th)\n120881, 929, 994 N.E.2d 705, 714 (2013), however, the Appellate Court, Fourth District, held\nthat a letter sent to a public body by an attorney representing an adverse party fell within the\nscope of section 7(1)(f). The court quoted the holding in Harwood that \"the purpose of\nexempting predecisional and deliberative material is 'to protect the communications process and\nencourage frank and open discussion among agency employees before a final decision is\nmade.\" (Emphasis added.) State Journal-Register, 2013 IL App (4th) 120881, 926, 994 N.E.2d\nat 713 (quoting Harwood, 344 Ill. App. 3d at 248). Nevertheless, the court then went on to hold\nthat portions of the letter sent to the University by the attorney representing an individual who\n'4Because Illinois’ FOIA statute is based on the Federal FOIA statute, decisions construing the\nlatter, \"while not controlling, are relevant and helpful precedents in construing the Illinois FOIA.\" Margolis v.\nDirector, Ill. Department of Revenue, 180 Ill. App. 3d 1084, 1087 (1st Dist. 1989).\n'SFederal FOIA Exemption 5 (5 U.S.C. § 552(b)(5) (West 2000)) applies to \"inter-agency or intra-\nagency memorandums or letters which would not be available by law to a party other than an agency in litigation\nwith the agency[.]\"\nDr. Rodney B. Nelson\nMr. David DeGroot\nMay 24, 2021\nPage 6\nwas considering filing suit against the University were exempt from disclosure pursuant to\nsection 7(1)(f) because the information in the letter \"Would have undoubtedly been relied upon\nby {the University] in formulating a plan or policy for settling potential litigation with the\nvictim.” State Journal-Register, 2013 IL App (4th) 120881, 929, 994 N.E.2d at 714. In reaching\nthis conclusion, the court did not address the issue of whether the letter was \"inter- or intra-\nagency\" material or distinguish the holdings in Harwood and Klamath that have found the\ndeliberative process exemption only is applicable to communications with outside parties if the\noutside parties represent the interests of the public body.\nBecause the opinion in State-Journal Register does not explain howa letter from\nopposing counsel could be construed as \"inter- and intra-agency predecisional or deliberative\nmaterial\" as described in Harwood and Klamath, this office is compelled instead to follow the\nweight of authority and apply the analysis set out by the courts in Harwood and Klamath when\nconsidering the communications that the City and the City's consultants shared with Malone\nFuneral Home.\nIn the current circumstances, the withheld records were not exchanged\nexclusively among City employees and the City's consultants who represent the City's interests.\nInstead, the communications reflect the City’s advice to Malone Funeral Home about its zoning\napplications before the formal public zoning hearing was conducted. Malone’ Funeral Home is a —\nthird-party business that has its own independent interests and stands to benefit from the City's\nfinal decision concerning the zoning applications. In fact, the City acknowledged that the\ncorrespondence was created for the purpose of providing Malone Funeral Home with an.\nopportunity to make the suggested revisions to its applications before the zoning decisions were\nmade. Accordingly, the withheld records do not constitute inter- or intra-agency\ncommunications within the scope of the deliberative process exemption, and the City has not\nsustained its burden of demonstrating that those communications are exempt from disclosure\npursuant to section 7(1)(f) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On February 1, 2021, Dr. Rodney B. Nelson submitted a FOIA request to the\nCity of Geneva seeking communications exchanged between the City and Malone Funeral Home\nafter the date that public notice was given for a hearing about a zoning change at the funeral\nhome.\nDr. Rodney B. Nelson\nMr. David DeGroot\nMay 24, 2021\nPage 7\n2) On February 10, 2021, the City denied the request pursuant to section 7(1)(f)\nof FOIA.\n|\n3) On February 11, 2021, Dr. Nelson made an initial submission to file a Request\nfor Review with the Office of the Attorney General. On February 17, 2021, Dr. Nelson\nsubmitted all of the documentation necessary to complete his Request for Review contesting the\nCity's denial. The Request for Review was timely filed and otherwise complies with the\nrequirements of section 9.5(a) of FOIA.\n4) On February 24, 2021, the Public Access Bureau forwarded a copy of Dr.\nNelson's Request for Review to the City and asked it to provide copies of the withheld\ncommunications for this office's confidential review. This office also asked the City to provide a\ndetailed explanation of the factual and legal bases for its assertion of section 7(1)(f) of FOIA.\n5) On March 2, 2021, the City provided this office with the requested materials.\n6) On March 3, 2021, this office forwarded a copy of the City's answer to Dr.\nNelson. Later that day, Dr. Nelson submitted a written reply to the answer.\n7) On April 9, 2021, this office extended the time within which to issue a binding\nopinion by 30 business days, to May 24, 2021, pursuant to section 9.5(f) of FOIA. Therefore,\n- the Attorney General may properly issue a binding opinion with respect to this matter.\n8) Section 7(1)(f) of FOIA exempts from disclosure inter- and intra~agency pre-\ndecisional and deliberative materials. Pre-decisional material prepared by a third-party\nconsultant on behalf of a public body may also fall within the scope of the deliberative process\nexemption if the third party does not have its own independent interests.\n9) The City argued the requested communications were exempt from disclosure\nunder section 7(1)(f) because they were pre-decisional and deliberative records in which City\nofficials candidly conveyed their opinions to a business regarding its applications for zoning\nmodifications before a public hearing took place.\n10) The requested records, however, were provided to a third-party business that\nhas interests independent from the City and that stands to benefit from the City's final decision\nconcerning the zoning applications. Because the communications do not constitute inter- or\nintra-agency communications within the scope of the deliberative process exemption, they are\nnot exempt from disclosure under section 7(1)(f) of FOIA.\nDr. Rodney B. Nelson\nMr. David DeGroot\nMay 24, 2021\nPage 8\nTherefore, it is the opinion of the Attorney General that the denial of Dr. Nelson's\nFreedom of Information Act request by the City violated the requirements of FOIA.\nAccordingly, the City is directed to take immediate and appropriate action to comply with this\nopinion by disclosing to Dr. Nelson copies of the communications responsive to his request.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2018). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision naming the Attorney General of Illinois and Dr. |\nRodney Nelson as defendants. See 5 ILCS 140/11.5 (West 2018). )\nSincerely,\nKWAME RAOUL\nATFORNEY GENERAL\nBy: , At PSH ial\nBrent D. Stratton\nChief Deputy Attorney General\nCERTIFICATE OF SERVICE\nSarah L. Pratt, Public Access Counselor, hereby certifies that she has served a\n_ copy of the foregoing Binding Opinion (Public Access Opinion 21-004) upon:\nDr. Rodney B. Nelson\n23 Kane Stree\nGeneva, Illinois 60134\nrbn3@aol.com ,\nMr. David DeGroot\nDirector of Community Development\nCity of Geneva\n22 South First Street\nGeneva, IIlinois 60134\nddegroot@geneva.il.us\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Springfield, Illinois on May 24, 2021.\nSARAH L. PRATT _\nPublic Access Counselor\nSARAH L. PRATT\nPublic Access Counselor\n500 South Second Street\nSpringfield, Illinois 62706\n(217) 528-7541","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Dr. Rodney Nelson requested communications between the City of Geneva and a private business, Malone Funeral Home, regarding a zoning change. The City denied the request, claiming the records were protected by the deliberative process exemption. The Attorney General ruled that because the funeral home is a private third party with independent interests, communications with them are not part of the City's internal deliberative process and must be disclosed.","card_headline":"Communications about a zoning change with a private applicant","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":137,"orig_master_id":19340,"dup_master_id":19111,"dup_sha256":"156a59874d6c0c6a35c4878925dd606c4ebc7dcec1a9e35236bc847f35f101b7","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2021,"date_issued":"2021-02-17","case_number":"2020 PAC 65525","request_numbers":null,"title":"Police Records Concerning Sexual Offenses Against Minors Allegedly Perpetrated by Adults","filename":"PUBLIC ACCESS OPINION 21-002 (Request for Review - 2020 PAC 65525) (February 17, 2021).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 21-002 (Request for Review - 2020 PAC 65525) (February 17, 2021).pdf","word_count":2367,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request made by Ms. Susan Sarkauskas for police records related to sexual offenses against minors. The opinion concludes that the Village of Bartlett did not violate FOIA by denying the request.","plain_summary":"The requester, a newspaper reporter, sought police records concerning an alleged sexual-offense complaint against a named adult connected to a church, and a police department withheld the records in full, initially citing the Juvenile Court Act. The Public Access Counselor held that the Act did not apply because the accused was an adult, but that a separate personal-privacy exemption did apply because the alleged victim was a minor and the accused was never arrested or charged, so the significant privacy interests of both outweighed the public interest in disclosure. The department's denial was upheld and no violation was found.","holding":"The Village of Bartlett did not violate FOIA by denying the request.","legal_question":"Did the Village of Bartlett violate FOIA by denying the request for police records concerning an alleged sexual offense against a minor?","disposition":"no_violation","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7, 705 ILCS 405, 5 ILCS 140, 705 ILCS 405/5, 725 ILCS 190, 5 ILCS 140/2, 725 ILCS 190/3, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)"],"public_body":"Village of Bartlett","requesting_party":"Sarkauskas and Ms. Severson","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought police records concerning allegations of sexual offenses against minors that did not result in criminal charges.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2021-Binding-PAC-Opinions/21-002.pdf","sha256":"c674d28ae38baecaecb1d2179f2930bc801473bb45eb4a2a9a60a4a38f8f668a","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","sexual offense","privacy exemption","FOIA denial"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL February 17, 2021 PUBLIC ACCESS OPINION 21- 002 Request for Review 2020 PAC 65525) FREEDOM OF INFORMATION ACT: Police Records Concerning Sexual Offenses Against Minors Allegedly Perpetrated by Adults Ms. Susan Sarkauskas Staff Writer Daily Herald Media Group 95 West Algonquin Road• Arlington Heights, Illinois 60005 Ms. Phyllis Severson Records Supervisor Village ofBartlett Department of Police 228 South Main Street Bartlett, Illinois 60103 Dear Ms. Sarkauskas and Ms. Severson: This binding opinion is issued pursuant to section 9.5(f) ofthe Freedom of Information Act (FOIA) ( 5 ILCS 140/9.5( f) (West 2018)). For the reasons discussed below, this office concludes that the Village of Bartlett ( Village) Department ofPolice ( Department) did not violate the requirements ofFOIA by denying Ms. Susan Sarkauskas' FOIA request seeking records concerning an alleged sexual offense against a minor which did not result in an arrest or criminal charges: BACKGROUND On October 2, 2020, Ms. Sarkauskas, on behalfofthe Daily Herald Media Group, submitted a FOIA request to the Department via the Village' s online FOIA Center seeking copies 500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax (618) 529-6416 • Ms. Susan Sarkauskas Ms. Phyllis Severson February 17, 2021 Page 2 of \"any records regarding a complaint or allegation made involving [a named person], and also any involving Trinity Church ofthe Nazarene, in 2018, 2019 and 2020.\" 1 On October 14, 2020, the Department denied the request in its entirety pursuant to sections 7( 1)( a), 7(1)( b), and 7(1)( c) of FOIA (5 ILCS 140/7( 1)( a), ( 1)( b), ( 1)( c) ( West 2018), as amended by Public Acts 101- 434, effective January 1, 2020; 101- 452, effective January 1, 2020; 101- 455, effective August 23, 2019). In conjunction with section 7( 1)( a), the Department cited the Juvenile Court Act of 1987 ( JCA) (705 ILCS 405/ 1- 1 et seq. ( West 2018)), stating that \" all Juvenile data must be redacted from all records prior to release. i2 The Department also quoted section 5- 905( 2) of the JCA (705 ILCS 405/ 5- 905( 2) ( West 2018)), which provides that i]nformation identifying victims and alleged victims ofsex offenses, shall not be disclosed or open to public inspection under any circumstances.\" The Department further stated: \" We cite the above exemptions for denial ofyour request as we believe there is no way to effectively redact documents requested without disclosing exempted information. i3 In two e-mails transmitted on November 2, 2020, Ms. Sarkauskas submitted a Request for Review contesting the Department' s denial.4 On November 5, 2020, the Public Access Bureau sent a copy ofthe Request for Review to the Department. Along with a copy ofthe Request for Review, the Public Access Bureau also sent the Department a letter requesting unredacted copies ofthe withheld records for this office's confidential review, and a detailed written explanation of the legal and factual bases for the asserted exemptions. 5 On November 13, 2020, the Village's attorney provided this office with a response on behalf ofthe Village and a copy of the requested records. 6 On November 16, 2020, Village ofBartlett, Certification, Request for Public Records under Freedom ofInformation Act October 2, 2020). Letter from Phyllis Severson, Records Supervisor, Department ofPolice, Village ofBartlett, to reporter Susan Sarkauskas ( October 14, 2020), at [ 1]. Letter from Phyllis Severson, Records Supervisor, Department ofPolice, Village ofBartlett, to reporter Susan Sarkauskas ( October 14, 2020), at [2]. 4E -mails from Susan Sarkauskas, Staff Writer, Daily Herald Media Group, to Public Access Bureau, Office ofthe Attorney General] ( November 2, 2020). Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General, to Phyllis Severson, Records Supervisor, Village ofBartlett Department ofPolice ( November 2, 2020). 6E -mail from Kelly A. Coyle, Clark Baird Smith LLP, to Joshua Jones ( November 13, 2020). Ms. Susan Sarkauskas Ms. Phyllis Severson February 17, 2021 Page 3 this office forwarded a copy ofthe Village's answer to Ms. Sarkauskas and notified her ofher opportunity to reply to the Village' s answer. On November 25, 2020, Ms. Sarkauskas submitted replies in three separate e-mails.8 On December 31, 2020, this office extended the time within which to issue a binding opinion by 30 business days, to February 17, 2021, pursuant to section 9.5( f) ofFOIA.9 ANALYSIS Section 1 of FOIA (5 ILCS 140/ 1 ( West 2018)) declares that it is \"the public policy ofthe State ofIllinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act.\" Under FOIA, a]ll records in the custody or possession ofa public body are presumed to be open to inspection or copying. Any public body that asserts that arecord is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/ 1. 2 ( West 2018). Section 7(1)( a) of FOIA and the JCA Section 7( 1)( a) of FOIA exempts from disclosure \"[ i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" Additionally, section 7.5(bb) of FOIA (5 ILCS 140/7.5(bb) ( West 2018), as amended by Public Acts 101- 013, effective June 12, 2019; 101- 027, effective June 25, 2019; 101- 081, effective July 12, 2019; 101- 221, effective January 1, 2020; 101- 236, effective January 1, 2020; 101- 375, effective August 16, 2019; 101- 377, effective August 16, 2019; 101- 452, effective January 1, 2020; 101- 466, effective January 1, 2020; 101- 600, effective December 6, 2019; 101- 620, effective December 20, 2019) exempts from disclosure \"[ i]nformation which is or was prohibited from disclosure by the Juvenile CourtAct of 1987.\" Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General, to Susan Sarkauskas, StaffWriter, Daily Herald Media Group (November 16, 2020). 8E -mails from Susan Sarkauskas, Staff Writer, Daily Herald Media Group, to Joshua Jones November 25, 2020, 11: 13 a.m., 11: 23 a.m., and 1: 04 p.m.). Letter from Joshua M. Jones, DeputyBureau Chief, PublicAccess Bureau, Office ofthe Attorney General, to Susan Sarkauskas, StaffWriter, Daily Herald Media Group, and Kelly A. Coyle, Clark Baird Smith LLP December 31, 2020). Ms. Susan Sarkauskas Ms. Phyllis Severson February 17, 2021 Page 4 In its answer to this office, the Village's attorney stated that \"[ t]he requested report details allegations involving the sexual abuse ofa minor.i10 The Village argued that it is required to withhold this information pursuant to the Juvenile Court Act,\" because section 5- 905(2) ofthe JCA provides that \" information identifying victims and alleged victims ofsex offenses, shall not be disclosed or open to public inspection under any circumstances.\" Emphasis in original)\" In reply, Ms. Sarkauskas disputed the applicability ofthe JCA, stating that \" the alleged offender is an adult, and was an adult at the time ofthe complaint. i12 The JCA governs the \"[ i]nspection, copying, and disclosure ofjuvenile law enforcement records maintained by law enforcement agencies[.]\" 705 ILCS 405/ 1- 7(A) (West 2018). Subsection 1- 3( 8.2) ofthe JCA ( 705 ILCS 405/ 1- 3( 8.2) ( West 2018)) defines \"juvenile law enforcement record\" to include: records ofarrest, station adjustments, fingerprints, probation adjustments, the issuance of a notice to ap [...] . Susan Sarkauskas Ms. Phyllis Severson February 17, 2021 Page 9 information derived from the police report or that such information is otherwise publicly available. Davis v. U.S. Dep't ofJustice, 968 F.2d 1276, 1280. (D.C. Cir. 1992) (plaintiff \"has the burden ofshowing that there is a permanent public record ofthe exact portions he wishes.\"). Weighing the four factors together, it is clear that disclosure ofthe records would constitute a clearly unwarranted invasion ofpersonal privacy. The significant personal privacy interests ofthe alleged victim, who was a minor at the time ofthe alleged offense, and the suspect, who was not arrested or charged with a crime, outweigh the relatively weak public interest in disclosure. Therefore, the Village sustained its burden ofproving by clear and convincing evidence that the responsive records are exempt from disclosure under section 7(1)( c) ofFOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On October 2, 2020, Ms. Susan Sarkauskas, on behalfofthe Daily Herald Media Group, submitted aFOIA request to the Department seeking copies ofrecords regarding a complaint or allegation against a named person, and any records involving Trinity Church ofthe Nazarene, in 2018, 2019, and 2020. 2) On October 14, 2020, the Department denied the request in its entirety • pursuant to sections 7(1)( a), 7( 1)( b), and 7( 1)( c) of FOIA. In conjunction with section 7( 1)( a), the Department cited the Juvenile Court Act of 1987 (JCA), specifically quoting section 5- 905( 2) ofthat Act. 3) In two e-mails transmitted on November 2, 2020, Ms. Sarkauskas submitted a Request for Review contesting the Department' s denial. The Request for Review, was timely filed and otherwise complies with the requirements ofsection 9.5( a) ofFOIA (5 ILCS 140/9.5(a) West 2018)). 4) On November 5, 2020, the Public Access Bureau sent a copy ofthe Request for Review to the Department and requested unredacted copies ofthe withheld records for this office's confidential review, and a detailed written explanation ofthe legal and factual bases for the asserted exemptions. 5) On November 13, 2020, the attorney for the Village provided this office with the requested materials. Ms. Susan Sarkauskas Ms. Phyllis Severson February 17, 2021 Page 10 6) On November 16, 2020, this office forwarded a copy ofthe Village' s answer to Ms. Sarkauskas and notified her of her opportunity to reply. On November 25, 2020, Ms. Sarkauskas submitted three e-mails in reply. 7) On December 31, 2020, this office extended the time within which to issue a binding opinion by 30 business days, to February 17, 2021, pursuant to section 9.5( f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 7( 1)( a) of FOIA exempts from disclosure \"[ i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" Section 5- 905( 2) of the JCA provides that \"[ i]nformation identifying victims and alleged victims ofsex offenses, shall not be disclosed or open to public inspection under any circumstances.\" In context, this provision pertains to information identifying victims and alleged victims ofsex offenses committed by minors. Because it is undisputed that the suspect in this matter was an adult at the time ofthe alleged offense, the JCA is not abasis upon which to withhold the requested records. 9) However, section 3 ofthe Privacy ofChild Victims ofCriminal Sexual Offenses Act prohibits disclosure ofinformation in law enforcement records which identifies a child who is a victim or alleged victim of a criminal sexual offense. Therefore, certain information in the responsive reports is exempt from disclosure pursuant to section 7( 1)( a) of FOIA based on section 3 ofthe Privacy ofChild Victims of Criminal Sexual Offenses Act. 10) The Village properly asserted section 7( 1)( b) ofFOIA, which exempts from disclosure \"private information\" within the records, as defined in section 2(c-5) ofFOIA. However, only certain information contained in the responsive records may be withheld under section 7( 1)( b). 11) Section 7( 1)( c) of FOIA exempts from disclosure \"[ p]ersonal information contained within public records, the disclosure ofwhich would constitute a clearly unwarranted invasion of personal privacy.\" Under the four -factor balancing test used by the Illinois courts to assess personal privacy claims, Ms. Sarkauskas' personal interest and the public interest in disclosure are weak compared to the personal privacy interests ofboth the alleged victim and the suspect. The Village sustained its burden ofproving by clear and convincing evidence that the responsive records are exempt from disclosure under section 7(1)( c). Therefore, it is the opinion ofthe Attorney General that the Village of Bartlett Department ofPolice did not violate the requirements ofFOIA by denying Ms. Susan Sarkauskas' Freedom of Information Act request. Ms. Susan Sarkauskas Ms. Phyllis Severson February 17, 2021 Page 11 This opinion shall be considered a final decision ofan administrative agency for the purposes ofadministrative review under the Administrative Review Law. 735 ILCS 5/3- 101 et seq. ( West 2018). An aggrieved party may obtainjudicial review ofthe decision by filing a complaint for administrative review with the Circuit Court ofCook or Sangamon County within 35 days ofthe date ofthis decision naming the Attorney General ofIllinois and Village of Bartlett Department of Police as defendants. See 5 ILCS 140/ 11. 5 ( West 2018). Very truly yours, KWAME RAOUL ATTORNEY GENERAL 4- AJA- 1) By: Brent D. Stratton Chief Deputy Attorney General cc: Ms. Kelly A. Coyle Clark Baird Smith LLP 6133 North River Road, Suite 1120 Rosemont, Illinois 60018 CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy ofthe foregoing Binding Opinion (Public Access Opinion 21- 002) upon: Ms. Susan Sarkauskas Staff Writer Daily Herald Media Group 95 West Algonquin Road Arlington Heights, Illinois 60005 ssarkauskas@dailyherald. com Ms. Phyllis Severson Records Supervisor Village ofBartlett Department ofPolice 228 South Main Street Bartlett, Illinois 60103 c/o shughes@vbartlett.org Ms. Kelly A. Coyle Clark Baird Smith LLP 6133 North River Road, Suite 1120 Rosemont, Illinois 60018 kcoyle@cbslawyers. com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on February 17, 2021. Public Access Counselor SARAH L. PRATT Public Access Counselor Office ofthe Attorney General 500 South Second Street Springfield, Illinois 62701 217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested police records from the Village of Bartlett concerning a specific complaint or allegation against a named person and involving Trinity Church of the Nazarene from 2018 to 2020, which involved an alleged sexual offense against a minor. The Illinois Attorney General's office concluded that the Village did not violate the Freedom of Information Act by denying the request. The opinion rejected the Village's reliance on the Juvenile Court Act but found the records exempt under the Privacy of Child Victims of Criminal Sexual Offenses Act and FOIA section 7(1)(c) to protect privacy.","card_headline":"Police records of uncharged sexual offense allegations against minors","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":138,"orig_master_id":19346,"dup_master_id":19112,"dup_sha256":"eff31f5806176f755daaae3f437bd7ea5460322fb97314347583aecaa49370d9","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2021,"date_issued":"2021-03-04","case_number":"2020 PAC 65927","request_numbers":null,"title":"Improper Discussion of Matters under the Exception for Pending, Probable, or Imminent Litigation","filename":"PUBLIC ACCESS OPINION 21-003 (Request for Review - 2020 PAC 65927) (March 4, 2021).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 21-003 (Request for Review - 2020 PAC 65927) (March 4, 2021).pdf","word_count":2453,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a violation of the Open Meetings Act by the City Council of Hillsboro during a closed session discussion.","plain_summary":"The requester, a resident with an ongoing property dispute involving a sewer easement, alleged that a city council improperly discussed the matter in closed session under the exception for probable or imminent litigation. The Public Access Counselor held that the council never made or recorded a finding that litigation was probable or imminent as the exception requires, and that its discussion concerned the underlying dispute rather than litigation strategy. The council was directed to disclose the portion of the closed-session recording and minutes concerning the resident's property.","holding":"The City Council violated the Open Meetings Act by improperly entering closed session and failing to document the basis for discussing pending litigation.","legal_question":"Did the City Council of Hillsboro violate the Open Meetings Act during its closed session discussion?","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120, 5 ILCS 120/2(c), 5 ILCS 120/2(C), 5 ILCS 120/1, 5 ILCS 120/2(a), 735 ILCS 5, 5 ILCS 120/7","foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(11)"],"public_body":"City of Hillsboro","requesting_party":"Bradley and Ms. Duncan","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The City Council held a closed session to discuss issues involving a sanitary and storm sewer main under the guise of pending or imminent litigation.","ocr_status":"ok","ocr_quality":90.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2021-Binding-PAC-Opinions/21-003.pdf","sha256":"7de172a0e4dbde10b2eb851144e7dbc8ec6c05cf3801df5a5164d478c35860e5","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","pending litigation","Open Meetings Act","sewer main"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL March 4, 2021 PUBLIC ACCESS OPINION 21- 003 Request for Review 2020 PAC 65927) OPEN MEETINGS ACT: Improper Discussion of Matters under the Exception for Pending, Probable, or Imminent Litigation Mr. Eric Bradley 208 West Summer Street Hillsboro, Illinois 62049 The Honorable Katie Duncan Mayor City ofHillsboro 447 South Main Street Hillsboro, Illinois 62049 Dear Mr. Bradley and Ms. Duncan: This is a binding opinion issued by the Attorney General pursuant to section 3. 5( e) of the Open Meetings Act (OMA) ( 5 ILCS 120/3.5(e) ( West 2018)). For the reasons discussed below, this office concludes that the City Council ( City Council) ofthe City of Hillsboro ( City) violated section 2(a) of OMA (5 ILCS 120/ 2(a) ( West 2018), as amended by Public Acts 101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019) at its November 24, 2020, meeting. During this meeting, the City Council improperly entered closed session to discuss issues involving a sanitary and storm sewer main pursuant to the exception in section 2(c)( 11) of OMA (5 ILCS 120/2(c)( 11) ( West 2018), as amended by Public Acts 101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019). The City Council also failed to make the determination or \" find,\" and then record in its closed session minutes that legal action concerning that matter was probable or imminent and the basis for such a finding, as required by section 2(c)( 11). 500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: (877) 844-5461 • Fax: ( 217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000. 1- IY: (800) 964-3013 • Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 • ( 618) 529-6400 • T1'Y: (877) 675-9339 • Fax (618) 529-6416 • Mr. Eric Bradley The Honorable Katie Duncan March 4, 2021 Page 2 BACKGROUND On December 3, 2020, Mr. Eric Bradley submitted a Request for Review to the Public Access Bureau alleging that during the City Council'sNovember 24, 2020, meeting, the City Council had improperly entered closed session pursuant to section 2(c)( 11) ofOMA to discuss a sewer issue impacting certain properties in the City.' According to a newspaper article submitted by Mr. Bradley in support ofhis Request for Review, Mr. Bradley located a sanitary and storm sewer main for which the City appeared to have no easement under a parcel of residential property on Summer Street upon which Mr. Bradley planned to build a garage.2 Noting that the City Council's agenda listed a closed session to discuss \"possible litigation,i3 Mr. Bradley enclosed a copy ofe-mail correspondence he had with City Mayor Katie Duncan the day before the meeting in question. In his e-mail to Mayor Duncan, Mr. Bradley asserted that he had followed the proper procedure to be placed on the agenda for the meeting, 4 explaining that he had taken that step because a scheduled meeting among the other impacted homeowners, the City's Commissioner ofPublic Utilities, the City's attorney, and he had not occurred. Mr. Bradley stated: \" I believe I am owed an explanation and * * * most certainly a resolution to our problem on Summer St.\" 5 Mayor Duncan responded: I'm aware you asked to be on the agenda and declined the request. This is not something that is going to be resolved soon and we won't necessarily have an update within 2 weeks as stated last meeting. We as a council will be discussing it with our attorney in closed session so there is no need to discuss during the OMA — Request for Review by Public Access Counselor ( PAC) form submitted by Eric Bradley, dated December 2, 2020, and transmitted via e-mail on December 3, 2020). 2Ron Deabenderfer, Hillsboro Council OKs Three Facade Grants, THE JOURNAL -NEWS (Nov. 30, 2020, 12:03 a.m.) https:// www.thejournal- news.net/stories/hillsboro-council- oks-three-facade-grants,71877. 3City ofHillsboro City Council, Meeting, Agenda Item 17, DISCUSSION/ DECISION ON A MOTION TO APPROVE A \" CLOSED SESSION\" ON 5 ILCS 120/2(C)( 11) \" POSSIBLE LITIGATION\" November 24, 2020). 4To the extent that Mr. Bradley's Request for Review could be construed as alleging an OMA violation because his request to be placed on the agenda was denied, this office notes that OMA does not address the manner by which a meeting agenda is formulated. Thus, a public body does not violate OMA by denying arequest by a member ofthe public for a dedicated agenda item. 5E -mail from Eric W Bradley, PLS, to Mayor Duncan ( November 23, 2020). Mr. Eric Bradley The Honorable Katie Duncan March 4, 2021 Page 3 open meeting. I can not [sic] guarantee there will be a decision after that. We too are working on this.[61 Mr. Bradley further stated that a letter sent to him by Mayor Duncan on November 25, 2020, the day after the City Council's meeting, \" address[ ed] possible options available, none ofwhich mention possible or pending litigation.\" 7 Mr. Bradley enclosed a copy ofthat letter with his Request for Review; the letter does not mention legal action.8 On December 9, 2020, the Public Access Bureau sent a copy ofthe Request for Review to Mayor Duncan, as the head ofthe City Council. The Public Access Bureau also sent Mayor Duncan a letter asking for copies ofthe closed session verbatim recording and closed session minutes ofthe City Council' s November 24, 2020, meeting for this office's confidential review and a detailed written response to the allegation that the closed session discussion was not authorized by the section 2(c)( 11) exception.9 On December 17, 2020, counsel for the City provided the Public Access Bureau with a copy ofthe closed session minutes10 and a written response from Mayor Duncan on behalfofthe City Council. The response asserted that the City Council had properly held the closed session discussion regarding the property issue with which Mr. Bradley was concerned\" under section 2(c)( 11) because it involved \" possible or threatened litigation.\" 12 On December 18, 2020, this office forwarded a copy ofthe City Council's response letter to Mr. Bradley.13 He did not reply in writing but during a telephone conversation 6E -mail from Katie [Duncan] to [Eric Bradley] (November23, 2020). OMA — Request for Review by Public Access Counselor (PAC) form submitted by Eric Bradley dated December 2, 2020, transmitted via e-mail on December 3, 2020). Letter from Katie Duncan, Mayor, City ofHillsboro, to Eric Bradley (November 25, 2020). Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General, to The Honorable Katie Duncan, Mayor, City ofHillsboro ( December 9, 2020). 10Letter from Christopher B. Hantla, Law Offices of Hantla & Hantla, Ltd., to Joshua M. Jones, Office ofthe Attorney General (December 17, 2020). This office notes that the City Council discussed other matters unrelated to Mr. Bradley during the closed session pursuantto section 2(c)( 11). Thosematters are outside the scope ofthis Request for Review. Letter from Katie Duncan, Mayor, City ofHillsboro, to Joshua M. Jones, Office ofthe Attorney General ( December 14, 2020), at [ 1]. 13Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General, to Eric Bradley (December 18, 2020). Mr. Eric Bradley The Honorable Katie Duncan March 4, 2021 Page 4 with an Assistant Attorney General in the Public Access Bureau, Mr. Bradley stated that the only time he referred to the possibility of hiring an attorney was when he had a meeting scheduled with City officials and the City's attorney. Mr. Bradley asked them whether he should bring an attorney of his own; he stated that he did not receive a reply. 14 On December 29, 2020, this office received from counsel for the City a flash drive containing a copy ofa Zoom audio and video recording of the City Council's entire November 24, 2020, meeting. 15 On January 25, 2021, the Public Access Bureau properly extended the [...] nd therefore violated section 2(a) ofOMA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments presented, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) OnNovember 24, 2020, the City ofHillsboro City Council closed a portion of its meeting to the public under section 2(c)( 11) ofOMA to discuss \"possible or threatened litigation\" concerning Mr. Eric Bradley's desire to build a garage on aparcel ofresidential property over a storm and sanitary sewer main for which the City appeared to have no easement. Hillsboro City Council, Special Meeting, November 24, 2020, Closed Session Minutes. Mr. Eric Bradley The Honorable Katie Duncan March 4, 2021. Page 12 2) On December 3, 2020, Mr. Eric Bradley submitted a Request for Review to the Public Access Bureau alleging that the City's Council's November 24, 2020, closed session discussion concerning the sewer issues impacting the property was improper because litigation related to that matter was not pending, probable, or imminent. Mr. Bradley's Request for Review was timely filed and otherwise complies with the requirements of section 3.5( a) of OMA (5 ILCS 120/3.5( a) ( West 2018)). 3) On December 9, 2020, the Public Access Bureau sent a copy ofthe Request for Review to Mayor Katie Duncan and asked the City Council to provide copies ofthe closed session verbatim recording and closed session minutes ofits November 24, 2020, meeting for this office's confidential review, and a written answer to Mr. Bradley's OMA allegation. 4) On December 17, 2020, counsel for the City furnished the closed session minutes and a written answer from Mayor Duncan asserting that the City Council properly discussed \" possible or threatened litigation\" related to Mr. Bradley' s concerns in closed session pursuant to the section 2(c)( 11) exception. 5) On December 18, 2020, this office sent a copy of the City Council' s answer to Mr. Bradley. He did not reply. 6) On December 29, 2020, this office received a flash drive from the City Council containing a Zoom audio and video recording of its entire November 24, 2020, meeting. 7) On January 25, 2021, the Public Access Bureau properly extended the time within which to issue a binding opinion by 21 business days, to March 4, 2021, pursuant to section 3.5( e) ofOMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 2(a) of OMA requires that all meetings ofpublic bodies be open to the public unless the subject ofthe meeting is covered by one ofthe limited exceptions enumerated in section 2(c). Section 2(c)( 11) permits a public body to close a portion ofa meeting to discuss Mitigation, when an action against, affecting or on behalfofthe particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes ofthe closed meeting.\" 9) Ifthere is no litigation pending, then section 2(c)( 11) authorizes a closed session discussion only when the public body has reasonable grounds to believe that litigation is more likely than not to be instituted or that such an occurrence is close at hand. Mr. Eric Bradley The Honorable Katie Duncan March 4, 2021 Page 13 10) The City Council' s November 24, 2020, closed session discussion concerning the sewer issues on Summer Street did not pertain to pending, probable, or imminent litigation. In addressing the City Council before the closed session on November 24, 2020, Mr. Bradley's comments indicated his continued desire to work with the City towards a resolution. The City Council asserted that its plan to send Mr. Bradley a letter detailing the status ofits efforts to address his concerns could result in him taking legal action because the letter did not resolve those concerns. Section 2(c)( 11) of OMA, however, does not authorize closed session discussion ofan underlying decision or course ofaction that could potentially give rise to litigation. Accordingly, the City Council violated section 2(a) ofOMA by discussing in closed session matters outside the scope of section 2(c)( 11) of OMA. 11) The City Council also failed to determine or find that litigation was probable or imminent or record and enter into the closed session minutes the basis for such a finding, as required by section 2(c)( 11). In accordance with these findings of fact and conclusions oflaw, the City Council is directed to remedy this violation by disclosing to Mr. Bradley and making publicly available the portion ofthe closed session verbatim recording of its November 24, 2020, meeting and the corresponding portion ofthe closed session minutes concerning Mr. Bradley and the sewer issues relating to the property on Summer Street. As required by section 3.5( e) ofOMA, the City Council shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA. 5 ILCS 120/ 7.5 West 2018). This opinion shall be considered a final decision ofan administrative agency for the purpose ofadministrative review under the Administrative Review Law. 735 ILCS 5/ 3- 101 et seq. ( West 2018). An aggrieved party may obtainjudicial review ofthe decision by filing a complaint for administrative review in the Circuit Court ofCook County or Sangamon County within 35 days ofthe date ofthis decision, naming the Attorney General ofIllinois and Mr. Eric Bradley as defendants. See 5 ILCS 120/7.5 ( West 2018). Very truly yours, KWAME RAOUL ATTORNEY GENERAL • iw1- jf% D L By: Brent D. Stratton Chief Deputy Attorney General Mr. Eric Bradley The Honorable Katie Duncan March 4, 2021 Page 14 cc: Via electronic mail Mr. Christopher B. Hantla Hantla & Hantla, Ltd. Attorneys atLaw 413 North State Street P.O. Box 69 Litchfield, Illinois 62056 kit.hantla@hantlalaw.com CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy ofthe foregoing Binding Opinion (Public Access Opinion 21- 003) upon: Mr. Eric Bradley 208 West Summer Street Hillsboro, Illinois 62049 ericlayout@gmail. com The Honorable Katie Duncan Mayor City ofHillsboro 447 South Main Street Hillsboro, Illinois 62049 katie.duncan04@yahoo. com Mr. Christopher B. Hantla Hantla & Hantla, Ltd. Attorneys at Law 413 North State Street P.O. Box 69 Litchfield, Illinois 62056 kit.hantla@hantlalaw. com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on March 4, 2021. SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor Office ofthe Attorney General 500 South Second Street Springfield, Illinois 62701 217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The City Council of Hillsboro held a private meeting to discuss sewer and storm drain issues, claiming it was allowed because of potential legal action. The Attorney General ruled that the Council broke the law because they did not properly document or prove that a lawsuit was actually likely or imminent, which is required to hold a private meeting under this exception. This means the Council must ensure they meet strict legal standards before closing their doors to the public.","card_headline":"Closed-session discussion of sewer main issues","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":139,"orig_master_id":19113,"dup_master_id":19344,"dup_sha256":"7b07035aa4d27e57fd99d5c1af83c18479bc97d787951aa84118583c168b85d5","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2021,"date_issued":"2021-01-26","case_number":"2020 PAC 65160","request_numbers":null,"title":"Duty to Confer Before Denying Request as Unduly Burdensome","filename":"PUBLIC ACCESS OPINION 21-001 (Request for Review - 2020 PAC 65160) (January 26, 2021).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 21-001 (Request for Review - 2020 PAC 65160) (January 26, 2021).pdf","word_count":2480,"summary":"The Chicago Police Department violated the requirements of FOIA by improperly denying Mr. Gregory Pratt's FOIA request as unduly burdensome without first fulfilling its obligation to confer with him about possible ways to narrow the request to manageable proportions . CPD stated that it \"does not have any automated mechanism by which to track, query, or limit a sea of subpoena and/or search warrant records categorically as\" the request sought\"","plain_summary":"The requester, a newspaper reporter, sought copies of federal subpoenas and search warrants served on a city police department in a given month, which the department denied as unduly burdensome without ever engaging with the requester's repeated attempts to confer about narrowing the request. The Public Access Counselor held that the department violated FOIA's mandatory duty to offer and follow through on conferring before denying a request as unduly burdensome, and separately failed to prove either that the request was actually unduly burdensome or that the subpoenas were exempt. The department was directed to provide the requester with copies of the responsive subpoenas.","holding":"The Chicago Police Department violated FOIA by failing to provide the requester an opportunity to confer in an attempt to reduce the request to manageable proportions before denying it as unduly burdensome.","legal_question":"Does a public body violate section 3(g) of FOIA by denying a request as unduly burdensome without first offering the requester an opportunity to confer and narrow the request?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(e), 5 ILCS 140/3(g), 5 ILCS 140/1, 5 ILCS 140/7(1), 725 ILCS 5/112, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11, 5 ILCS 140/2","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":["7(1)(a)","7(1)(b)"],"public_body":"Chicago Police Department","requesting_party":"Mr. Gregory Pratt (Chicago Tribune)","pac_outcome":"UNCLEAR","pac_law_type":"FOIA","subject_category":"unduly burdensome","subject_description":"The request sought copies of subpoenas received by the Chicago Police Department from federal law enforcement or regulatory agencies.","ocr_status":"ok","ocr_quality":89.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2021-Binding-PAC-Opinions/21-001.pdf","sha256":"44b35f269332b933ae52c1413143600e2fc2a338290b401cc191959638a88341","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["unduly burdensome","duty to confer","FOIA request","police records"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL Al’ TORNEY GENERAL Janu26a, 2r0y21 PUBLIC ACCESS OPINION 21-001 (Request for Review 2020 PAC 65160) FREEDOM OF INFORMATION ACT: Duty to Confer Before Denying Request as Unduly Burdensome Mr. Gregory Pratt Chicago Tribune 160 North Stetson Avenue Chicago, Illinois 60601 Ms. Dana O'Malley © General Counsel Chicago Police Department 3510 South Michigan Avenue Chicago, Illinois 60653-1020 t Dear Mr. Pratt and Ms. O'Malley: | !| it This binding opinion is issued pursuant to section 9.5(f) of the Freedom C yf Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons discussed below, this office concludes that the Chicago Police Department (CPD) violated the requirements of FOIA by improperly denying Mr. Gregory Pratt's FOIA request as unduly burdensome without first fulfilling its obligation to confer with him about possible ways to narrow the request to manageable proportions. | | i i BACKGROUND On September 11, 2020, Mr. Pratt, on behalf of the Chicago Tir ibune, submitted a FOIA request to CPD seeking copies of: | i | | 500 South Second Street, Springfield, Ilinots 62701 © (217) 782-1090 ¢ TTY: (877) 844-5461 © Fax: (217) 782- 7046 100 West Randolph Street, Chicago, Hlinois 60601© (312) 814-3000 © ‘PTY: (800) 964-3013© Fax: (312) 814-3 806 601 South University Ave., Carbondale, IL. 62901© (618) 529-6400 © ‘ITY: (877) 675-9339 ¢ Fax (618) 529-6416 p- j Mr. Gregory Pratt . : Ms. Dana O'Malley | January 26, 2021 } . Page 2 1. Any subpoenas from federal law enforcement or regulatory | agencies or agents received by the Chicago Police Department, any, of its departments or any of its officials. Federal law enforcement | or regulatory agencies would include (but not bel imited to) entities like the United States Attorney's Office, the FBI,a nd the SEC. This includes grandju ry subpoenas. 2. Any search warrants served on the Chicago Police Department, | any of its offices or any of its officials. | The timeframe for this request is August 1, 2020 thtough August 31, 2020, | In a letter on that same date, CPD extended its time to respond by five buisiness days pursuant to section 3(e) of F OIA (5 ILCS 140/3(e) (West 2018), as amended by Public Act 101-081, effective July 12, 2019).* On September 25, 2020, CPD responded that it considered the request unduly burdensome under section 3(g) of FOIA (5 ILCS 140/3(g) (West 201 8), as amended by Public Act 101-081, effective July 12, 2019) and denied the request.3” CPD stated that it \"does not have any automated mechanism by which to track, query, or limit a sea. rch of subpoena and/or search warrant records categorically as\" the request sought.\" CPD asserted: In order to fulfill this request as currently written, CPD would have to manually retrieve and individually review each subpoena from | August 1, 2020 to August 31, 2020i n order to determine whether | or not each subpoenai s responsive to your request. * * * Please be’ advised that CPD received 3,344 subpoenasi n August 2020, which would require substantial collection, redaction, and review of | records. * * * Moreover, the production of responsive subpoenas would only satisfy a portion of your multipart FOIA request as you 'FOIA request from Gregory Pratt, Chicago Tribune, to CPDfoia@chicagopolice.org (September 11, 2020). i 2Letter from Andrew Marlan, Freedom of Information Officer, Chicago Police Department, to Gregory Pratt (September 11, 2020). | 3Letter from A. Marlan, Freedom of Information Act Officer, Chicago Police Department, Office of Legal Affairs, Unit 114, to Gregory Pratt, Chicago Tribune (September 25, 2020). i 4Letter from A. Marlan, Freedom of Information Act Officer, Chicago Police Department, Office of Legal Affairs, Unit 114, to Gregory Pratt, Chicago Tribune (September 25, 2020), at [1-2].. Mr. Gregory Pratt Ms. Dana O'Malley January 26, 2021 | Page 3 : . are also asking CPD to do the same catégorical search for search warrants,/>! } CPD then offered Mr. Pratt the opportunity to submit a new FOIA request: | | Pursuant to Section 3(g) of FOTIA, we would like to extend to you | an opportunity to modify your request to make it more manageable. CPD encourages you to review your request to ascertain the specific details to your query, Unless and until a new FOIA request is submitted that specifies and narrows the records you are seeking, CPD will be unable to provide further records. Once this is determined, a new FOIA request can be submitted to CPD, specifying the records you would like CPD to provide.!® On September 28, 2020, Mr. Pratt replied to CPD's response by asking to confer with it about narrowing his request.’ He stated: \"I'd like to better understand how CPD performed a reasonable search, as well as confer with you about how CPD keeps these records, and particularly how it tracksi ncoming subpoenas.\"® Mr. Pratt also asked: \"Would it help you if I specify that I am seeking federal duces tecum subpoenas — meaning grandju ry subpoenas for the production of documents — versus subpoena testificandum — which call for testimony?\" Mr. Pratt emphasized that he was seeking search warrants served on CPD, and expressed skepticism that CPD had received many search warrants, contending that \"these would b extraordinarily rare and you should be able to definitively determine: There were (1/2/3/4/5/6) search warrants in a month served on you -- then produce them if there were. mio Mr. Pra 1 ‘ Letter from A. Marlan, Freedom of Information Act Officer, Chicago Police Department, Office of Legal Affairs, Unit 114, to Gregory Pratt, Chicago Tribune (September 25, 2020), at [2]. | SLetter from A. Marlan, Freedom of Information Act Officer, Chicago Police Department, Office of Legal Affairs, Unit 114, to Gregory Pratt, Chicago Tribune (September 25, 2020), at [2]. \"E-mail from Gregory Pratt, Chicago Tribune, to Chicago Police FOIA office and General Counsel O' Malley (September 28, 2020). | | ‘E-mail from Gregory Pratt, Chicago Tribune, to Chicago Police FOIA office and General Counse] O' Malley (September 28, 2020). °E-mail from Gregory Pratt; Chicago Tribune, to Chicago Police FOIA office and|/General Counsel O' Malley (September 28, 2020). , '0F-mail from Gregory Pratt, Chicago Tribune, to Chicago Police FOIA office and General Counsel O' Malley (September 28, 2020). | Mr. Gregory Pratt | Ms. Dana O'Malley | | January 26, 2021 | Page 4 | concluded by asking \"to discuss [the FOIA request] with your law, tech and records people\"!! by a specified day. On October 2, 2020, Mr. Pratt followed up with an e-mail to CPD: I have not heard back. Are we going to discuss this? | Per the law, I'd like to better understand how CPD | performed a reasonable search in this matter, as well as confer with | you about how CPD keeps these records, and particularly how it | tracks incoming subpoenas. I'd like to discuss it with technical and | legal staff that knows what the actual processes are in a specific way. Let me know. I am trying to work with you.!!2] Additionally, on October 6, 2020, Mr. Pratt e-mailed CPD: \"Hi,'per FOIA, I am yin to work with you on this request. I haven't heard back from anybody.\"!3» In an e-mail sent on October 12, 2020, Mr. Pratt submitted a Request for Review contesting CPD's failure to confer with him before denying his request as unduly burdensome. 14 He alleged that \"CPD not only failed to conferi n good faith with me. It quite simply failed to confer at all with me, even after I repeatedly reached out.\"'> Mr. Pratt explained that he assumed CPD had a system for tracking incoming subpoenas and that information about the tracking system could be used to narrow his request. He cited Sargent Shriver National Center on Poverty Law, Inc. v. Board of Education of City of Chicago, 2018 IL App (1st) 171846, 134, 122 N.E.3d 729, 737 (2018) for its guidance that \"[a] plaintiff seeking to test a claim of undue burden under section 3(g) will—if the public body has engagedi n t [...] h him before denying his request as unduly burdensome. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2018)). . 6) On October 14, 2020, the Public Access Bureau sent CPD a copy of the Request for Review and a letter asking it to provide a written answer to the allegation that it improperly denied the request as unduly burdensome without first conferring with Mr. Px att. The letter also asked CPD to explain the legal and factual bases for denying Mr. Pratt's request as unduly burdensome, addressing how it tracks subpoenas and search warrants received and how it searched for them. 7) On October 20, 2020, CPD's General Counsel'e-mailed Mr. Pratt, providing information that She stated she hoped would be helpful for \"future FOIA requests.\"’ Mr. I>ratt replied by notifying her about this Request for Review. She responded that she was not aware of the Request for Review and instead believed she had responded to a media inquiry. | i | 8) On November 30, 2020, this office received CPD's written answer. 9) Later on that same date, the Public Access Bureau forwarded to Mr. Pratta copy of CPD's answer and notified him of his opportunity to reply. | 10) On December 2, 2020, this office extended the time in which to!‘ issue | | | | Mr. Gregory Pratt Ms. Dana O'Malley January 26, 2021 Page 16 binding opinion by 30 business days pursuant to section 9.5(f) of FOTIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. | 11) On December 4, 2020, Mr. Pratt submitted a reply to CPD's answer. 12) Section 3(g) of FOIA provides that before denying a FOIA request as unduly burdensome, \"the public body shall extend to the person making the request an opportunity to confer with it in an attempt to reduce the request to manageable proportions.\" The; plain and ordinary meaning of \"an opportunity to confer\" is a chance to engage in dialogue. Section 3(g) requires a public body that considers a request to be unduly burdensome to offer to confer with the requester about narrowing the scope of the request to manageable proportions, and then to follow throughi n good faith if the requester accepts the public body's offer. 13) CPD failed to fulfill its obligation to confer with Mr. Pratt before denying his request as unduly burdensome. CPD neither offered Mr. Pratt the opportunity to confer or communicated with him when he asked to confer for the purpose of narrowing hisr equest to manageable proportions. 14) CPD did not set forth facts sufficient to demonstrate that complying with Mr. Pratt's FOIA request would be unduly burdensome. 15) CPD did not prove that all responsive grand jury subpoenas are exempt from disclosure under section 7(1)(a) of FOIA. Section 7(1)(a) exempts from disclosure \"[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" CPD did not demonstrate that any, Federal or State law, rule, or regulation specifically prohibits disclosure of any responsive grand jj ury subpoenas. | | ! Therefore, it is the opinion of the Attorney General that CPD violated the requirements of FOIA by denying Mr. Pratt's Freedom of Information Act requesta s unduly burdensome without first offering him the opportunity to confer about reducing his request to manageable proportions and without granting his request to confer for that purpose. It is also the opinion of the Attorney General that CPD proved neither that the request posed anlundue burden nor that any responsive subpoenas are specifically prohibited from disclosure for purposes of section 7(1)(a) of FOIA. Accordingly, CPDi s hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Pratt with copies of any subpoenas responsive to his September 11, 2020, FOIA request. | | CPD may properly redact information that meets the plain language of the definition of \"private information\" pursuant to section 7(1)(b) of FOIA (5 ILCS 140/7(1)() Mr. Gregory Pratt | Ms. Dana O'Malley | | January 26, 2021 | | Page 17 (West 2018), as amended by Public Acts 101-434, effective January 1, 2020; 1014- 52, ef ffective January 1, 2020; 101-455, effective August 23, 2019).2° If CPD chooses to redact any information from the copies of the records it provides to Mr. Pratt, it must include a written notice of the denial that identifies the basis for each redaction and which otherwise complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2018)). CPD is further directed to comply with section 3(g) of FOIA by extending a requester an opportunity to confer with it in an attempt to reduce a request to manageable proportions, and by engaging in appropriate good-faith dialogue with the requester, prior to denying any FOIA request as unduly burdensome. — | | This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2018). An aggrieved party may obtain judicial review of the decision by filiing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Gregory Pratt as defendants. See 5 ILCS 140/11.5 (West 2018). | | Very truly yours, KWAME RAOUL ATTORNEY GENERAL | . Brent D. Stratton | Chief Deputy Attorney General Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2018)) provides: | \"Private information\" means unique identifiers, including a person's | social security number, driver's license number, employee identification number, | biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal | license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person. CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has Serv, eda copy of the foregoing Binding Opinion (Public Access Opinion 21-001) upon: Mr. Gregory Pratt Chicago Tribune | 160 North Stetson Avenue Chicago, Illinois 60601 | gpratt@chicagotribune.com Ms. Dana O'Malley General Counsel Chicago Police Department 3510 South Michigan Avenue Chicago, Illinois 60653-1020 dana.omalley@chicagopolice.org by causing a true copy thereof to be sent electronically to the addresses as listed above ar id by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on January 26, 2021. dudL Bt SARAH L. PRATT> Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General 500 South Second Street Springfield, Illinois 62701 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"When a government agency claims that a records request is too large or time-consuming to fulfill, they are legally required to talk to the requester first to see if the request can be narrowed down. The Chicago Police Department skipped this step when denying a request from the Chicago Tribune. The Attorney General's office ruled that the Department broke the law by failing to hold this mandatory conversation.","card_headline":"Subpoenas received by a police department","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":140,"orig_master_id":19114,"dup_master_id":19341,"dup_sha256":"8e339d70753c070f78e7d5d5debab114aa1b1cf2a49cd5de71eee6245a34874e","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2021,"date_issued":"2021-07-07","case_number":"21-006","request_numbers":null,"title":"Duty to Make Verbatim Recordings of Closed Sessions of Committee Meetings","filename":"PUBLIC ACCESS OPINION 21-006 (Request for Review - 2021-PAC-S-0079)(July 7, 2021).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 21-006 (Request for Review - 2021-PAC-S-0079)(July 7, 2021).pdf","word_count":2347,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a violation of the Open Meetings Act by the South Central Illinois Mass Transit District's Personnel Committee for failing to make verbatim recordings of a closed session meeting.","plain_summary":"The requester, a public transit district employee, alleged that a personnel committee failed to make a verbatim recording of its closed session. The Public Access Counselor held that the committee violated the Open Meetings Act's requirement to record all closed sessions, a violation the committee itself acknowledged after discovering its recorder had not been turned on. The committee was directed to adopt procedures to ensure all future closed sessions are properly recorded.","holding":"The Personnel Committee violated section 2.06(a) of the Open Meetings Act.","legal_question":"Did the Personnel Committee violate the Open Meetings Act by not making a verbatim recording of the closed session?","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2, 5 ILCS 120/1, 5 ILCS 120/7, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"South Central Illinois Mass Transit District Personnel Committee","requesting_party":"DeMaris and Mr. Schubert","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The failure of a public body committee to create a verbatim audio or video recording of a closed session meeting.","ocr_status":"ok","ocr_quality":89.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2021-Binding-PAC-Opinions/21-006.pdf","sha256":"c6a6b23885c7fe7209f0c81bdf00757ce3dca1daacd42e5ce371fc466411454b","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","verbatim recording","Open Meetings Act","meeting minutes"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL July 7, 2021 PUBLIC ACCESS OPINION 21-006 (Request for Review 2021-PAC-S-0079) OPEN MEETINGS ACT: Duty to Make Verbatim Recordings of Closed Sessions of Committee Meetings Ms. Pam DeMaris 2523 Meadow Lane Centralia, Illinois 62801 Mr. John Schubert Board President South Central Illinois Mass Transit District 1616 East McCord Street Centralia, Illinois 62801 Dear Ms. DeMaris and Mr. Schubert: This is a binding opinion issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2018)). For the reasons discussed below, this office concludes that the Personnel Committee (Committee) of the Board of Directors (Board) of the South Central Illinois Mass Transit District (District) violated section 2.06(a) of OMA (5 ILCS 120/2.06(a) (West 2018)) at its March 18, 2021, meeting because it did not make a verbatim recording of the closed session portion of the meeting. BACKGROUND In a letter dated April 16, 2021, and postmarked April 26, 2021, Ms. Pam DeMaris, an employee of the District, submitted a Request for Review to the Public Access 500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © T'T'Y: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © II'Y: (800) 964-3013 © Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 ¢ TTY: (877) 675-9339 © Fax (618) 529-6416 +Geousr: Ms. Pam DeMaris Mr. John Schubert July 7, 2021 Page 6 Counselor alleging that the Committee violated OMA during its March 18, 2021, meeting.’ Ms. DeMaris stated that she had been the minute taker and recorder of all Board meetings for ten years, but that she was recently told that the Board and legal counsel \"would be taking care of all closed session minutes and recordings.\"” When the time came for the Committee's closed session discussion at the March 18, 2021, meeting, Ms. DeMaris stated, \"Board President John Schubert asked everyone to leave [the room], except for Personnel Committee members, the Finance [C]ommittee members that came early for their meeting, and Legal Counsel[.]\" Ms. DeMaris alleged that after the closed session ended, she noticed that the lockbox where the Board had recently begun to store its recorder \"was untouched[.]\"? She further stated that she \"asked legal counsel if the meeting was recorded. He stated that he didn't know. [ asked Board President John Schubert if the closed session had been recorded, he stated that it had not, and that they would ‘address it'.\"* Ms. DeMaris questioned the Board's ability to properly administer closed session minutes and verbatim recordings on its own, and suggested that in her absence \"in closed session[][,] the board takes the opportunity to discuss issues that should be discussed in open session but don't want to in order to avoid transparency.\"> On May 4, 2021, the Public Access Bureau sent a copy of the Request for Review to Mr. Schubert in his capacity as Board President and Ms. Sara Nollman-Hodge, the District's Managing Director. The Public Access Bureau also sent Mr. Schubert and Ms. Nollman-Hodge a letter requesting copies of the agenda and open and closed session minutes of the Committee's March 18, 2021, meeting, and a written answer to the allegation that the Committee failed to make a verbatim recording of its closed session discussion during that meeting.© On May 10, 'Letter from Pam DeMaris to Sarah Pratt, Public Access Counselor, Office of the Attorney General (April 16, 2021). : Letter from Pam DeMaris to Sarah Pratt, Public Access Counselor, Office of the Attorney General (April 16, 2021). 3Letter from Pam DeMaris to Sarah Pratt, Public Access Counselor, Office of the Attorney General (April 16, 2021). ‘Letter from Pam DeMaris to Sarah Pratt, Public Access Counselor, Office of the Attorney General (April 16, 2021). >Letter from Pam DeMaris to Sarah Pratt, Public Access Counselor, Office of the Attorney General (April 16, 2021). SLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to John Schubert, Board President, South Central Illinois Mass Transit District, and Sara Nollman-Hodge, Managing Director, South Central Illinois Mass Transit District (May 4, 2021). Ms. Pam DeMaris Mr. John Schubert July 7, 2021 Page 6 2021, Mr. Schubert responded on behalf of the Committee, providing a copy of the draft closed session minutes, an affidavit by Ms. Nollman-Hodge, and a written answer.’ On May 13, 2021, the Public Access Bureau forwarded a copy of the Committee's written answer to Ms. DeMaris and notified her of her opportunity to reply.’ The following day, Ms. DeMaris replied by simply stating that she had \"no additional response to submit[,]\" as her \"allegation of violation of OMA on March 18, 2021 was confirmed by Board President John Schubert.\"? On June 17, 2021, the Public Access Bureau extended the time within which to issue a binding opinion by 21 business days, to July 27, 2021, as permitted by section 3.5(e) of OMA.!° ANALYSIS OMA declares that \"[i]t is the public policy of this State that public bodies exist to aid in the conduct of the people's business and that the people have a right to be informed as to the conduct of their business.\" 5 ILCS 120/1 (West 2018). Section 2.06(a) of OMA provides, in relevant part: \"All public bodies shall keep written minutes of all their meetings, whether open or closed, and a verbatim record of all their closed meetings in the form of an audio or video recording.\" Section 1.02 of OMA (5 ILCS 120/1.02 (West 2018)) defines \"public body\" to include: all legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, except the General Assembly and committees or commissions thereof. \"Letter from John Schubert, President, South Central Illinois Mass Transit District, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau (May 10, 2021). 8Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Pam DeMaris (May 13, 2021). °E-mail from Pam DeMaris to Joshua M. Jones (May 14, 2021). ‘Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Pam DeMaris, John Schubert, Board President, South Central Illinois Mass Transit District, and Sara Nollman-Hodge, Managing Director, South Central Illinois Mass Transit District (June 17, 2021). Ms. Pam DeMaris Mr. John Schubert July 7, 2021 Page 6 By its plain language, OMA requires all public bodies, including a committee of a legislative body such as the Board, to make audio or video recordings of all their closed sessions. In the Committee's answer to this office's inquiry letter, Mr. Schubert stated: In review of the audio records, we could not locate a verbatim recording of the closed session of the Personnel Committee meeting of South Central Illinois Mass Transit District held on March 18, 2021. For some reason the recorder was inadvertently not turned on for this closed session. * * * We will be putting new procedures in place regarding the recording of all South Central Illinois Mass Transit District closed sessions in an effort to prevent a non-recording of said meetings!!! Thus, the Committee acknowledged its error, and Mr. Schubert pledged that the District would implement new procedures for all of its public bodies to prevent the issue from recurring. Mr. Schubert did not provide any details about the new procedures that he indicated the District intends to implement. Although the Board and its committees have discretion in determining how to ensure that they properly record all of their closed session discussions, they should adopt clear and effective procedures to prevent any similar violations in the future.'? - Letter from John Schubert, President, South Central Ilinois Mass Transit District, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau (May 10, 2021). '2Ms. DeMaris appears to allege in her Request for Review that the Board violated OMA by removing her from her role as minute taker and recorder of Board and Committee meetings; however, OMA does not address which officers or employees of a public body are responsible for making and keeping closed session verbatim recordings. Ms. DeMaris also alleged that, in her absence from closed sessions, the Board has discussed topics that OMA does not authorize it to discuss in closed session. Because Ms. DeMaris did not provide any facts to support her claim of improper closed session discussions, that allegation is speculative. Accordingly, this office did not inquire with the Board about that allegation. See 5 ILCS 120/3.5(a) (West 2018) (requiring a Request for Review to \"include a summary of facts supporting the allegation.\"); 5 ILCS 120/3.5(b) (West 2018) (providing that no further action shall be taken when \"the Public Access Counselor determines from the request for review that the alleged violation is unfounded[.]\"). Ms. Pam DeMaris Mr. John Schubert July 7, 2021 Page 6 _ FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments presented, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On March 18, 2021, the Personnel Committee of the Board of Directors of the South Central Illinois Mass Transit District closed a portion of its meeting to the public. 2) Ina letter dated April 16, 2021, and postmarked on April 26, 2021, Ms. Pam DeMaris, a District employee, submitted a Request for Review to the Public Access Counselor alleging that the Personnel Committee violated OMA by failing to make a verbatim recording of its March 18, 2021, closed session discussion. Ms. DeMaris' Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2018)). . 3) On May 4, 2021, the Public Access Bureau sent a copy of the Request for Review to Board President John Schubert and Managing Director Sara Nollman-Hodge and asked the Committee to provide copies of the agenda and open and closed session minutes from its March 18, 2021, meeting, and a written answer to the allegation that it failed to make a verbatim recording of its closed session discussion during that meeting. 4) By letter dated, May 10, 2021, Mr. Schubert responded on behalf of the Committee, providing a copy of the draft closed session minutes, an affidavit by Ms. Nollman- Hodge, and a written answer. Mr. Schubert acknowledged that the Committee did not make a verbatim recording of its March 18, 2021, closed session discussion. 5) On May 13, 2021, this office sent a copy of the Committee's answer to Ms. DeMaris and notified her of her opportunity to reply. On May 14, 2021, she replied that she had nothing further to state, as Mr. Schubert's answer acknowledged the Committee's violation. 6) On June 17, 2021, the Public Access Bureau extended the time within which to issue a binding opinion by 21 business days, to July 27, 2021, as permitted by section 3:5(e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 7) Section 2.06(a) of OMA provides, in relevant part, that \"[a]ll public bodies shall keep written minutes of all their meetings, whether open or closed, and a verbatim record of all their closed meetings in the form of an audio or video recording.\" Section 1.02 of OMA expressly defines \"public body\" to include committees and other subsidiary bodies. Ms. Pam DeMaris Mr. John Schubert July 7, 2021 Page 6 8) The Committee acknowledged that it violated section 2.06(a) of OMA by failing to make a verbatim recording of its March 18, 2021, closed session discussion. Mr. Schubert asserted that the District would be implementing new procedures to ensure the recording of all future closed session discussions, but did not explain what those procedures would entail. ) In accordance with these findings of fact and conclusions of law, the Board and its committees are directed to promptly adopt procedures to ensure that all of their closed sessions are properly recorded in accordance with section 2.06(a) of OMA. As required by section 3.5(e) of OMA, the Board shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA, 5 ILCS 120/7.5 (West 2018). This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2018). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Ms. Pam DeMaris as defendants. See 5 ILCS 120/7.5 (West 2018). Very truly yours, KWAME RAOUL ATTORNEY GENERAL itd State_ Brent D. Stratton Chief Deputy Attorney General Ms. Sara Nollman-Hodge Managing Director South Central Illinois Mass Transit District 1616 East McCord Street Centralia, Illinois 62801 CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 21-006) upon: Ms. Pam DeMaris 2523 Meadow Lane Centralia, Illinois 62801 pamdemaris@gmail.com Mr. John Schubert Board President South Central Illinois Mass Transit District 1616 East McCord Street Centralia, Illinois 62801 john@bhinsur.com Ms. Sara Nollman-Hodge Managing Director South Central Illinois Mass Transit District 1616 East McCord Street Centralia, Illinois 62801 snollman@southcentraltransit.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on July 7, 2021. Public Access Counselor SARAH L. PRATT Public Access Counselor 500 South Second Street Springfield, Illinois 62706 (217) 528-7541","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A public employee filed a complaint alleging that a transit district committee failed to record a closed-door meeting. The Attorney General's office investigated and determined that the committee broke the law by not creating a verbatim recording of that session. This means the committee failed to follow the mandatory requirement to document closed meetings as required by the Open Meetings Act.","card_headline":"Failure to record a closed-session meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":141,"orig_master_id":19339,"dup_master_id":19115,"dup_sha256":"f2da5e987dcbec6d590982ddd0c5a06c6a5af7bc4b116e6243e6eb4dfa3fed03","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2021,"date_issued":"2021-06-02","case_number":"2021 PAC 67100","request_numbers":null,"title":"Duty to Disclose Employee Attendance Records","filename":"PUBLIC ACCESS OPINION 21-005 (Request for Review - 2021 PAC 67100)(June 2, 2021).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 21-005 (Request for Review - 2021 PAC 67100)(June 2, 2021).pdf","word_count":3537,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request for employee attendance records made by Mr. David Sutherland on behalf of the Northwest Side Coalition Against Racism & Hate, which was partially denied by the Village of Morton Grove Police Department.","plain_summary":"The requester, on behalf of a community advocacy coalition, sought police officer attendance and scheduling records around the January 6, 2021, events in Washington, D.C., which a police department redacted in full, citing exemptions for officer safety and security vulnerability assessments. The Public Access Counselor held that routine attendance records are not vulnerability assessments or security plans, and that the department's speculative claims of danger did not meet its burden to withhold the schedules. The department was directed to disclose the redacted entries.","holding":"The Village of Morton Grove Police Department violated FOIA by improperly partially denying the FOIA request.","legal_question":"Did the Village of Morton Grove Police Department violate FOIA by partially denying the request for employee attendance records?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Village of Morton Grove Police Department","requesting_party":"Mr. David Sutherland (Northwest Side Coalition Against Racism & Hate)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought records of time off, including vacation and personal days, for police department employees.","ocr_status":"ok","ocr_quality":89.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2021-Binding-PAC-Opinions/21-005.pdf","sha256":"a36c61ea2d91a15242fb1dc58631eaceb759a38ed940ddf2cae163e1ac456478","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["personnel records","employee attendance","FOIA request","police records"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n* KWAME RAOUL\nATTORNEY GENERAL.\nJune 2, 2021\nPUBLIC ACCESS OPINION 21-005\n(Request for Review 2021 PAC 67100)\nFREEDOM OF INFORMATION ACT:\nDuty to Disclose Employee Attendance Records\nMr. David Sutherland\nOrganizer\nNorthwest Side Coalition Against Racism & Hate\nMs. Teresa Hoffman Liston .\nCorporation Counsel\nVillage of Morton Grove\n[street address redacted for site publication -- see original PDF]\nDear Mr. Sutherland and Ms. Liston:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons discussed\nbelow, this office concludes that the Village of Morton Grove (Village) Police\nDepartment (Police Department) violated the requirements of FOIA by improperly\npartially denying Mr. David Sutherland's FOIA request for employee attendance records.\nBACKGROUND\nOn January 19, 2021, Mr. Sutherland, on behalf of the Northwest Side\nCoalition Against Racism & Hate (Coalition), submitted a FOIA request to the Police\nDepartment seeking copies of:\n500 South Second Strect, Springfield, Ilinois 62701 © (217) 782-1090 ¢ ‘I“I'Y: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 ¢ (312) 814-3000 « (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400© : (877) 675-9339© Fax (618) 529-6416 +=\nMr. David Sutherland\nMs. Teresa Hoffman Liston\nJune 2, 2021\nPage 2\nRecords sufficient to show the names, star numbers,\nrespective dates, and the type of time off of all police officers\nand/or employees who requested any personal time off, vacation\ndays, personal days, furlough days, or any other time off for the\ndates of, on, or between Jan 1, 2021. and January 8, 2021 AS\nWELL AS the dates of, on, or between Jan 1, 2020 and January 8,\n2020.! (Emphasisi n original.)\nOn January 29, 2021, the Police Department extended its time to respond by five\nbusiness days pursuant to section 3(e)(vi) of FOIA (5 ILCS 140/3(e)(vi) (West 2019 Supp.)).”\nOn February 5, 2021, the Police Department responded by providing Mr. Sutherland with copies\nof responsive schedules, but redacted all of the substantive content, citing section 7(1)(v) of\nFOIA (5 ILCS 140/7(1)(v) (West 2019 Supp.)).?_ The Police Department disclosed eleven\ncolumn headings for the schedule (e.g. \"Name,\" \"Position,\" \"Fri 1/1/2021\") but redacted all of\nthe data identifying police officers who worked on indicated dates. The Police Department set\nforth no factual basis for redacting this information, rather it merely quoted the language of the\nstatutory exemption.\nOn February 19, 2021, Mr. Sutherland submitted a Request for Review on behalf\nof the Northwest Side Coalition contesting the partial denial of its FOIA request.4 Mr.\nSutherland's Request for Review stated, \"[w]e seek to understand what law enforcement officers\nwere attending the 1/6/2021 coup on the Capitol. All local [police departments] were transparent\nwith their resulting records except for Morton Grove who blacked out ALL of the spreadsheets\nin entirety[.]\" (Emphasis in original.)° He further noted: \"[w]e deserve to know if any of our\nlocal law enforcement officers could possibly be involved with this attack on our country and\ntherefore be a threat to our communities.\"\n'FOIA request from Northwestside Coalition to Whom It May Concern (January 19, 2021).\nVillage of Morton Grove public records portal message to [David Sutherland] (January 29, 2021).\n3Village of Morton Grove public records portal message from Teresa Hoffman Liston,\nCorporation Counsel, to [David Sutherland] (February 5, 2021).\n‘E-mail from David Sutherland to Public Access [Bureau, Office of the Attorney General]\n(February 19, 2021).\nE-mail from David Sutherland to Public Access [Bureau, Office of the Attorney General]\n(February 19, 2021).\nSE-mail from David Sutherland to Public Access [Bureau, Office of the Attorney General]\n(February 19, 2021).\nMr. David Sutherland\nMs. Teresa Hoffman Liston\nJune 2, 2021\nPage 3\nOn February 26, 2021, the Public Access Bureau sent a copy of the Request for\nReview to the Village's Corporation Counsel. The Public Access Bureau also sent the\nCorporation Counsel a letter asking for unredacted copies of the responsive records for this\noffice's confidential review, and a detailed explanation of the legal and factual bases for the\napplicability of the section 7(1)(v) exemption.’\nOn March 4, 2021, the Village provided this office with the requested materials\non behalf of the Police Department.® In its written answer, the Village additionally cited section\n7(1)(d)(vi) of FOIA (5 ILCS 140/7(1)(d)(vi) (West 2019 Supp.)) as a basis for partially denying\n_ Mr. Sutherland's request.” The following day, this office forwarded a copy of the Village's\nanswer to Mr. Sutherland and notified him of the Coalition's opportunity to reply.!° On March\n12, 2021, Mr. Sutherland submitted a reply.'!\nOn April 14, 2021, this office extended the time within which to issue a binding\nopinion by 30 business days, to June 2, 2021, pursuant to section 9.5(f) of FOIA.”\nANALYSIS\nSection 1 of FOIA (5 ILCS 140/1 (West 2018)) declares that \"it is the public\npolicy of the State of Illinois that access by all persons to public records promotes the\ntransparency and accountability of public bodies at all levels of government.\" Under FOIA,\n\"[a]ll records in the custody or possession of a public body are presumed to be open to inspection\n\"Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Teresa Hoffman Liston, Corporation Counsel, Village of Morton Grove (February 26, 2021).\n8E-mail from Teresa Hoffman Liston, Corporation Counsel, Village of Morton Grove, to Deputy\nBureau Chief Jones (March 4, 2021).\n°E-mail from Teresa Hoffman Liston, Corporation Counsel, Village of Morton Grove, to Deputy\nBureau Chief Jones (March 4, 2021).\nLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to David Sutherland, Organizer, Northwest Side Coalition Against Racism & Hate (March 5,\n2021).\n\"E-mail from David Sutherland, Organizer, Northwest Side Coalition Against Racism & Hate to\nJoshua Jones (March. 12, 2021).\n7 etter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to David Sutherland, Organizer, Northwest Side Coalition Against Racism & Hate, and Teresa\nHoffman Liston, Corporation Counsel, Village of Morton Grove (April 14, 2021).\nMr. David Sutherland\nMs. Teresa Hoffman Liston\nJune 2, 2021\nPage 4\nor copying. Any public body that asserts that a record is exempt from disclosure has the burden\nof proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2018).\nAs a preliminary matter, because this is an issue common to many public bodies,\nit bears highlighting that FOIA expressly requires a public body to do more than quote the\nlanguage of an exemption when denying a FOJA request in whole or in part. See 5 ILCS\n140/9(b) (West 2018) (\"When.a request for public records is denied on the grounds that the\nrecords are exempt under Section 7 of this Act, the notice of denial shall specify the exemption\nclaimed to authorize the denial and the specific reasons for the denial, including a detailed\nfactual basis and a citation to supporting legal authority.\"). All public bodies including the\nVillage should be mindful of their obligation to adhere to this requirement.\nTurning to the specifics of this Request for Review, the Village has asserted two\nbases for withholding the requested information, sections 7(1)(d)(vi) and 7())(v) of FOIA.\nSection 7(1)(d)(vi) of FOIA\nSection 7(1)(d)(vi) of FOIA exempts from disclosure qualifying law enforcement\nrecords and provides:\n(d) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes,\nbut only to the extent that disclosure would:\n* OK OK\n(vi) endanger the life or physical safety of law\nenforcement personnel or any other person[.]\nThe corresponding exemption in the Federal FOIA? requires an agency to \"demonstrate with\nsufficient specificity that releasing such information reasonably could be expected to\" lead to\nharm. Long v. U.S. Dep't of Justice, 450 F. Supp. 2d 42, 80 (D.D.C. 2006). That standard\ncannot be satisfied with \"conclusory assertions that disclosure will increase the chances that third\nparties will be harmed in some way.\" Long, 450 F. Supp. 2d at 80.\n3Exemption 7(F) (5 U.S.C. § 552(b)(7)(F) (2018)) permits records to be withheld if disclosure\n\"could reasonably be expected to endanger the life or physical safety of any individuall.]\"\nMr. David Sutherland\nMs. Teresa Hoffman Liston\n~ June 2, 2021\nPage 5\nIn its answer to this office, the Village argued that the section 7(1)(d)(vi)\nexemption applies because:\nProviding these records would define Morton Grove Police\nDepartment staffing protocols that would affect our response\npolicies to calls for service and critical incidents, thus endangering\nthe life and physical safety of the general public and Morton Grove\nPolice Department officers and civilian staff. This information\ncould also be used to predict future staffing practices in order to\ntarget specific individual police officers and civilian staff.!\"4}\nIn his reply, Mr. Sutherland claimed that the Village's arguments are unique\namong the local police departments from which the Coalition requested similar information. He\nargued that the Village set forth an insufficient factual basis for denying the \"past factual\ninformation\" he is seeking. '\nThe Village's argument for the applicability of the section 7(1)(d)(vi) exemption\nis unpersuasive. The Village's speculative and generalized claims do not establish a reasonable\ninference that disclosing the attendance records would endanger the life or physical safety of\npolice officers or anyone else. A basic employee attendance record simply does not contain the\nkind of sensitive information that could fall within the scope of the section 7(1)(d)(vi)\nexemption. Compare Electronic Privacy Information Center v. U.S. Dep't of Homeland ©\nSecurity, 777 F.3d 518, 525, 528 (D.C. Cir. 2015) (Department of Homeland Security protocol\nfor shutting down wireless networks during critical emergencies exempt because it could be used\nto interfere with law enforcement strategy to prevent triggering radio-activated improvised\nexplosive devices, endangering lives and physical safety); Public Employees for Environmental\nResponsibility v. United States Section, International Boundary and Water Comm'n, U.S.- .\nMexico, 740 F.3d 195, 206 (D.C. Cir. 2014) (dam inundation maps exempt as sensitive __\ninformation pertaining to critical infrastructure that would endanger the population if disclosed\nbecause \"[t]errorists or criminals could use that information to determine whether attacking a\ndam would be worthwhile, which dam would provide the most attractive target, and what the\nlikely effect of a dam break would be.\"); Galloway v. Office of Pennsylvania Attorney General,\n63 A.3d 485, 487 (Pa. Commw. Ct. 2013) (information related to the relocation of a named\nwitness through a law enforcement witness protection program exempt because disclosure would\nendanger witness' life or physical safety). The Village cited no legal authority supporting the\n'4E-mail from Teresa Hoffman Liston, Corporation Counsel, Village of Morton Grove, to Deputy\nBureau Chief Jones (March 4, 2021).\n'5F-mail from David Sutherland, Organizer, Northwest Side Coalition Against Racism & Hate to\nJoshua Jones (March 12, 2021).\nMr. David Sutherland\nMs. Teresa Hoffman Liston\nJune 2, 2021\nPage 6\napplicability of the exemption to routine employee attendance records nor did it provide\nsufficient specificity of how releasing the requested information could result in harm to others.\nTherefore, the Village failed to sustain its burden of proving by clear and convincing evidence\nthat the redacted information is exempt from disclosure under section 7(1)(d)(vi).\nSection 7(1)(v) of FOIA\nSection 7(1)(v) of FOIA exempts from disclosure information that could result in\nattacks on a community's population or systems and provides:\nVulnerability assessments, security measures, and\nresponse policies or plans that are designed to identify,\nprevent, or respond to potential attacks upon a community's\npopulation or systems, facilities, or installations, the destruction or\ncontamination of which would constitute a clear and present\ndanger to the health or safety of the community, but only to the\nextent that disclosure could reasonably be expected to jeopardize\nthe effectiveness of the measures or the safety of the personnel\nwho implement them or the public. Information exempt under this\nitem may include such things as details pertaining to the\nmobilization or deployment of personnel or equipment, to the\noperation of communication systems or protocols, or to tactical\noperations. (Emphasis added.)\nIn a previously issued binding opinion, this office concluded that records showing the number of\nsworn police officers assigned to each district were not assessments, measures, policies, or plans\nwithin the scope of the section 7(1)(v) exemption. Ill. Att'y Gen. Pub. Acc. Op. No. 11-002,\nissued February 25, 2011, at 3.\nIn its response to this office, the Village stated:\nIt is the Village's position that providing the requested\nrecords would divulge information regarding staffing levels\n- leading up to specific events such as the Certification of the\nElectoral College votes which could beu sed to predict staffing\nlevels for future events for criminal purposes, jeopardizing the\nability of the Morton Grove Police Department to effectively plan\n' for critical incidents in the future, thus endangering the life and\nMr. David Sutherland\nMs. Teresa Hoffman Liston\nJune 2, 2021\nPage 7 .\nphysical safety of the general public and Morton Grove Police\nDepartment personnel.!\"¢\nBy its plain language, section 7(1)(v) applies to vulnerability assessments,\nsecurity measures, and response policies or plans created for the purpose of identifying,\npreventing, or responding to potential attacks on a community or its infrastructure. In construing\na statute, \"the primary objective * * * is to ascertain and give effect to the intent of the General\nAssembly.\" Southern Illinoisan y. Illinois Dep't of Public Health, 218 Ul. 2d 390, 415 (2006).\n\"[T]he surest and most reliable indicator of\" legislative intent \"is the statutory language itself,\ngiven its plain and ordinary meaning.\" Board of Education of Springfield School District No.\n186 v. Attorney General of Illinois, 2017 IL 120343, 924, 77 N.E.3d 625, 630 (2017). Routine\nemployee attendance records are not vulnerability assessments, security measures, or response\npolicies or plans. Further, attendance records are not designed for the particular purpose of\nidentifying, preventing, or responding to such attacks, nor do they consist of the type of\nhomeland security or other emergency preparation information that is contemplated by the plain\nlanguage of section 7(1)(v). ,\n_ Even if the language of section 7(1)(v) could be deemed ambiguous, the\nlegislative history behind section 7(1)(v) supports the interpretation that the provision concerns\nrecords involved in counterterrorism planning. Representative James H. Meyer, one of the\nHouse sponsors of the bill that added the exemption, stated during legislative debate that the bill\n\"exempts documents prepared for emergency and security procedures from being disclosed from\nhomeland security where that would be compromised.\" Remarks of Rep. Meyer, May 31, 2003,\nHouse Debate on House Bill No. 954 (which as Public Act 93-422, effective August 5, 2003,\ncreated the section 7(1)(v) exemption), at 107. Because the responsive employee attendance\nrecords are basic, routine personnel records rather than vulnerability assessments, security\nmeasures, or response policies or plans designed to identify, prevent, or respond to potential\nattacks upon a community's population or systems, facilities, or installations, the Police\nDepartment improperly denied the substantive portions of the responsive records pursuant to\nsection 7(1)(v).\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\na\n'6E-mail from Teresa Hoffman Liston, Corporation Counsel, Village of Morton Grove, to Deputy\nBureau Chief Jones (March 4, 2021).\nMr. David Sutherland\nMs. Teresa Hoffman Liston\nJune 2, 2021\nPage 8\n1) On January 19, 2021, Mr. David Sutherland, on behalf of the Northwest Side\nCoalition Against Racism & Hate, submitted a FOIA request to the Morton Grove Police\nDepartment seeking copies of attendance records of police officers and other employees from\nJanuary 1, 2020, through January 8, 2020, and January 1, 2021, through January 8, 2021.\n2) On January 29, 2021, the Police Department extended its time to respond by\nfive business days pursuant to section 3(e)(vi) of FOIA.\n3) On February 5, 2021, the Police Department responded by providing Mr.\nSutherland with copies of responsive schedules but redacted, pursuant to section 7(1)(v) of\nFOIA, all substantive entries reflecting which employees worked at which times.\n4) In an e-mail transmitted to the Public Access Bureau on February 23, 2021,\nMr. Sutherland, on behalf of the Northwest Side Coalition Against Racism & Hate, submitted a\nRequest for Review contesting the Police Department's redactions under section 7(1)(v) of\nFOIA. The Request for Review was timely filed and otherwise complies with the requirements\nof section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2018)).\n5) On February 26, 2021, the Public Access Bureau sent the Village of Morton\nGrove's Corporation Counsel a copy of the Request for Review. The Public Access Bureau also -\nsent the Corporation Counsel a letter asking her to provide unredacted copies of the responsive\nrecords for this office's confidential review, and a detailed explanation of the legal and factual -\nbases for the applicability of section 7(1)(v). :\n6) On March 4, 2021, this office received those materials from the Village. In\naddition to section 7(1)(v), the Village also cited the section 7(1)(d)(vi) exemption to justify the\npartial denial of Mr. Sutherland's request.\n7) On March 5, 2021, the Public Access Bureau forwarded to Mr. Sutherland a\ncopy of the Village's answer and notified him of the Coalition's opportunity to reply. On March\n12, 2021, Mr. Sutherland submitted a reply on behalf of the Coalition to the Village's answer.\n8) On April 14, 2021, this office extended the time in which to issue a binding\nopinion by 30 business days pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General\nmay properly issue a binding opinion with respect to this matter.\n9) Section 9(b) of FOIA provides that \"[w]hen a request for public records is\ndenied on the grounds that the records are exempt under Section 7 of this Act, the notice of\ndenial shall specify the exemption claimed to authorize the denial and the specific reasons for the\ndenial, including a detailed factual basis and a citation to supporting legal authority.\" The Police\nMr. David Sutherland\nMs. Teresa Hoffman Liston\nJune 2, 2021\nPage 9\nDepartment set forth no factual basis for its redactions in the notice of partial denial sent to Mr.\nSutherland in response to the Coalition's request. The Police Department is directed to comply\nwith this requirement in the future.\n10) Section 7(1)(d)(vi) of FOIA exempts from disclosure law enforcement\nrecords created for law enforcement purposes only to the extent that disclosure would endanger\nthe life or physical safety of law enforcement personnel or any other person. A basic employee\nattendance record is not the type of sensitive record that could potentially jeopardize the life or\nphysical safety of Police Department employees or others. The Village set forth no facts or legal\nauthority demonstrating that the redacted information is exempt from disclosure under section\n7(1)(d)(vi).\n11) Section 7(1)(v) of FOIA exempts from disclosure \"[v]ulnerability\nassessments, security measures, and response policies or plans that are designed to identify,\nprevent, or respond to potential attacks upon a community's population or systems, facilities, or\ninstallations,\" when destruction or contamination would pose a clear and present danger and\ndisclosure could reasonably be expected to jeopardize the effectiveness of the measures or\npersonal safety. The Village did not demonstrate that basic employee attendance records fall\nwithin the plain language of the section 7(1)(v) exemption.\n_ Therefore, it is the opinion of the Attorney General that the Village of Morton\nGrove Police Department violated the requirements of FOIA by improperly denying the\nattendance record entries responsive to Mr. Sutherland's Freedom of Information Act request.\nAccordingly, the Police Department is hereby directed to take immediate and appropriate action\nto comply with this opinion by providing Mr. Sutherland and the Coalition with unredacted\ncopies of the attendance records responsive to his January 19, 2021, FOIA request.\nMr. David Sutherland —\nMs. Teresa Hoffman Liston\nJune 2, 2021\nPage 10\nThis opinion shall be considered a final decision of an administrative agency for\n‘the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2018). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days of the date of this decision naming the Attorney General of Illinois, Mr. David\nSutherland, and the Northwest Side Coalition Against Racism & Hate as defendants. See 5ILCS\n140/11.5 (West 2018). ,\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nMut-N. Grab\nBrent D. Stratton\nChief Deputy Attorney General\nCERTIFICATE OF SERVICE\nSarah L. Pratt, Public Access Counselor, hereby certifies that she has served a\ncopy oft he foregoing Binding Opinion (Public Access Opinion 21-005) upon:\nMr. David Sutherland\nOrganizer\nNorthwest Side Coalition Against Racism & Hate\ndave@nwscoalition.com\nMs. Teresa Hoffman Liston\nCorporation Counsel\nVillage of Morton Grove\n6101 Capulina Avenue\nMorton Grove, Illinois 60053\ntliston@mortongroveil.org\nby causing a true copy thereof to be sent electronically to. the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Springfield, Illinois on June 2, 2021.\nohh tt\nSARAH L. PRATT ~~\nPublic Access Counselor\nSARAH L. PRATT\nPublic Access Counselor\n500 South Second Street\nSpringfield, Illinois 62706\n(217) 528-7541","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A community group requested attendance records for police officers to see when they took time off. The Village of Morton Grove Police Department refused to provide some of these records, claiming they were private. The Attorney General's office ruled that the police department was wrong to withhold the information and must release the records.","card_headline":"Police employee attendance records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":142,"orig_master_id":19343,"dup_master_id":19116,"dup_sha256":"3a70e5a6c6b5dcf4d2ea0556b00271cb8c870a12c1462e5c250918009f654eb5","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2021,"date_issued":"2021-08-31","case_number":"2021-PAC-C-0090","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 21-008 (Request for Review - 2021-PAC-C-0090)(August 31, 2021).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 21-008 (Request for Review - 2021-PAC-C-0090)(August 31, 2021).pdf","word_count":3011,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a FOIA request submitted by Mr. Gregory Pratt on behalf of the Chicago Tribune, which the Mayor's Office failed to appropriately respond to.","plain_summary":"The requester, a newspaper reporter, sought text messages between a mayor and two hospital officials, which a mayor's office never substantively responded to despite months of follow-up from both the requester and this office. The Public Access Counselor held that the mayor's office violated FOIA's requirement to comply with, extend, or deny a request within the statutory time period. The mayor's office was directed to provide the requester with all records responsive to the request, subject only to permissible redactions.","holding":"The Office of the Mayor of the City of Chicago violated section 3(d) of FOIA by failing to comply with the FOIA request.","legal_question":"Did the Office of the Mayor of the City of Chicago violate the Freedom of Information Act by failing to respond to a FOIA request?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Office of the Mayor, City of Chicago","requesting_party":"Mr. Gregory Pratt (Chicago Tribune)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"FOIA response","subject_description":"The request sought text messages between the Mayor and individuals associated with Loretto Hospital.","ocr_status":"ok","ocr_quality":89,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2021-Binding-PAC-Opinions/21-008.pdf","sha256":"20c23662f02ce3dbfb1acf450449bf817bcbc7a859ac74f87418a08bf12b7acf","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA request","failure to respond","Mayor's Office","text messages"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nAUTORNEY GENERAL\nAugust 31, 2021\nPUBLIC ACCESS OPINION 21-008\n(Request for Review 2021-PAC-C-0090)\nFREEDOM OF INFORMATION ACT:\nDuty to Respond to FOIA Requests\nMr. Gregory Pratt\nChicago Tridune\n[street address redacted for site publication -- see original PDF]\nMr. Tom Skelton\nFOIA Officer\nOffice of the Mayor, City of Chicago\n121 North LaSalle Street, Suite 500\nChicago, Illinois 60602\nDear Mr. Pratt and Mr. Skelton:\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons\ndiscussed below, this office concludes that the Office of the Mayor oft he City of Chicago\n(Mayor's Office) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2020)) by failing to\ncomply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request\nsubmitted by Mr. Gregory Pratt on behalf of the Chicago Tribune.\n500 South Second Strcet, Springfield, Mlinois 62701 © (217) 782-1090 © II'Y: (877) 844-5461 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60604 ¢ (312) 814-3000 © “I” FY: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © T1'Y: (877) 675-9339 © Fax (618) 529-6416 axD-\nMr. Gregory Pratt\nMr. Tom Skelton\nAugust 31, 2021\nPage 2\nBACKGROUND\nOn June 17, 2021 at 3:13 p.m., Mr. Pratt, a reporter who covers the Mayor's\nOffice and Chicago City Hall for the Chicago Tribune,' submitted a FOIA request to the Mayor's\nOffice seeking copies of:\nAll text messages between Mayor Lori Lightfoot and any/all of the\nfollowing individuals, for the timeframe December 1, 2020\nthrough March 29:\nGeorge Miller of Loretto Hospital\nAnosh Alimed of Loretto Hospital\nPlease note: This seeks texts she sent to any oft hese individuals,\nany texts they sent her, and any group chat texts including any of\nthese individuals and the mayor. This also includes any messages\nsent through WhatsApp, Signal, or any other text messaging apps.\nAlso note: This request seeks texts sent and received by the mayor\nwhether they were sent on personal or city-issued cellphones or\nany other device. ty\nThe request that underlies this Request for Review: was one of 20 FOIA requests for copies of\nMayor Lightfoot's text messages? that Mr. Pratt re-submitted to the Mayor's Office on June 17,\n2021.4\n‘Gregory Pratt, CHICAGO TRIBUNE, hutps:/Avww.chicagotribune.com/chi-gregory-pratt-staff.html\n(last visited August 20, 2021).\n2FOIA request from Gregory Pratt, Chicago Tribune, to MOfoia@cityofchicago.org (June 17,\n2032:13 p1.m,.).\n3FOIA requests from Gregory Pratt, Chicago Tribune, to MOfoia@cityofchicago.org (June 17,\n2021).\n‘In an e-mail to a Deputy Bureau Chief in the Public Access Bureau, Mr. Pratt stated that he had\npreviously submitted the requests to the Mayor's Office at different times over the course of several months but had\nwithdrawn them after the Mayor's Office's failure to respond extendedi n some instances past the 60-day time period\nafter the denial ofa FOIA request within which a requester may submit a Request for Review to this office. See 5\nILCS 140/9.5(a) (West 2020). E-mail from Gregory Pratt, Chicago Tribune, to (Josh] Jones, [Deputy Bureau Chief,\nPublic Access Bureau, Office of the Attorney General] (August 13, 2021).\nMr. Gregory Pratt\nMr. Tom Skelton\nAugust 31, 2021\nPage 3-\n* On June 24, 2021, the Mayor's Office acknowledged that it had received the\nFOIA requests, including the 3:13'p.m. request at issue here, and extended its time to respond by\nfive business days pursuant to section 3(e)(vii) of FOIA (5 ILCS 140/3(e)(vii) (West 2020)).5\nAfter the extended period for response had expired on July 6, 2021, Mr. Pratt submitted this\nRequest for Review to the Public Access Bureau contesting the Mayor's Office's failure to\nrespond to his June 17, 2021, FOIA request submitted at 3:13 p.m., as well as 19 other Requests\nfor Review concerning his other June 17, 2021, re-submitted FOIA requests.°\nIn submitting his Request for Review, Mr. Pratt explained that \"Mayor Lightfoot\nhas at least two cellphones. Some aldermen use for call her on] the cellphone number and device\nshe had before she was mayor. Some aldermen use [or call her on] the one she got once she\nbecame mayor.\"’ Mr. Pratt alleged that, although the Mayor's Office had provided him with\ncopies of text messages from both of Mayor Lightfoot's known cell phones in response to FOIA\nrequests he had submitted between August and November 2020, the Mayor's Office had \"stopped\nproviding personal device texts without explanation(,]\" and had \"even basically stopped\nresponding to the FOIAs with city-issued devices[.]\"®\nOn July 13, 2021, the Public Access Bureau forwarded a copy of each Request for\nReview to the Mayor's Office together with one letter asking whetheri t had received and\nresponded to Mr. Pratt's FOIA requests.” The July 13, 2021, letter also requested that, if the\nMayor's Office had received the requests but had not yet responded to Mr. Pratt, it do so and\nprovide this office with a copy of each response.’ The Mayor's Office did not respond to the\nPublic Access Bureau's July 13, 2021, correspondence.\n5E-mail from Thomas Skelton, FOIA Officer, Mayor's Office, to Gregory Pratt, Chicago Tribune\n(June 24, 2021).\n‘E-mails from Gregory Pratt, Chicago Tribune, to Sarah Pratt, Public Access Counselor, Office of\nthe Attorney General (July 6, 2021). Although correspondence to the City about these FOIA requests references all\nof Mr. Pratt's Requests for Review of the June 17, 2021, re-submitted FOIA requests, this binding opinion is limited\nto the 3:13.p.m. request described in this opinion.\n7E-mail from Gregory Pratt, Chicago Tribune, to Sarah Pratt, Public Access Counselor, Office of\nthe Attorney General (July 6, 202 1).\nt\n5E-mail from Gregory Pratt, Chicago Tribune, to Sarah Pratt, Public Access Counselor, Office of\nthe Attorney General (July 6, 2021).\nLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Tom Skelton, FOIA Officer, City of Chicago Mayor's Office (July 13, 2021), at 1.\n91 etter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office oft he\nAttorney General, to Tom Skelton, FOIA Officer, City of Chicago Mayor's Office (July 13, 2021), at 1.\nMr. Gregory Pratt\nMr. Tom Skelton\nAugust 31, 2021\nPage 4\nOn July 26, 2021, the Public Access Bureau sent an e-mail to the Mayor's Office's\nFOIA Officer, Mr. Thomas Skelton, inquiring as to the status of the Mayor's Office's responses\nto the Requests for Review, including whether the Mayor's Office had \"gathered the text\nmessages responsive to any of the requests[.]\"'! As with this office's July 13, 2021, letter to the\nMayor's Office and other correspondence with the Mayor's Office in this matter, this office\ncopied Mr. Pratt on the e-mail.' On that same date, Mr. Skelton replied by e-mail: \"I will check\non the status of the search for responsive records on Mayor Lightfoot's personal cell phone. * *\n* T have gathered and review [sic] the records on Mayor Lightfoot's City issued device.\"\"3 Mr.\nPratt replied to this office and Mr. Skelton, arguing:\nFOIA rests upon the very basic premise that a government body\nmust do the work to see if it has responsive records, before it\ndecides whether to release them or withhold them. The mayor's\nFOIA officer has indicated he's not sure if that work has been\ndone, for a FOIA that's already in the appeals stage. My strong\nsuspicion here is that the mayor's office is not doing the work at all\n(they certainly aren't doing it in a timely manner) —- otherwise,\nthey'd be able to give formal responses saying no there are no\nrecords, yes there are records.!'4\nAfter the passage of two more weeks without any update from the Mayor's Office,\non August 12, 2021, the Public Access Bureau sent Mr. Skelton an e-maiili nquiring whether “the\nMayor's Office anticipate[s] responding to any of the 20 FOIA requests at issue in these files by\nend of day tomorrow, or, if not, by the end of next week?\"!> Later that same day, Mr. Skelton\nresponded by e-mail that he would “do [his] best to get the text messages on the Mayor's private\n\"E-mail from Josh Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to [Tom] Skelton, [FOIA Officer, City of Chicago Mayor's Office] (July 26, 2021).\n125 ILCS 140/9.5(d) (West 2020) (\"The Public Access Counselor shall forward a copy oft he\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy. The requester may, but is not required to, respond in writing to the answer\nwithin 7 business days and shail provide a copy of the response to the public body.”).\n~\\ BE-mail from Tom Skelton, FOIA Officer, Office of the Mayor, [City of Chicago}, to [Josh]\nJones, [Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General] (July 26, 2021).\nE-mail from Gregory Pratt, Chicago Tribune, to Joshua M. Jones, [Deputy Bureau Chief, Public\nAccess Bureau, Office of the Attorney General] and Thomas Skelton, [FOIA Officer, City of Chicago Mayor's\nOffice] (July 27, 2021).\n'SE-mail from Josh Jones, Deputy Bureau Chief, Public Access Bureau, Office oft he Attorney\nGeneral, to [Tom] Skelton, [FOIA Officer, City of Chicago Mayor's Office} (August 12, 2021).\nMr. Gregory Pratt\nMr. Tom Skelton\nAugust 31, 2021\nPage 5\ncell phone out to Mr. Pratt as soon as [he] can.\"!® Mr. Skelton stated in the e-mail that he had\nsent Mr. Pratt copies oft ext messages from the Mayor's City-issued cell phonei n response to one\nof the other 19 requests, but was \"just waiting for confirmation that therei s no responsive\nrecords on the Mayor's private cell phone beforei ssuing the final response letter.\"!? Mr. Pratt,\nwho was copied on the correspondence between this office and Mr. Skelton, replied: \"This\nmeans they haven't even finished gathering the responsive records. They have an obligation to do\nthat within the response time.\"'8\nAs of the date oft he issuance oft his binding opinion, this office has not received\nconfirmation from the Mayor's Office that it has responded to the FOIA request at issue in this\nmatter, nor confirmation from Mr. Pratt that he has received a response to that request.\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently-and efficiently as possible in compliance with [FOIA].\" 5 ILCS\n140/1 (West 2020). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2020)), \"[a]ll records in\nthe.custody or possession of a public body are presumed to be open to inspection or copying.\"\nSection 3(a) of FOIA (5 ILCS 140/3(a) (West 2020)) provides that “[e]ach public body shall\nmake available to any person for inspection or copying all public records, except as otherwise\nprovided in Sections 7 and 8.5 of this Act.” Section 3(d) of FOIA further provides:\nEach public body shall, promptly, either comply with or\ndenya request for public records within 5 business days after its *\nreceipt of the request, unless the time for response is properly\nextended under subsection (e) of this Section. Denial shall be in\nwriting as provided in Section 9 oft his Act. Failure to comply\n* with a written request, extend the time for response, or deny a\nrequest within 5 business days after its receipt shall be considered\na denial of the request. A public body that fails to respond to a\nrequest within the requisite periods in this Section but thereafter\nprovides the requester with copies of the requested public records\n‘SE-mail from Tom Skelton, FOIA Officer, Office of the Mayor, [City of Chicago], to [Josh]\nJones, [Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General] (August 12, 2021).\n\"E-mail from Tom Skelton, FOIA Officer, Office of the Mayor, [City of Chicago], to [Josh]\nJones, (Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General) (August 12, 2021).\n'8E-mail from Gregory Pratt, Chicago Tribune, to [Josh] Jones, [Deputy Bureau Chief, Public\nAccess Bureau, Office of the Attorney General] and [Tom] Skelton, [FOIA Officer, City of Chicago Mayor's Office)\n(August 12, 2021).\nMr: Gregory Pratt\nMr. Tom Skelton\nAugust 31, 2021\nPage 6 .\nmay not impose a fee for such copies. A public body that fails to\nrespond to a request received may not treat the request as unduly\nburdensome under subsection (g).\nAs referenced in the quoted language, section 3(e) of FOIA (5 ILCS 140/3(e) (West 2020))\npermits a public body to extend its response time by no more than five business days for any of .\nseven enumerated reasons, unless the requester agrees in writing to a longer extension.\nAlthough the Mayor's Office extended its time to respond to Mr. Pratt's FOIA\nrequest by five business days pursuant te section 3(e)(vii) of FOIA, the Mayor's Office neither\ncomplied with the request nor denied the request in writing within the extended response period.\nFurther, Mr. Pratt did not agree in writing to extend the response period beyond five business\"\ndays. The failure of the Mayor's Office to comply with the requisite response procedures\nviolated section 3(d) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On June 17, 2021, at 3:13 p.m., Mr. Gregory Pratt, on behoaf tlhfe .C hicago\nTribune, submitted a FOIA request to the City of Chicago Mayor's Office seeking copies oft ext\nmessages between Mayor Lightfoot and two named persons associated with Loretto Hospital\nfrom December |, 2020, through March 29, 2021. The Mayor's Office acknowledged receiving\nthe request and, pursuant to section 3(e)(vii) of FOIA, extended its time to respond to the request\nby five business days on June 24, 2021. Mr. Pratt did not receive a response to his FOIA\nrequest.\n2) On July 6, 2021, Mr. Pratt submitted his Request for Review to the Public\nAccess Counselor and the Public Access Bureau alleging the Mayor's Office had not responded\nto any of the 20 FOIA requests for copies of Mayor Lightfoot’ s text messages he submitted on\nJune 17, 2021, including the3 :13 p.m. request at issue in this matter. Mr. Pratt's Request for\nReview was filed within the statutory time period and otherwise complies with the requirements.\nof section 9.5(a) of FOIA.\n3) On July 13; 2021, the Public Access Bureau forwarded copies of Mr. Pratt's\nRequests for Review to the Mayor's Office, together with a letter asking the Mayor's Office to\nadvise this office whether it had received and responded to Mr. Pratt's FOIA requests. The\nMayor's Office did not respond to this office's inquiry.\nMr. Gregory Pratt .\nMr. Tom Skelton\nAugust 31, 2021\nPage.7\n4) On July 26, 2021, the Public Access Bureau sent an e-mail to the Mayor's\nOffice's FOIA officer asking for the status ofi ts responses to Mr. Pratt's requests. On that same\ndate, the Mayor's Office's FOIA officer stated that he had gathered the responsive text messages_\nfrom Mayor Lightfoot's City-issued device but would check on the status of the search of her\npersonal cell phone.\n5) On August 12, 2021, this office sent the Mayor's Office another e-mail seeking\nthe-status ofi ts responses to Mr. Pratt's FOIA requests. On that same date, the Mayor's Office's\nFOIA officer responded by indicating that the Mayor's Office was still processing the June 17,\n2021, 3:13 p.m. request; he did not provide an anticipated response time.\n6) As of the date of the issuance oft his binding opinion, this office has received\nno information indicating that the Mayor's Office has responded to the FOIA request Mr. Pratt\nsubmitted on June 17, 2021, at 3:13 p.m.\nTherefore, it is the opinion of the Attorney General that the Mayor's Office has\nviolated section 3(d) of FOIA by failing, within the statutory time for responding to Mr. Pratt's\n. June 17, 2021, 3:13 p.m. FOIA request, to provide him with copies of the requested records or to\ndeny the request in writing in whole or in part. Accordingly, the Mayor's Office is hereby\ndirected to take immediate and appropriate action to comply with this opinion by providing Mr. °\nPratt with copies of all records responsive to his June 17, 2021, 3:13 p.m. request, subject only to\npermissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2020)). If the\nMayor's Office determines that any portion oft he responsive records is exempt from disclosure\nunder section 7, it is directed to issue a written denial that fully complies with the requirements\nof section 9(a) of FOIA (5 ILCS 140/9(a) (West 2020)).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook County or Sangamon County\nwithin 35 days oft he date oft his decision naming the Attorney General of Illinois and Mr.\nGregory Pratt as defendants. See 5 ILCS 140/11.5 (West 2020).\nSincerely,\nKWAME RAOUL\nATTORNEY GENERAL\nny. DAut DSHw bp\nBrent D. Stratton\nChief Deputy Attorney General\nCERTIFICATE OF SERVICE\nSarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy\nof the foregoing Binding Opinion (Public Access Opinion 21-008) upon:\nMr. Gregory Pratt\nChicago Tribune\n560 West Grand Avenue ,\nChicago, Illinois 60654\ngpratt@chicagotribune.org\nMr. Tom Skelton\nFOIA Officer\nOffice of the Mayor, City of Chicago\n121 North LaSalle Street, Suite 500\n. Chicago, Illinois 60602\na mofoia@cityofchicago.org\nbyecal sing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing-to be mailed a true copy thereoinf correctly addressed, prepaid envelopes to be deposited\nin the United States mail at Springfield, Illinois on August 31, 2021.\nii\nF\nYs r\nSARAH L. PRATT\nPublic Access Counselor\nSARAH L. PRATT\nPublic Access Counselor.\nIllinois Attorney General's Office °\n500 South Second Street\nSpringfield, Illinois 62701\n(217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter for the Chicago Tribune requested text messages between Mayor Lori Lightfoot and two individuals at Loretto Hospital. The Office of the Mayor of the City of Chicago failed to respond to the request entirely. The Attorney General found that this failure violated section 3(d) of the Freedom of Information Act.","card_headline":"Text messages between a mayor and hospital associates","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":143,"orig_master_id":19342,"dup_master_id":19117,"dup_sha256":"9561f60f5ed705966011db7ebed3d01f42c35d6edd05b7b3fa77ddc92e1fd999","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2021,"date_issued":"2021-07-27","case_number":"2021-PAC-S-0121","request_numbers":null,"title":"Names Not Exempt as Personal Information Absent Private or Confidential Circumstances that Outweigh Any Legitimate Public Interest in Disclosure","filename":"PUBLIC ACCESS OPINION 21-007 (Request for Review - 2021-PAC-S-0121)(July 27, 2021).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 21-007 (Request for Review - 2021-PAC-S-0121)(July 27, 2021).pdf","word_count":4827,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request made by Mr. Peter Czosnyka for letters of exception for residential parking, which the City Clerk's Office improperly denied.","plain_summary":"The requester sought copies of parking-exception letters issued in a city ward, including the recipients' names, amid public reporting that the alderman may have used the exception process to retaliate against a critic; the city disclosed the letters but redacted the names as private and personal information. The Public Access Counselor held that names alone are not private information, and that given the public interest raised by the retaliation allegations, the residents' privacy interest in their names did not outweigh the public interest in disclosure. The city was directed to reissue the letters without redacting the names.","holding":"The City Clerk's Office violated FOIA by improperly denying the FOIA request.","legal_question":"Are names exempt from disclosure under FOIA absent private or confidential circumstances?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Office of the City Clerk, City of Chicago","requesting_party":"Mr. Peter Czosnyka","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request sought disclosure of names associated with residential parking letters of exception.","ocr_status":"ok","ocr_quality":89.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2021-Binding-PAC-Opinions/21-007.pdf","sha256":"10f53a8300607bf6ea5760cc834f60313bfdc799cd68e26376b0cd8f7aaba4dc","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["residential parking","privacy","redaction","personal information"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nJuly 27, 2021\nPUBLIC ACCESS OPINION 21-007\n(Request for Review 2021-PAC-S-0121)\nFREEDOM OF INFORMATION ACT:\nNames Not Exempt as Personal Information\nAbsent Private or Confidential Circumstances\nthat Outweigh Any Legitimate Public Interest\nin Disclosure\nMr. Peter Czosnyka\n[street address redacted for site publication -- see original PDF]\nMs. Ennedy D. Rivera\nChief Legal Counsel\nOffice of the City Clerk, City of Chicago\n121 North LaSalle Street, Room 107\nChicago, Illinois 60602\nDear Mr. Czosnyka and Ms. Rivera:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons discussed below, this\noffice concludes that the Office of the City Clerk of the City of Chicago (City Clerk's Office)\nviolated the requirements of FOIA by improperly partially denying Mr. Peter Czosnyka's FOIA\nrequest for letters of exception for residential parking in the 45th Ward.\nBACKGROUND\nOn Saturday, March 27, 2021, Mr. Czosnyka submitted a FOIA request to the\nCity Clerk's Office seeking \"[e]lectronic copies of Letter of Exception: Residential Parking’\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © T’l'Y: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © F’T'Y: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © I’'Y: (877) 675-9339 © Fax (618) 529-6416 + CEM\nMr. Peter Czosnyka\nMs. Ennedy D. Rivera\nJuly 27, 2021\nPage 2\nissued in the 45th Ward between 5/20/19 thru 3/30/21, showing NAMESJ.]\"! (Emphasis in\noriginal.) In his FOIA request, Mr. Czosnyka quoted a portion of Attorney General Binding\nOpinion No. 12-003, in which this office explained that names generally are not exempt from\ndisclosure under section 7(1)(c), absent confidential or private circumstances.”\nOn Monday, March 29, 2021, the City Clerk's Office acknowledged receipt of\nMr. Czosnyka's FOIA request. On April 5, 2021, the City Clerk's Office properly? extended the\ntime to respond to the FOIA request by five business days pursuant to sections 3(e)(v) and\n3(e)(vii) of FOIA (5 ILCS 140/3(e)(v), (e)(vii) (West 2020)).4 On April 12, 2021, the City\nClerk's Office provided Mr. Czosnyka with copies of letters of exception signed by 45th Ward\nAlderman James M. Gardiner during the requested time period, but redacted the subjects' names,\nhome addresses, vehicle makes/models, and license plate numbers pursuant to sections 7(1)(b)\nand 7(1)(c) of FOIA (5 ILCS 140/7(1)(b), (1)(c) (West 2020)).°\nOn April 15, 2021, Mr. Czosnyka attempted to submit a Request for Review by e-\nmail to the Attorney General's Public Access Counselor. Because of technical difficulties with\nthis office's computer network, Mr. Czosnyka's Request for Review was returned as\nundeliverable. By correspondence dated May 4, 2021, postmarked May 5, 2021, and sent\nthrough the United State Postal Service, Mr. Czosnyka filed a Request for Review that contested\nthe denial of the names of those persons seeking an exception to the residential parking residency\nrequirements in the City of Chicago's 45\" Ward.® Mr. Czonsnyka's Request for Review included\na copy of one redacted letter as a representative sample of the records he received from the City\nClerk's Office.\n‘E-mail from Pete Czosnyka to ClerkFOIA@cityofchicago.org (March 27, 2021).\n2111. Att'y Gen. Pub. Acc. Op. No 12-003, issued January 18, 2012, at 8.\n3This office notes that a public body has five business days after the date on which it receives a\nFOIA request to respond or extend its time to respond. 5 ILCS 140/3(d) (West 2019 Supp.). Thus, although Mr.\nCzosnyka alleged that the extension letter was a day late, it was on time. Mr. Czosnyka's request, submitted on\nSaturday, March 27, 2021, was received by the City Clerk's Office on Monday, March 29, 2021. Five business days\nafier that date was Monday, April 5, 2021.\n‘Letter from Ennedy Rivera, Chief Legal Counsel, City of Chicago, Office of the City Clerk, to\nPete Czosnyka (April 5, 2021).\n5Letter from Ennedy Rivera, Chief Lega! Counsel, Office of the City Clerk, to Peter Czosnyka\n(April 12, 2021).\n6Complaint to the Public Access Counselor (PAC) of an [sic] Freedom of Information Act (FOIA)\nDenial form from Peter Czosnyka (May 4, 2021).\nMr. Peter Czosnyka\nMs. Ennedy D. Rivera\nJuly 27, 2021\nPage 3\nOn May 12, 2021, the Public Access Bureau sent a copy of the Request for\nReview to the City Clerk's Office’s Chief Legal Counsel, Ms. Ennedy Rivera. The Public Access\nBureau also sent Ms. Rivera a letter asking for unredacted copies of the responsive records for\nthis office's confidential review, and a detailed written explanation of the City Clerk's Office's\nlegal and factual bases for redacting the subjects’ names.’ In particular, this office asked: the City\nClerk's Office to explain \"what makes the names highly personal or objectionable to a reasonable\nperson to disclose in this context and why the subjects’ right to privacy outweighs any legitimate\npublic interest in disclosure.\"®\nOn May 28, 2021, the City Clerk's Office provided this office with the requested\nmaterials and its explanation for the redactions, maintaining that it properly redacted the subjects'\nnames.” On June 1, 2021, this office forwarded a copy of the City Clerk's Office's answer to Mr.\nCzosnyka and notified him of his Opportunity to reply.!° On that same date, Mr. Czosnyka\nsubmitted a reply.'!\nOn June 11, 2021, this office properly extended the time within which to issue a\nbinding opinion by 30 business days, to July 27, 2021, pursuant to section 9.5(f) of FOIA.'*\nANALYSIS\nSection | of FOIA (5 ILCS 140/1 (West 2020)) declares that \"it is the public\npolicy of the State of Illinois that access by all persons to public records promotes the\ntransparency and accountability of public bodies at all levels of government.” Under FOIA,\n\"[a]ll records in the custody or possession of a public body are presumed to be open to inspection\nLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Ennedy Rivera, Chief Legal [Counsel], Office of the City Clerk, City of Chicago (May 12, 2021).\n’Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Ennedy Rivera, Chief Legal [Counsel], Office of the City Clerk, City of Chicago (May 12, 2021), at 2.\nLetter from Ennedy D. Rivera, Chief Legal Council, Office of the City Clerk, to Joshua Jones,\nDeputy Bureau Chief, Public Access Bureau (May 28, 2021).\nLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Peter Czosnyka (June 1, 2021).\nE-mail from Pete Czosnyka to Joshua Jones, Deputy Bureau Chief, Public Access Bureau (June\n1, 2021).\nLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Peter Czosnyka and Ennedy Rivera, Chief Legal [Counsel], Office of the City Clerk, City of\nChicago (June 11, 2021),\nMr. Peter Czosnyka\nMs. Ennedy D. Rivera\nJuly 27, 2021\nPage 4\nor copying. Any public body that asserts that a record is exempt from disclosure has the burden\nof proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2020).\nThe City Clerk's Offices has raised two bases for withholding the names in\nquestion -- sections 7(1)(b) and 7(1)(1)(c) of FOIA. We will consider each oft he exemptions.\nSection 7(1)(b) of FOIA\nSection 7(1)(b) of FOIA exempts from disclosure \"[p]rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\"\nSection 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2020)) defines \"private information” as:\n[U]nique identifiers, including a person's social security number,\ndriver's license number, employee identification number, biometric\nidentifiers, personal financial information, passwords or other\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person.\nMr. Czosnyka did not contest the City Clerk's Office's redaction of two unique\nidentifiers contained in the records: home addresses and license plate numbers. He also did not\ncontest the redaction of the makes and models of the subjects' cars. Mr. Czosnyka contested\nonly the City Clerk's Office's denial of the subjects' names. Therefore, this office's review will\nbe limited to the redaction of names.\nIn Binding Opinion No. 12-003, this office explained that nothing in the definition\nof \"private information\" or \"in reading FOIA as a whole suggests that a person's name, or basic\nidentification, is private information.\"'* This office noted that in Lieber v. Board of Trustees of\nSouthern Illinois University, 176 Ill. 2d 401 (1997), a case about a request for the names and\naddresses of certain college freshmen, the IHinois Supreme Court explained that names are not\nexempt from disclosure as \"personal information.\" The Court found that \"the phrase ‘personal\ninformation’ must have been intended by the legislature to be understood not in the sense of basic .\nidentification, but in the sense of information that is 'confidential’ or 'private.\"\" Lieber, 176 Ill.\n2d at 412.\n‘SII. Att'y Gen. Pub. Acc. Op. No. 12-003, at 7.\nMr. Peter Czosnyka\nMs. Ennedy D. Rivera -\nJuly 27, 2021\nPage 5\nIn its response to this office, the City Clerk's Office argued that Lieber is\noutdated, as it involved a previous version of FOIA. At the time of the FOIA request in Lieber,\nsection 7(1)(b) of FOIA contained language now found in section 7(1)(c) of FOIA, exempting\nfrom disclosure \"[i]nformation that, if disclosed, would constitute a clearly unwarranted invasion\nofp ersonal privacy.\" 5 ILCS 140/7(1)(b) (West 1994). Citing Timpone v. Illinois Student\nAssistance Commission, 2019 IL App (1st) 181115, 147 N.E.3d 873 (2019), the City Clerk's\nOffice argued that Lieber \"was decided in an era when privacy expectations were different and\ndisclosing names of all admitted students would not have revealed any distinguishing\ninformation about the individual.\"'* In Timpone, however, the Illinois Appellate Court held that\nthe names of all students who received college grants through the State's Monetary Award\nProgram were exempt from disclosure as \"personal financial information” under the current\nversion of section 7(1)(b). Timpone, 2019 IL App (Ist) 181115, 934, 147 N.E.3d at 885. The\nTimpone court found that Lieber was not of relevance to the issue of whether the names of\nstudents receiving financial assistance from the State should be disclosed because the language\nof the exemptions was different at the time, privacy expectations also were different, and\n\"disclosing the names of all admitted students would not have revealed any distinguishing\ninformation about those individuals.\" Timpone, 2019 IL App (Ist) 181115, 935, 147 N.E.3d at\n885. Thus, the court in Timpone did not conclude that names are now broadly exempt from\ndisclosure under section 7(1)(b), but instead that disclosing information identifying particular\nstudents as recipients of State grants for low-income families would reveal \"personal financial\ninformation\" about them, which is a form of \"private information\" under the plain language of\nthe definition of that term in FOIA.\nHere, in contrast, the City Clerk's Office did not demonstrate that the disclosure of\nthe names would reveal information that meets the plain language of the definition of\" private\ninformation.” To the extent that an individual could use the names in conjunction with other\npublicly-available information to potentially discover information that does fall within the scope\nof the definition, such as the subjects’ home addresses, the exemption does not encompass\ninformation that could be used to discover unique identifiers. The information itself must be\n\"private information\" to be exempt from disclosure under section 7(1)(b). Under these\ncircumstances, the City Clerk's Office failed to sustain its burden of proving by clear and\nconvincing evidence that the names alone are exempt from disclosure under section 7(1)(b).\nSection 7(1)(c) of FOIA\nSection 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\n'4Letter from Ennedy D. Rivera, Chief Legal Council. Office of the City Clerk, to Joshua Jones.\nDeputy Bureau Chief, Public Access Bureau (May 28, 2021), at [3].\nMr. Peter Czosnyka\nMs. Ennedy D. Rivera\nJuly 27, 2021\nPage 6\ninvasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal\nprivacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\" The exemption also provides that \"[t]he disclosure of information\nthat bears on the public duties of public employees and officials shall not be considered an\ninvasion of personal privacy.\"\nA public body's assertion that the release of information would constitute an\nunwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers' Local Union 130 v. Dep't of Public Health, 327 Ill. App. 3d 192, 196 (Ist\nDist. 2001). The condition that the invasion of personal privacy must be \"clearly unwarranted\"\nevinces a strict standard to claim the exemption. Schessler v. Dep't of Conservation, 256 Ill.\nApp. 3d 198, 202 (4th Dist. 1994). Illinois courts balance the following factors in determining\nwhether disclosure of information would constitute an unwarranted invasion of personal privacy:\n\"(1) the plaintiff's interest in disclosure, (2) the public interest in disclosure, (3) the degree of\ninvasion of personal privacy, and (4) the availability of alternative means of obtaining the\nrequested information.” National Ass'n of Criminal Defense Lawyers v. Chicago Police\nDepartment, 399 Ill. App. 3d 1, 13 (1st Dist. 2010).\nUnder the first two factors of the balancing test, the City Clerk's Office argued\nthat Mr. Czosnyka's \"sole intent in obtaining information is for his own personal gains to\nleverage his social media blog and continue elevating his Chicago Tribune article. His request to\nobtain the residents’ names has no real bearing on city government and more with invading a\nprivate citizen[']s right to privacy.\"'> The City Clerk's Office provided a link to the article,\nwhich quoted Mr. Czosnyka's perspective on how the law works in practice for members of the\npublic.'° The City Clerk's Office further claimed that \"Mr. Czosnyka not only lives in the 45th\nWard, he has a well-developed social media blog that has been known to harass elected\nofficials.\"'’ Additionally, the City Clerk's Office argued that \"(t}]here is no real interest in the\n'SL etter from Ennedy D. Rivera, Chief Legal Council, Office of the City Clerk, to Joshua Jones,\nDeputy Bureau Chief, Public Access Bureau (May 28, 2021), at [4].\n'SCourtney Kueppers, FOIA for beginners: A state law guarantees access to public records. But it\nisn't always that easy, CHICAGO TRIBUNE (Apr. 2, 2021, 2:44 p.m.), https://Awww.chicagotribune.com/news/ct-foia-\nillinois-public-records-202 10402-tijpivvSenhmpf3urocqtrwxne-story.html.\n'7Letter from Ennedy D. Rivera, Chief Legal Council, Office of the City Clerk, to Joshua Jones,\nDeputy Bureau Chief, Public Access Bureau (May 28, 2021), at [3].\nMr. Peter Czosnyka\nMs. Ennedy D. Rivera\nJuly 27, 2021\nPage 7\npublic obtaining such disclosure. * * * There is no need to know the names besides harassing a\nresident.\"'®\nIn his reply, Mr. Czosnyka disputed these characterizations of his interest in the\nnames as baseless and argued that his request has a public interest because of allegations of\nmisconduct against the 45th Ward Alderman.'” Mr. Czosnyka provided links to a CBS Chicago\nnews article and investigative news video segments about a building owner's complaint to the\nCity's Office of Inspector General alleging that Alderman Gardiner retaliated against her for\ncriticizing him on social media by denying parking exceptions for her building's residents.”°\nAs a resident of the 45th Ward, Mr. Czosnyka has a personal interest in alleged\nabuses of power and keeping track of how the alderman of that ward performs his public duties.\nThis interest aligns with the broad public interest in monitoring the affairs of local government to\nhold public officials accountable. The City Clerk's Office's argument raises the principle that\n[t]he core purpose of the FOIA is to expose what the government is doing, not what its private\ncitizens are up to.” Chicago Alliance for Neighborhood Safety v. City of Chicago, 348 IN. App.\n3d 188, 211 (Ist Dist. 2004) (quoting Lakin Law Firm, P.C. v. F.T.C., 352 F.3d 1122, 1124 (7th\nCir. 2003)). Yet, contrary to the City Clerk's Office's claims, it is evident that Mr. Czosnyka's\nrequest concerns what the alderman oft he 45th Ward is doing with his position. In light oft he\nnews reporting on alleged retaliation with respect to residential parking permit exceptions in the\nward, the City Clerk's Office's claim that there is no real public interest in disclosure of the\nnames is unsupported. The disclosure of the names would give the public the opportunity to\nassess the merits of the allegations that the alderman selectively denied exceptions to certain\nindividuals and not others for improper reasons.\nAs to the City Clerk's Office's claim that Mr. Czosnyka seeks the names for\npublishing stories on his blog, on June 2, 2021, an Assistant Attorney General in the Public\nAccess Bureau asked Mr. Czosnyka clarify whether he maintains any kind of website or\n'*Letter from Ennedy D. Rivera, Chief Legal Council, Office of the City Clerk, to Joshua Jones.\nDeputy Bureau Chief, Public Access Bureau (May 28, 2021), at [4].\n'\"E-mail from Pete Czosnyka to Joshua Jones, Deputy Bureau Chief, Public Access Bureau (June\n1, 2021).\n°Dana Kozlov, Ald. James Gardiner Denies Permit Parking Exception For Residents Of\nNorthwest Side Building; Owners Think It’s Retaliation For Social Media Posts, CBS Chicago (Mar. 23, 2021,\n11:06 p.m.), https://chicago.cbslocal.com/202 1/03/23/chicago-alderman-james-gardiner-permit-parking-building-\nowner-feud/; CBS 2 News Evening, A/derman Who Denied Parking Permit Exception For Residential Building\nApproved Exceptions On Same Block, WBBM-TV, (undated), https://chicago.cbslocal.com/video/5427374-\nalderman-who-denied-parking-permit-exception-for-residential-building-approved-exceptions-on-same-block/,\nMr. Peter Czosnyka\nMs. Ennedy D. Rivera\nJuly 27, 2021\nPage 8\nwebpage where he posts information on local topics like the parking exceptions.” Mr. Czosnyka\nreplied: \"I do post and comment on Facebook and I have commented, repeatedly, mostly on\nother FB pages, about what I see as Alderman Gardiner's petty and vindictive behavior regarding\nWard permit parking and parking exceptions. I do not run a blog.\"”* Thus, there is no indication\nthat Mr. Czosnyka has a pecuniary or somehow improper personal interest in disclosure. The\nfact that Mr. Czosnyka posts and comments on Facebook about how his alderman performs his\npublic duties also does not undermine the public interest in disclosure.\nAddressing the subjects’ privacy interests, the City Clerk's Office argued:\n[T]he names redacted are that of City of Chicago residents that\nsought a service from their Alderman to be able to park in a zone\nnot normally afforded to them. These residents’ names have not\nbeen published and as such have an expectation of privacy (as a\nreasonable person would) that their information would not be\ndisclosed to a third party. With the increased use of social media,\nsocial blogs, and the internet comes the increase of social media\nbullying, stalking, and harassment. The release of names would\nreveal distinguishing information about the individual with just a\nsimple google search,|?#!\nThe City Clerk's Office additionally argued:\nThere is an actual possibility of there being an invasion of privacy\nas the Office of the City Clerk has previous FOIA requests asking\n‘for the addresses of said 45th Ward residents. Should the release of\nnames occur, Mr. Czosnyka would have cnough private\ninformation regarding 45th Ward residents to pin point the\naddresses of individuals that solely sought a City service to make\ntheir private lives easier.!*41\n7!E-mail from Joshua M. Jones to Pete Czosnyka (June 2, 2021).\n“E-mail from Pete Czosnyka to Joshua M. Jones (June 2, 2021).\nLetter from Ennedy D. Rivera, Chief Legal Council, Office of the City Clerk. to Joshua Jones.\nDeputy Bureau Chief, Public Access Bureau (May 28, 2021), at [2-3].\nLetter from Ennedy D. Rivera, Chief Legal Council, Office oft he City Clerk, to Joshua Jones,\nDeputy Bureau Chief, Public Access Bureau (May 28, 2021), at [4].\nMr. Peter-Czosnyka\nMs. Ennedy D. Rivera\nJuly 27, 2021\nPage 9\nIn his reply, Mr. Czosnyka argued that although \"the public is not privy to truly private/personal\ninformation like vehicle license plate numbers, social security numbers, or driver's license\nnumbers[,]\" \"[t]he public should know who the Alderman is granting favors to[.]\"”°\nUnder the plain language of section 7(1)(c), the information at issue must meet at\nleast one of two threshold requirements: it must either be highly personal, or objectionable to a\nreasonable person to disclose. The City Clerk's Office did not demonstrate that the subjects’\nnames meet either requirement. While requesting a parking permit exception may be somewhat\npersonal, the City Clerk's Office did not demonstrate that such circumstances rise to the level of\nhighly personal. See Schessler, 256 Ill. App. 3d at 202 (holding that the right to privacy in\napplications for permits for live pigeon shooting events was \"not high,\" and therefore the\napplications were subject to disclosure despite the lack of a strong public interest in disclosure).\nThe letters of exception do not set forth any reasons why the exceptions were requested.\nDisclosing the names would not reveal any information about the subjects' personal lives except\nthat they sought residential parking permit exceptions in certain zones of the Ward. Therefore,\nunlike instances in which disclosing a member of the public's name would offend reasonable\nsensibilities by revealing private or confidential information in the context of the records, it is not\nevident from the City Clerk's Office's argument that disclosure of the names in the bureaucratic,\ncommonplace context of the letters of exception would be objectionable to a reasonable person.\nEven assuming that disclosing the names would be objectionable to a reasonable\nperson, section 7(1)(c) sets forth an additional requirement not met here: the privacy interests\nmust be significant enough to outweigh any legitimate public interest in disclosure. The City\nClerk's Office did not acknowledge the significant public interest in allegations of improper\nparking exception practices in the 45th Ward or provide facts or legal arguments from which this\noffice could conclude that the privacy interests in the names are so substantial that they outweigh\nthe public interest in disclosure.\nUnder the fourth and final factor of the balancing test, the City Clerk's Office\nargued:\n[T]here is an alternative means available for Mr. Czosnyka to\nobtain the information. He has received the actual amount of\nAlderman exceptions, the zones where the exceptions were\nprovided and essentially has a baseline of vital information. The\n*“E-mail from Pete Czosnyka to Joshua Jones, Deputy Bureau Chief, Public Access Bureau (June\n1, 2021).\nMr. Peter Czosnyka\nMs. Ennedy D. Rivera\nJuly 27, 2021\nPage 10\nrelease of residents' names raises the issue of intent and his own\npersonal gains.!?6\nAlthough the City Clerk's Office demonstrated that Mr. Czosnyka has reccived certain\ninformation about aldermanic parking exceptions in the 45th Ward, it did not show that he has an\nalternative means of obtaining copies of the letters of exception showing the names or otherwise\nascertaining the names of the parking exception recipients.\nWeighing the four factors together, for the reasons explained above, the City\nClerk's Office did not sustain its burden of proving by clear and convincing evidence that the\nsubjects’ names are exempt from disclosure under section 7(1)(c) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On Saturday, March 27, 2021, Mr. Peter Czosnyka submitted a FOIA request\nto the Office of the City Clerk of the City of Chicago via e-mail seeking copies of letters granting\nexceptions to residential parking permit requirements in the 45th Ward from May 20, 2019,\nthrough March 30, 2021, showing the subjects' names. The request was received by the City\nClerk's Office when business hours resumed on Monday, March 29, 2021.\n2) On April 5, 2021, the City Clerk's Office properly extended its time to respond\nby five business days pursuant to sections 3(e)(v) and 3(c)(vii) of FOIA.\n3) On April 12, 2021, the City Clerk's Office responded by providing Mr.\nCzosnyka with copies of responsive exception letters, but redacted the subjects’ names, home —\naddresses, vehicle makes/models, and license plate numbers pursuant to sections 7(1)(b) and\n7(1)(c) of FOIA.\n4) Mr. Czosnyka submitted a Request for Review contesting the City Clerk's\nOffice's redaction of the subjects' names in a correspondence dated May 4, 2021, and postmarked\nMay 5, 2021. The Request for Review was timely filed and otherwise complies with the\nrequirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)).\n*6Letter from Ennedy D. Rivera, Chief Legal Council, Office of the City Clerk, to Joshua Jones,\nDeputy Bureau Chief, Public Access Bureau (May 28, 2021), at [4].\nMr. Peter Czosnyka\nMs. Ennedy D. Rivera\nJuly 27, 2021\nPage 11\n5) On May 12, 2021, the Public Access Bureau sent the City Clerk's Office a\ncopy of the Request for Review. The Public Access Bureau also sent the City Clerk's Office a\nletter seeking unredacted copies of the responsive records for this office's confidential review,\nand a detailed explanation of the legal and factual bases for the applicability of sections 7(1)(b)\nand 7(1)(c) to the subjects' names.\n6) On May 28, 2021, this office received the requested materials from the City\nClerk's Office. The City Clerk's Office maintained that it properly redacted the subjects' names.\n7) On June 1, 2021, the Public Access Bureau forwarded to Mr. Czosnyka a copy\nof the City Clerk's Office's answer and notified him of his opportunity to reply. He submitted a\nreply later on that same date.\n8) On June 11, 2021, the Public Access Burcau extended the time within which\nto issue a binding opinion by 30 business days, to July 27, 2021. Therefore, the Attorney\nGeneral may properly issue a binding opinion with respect to this matter.\n9) Section 7(1)(b) of FOIA exempts from disclosure \"private information,\" which\nthe Act defines as \"unique identifiers,\" with a non-exhaustive list of examples. Names are absent\nfrom the statutory definition and do not fall within the scope of the section 7(1)(b) exemption in\ncircumstances such as this, where revealing the names alone would not reveal \"private\ninformation\" under the definition of that term in FOIA.\n10) Section 7(1)(c) of FOIA exempts from disclosure \"{p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal\nprivacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.” The City Clerk's Office did not demonstrate that the names of\nresidents who were granted letters of exception to parking permit requirements are highly\npersonal or objectionable to a reasonable person to disclose. Further, there is a legitimate public\ninterest in disclosure that outweighs any privacy interests in light of news media reports on an\nalleged retaliatory denial of a letter of exception in the 45th Ward.\nTherefore, it is the opinion oft he Attorney General that the Office oft he City\nClerk of the City of Chicago violated the requirements of FOIA by improperly denying the\ndisclosure of residents’ names who received parking exceptions in response to Mr. Czosnyka's\nFreedom of Information Act request. Accordingly, the City Clerk's Office is hereby directed to\ntake immediate and appropriate action to comply with this opinion by providing Mr. Czosnyka\nMr. Peter Czosnyka\nMs. Ennedy D. Rivera\nJuly 27, 2021\nPage 12\nwith new copies of the letters of exception responsive to his March 27, 2021, FOIA request,\nwithout redacting the subjects' names.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review oft he decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days oft he date of this decision naming the Attorney General of Illinois and Mr. Peter\nCzosnyka as defendants. See 5 ILCS 140/11.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBy:\nBrent D. Stratton\nChief Deputy Attorney General\nCERTIFICATE OF SERVICE\nSarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the\nforegoing Binding Opinion (Public Access Opinion 21-007) upon:\nMr. Peter Czosnyka\n5745 North Menard Avenue\nChicago, Illinois 60646\npeteczosnyka@comceast.net\nMs. Ennedy D. Rivera\nChief Legal Counsel\nOffice of the City Clerk, City of Chicago\n121 North LaSalle Street, Room 107\nChicago, Illinois 60602\nennedy.rivera@cityofchicago.org\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy therof in correctly addressed, prepaid envelopes to be deposited\nin the United States mail at Sprinfield, Illinois on July 27, 2021.\nne~~ Brtatt\nSARAH L. PRATT\nPublic Access Counselor\nSARAH L. PRATT\nPublic Access Counselor\n500 South Second Street\nSpringfield, Illinois 62706\n(217) 528-7541","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Czosnyka requested records of residential parking exceptions in Chicago's 45th Ward, but the City Clerk's Office redacted the names of the individuals involved. The Attorney General ruled that these names are not private information and must be disclosed because there is a public interest in knowing who receives these government exceptions. This means public bodies cannot hide the identities of people receiving special government permits unless there is a specific, valid legal reason to do so.","card_headline":"Residential parking exception letters with names","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":144,"orig_master_id":19345,"dup_master_id":19118,"dup_sha256":"a46c9542e09d52bbdbdbfb30b6ecabc4c6b1129d8526fe1e2e08d248e9835b08","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2021,"date_issued":"2021-09-21","case_number":"2021-PAC-C-0069","request_numbers":null,"title":"Duty to Provide Opportunity for Public Comment in Open Session","filename":"PUBLIC ACCESS OPINION 21-009 PDF (Request for Review - 2021-PAC-C-0069)(September 21, 2021).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 21-009 PDF (Request for Review - 2021-PAC-C-0069)(September 21, 2021).pdf","word_count":3517,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a violation of the Open Meetings Act by the Board of Education of Hillsboro Community Unit School District No. 3 for not providing an opportunity for public comment during a meeting.","plain_summary":"The requester, a sports reporter, questioned whether a school board improperly required members of the public who wanted to address a coaching decision to do so only during closed session rather than allowing public comment in open session. The Public Access Counselor held that the Open Meetings Act guarantees an opportunity to address a public body in open session and does not permit a board to confine public comment on a personnel matter to closed session. The board was directed to provide an opportunity for public comment in open session at all future meetings, though disclosure of the closed-session recording was not ordered because the speakers may have tailored their remarks assuming confidentiality.","holding":"The Board of Education violated section 2.06(g) of the Open Meetings Act.","legal_question":"Did the Board of Education violate the Open Meetings Act by not providing an opportunity for public comment?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Education of Hillsboro Community Unit School District No. 3","requesting_party":"Mr. Ryan Mahan","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"public comment","subject_description":"The failure of a school board to provide an opportunity for public comment during an open meeting.","ocr_status":"ok","ocr_quality":90.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2021-Binding-PAC-Opinions/21-009.pdf","sha256":"6203b2b96793629d883aed1c9cead6ae2f75c90bd21fbccbd4781187d5224e72","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["public comment","school board","open meeting","OMA violation"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATPORNEY GENERAL\nSeptember 21, 2021 _\nPUBLIC ACCESS OPINION 21-009\n(Request for Review 2021-PAC-C-0069)\nOPEN MEETINGS ACT:\nDuty to Provide Opportunity for\nPublic Comment in Open Session\nMr. Ryan Mahan\nSports Writer\nThe State Journal-Register\n[street address redacted for site publication -- see original PDF]\nThe Honorable Matt Lentz\nPresident, Board of Education\nHillsboro Community Unit School District No. 3\n1311 Vandalia Street\nHillsboro, Illinois 62049\nDear Mr. Mahan and Mr. Lentz:\nThis is a binding opinion issued by the Attorney General pursuant to section\n3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons\ndiscussed below, this office concludes that the Board of Education of Hillsboro Community Unit\nSchool District No. 3 (Board) violated section 2.06(g) of OMA (5 ILCS 120/2.06(g) (West\n2020)) at its June 15, 2021, meeting because it did not provide an opportunity for public\ncomment in open session.\nBACKGROUND\nOn June 24, 2021, Mr. Ryan Mahan, Sports Writer for The State Journal-\nRegister, sent an e-mail to the Illinois Executive Ethics Commission (Commission) questioning\n500 South Second Street, Springfield, Hlinois 62708 © (217) 782-1090# “IVY: (877) 844-5461 © Fax; (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © “I°L'Y: (800) 964-3013 ¢ Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 6290 © (618) 529-6400 © T’T'Y: (877) 675-9339 ¢ Fax (618) 529-6416 «ear\nMr. Ryan Mahan\nThe Honorable Matt Lentz\nSeptember 21, 2021\nPage 2\nwhether the Board improperly restricted public comment at its June 15, 2021, meeting. In his e-\nmail, Mr. Mahan explained that during the meeting: ,\nThere were sign-up sheets for the public to address the school\nboard. It was a packed board meeting and the primary topic of\ninterest for much of the public was the previous week's decision\nnot to re-hire Hillsboro High School boys basketball coach Joe\nVanzo, despite a 14-0 record.\nAlmost as soon as the school board meeting roll call was taken, the\nboard went into a closed, executive session. There, superintendent\nDavid Powell told the crowd, anyone who had signed up to speak\nto the board would do so.!!]\nMr. Mahan explained that the members of the public who wished to address the Board were then\ncalled into the Board's closed session one by one. When the closed session ended, Mr. Mahan\nstated, the Board \"wrapped up all motions in a matter of minutes. No members of the public\nmade public statements.\"* Mr. Mahan provided a link to the news story he wrote about the\nmeeting,’ in which members of the public described the comments they made to the Board in\n‘closed session. Mr. Mahan concluded his e-mail: \"I was told by current and former colleagues\nof mine I should reach out to the Attorney General's office. I hope I've found the right\ndepartment to inquire if this closed, executive session was an overreach.\"*\nOn June 28, 2021, Ms. Michelle Casey, Executive Director of the Commission,\nforwarded Mr. Mahan's correspondence to the Public Access Counselor pursuant to section 20-\n15(2) of the State Officials and Employees Ethics Act (5 ILCS 430/20-15(2) (West 2020)) (\"Any\nother allegations of misconduct received by the Commission from a person other than an\nExecutive Inspector General shall be referred to the Office of the appropriate Executive\n\"E-mail from Ryan Mahan, Sports writer, The State Journal-Register, to To whom it may concern\n(June 24, 2021).\n2E-mail from Ryan Mahan, Sports writer, The State Journal-Register, to To whom it may concern\n(June 24, 2021).\n3Ryan Mahan, Hillsboro board of education declines to reinstate Vanzo as boys basketball coach,\nTHE STATE JOURNAL REGISTER (June 16, 2021, 10:31 a.m.), https://www.sj-\nr.com/story/sports/202 1/06/1 6/hillsboro-school-board-twice-votes-remove-joe-vanzo-basketball-\ncoach/5293 147001/.\n“E-mail from Ryan Mahan, Sports writer, The State Journal-Register, to To whom it may concern\n(une 24, 2021).\nMr. Ryan Mahan _\nThe Honorable Matt Lentz\nSeptember 21, 2021\nPage 3\nInspector General.”)).5 Based on the plain language of Mr. Mahan's submission, which clearly\nstated that he was seeking to contact the Attorney General's Office concerning the Board's\nactions, this office recognized Mr. Mahan's correspondence as a Request for Review alleging\nthat the Board may have violated section 2.06(g) of OMA during its June 15, 2021, meeting.®\nOn July 1, 2021, the Public Access Bureau sent a copy of the Request for Review\nto Mr. Matt Lentz in his capacity as Board President. The Public Access Bureau also sent Mr.\nLentz a letter requesting, for this office's confidential review, a copy of any rules the Board had\nestablished and recorded concerning public comment, and the agenda, open and closed session\nminutes (in draft form, if necessary), and closed session verbatim recording from its June 15,\n2021, meeting.’ Ina letter dated July 6, 2021, and received by the Public Access Bureau on July\n12, 2021, Mr. Lentz provided this office with the requested materials and copies oft en \"Public\nComment Cards\" filled out by members of the public before the meeting.®\nOn that same date, the Public Access Bureau forwarded a copy of the Board's\nwritten answer to Mr. Mahan and notified him of his opportunity to reply.? On July 28, 2021,\nMr. Mahan replied that he had nothing further to state.!?\nsLetter from Michelle Casey, Executive Director, Ilinois Executive Ethics Commission, to Sarah\nPratt, Public Access Counselor, Office of the Attorney General (June 28, 2021).\nBecause it is apparent on the face of Mr. Mahan's June 24, 2021, e-mail that he was seeking to\ncontact the Attorney General's Office about a possible violation of OMA, the mistaken submission oft hat\ncorrespondence to the Illinois Executive Ethics Commission does not deprive the Attorney General ofj urisdiction to\nissue a binding opinion in this matter. See Moeser v. Human Rights Commission, 292 Ill. App. 3d 402, 408 (Sth\nDist. 1997) (Illinois Human Rights Commission retained jurisdiction over timely complaint even though it was\nerroneously submitted to the Hlinois Department of Human Rights because \"it is the timing of filing this complaint\nthat is jurisdictional, not whether it is mailed to the Department or the Commission. Filing the complaint with the\nCommission is mandatory, but it is not jurisdictional.”),\n7Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to The Honorable Matt Lentz, President, Board of Education, Hillsboro Community [Unit] School District\nNo. 3 (July 1, 2021).\n®Letter from Matt Lentz, President, HCUSD3 Board of Education, Hillsboro Community Unit\nSchool District #3, to Joshua M. Jones, Public Access Bureau, Office of the Attommey General (July 6, 2021).\nSLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office oft he Attorney\nGeneral, to Ryan Mahan, Sports writer, The State Journal-Register (July 12, 2021).\n10F-mail from Ryan Mahan to Joshua M. Jones (July 28, 2021).\nMr. Ryan Mahan\nThe Honorable Matt Lentz\nSeptember 21, 2021\nPage 4\nOn August 23, 2021, the Public Access Bureau properly extended the time within\nwhich to issue a binding opinion by 21 business days, to September 22, 2021, pursuant to section\n3.5(e) of OMA.!!\nANALYSIS\nOMA declares that \"it is the intent of this Act to ensure that the actions of public\nbodies be taken openly and that their deliberations be conducted openly.” 5 ILCS 120/1 (West\n2020). Section 2.06(g) of OMA provides that \"[a]ny person shall be permitted an opportunity to\naddress public officials under the rules established and recorded by the public body.\" A public\nbody violates section 2.06(g) of OMA when it prohibits “public comment\" during a meeting by\ndenying members of the public an opportunity to address the members of the public body in open\nsession. Roxana Community Unit School Dist. No. 1 v. Environmental Protection Agency, 2013\nIL App (4th) 120825, 9917, 57-58, 998 N.E.2d 961, 965, 971 (2013) (board violated OMA by\nprohibiting the public from addressing the board in open session). While it is unambiguous in\nthe context of OMA that section 2.06(g) mandates an opportunity to address public officials in\nopen session, this intent was also made clear during legislative debate. One of the House\nsponsors of the legislation that enacted section 2.06(g)'? emphasized during legislative debate\nthat the provision \"requires that all the entities of government have public comment under their\nown rules and regulation and that people have the right to speak at... at meetings.\" Remarks of\nRep. Kosel, March 25, 2010, House Debate on House Bill No. 5483 at 129. This office has\nissued a variety of binding opinions affirming that a public body must provide an opportunity for\npublic comment at each open meeting, subject to any reasonable rules it has established and\nrecorded. III. Att'y Gen. Pub. Acc. Op. No. 14-009, issued September 4, 2014, at 2; Ill. Att'y\nGen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 2; Ill. Att'y Gen. Pub. Acc. Op.\nNo. 19-002, issued January 9, 2019, at 3; Ill. Att'y Gen. Pub. Acc. Op. No. 19-009, issued\nOctober 1, 2019, at 3.\nIn the Board's answer to this office, Board President Lentz asserted:\nPrior to the start of our meeting, ten members of our\ncommunity submitted ‘Public Comment Form\" cards to\nSuperintendent Powell. He spoke briefly with each individual.\nEach indicated to Superintendent Powell that s/he intended to\nspeak about whether a specific employee (one of three coaches)\n\"Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Ryan Mahan, Sports writer, The State Journal-Register, and The Honorable Matt Lentz,\nPresident, Board of Education, Hillsboro Community School District No. 3 (August 23, 2021).\n\"Public Act 96-1473, effective January 1, 2011.\nMr. Ryan Mahan\nThe Honorable Matt Lentz\nSeptember 21, 2021\nPage 5\nshould be fired or rehired. * * * Superintendent Powell suggested\nto President Matt Lentz and the rest of the Board that these\ncomments should be heard in closed session since each community\n. member planned to speak on the performance of a specific\nemployee, a clear exception to the OMA requirement that most\nbusiness be conducted in open session. Each and every member of\nthe public that wished to address the Board was given unlimited\ntime to do so. Individual board members asked questions of some\nof the community members that addressed the board. To have held\nthese conversations in open session would have violated the rights\nof the employees whose performance was being discussed.!!*]\n(Emphasis in original.) .\nThis office has reviewed the recording of both the open and closed sessions of the\nBoard's June 15, 2021, meeting. Immediately after taking attendance at the start of open session,\nBoard President Lentz read the agenda item \"recognition of the audience.\"'* Superintendent\nPowell promptly interjected:\nPresident Lentz, I have here cards from a number of\nmembers of the community that would like to speak to the Board.\nI believe it would be most appropriate for each one of these to be,\nuh, for them to address the Board in closed session. So I have\nnothing for the open session of recognition of the audience.!'5)\nNext, the Board voted to go into closed session pursuant to section 2(c)(1) of OMA (5 ILCS\n140/2(c)(1) (West 2020)), the open meeting exception that authorizes closed session discussions\nof \"[t]he appointment, employment, compensation, discipline, performance, or dismissal of\nspecific employees[ }\" of the public body.\nAs an initial matter, the Board's established and recorded public comment rules\nmake no mention of requiring members of the public who wish to provide public comment to\naddress the Board in closed session. The rules provide that \"[a]t each regular and special open\n3Letter from Matt Lentz, President, HCUSD3 Board of Education, Hillsboro Community Unit\nSchool District #3, to Joshua M. Jones, Public Access Bureau, Office of the Attorney General (July 6, 2021), at 1-2.\nBoard of Education of Hillsboro Community Unit School District No. 3, Open Meeting, June 15,\n2021, Audio File, at :47 (on file with Public Access Bureau, Office of the Attorney General).\n'SBoard of Education of Hillsboro Community Unit School District No. 3, Open Meeting, June 15,\n2021, Audio File, at :50 (on file with Public Access Bureau, Office of the Attorney General).\nMr. Ryan Mahan\nThe Honorable Matt Lentz\nSeptember 21, 2021\nPage 6\nmeeting, members of the public and District employees may comment to or ask questions of the\nSchool Board, subject to reasonable constraints.\"'® Thus, while it is doubtful that a public body\ncould lawfully adopt a rule requiring members of the public who wish to address the public body\ndo so in closed session, the Board had no such established and recorded rule.\nIn addition, although the Board appears to suggest that it was required to hear any\npublic input about the coaches in closed session, section 2a of OMA (5 ILCS 120/2a (West\n2020)), which governs closed session procedure, provides, in relevant part:\nA public body may hold a meeting closed to the public, or close a\nportion of a meeting to the public, upon a majority vote of a\nquorum present, taken at a meeting open to the public for which\nnotice has been given as required by this Act. * * * Nothing in\nthis Section or this Act shall be construed to require that any\nmeeting be closed to the public. (Emphasis added.)\nUnder the plain language of section 2a, OMA does not prohibit a public body\nfrom publicly discussing a matter in open session that it could also permissibly discuss in closed\nsession. Although the Board could properly discuss the performance of the athletic coaches in\nclosed session pursuant to section 2(c)(1), the Board was neither required to restrict all\ndiscussion of that issue to closed session nor authorized to prohibit the public from addressing it\nin open session. This office's review of the closed session verbatim recording confirmed that\nmembers of the public who addressed the Board had intended their remarks for public\nconsumption. Each of those members of the public had filled out a \"Public Comment Form\"\naffirming that they agreed to the Board's \"procedures for Public Participation at School Board\nMeetings[,]\" quoted above.\"”\nFinally, as to the Board's argument about violating the rights of the coaches who it\ndiscussed in closed session, no provision of OMA prohibits public comment on personnel\ndecisions. Although a public body may properly adopt reasonable public comment rules aimed\nat fostering order and decorum and may stop disruptive conduct during a meeting, a rule or\npractice of forbidding public comment on the retention of public employees would unduly\nrestrict the right of speakers to address the Board. The Board has not identified what other sort\nof \"rights\" outside of OMA the Board believes would have been violated by allowing public\ncomment on the matter in open session. Nonetheless, the Public Access Counselor's authority to\n'6Hillsboro Community Unit School District No. 3, Board of Education Policy Manual, §2:230\n(adopted September 10, 2019), available at https://boardpolicyonline.com/?b=lyons_103.\nHillsboro Community Unit School District #3, Public Comment Forms (on file with Public\nAccess Bureau, Office of the Attorney General).\nMr. Ryan Mahan\nThe Honorable Matt Lentz\nSeptember 21, 2021\nPage 7\nresolve disputes is limited to alleged violations of OMA and the Freedom of Information Act (5\nILCS 140/1 et seg. (West 2020)). See 15 ILCS 205/7(c)(3) (West 2020). The Board violated\nOMA during its June 15, 2021, meeting by failing to allow the public to address it in open\nsession. :\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments presented,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On June 15, 2021, the Board of Education of Hillsboro Community Unit\nSchool District No. 3 closed a portion of its meeting to discuss the appointment, employment,\ncompensation, discipline, performance, or dismissal of specific athletic coaches employed by the\nDistrict. The members of the public in attendance who intended to address the Board regarding\nthe retention of the coaches were told that they must do so in closed session. The Board took no\npublic comment in open session.\n2) In an e-mail sent to the Hlinois Executive Ethics Commission on June 24,\n2021, Mr. Ryan Mahan, on behalf of The State Journal-Register, set forth facts concerning the\nBoard's June 15, 2021, meeting. He also expressly stated that he was seeking to contact the\nAttorney General's Office concerning the legality of allowing members of the public to address\nthe Board only in closed session. On June 28, 2021, the Hlinois Executive Ethics Commission\nforwarded Mr. Mahan's submission to this office. This office recognized Mr. Mahan's e-mail as\na Request for Review of a potential violation of section 2.06(g) of OMA. Mr. Mahan's Request\nfor Review was timely filed and otherwise complies with the requirements of section 3.5(a) of\nOMA (5 ILCS 120/3.5(a) (West 2020)).\n3) On July 1, 2021, the Public Access Bureau sent a copy of the Request for\nReview to Board President Matt Lentz and asked the Board to provide, for this office's\nconfidential review, copies of any rules it had established and recorded concerning public\ncomment and the agenda, open and closed session minutes, and closed session verbatim\nrecording from its June 15, 2021, meeting.\n4) Ina letter dated July 6, 2021, and received by the Public Access Bureau on\nJuly 12, 2021, Mr. Lentz provided this office with the requested materials and copies of ten\n\"Public Comment Cards\" signed by members of the public before the meeting.\n5) On that same date, this office sent a copy of the Board's answer to Mr. Mahan\nand notified him of his opportunity to reply. On July 28, 2021, Mr. Mahan replied that he had\nnothing further to state. :\nMr. Ryan Mahan\nThe Honorable Matt Lentz\nSeptember 21, 2021\nPage 8\n6) On August 23, 2021, the Public Access Bureau properly extended the time\nwithin which to issue a binding opinion by 21 business days, to September 22, 2021, pursuant to\nsection 3.5(e) of OMA. Therefore, the Attorney General may properlyi ssue a binding opinion\nwith respect to this matter.\n7) Section 2.06(g) of OMA provides that \"[a]ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.” This provision requires that all public bodies subject to the Act provide an opportunity\nfor public comment, meaning a chance for members of the public to address the members of the\npublic body in open session.\n8) The Board did not provide the public with the opportunity to address its\nmembers in open session during its June 15, 2021, meeting. Rather, the Board required the\nmembers of the public who signed up for public comment to address the Board in closed session.\n9) Because OMA does not prohibit public comment concerning a public body's\npersonne] decisions in open session, the Board had no authority to bar public comment on\nretention of the coaches. The Board violated OMA by requiring members of the public to\naddress it during the closed session portion of its June 15, 2021, meeting. Because the members\nof the public who addressed the Board concerning the coaches' employment did so in closed\nsession, however, and may have adjusted or altered their comments accordingly, release of the\nclosed session minutes is not an appropriate remedy here.\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to provide an opportunity for public comment in open session at all of its future\nmeetings. As required by section 3.5(e) of OMA, the Board shall either take necessary action as\nsoon as practical to comply with the directives of this opinion or shall initiate administrative\nreview under section 7.5 of OMA. 5 ILCS 120/7.5 (West 2020).\nMr. Ryan Mahan\nThe Honorable Matt Lentz\nSeptember 21, 2021\nPage 9\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Ryan\nMahan as defendants. See 5 ILCS 120/7.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBrent D. Stratton\nChief Deputy Attorney General\nCERTIFICATE OF SERVICE\nSarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the\nforegoing Binding Opinion (Public Access Opinion 21-009) upon:\nMr. Ryan Mahan\nSports Writer\nThe State Journal-Register\n529 South Glenwood Avenue\nSpringfield, Illinois 62704\nsports@sj-r.com\nThe Honorable Matt Lentz\nPresident, Board of Education\nHillsboro Community Unit School District No. 3\n131] Vandalia Street\nHillsboro, Illinois 62049\nc/o dpowell@hillsboroschools.net\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy therof in correctly addressed, prepaid envelopes to be deposited\nin the United States mail at Springfield, Illinois on September 21, 2021.\nSARAH L, PRATT\nPublic Access Counselor\nSARAH L. PRATT\nPublic Access Counselor\n500 South Second Street\nSpringfield, Illinois 62706\n(217) 528-7541","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter filed a complaint after a school board meeting where members of the public were not given a chance to speak. The Illinois Attorney General determined that the school board failed to follow the Open Meetings Act, which requires public bodies to provide an opportunity for public comment during open meetings. This means the board must ensure future meetings include a designated time for public participation.","card_headline":"A school board's failure to allow public comment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":145,"orig_master_id":19352,"dup_master_id":19119,"dup_sha256":"cc8c7f3650c8979fded7e8c3be5ca4f3827b9381c1aed8459586f9ad1cdbcd42","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2021,"date_issued":"2021-10-12","case_number":"2021-PAC-C-0067","request_numbers":null,"title":"Names of City Employees Who Engaged in Misconduct Are Subject to Disclosure","filename":"PUBLIC ACCESS OPINION 21-010 (Request for Review - 2021-PAC-C-0067)(October 12, 2021).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 21-010 (Request for Review - 2021-PAC-C-0067)(October 12, 2021).pdf","word_count":4945,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a FOIA request for records related to misconduct by City of Chicago employees. It concludes that the names of the employees involved are subject to disclosure.","plain_summary":"The requester, a newspaper reporter, sought unredacted records about a workplace complaint alleging discrimination, harassment, and a hostile work environment at a city emergency-communications office, which had redacted the names of two employees accused of misconduct. The Public Access Counselor held that names alone are not private information, that the complaints bore on the employees' public duties and so were not an unwarranted invasion of privacy, and that the informal complaint process did not amount to a formal disciplinary \"adjudication.\" The office was directed to disclose the two employees' names.","holding":"The Office of Emergency Management and Communications violated FOIA by redacting the names of employees alleged to have engaged in misconduct.","legal_question":"Are the names of City employees who engaged in misconduct subject to disclosure under FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Office of Emergency Management and Communications (OEMC) of the City of Chicago","requesting_party":"Mr. Gregory Pratt (Chicago Tribune)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The disclosure of names of public employees involved in allegations of racial discrimination and sexual harassment.","ocr_status":"ok","ocr_quality":90.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2021-Binding-PAC-Opinions/21-010.pdf","sha256":"f60253a4520d86646714e8141408cfc5bcfdadd5c44548b847efb7113ac3836d","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["misconduct","personnel records","FOIA","transparency","employee names"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nOctober 12, 2021\nPUBLIC ACCESS OPINION 21-010\n(Request for Review 2021-PAC-C-0067)\nFREEDOM OF INFORMATION ACT:\nNames of City Employees Who Engaged in\nMisconduct Are Subject to Disclosure\nMr. Gregory Pratt\nChicago Tribune\n[street address redacted for site publication -- see original PDF]\nMr. Marc Augustave\nSenior Counsel\nCity of Chicago Department of Law\n2 North LaSalle Street, Suite 640\nChicago, Illinois 60602\nDear Mr. Pratt and Mr. Augustave:\nThis is a binding opinion issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons\ndiscussed below, this office concludes that the Office of Emergency Management and\nCommunications (OEMC) of the City of Chicago (City) violated FOIA by redacting the names\nof two of its employees who were alleged or found to have engaged in misconduct from records\nresponsive to Mr. Gregory Pratt's FOIA request.\nBACKGROUND\nOn May 6, 2021, Mr. Pratt, on behalf of the Chicago Tribune, submitted a FOIA\nrequest to OEMC via e-mail! seeking copies of records related to a letter attached to his request\n'FOIA request from Gregory Royal Pratt to OEMCFOIA @cityofchicago.org (May 6, 2021).\n500 South Second Street, Springfield, Hlinois 62701 ¢ (217) 782-1090 ¢ T’T’Y: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Hlinois 60601 ¢ (312) 814-3000 ¢ ‘PTY: (800) 964-3013 ¢ F: 312) 814-3806\n601 South University Ave., Carbondale, IL 62901 ¢ (618) 529-6400 ¢ T’T'Y: (877) 675-9339 © Fax (618) 529-6416 cena\nMr. Gregory Pratt\nMr. Mark Augustave\nOctober 12, 2021\nPage 2\nin which City Alderman Christopher Taliaferro expressed concerns about \"allegations of racial\ndiscrimination, sexual harassment, and a discipline heavy and hostile work environment at\"\nOEMC.? On June 2, 2021, OEMC provided Mr. Pratt with copies of responsive records but\nredacted the name of the complainant, the name of the City employee who was the respondent of\nthe complaint, the name of a second City employee who was found to have violated OEMC's\nsocial media policy, the names of potential witnesses to the filed complaint, and the telephone\nnumbers of the complainant and the respondent pursuant to section 7(1)(b) of FOIA (5 ILCS\n140/7(1)(b) (West 2020)). OEMC's partial denial letter also appeared to assert the information\nwas exempt under section 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) (West 2020)) by reciting some of\nthe statutory language of that exemption.’ On June 28, 2021, Mr. Pratt submitted a Request for\nReview contesting the redaction of the name of an employee who was accused of sexual\nharassment and \"formally disciplined in the form of being ordered to take classes for his\ndocumented misconduct.\"*5\nOn July 1, 2021, the Public Access Bureau forwarded a copy of the Request for\nReview to OEMC together with a letter asking for unredacted copies of the records from which it\nredacted the employee's name. The letter also requested a detailed explanation of the factual and\nlegal bases for the applicability of the specific exemptions under which OEMC redacted the\nname.° Ina letter dated July 19, 2021, an attorney for the City's Department of Law furnished\n?Letter from Christopher Taliaferro, Chairman, Committee on Public Safety and Alderman, 29\"\nWard, City Council, City of Chicago, to Director Richard Guidice, Office of Emergency Management and\nCommunication [sic] (March 31, 2021), at 1.\n3Letter from M. Mason, OEMC FOIA, Freedom of Information Officer, Office of Emergency\nManagement & Communications, City of Chicago, to Gregory Pratt (June 2, 2021). The response misidentified the\nresponsive records as \"9-1-1 event queries.\"\n4E-mail from Gregory Pratt, Chicago Tribune, to Sarah Pratt, Public Access Counselor, Office of\nthe Attorney General (June 28, 2021).\n5Mr. Pratt appears to have been under the impression that OEMC redacted the name of only one\nrespondent-employee accused of misconduct. In fact, OEMC redacted the names of two City employees in addition\nto the name of the complainant; the second accused City employee was found to have violated OEMC's social media\npolicy.\n‘Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to M. Mason, Office of Emergency Management and Communication[s], City of Chicago (July 1, 2021), at\nom\nMr. Gregory Pratt\nMr. Mark Augustave\nOctober 12, 2021\nPage 3\nthe requested materials on behalf of OEMC.’” On July 20, 2021, this office forwarded a copy of\nOEMC's response letter to Mr. Pratt. On July 21, 2021, Mr. Pratt submitted a reply.?\nOn August 24, 2021, the Public Access Bureau extended the time within which to\nissue a binding opinion by 30 business days, to October 12, 2021.'°\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS\n140/1 (West 2020). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2020)), \"[a]ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"\nSection 3(a) of FOIA (5 ILCS 140/3(a) (West 2020)) provides that \"[e]ach public body shall\nmake available to any person for inspection or copying all public records, except as otherwise\nprovided in Sections 7 and 8.5 of this Act.\"\nThe OEMC's response to the Public Access Bureau raised three bases for\nwithholding the names in question—sections 7(1)(b), 7(1)(c), and 7(1)(n) of FOIA (5 ILCS\n140/7(1)(n) (West 2020)). This office will consider each of the exemptions.\nSection 7(1)(b) of FOIA\nSection 7(1)(b) of FOIA exempts from disclosure \"[p]rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\"\nSection 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2020)) defines \"private information\" as:\n[U]nique identifiers, including a person's social security number,\ndriver's license number, employee identification number, biometric\nidentifiers, personal financial information, passwords or other\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\n7Letter from Marc Augustave, Senior Counsel, City of Chicago Department of Law, to Steve\nSilverman, Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General (July 19, 2021).\n5Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Gregory Pratt (July 20, 2021).\nE-mail from Gregory Pratt, Chicago Tribune, to Steven J. Silverman (July 21, 2021).\n10e] tter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Gregory Pratt, Chicago Tribune, and Marc Augustave, Senior Counsel, City of Chicago Department of\nLaw (August 24, 2021).\nMr. Gregory Pratt\nMr. Mark Augustave\nOctober 12, 2021\nPage 4\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person.\nCiting Binding Opinion 12-003 (Ill. Att'y Gen. Pub. Acc. Op. No. 12-003, issued\nJanuary 18, 2012), OEMC's response to this office asserted that names of City employees that\nappeared in the requested records are \"unique identifiers,\" and thus a form of \"private\ninformation\" that is exempt from disclosure under section 7(1)(b).!' In fact, the Attorney\nGeneral reached the opposite conclusion in Binding Opinion 12-003, explaining that nothing in\nthe definition of \"private information\" \"or in reading FOIA as a whole suggests that a person's\nname, or basic identification, is private information.\"!? This office noted that in Lieber v. Board\nof Trustees of Southern Illinois University, 176 Ill. 2d 401, 412 (1997), a case involving a request\nfor the names and addresses of certain college freshmen, the Illinois Supreme Court concluded\nthat names are not exempt from disclosure as \"personal information.'\"'? The Court found that\n\"the phrase ‘personal information' must have been intended by the legislature to be understood\nnot in the sense of basic identification, but in the sense of information that is 'confidential' or\n'private.'\"\" Lieber, 176 Ill. 2d at 412.\nIn contrast, in Timpone v. Illinois Student Assistance Comm'n, 2019 IL App (1st)\n181115, 941, 147 N.E.3d 873, 887 (2019), the Illinois Appellate Court did hold that the names of\ncertain students were exempt under section 7(1)(b), but only because the disclosure of the\nstudents' names would link them to \"detailed personal income information\" that the Illinois\nStudent Assistance Commission maintained on its website concerning applicants for and\nrecipients of grants for low-income families. Timpone, 2019 IL App (1st) 181115, 9923, 41, 147\nN.E.3d at 883, 887. The court held that disclosing information identifying individual students as\napplicants for and recipients of State grants for low-income families would reveal their \"personal\nfinancial information,\" which is expressly listed as a form of \"private information\" in the\ndefinition of that term in FOIA. Timpone, 2019 IL App (lst) 181115, 4934, 41, 147 N.E.3d at\n885, 887. The court did not conclude that names of public employees generally are exempt from\ndisclosure under section 7(1)(b) because they would identify employees.\nDisclosure of the respondent's name and that of another City employee who\nviolated the City's social media policy would identify employees who were the subject of a\n\"Letter from Marc Augustave, Senior Counsel, City of Chicago Department of Law, to Steve\nSilverman, Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General (July 19, 2021), at 3.\n2111. Att'y Gen. Pub. Acc. Op. No. 12-003, at 7.\n13At the time of the FOIA request in Lieber, section 7(1)(b) of FOIA contained language now\nfound in section 7(1)(c) of FOIA, which exempts from disclosure \"[i]nformation that, if disclosed, would constitute\na clearly unwarranted invasion of personal privacy.\" 5 ILCS 140/7(1)(b) (West 1994). There was no separate\nexemption for \"private information\" at the time.\nMr. Gregory Pratt\nMr. Mark Augustave\nOctober 12, 2021\nPage 5\nmisconduct complaint or found to have engaged in misconduct. Because the names do not\ncorrespond to any \"unique identifiers\" disclosed within the records, disclosing the respondent's\nname and that of the other City employee would not reveal any form of \"private information.\"\nAccordingly, this office concludes that the respondent's name and that of the other City\nemployee who violated OEMC's social media policy are not exempt from disclosure under\nsection 7(1)(b) of FOIA.\nSection 7(1)(c) of FOIA\nSection 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal\nprivacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\" The exemption expressly provides that \"[t}he disclosure of\ninformation that bears on the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy.\" (Emphasis added.)\nThe OEMC's response to this office asserted: \"Because Mr. Pratt knows the\ndetails related to the employee grievance and is looking for the names of the specific individuals\ninvolved, the release of the information would constitute an unwarranted invasion of personal\nprivacy.\"'* The OEMC further contended that \"redaction of the employee names is not relatively\nminor because they are contained within information that is embarrassing and potentially\ndamaging to the employees’ reputations.\"!° According to OEMC, the City employees' right to\nprivacy outweighs the public interest in disclosure of the names.\nMr. Pratt is seeking only the names of the City employees found to have engaged\nin misconduct or alleged to have engaged in misconduct. Mr. Pratt is not seeking the name of\nthe complainant. In Gekas v. Williamson, 393 Ill. App. 3d 573, 574 (4th Dist. 2009), the Illinois\nAppellate Court considered whether citizen complaints against a deputy sheriff and related\nrecords were exempt from disclosure under a prior version of section 7(1)(c), which also\nexpressly excluded from its scope information that bears on the public duties of public\n'4Letter from Marc Augustave, Senior Counsel, City of Chicago Department of Law, to Steve\nSilverman, Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General (July 19, 2021), at 3.\n'SLetter from Marc Augustave, Senior Counsel, City of Chicago Department of Law, to Steve\nSilverman, Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General (July 19, 2021), at 3.\nMr. Gregory Pratt\nMr. Mark Augustave\nOctober 12, 2021\nPage 6\nemployees.'® The trial court had ruled that files concerning unfounded complaints could be\nwithheld to protect the deputy's privacy interests. Gekas, 393 Ill. App. 3d at 578. The appellate\ncourt reversed, holding that records concerning alleged wrongdoing in the course of the deputy's\npublic duties were subject to disclosure regardless of whether the underlying allegations had\nmerit:\nComplaints, founded or unfounded, that he committed misconduct\nin his capacity as a deputy sheriff are \"information that bears on\n[his] public duties,\" and the disclosure of such information \"shall\nnot be considered an invasion of personal privacy.\" [Citation.]\nInsomuch as these materials, true or false, founded or unfounded,\nbear on his duties as a police officer, the disclosure of these\nmaterials would not invade his personal privacy, and, thus, we do\nnot reach the question of whether their disclosure would be a\n\"clearly unwarranted invasion of [his] personal privacy.\"\n[Citation.] Gekas, 393 Ill. App. 3d at 586.\nSee also Watkins v. McCarthy, 2012 IL App (1st) 100632, 425, 980 N.E.2d 733, 741 (2012)\n(\"files requested by plaintiff pertaining to complaints against the officers here, which were found\nto be without merit, would not be exempt under\" a prior version of section 7(1)(c) (5 ILCS\n140/7(1)(b)(ii) (West 2008)) that is identical to the version interpreted by the court in Gekas).\nThe records at issue here concern: (1) a City employee's complaint of violence in\nthe workplace and the investigation and resolution of that complaint; and (2) the finding of a\nviolation of OEMC's social media policy based on another City employee's posting of a\ncomment disparaging the complainant on Facebook. The workplace violence complaint involves\nconduct by the subject of the complaint, a City employee, while the subject was at OEMC's\nworkplace. Such a complaint unequivocally bears on the public employee's public duties.\n'SAt the time of the Gekas case, section 7(1)(b)(ii) of FOIA (5 ILCS 140/7(1)(b)(ii) (West 2006))\nprovided:\n(b) Information that, if disclosed, would constitute a clearly\nunwarranted invasion of personal privacy, unless the disclosure is consented to\nin writing by the individual subjects of the information. The disclosuroef\ninformation that bears on the public duties of public employees and officials\nshall not be considered an invasion of personal privacy. Information\nexempted under this subsection (b) shall include but is not limited to:\n**e*\n(ii) personnel files and personal information maintained with\nrespect to employees, appointees or elected officials of any public body\nor applicants for those positions[.] (Emphasis added.)\nMr. Gregory Pratt\nMr. Mark Augustave\nOctober 12, 2021\nPage 7\nAlthough the records do not indicate whether the City employee violated OEMC's social medial\npolicy while that employee was working or at the workplace, compliance with the social media\npolicy is a condition of City employment. Therefore, records concerning that violation also bear\non the City employee's public duties. Because the definition of \"unwarranted invasion of\npersonal privacy\" in section 7(1)(c) excludes information that bears on public duties of public\nemployees, it is unnecessary for this office to balance the employees' right to privacy against the\npublic interest in disclosure of their names. Records that bear on the employees' public duties do\nnot constitute a clearly unwarranted invasion of personal privacy even, as happened here with the\nviolence in the workplace complaint, the investigation found that there was insufficient evidence\nto support a finding of a policy violation by one of the employees. Accordingly, this office\nconcludes that the name of the City employee, who was the respondent to the violence in the\nworkplace complaint, and of a second City employee, who violated the City's social media\npolicy, are not exempt from disclosure pursuant to section 7(1)(c) of FOIA.\nSection 7(1)(n) of FOIA\nSection 7(1)(n) of FOIA exempts from disclosure \"[r]ecords relating to a public\nbody's adjudication of employee grievances or disciplinary cases; however, this exemption shall\nnot extend to the final outcome of cases in which discipline is imposed.\" Black's Law Dictionary\ndefines the word \"adjudication\" as \"[t]he legal process of resolving a dispute; the process of\njudicially deciding a case.\" Black's Law Dictionary (11th ed. 2019), available at Westlaw\nBLACKS. Black's Law Dictionary further defines an \"adjudication hearing\" as an \"[ajgency\nproceedingi n which a person's rights and duties are decided after notice and an Spoaney to be\nheard.\" Black's Law Dictionary (11th ed. 2019), available at Westlaw BLACKS.\nApplying similar definitions, the Illinois Appellate Court construed an\n\"adjudication\" for purposes of section 7(1)(n) as a \"formalized legal process that results in a final\nand enforceable decision.\" Kalven v. City of Chicago, 2014 IL App (1st) 121846, 913, 7 N.E.3d\n741, 745 (2014), overruled in part on other grounds by Perry v. Dep't of Financial and\nProfessional Regulation, 2018 IL 122349, 106 N.E.3d 1016 (2018). The court also emphasized\nthat \"[t]he phrase 'related to' must be read narrowly,\" and held that the scope of section 7(1)(n) is\nlimited to records generated during an adjudication; the exemption does not encompass records\nin Complaint Register (CR) files that document complaints against police officers and the\nunderlying investigations. Kalven, 2014 IL App (1st) 121846, 993, 22, 7 N.E.3d at 743, 747.\nThe court explained that even though \"a substantiated complaint can result in disciplinary\nproceedings being instituted against an officer, those proceedings are a different matter entirely.\nThe CRs are instead part of an investigatory process that is separate and distinct from\ndisciplinary adjudications.\" Kalven, 2014 IL App (1st) 121846, 914, 7 N.E.3d at 745. In\naddition, the Attorney General has issued a binding opinion that distinguished an \"adjudication\"\nfrom an informal disciplinary proceeding. Ill. Att'y Gen. Pub. Acc. Op. No. 13-011, issued June\n11, 2013, at 8 (concluding that the police chief's interviews with witnesses, their fact-based\nMr. Gregory Pratt\nMr. Mark Augustave\nOctober 12, 2021\nPage 8\nobservations, and additional evidence supporting the decision to suspend an employee were not\nexempt from disclosure pursuant to section 7(1)(n) because.the informal disciplinary process fell\nshort of a formalized legal process).\nThe OEMC's response to this office asserted that the redacted records provided to\nMr. Pratt relate to OEMC's adjudication of a City employee grievance and, therefore, could have\nbeen withheld in their entireties under section 7(1)(n).!7 Although the response provided no\nother explanation of the assertion that the matters to which the records relate were the subject of\nan \"adjudication[,]\" the response stated that section 1604.11(f) of title 29 of the Code of Federal\nRegulations!® \"encourages employers to ensure the confidentiality of these types of records.\"!9\nThe records in question consist of: (1) an incident report by the complainant\nalleging violence in the workplace; (2) a written response by the respondent-subject of the\ncomplaint; (3) a record documenting a coaching session to address unwelcome comments of a\nsexual nature made by the respondent-subject of the complaint and to prevent such comments\nfrom occurring in the future (the document indicates that the coaching is not discipline but\ncautions the employee that comments of this nature could result in discipline); (4) a memoranda\nexplaining that the investigation concluded that there was insufficient evidence to sustain the\nallegations of workplace violence against the respondent-subject of the complaint; and (5) a\ndocument that provides coaching to address a violation of OEMC's social media policy by a\nsecond City employee, which indicates that future improper social media communications would\nresult in discipline.\nBased on this office's review, the records at issue in this matter are similar to the\nrecords described in Kalven that documented complaints and investigations of complaints before\nany adjudications occurred. There is no indication that the allegations of inappropriate\ncomments and workplace violence and the finding that the City employee violated OEMC's\nsocial media policy were generated in connection with a formal agency proceeding. Rather, it\nappears that OEMC informally addressed each matter without any kind of hearing or proceeding\nthat could constitute an \"adjudication.\" Accordingly, OEMC has not sustained its burden of\ndemonstrating that the redacted names of the respondent-subject of the complaint and the City\nemployee who was found to have violated OEMC's social media policy are exempt from\ndisclosure under section 7(1)(n) of FOIA.\n“Letter from Marc Augustave, Senior Counsel, City of Chicago Department of Law, to Steve\nSilverman, Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General (July 19, 2021), at 2.\n1829 C.F.R. §1604.11(f).\n'Letter from Marc Augustave, Senior Counsel, City of Chicago Department of Law, to Steve\nSilverman, Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General (July 19, 2021), at 2.\nMr. Gregory Pratt\nMr. Mark Augustave\nOctober 12, 2021\nPage9\nLastly, the City raised section 1604.11(f) of title 29 of the Code of Federal\nRegulations as a basis for withholding the requested names. Section 1604.1 1(f) provides:\nPrevention is the best tool for the elimination of sexual\nharassment. An employer should take all steps necessary to prevent\nsexual harassment from occurring, such as affirmatively raising the\nsubject, expressing strong disapproval, developing appropriate\nsanctions, informing employees of their right to raise and how to\nraise the issue of harassment under title VII, and developing\nmethods to sensitize all concerned.\nThe language of section 1604.11(f) does not bear upon the disclosure of records under FOIA and\ncannot be reasonably construed to \"encourage\" OEMC to withhold the names of employees\naccused of misconduct. Further, no provision of FOIA prohibits the disclosure of records where\na statute's implementing rules \"encourage\" public bodies to withhold information from\ndisclosure. In contrast, section 7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (West 2020)) exempts\n\"[i]nformation specifically prohibited from disclosure by federal or State law or rules and\nregulations implementing federal or State law.\" (Emphasis added.) The Illinois Appellate Court\nhas observed that \"an exemption restricting the expansive nature of the FOIA's disclosure\nprovisions must be explicitly stated--that is, such a proposed disclosure must be specifically\nprohibited.\" (Emphasis in original.) Better Gov't Ass'n v. Blagojevich, 386 Ill. App. 3d 808, 816\n(4th Dist. 2008). Section 1604.11(f) of title 29 of the Code of Federal Regulations does not\npertain to FOIA or specifically prohibit disclosure of any records or information under FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On May 6, 2021, Mr. Pratt, on behalf of the Chicago Tribune, submitted a\nFOIA request to OEMC of the City of Chicago seeking copies of records related to a letter\nattached to his request in which a City alderman expressed concerns about allegations of\ndiscrimination, harassment, and a hostile work environment at OEMC.\n2) On June 2, 2021, OEMC provided copies of responsive records but redacted\nCity employee names and telephone numbers. OEMC's written response stated that it redacted\nthe information pursuant to section 7(1)(b) of FOIA; the response also appeared to assert that the\ninformation was exempt from disclosure pursuant to section 7(1)(c) by reciting the statutory\n| language of that exemption.\na\nMr. Gregory Pratt\nMr. Mark Augustave\nOctober 12, 2021\nPage 10\n3) On June 28, 2021, Mr. Pratt submitted a Request for Review contesting the\nredaction of the name of a City employee who Mr. Pratt stated was accused of harassment and\ndisciplined for posting retaliatory messages on social media. Mr. Pratt's Request for Review was\ntimely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS\n140/9.5(a) (West 2020)).\n4) On July 1, 2021, the Public Access Bureau forwarded a copy of the Request\nfor Review to OEMC together with a letter asking for unredacted copies of the records from\nwhich OEMC redacted the City employee's name. The letter also requested a detailed\nexplanation of the factual and legal bases for the applicability of the specific exemptions under\nwhich OEMC redacted the name.\n5) On July 19, 2021, an attorney for the City's Department of Law furnished\nthe requested materials on behalf of OEMC. The written response asserted that the City\nemployee names redacted from the records were exempt from disclosure pursuant to sections\n7(1)(b), 7(1)(c), and 7(1)(n) of FOIA; the response also cited section 1604.11(f) of the title 29 of\nthe Code of Federal Regulations as a basis for redacting the names.\n6) On July 20, 2021, this office forwarded a copy of OEMC's response letter to\nMr. Pratt. On July 21, 2021, Mr. Pratt submitted a reply.\n7) On August 24, 2021, the Public Access Bureau extended the time within\nwhich to issue a binding opinion by 30 business days, to October 12, 2021. Accordingly, the\nAttorney General may properly issue a binding opinion with respect to this matter.\n8) Section 7(1)(b) exempts from disclosure \"private information,\" which the Act\ndefines to include various \"unique identifiers\" such as home addresses, personal telephone\nnumbers, and social security numbers. Names are not included in FOIA's definition of \"private\ninformation.\" Because names alone are not defined as \"private information\" and because the\ndisclosure of names here would not link the employees accused of misconduct to any \"private\ninformation\" disclosed within the records Mr. Pratt received, the names of the indicated City\nemployees are not exempt from disclosure pursuant to section 7(1)(b) of FOIA.\n9) Section 7(1)(c) exempts from disclosure \"[p]ersonal information contained\nwithin public records, the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy.\" Section 7(1)(c) expressly provides that \"[t]he disclosure of information that\nbears on the public duties of public employees and officials shall not be considered an invasion\nof personal privacy.\"\n10) Records concerning alleged workplace misconduct and violations of policies\nthat are cond:tions of employment directly bear on the public duties of public employees.\nMr. Gregory Pratt\nMr. Mark Augustave\nOctober 12, 2021\nPage 11\nTherefore, the names of the City employee who was the subject of a workplace violence\ncomplaint and a City employee who was found to have violated OEMC's social media policy are\nnot exempt from disclosure pursuant to section 7(1)(c) of FOIA.\n11) Section 7(1)(n) of FOIA exempts from disclosure \"[rJecords relating to a\npublic body's adjudication of employee grievances or disciplinary cases; however, this\nexemption shall not extend to the final outcome of cases in which discipline is imposed.\"\n12) The records in question consist of a City employee's complaint and\ndocumentation of an investigation and resolution of that complaint, and a finding that a City\nemployee violated OEMC's social media policy. The available information indicates that these\nmatters were resolved by the City without advancing to a formal agency proceeding that\nconstituted an adjudication. Accordingly, OEMC has not sustained its burden of demonstrating\nthat the names of City employees are exempt from disclosure pursuant to section 7(1)(n) of\nFOIA.\n13) Section 1604.11(f) of title 29 of the Code of Federal Regulations\nrecommends that employers take preventative measures to prevent sexual harassment, such as\ninforming employees of their rights and sanctioning employees who engage in misconduct. This\nprovision, which does not prohibit disclosure of any records or information, does not pertain to\nFOIA. Thus, section 1604.11(f) of title 29 of the Code of Federal Regulations provides no basis\nfor OEMC to redact the names of the City employees at issue in this matter.\nTherefore, it is the opinion of the Attorney General that the Office of Emergency\nManagement and Communications has violated section 3(d) of FOIA by improperly redacting\nfrom the records responsive to Mr. Pratt's request the name of a City employee who was the\nsubject of a workplace violence complaint as well as the name of a City employee who was\nfound to have violated OEMC's social media policy. Accordingly, OEMC is hereby directed to\ntake immediate and appropriate action to comply with this opinion by disclosing the names of\nthe City employee who was the respondent-subject of a workplace violence complaint and of the\nCity employee who was found to have violated OEMC's social media policy in a supplemental\nresponse to Mr. Pratt's request.\nMr. Gregory Pratt\nMr. Mark Augustave\nOctober 12, 2021\nPage 12\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision naming the Attorney General of Illinois and Mr.\nGregory Pratt as defendants. See 5 ILCS 140/11.5 (West 2020).\nSincerely,\nKWAME RAOUL\nATTORNEY GENERAL\nBy: Bret 7%. Strotio~\nBrent D. Stratton\nChief Deputy Attorney General\nce: M. Mason\nOffice of Emergency Management and Communications\nCity of Chicago\n1411 West Madison Street\nChicago, Illinois 60607\nCERTIFICATE OF SERVICE\nSteve Silverman, Chief of the Public Access Bureau, hereby certifies that he has served a\ncopy of the foregoing Binding Opinion (Public Access Opinion 21-010) upon:\nMr. Gregory Pratt\nChicago Tribune\n560 West Grand Avenue\nChicago, Illinois 60654\ngpratt@chicagotribune.com\nMr. Marc Augustave\nSenior Counsel\nCity of Chicago Department of Law\n2 North LaSalle Street, Suite 640\nChicago, Illinois 60602\nMarc. Augustave@cityofchicago.org\nM. Mason\nOffice of Emergency Management and Communications\nCity of Chicago\n1411 West Madison Street\nChicago, Illinois 60607\nOEMCFOIA@cityofchicago.org\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy therof in correctly addressed, prepaid envelopes to be deposited\nin the United States mail at Chicago, Illinois on October 12, 2021.\neae\nSTEVE SILVERMAN\nChief, Public Access Bureau\nSteve Silverman\nPublic Access Bureau\nIllinois Attorney General\n100 W. Randolph Street 11‘ Floor\nChicago, Illinois 60601\n(312) 814-6756\nSteven.Silverman@ilag.gov","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested records from the City of Chicago regarding employee misconduct, but the City redacted the names of the employees involved. The Attorney General's office ruled that the City could not hide these names, as the public interest in transparency regarding government employee misconduct outweighs privacy concerns. This means the City must release the records with the names unredacted.","card_headline":"Names of employees in misconduct allegations","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":146,"orig_master_id":19347,"dup_master_id":19120,"dup_sha256":"5bf46a52e8f78c7b49503dece831d9207bb37dcaf2c4105c8956335034781d94","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2022,"date_issued":"2022-01-31","case_number":"2021-PAC-C-0536","request_numbers":null,"title":"Communications Attorney Provides to Client Containing Legal Advice Protected by Attomey-Client Privilege","filename":"PUBLIC ACCESS OPINION 22-001 (Request for Review - 2021 PAC C-0536).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 22-001 (Request for Review - 2021 PAC C-0536).pdf","word_count":3606,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request made by journalist Brenda Schory to the Kane County State's Attorney's Office. The opinion concludes that the office did not violate FOIA by denying the request.","plain_summary":"The requester, a newspaper reporter, sought reports a state's attorney gave county board members about an employee's alleged misuse of county funds for personal education expenses, which the state's attorney's office withheld as protected by the attorney-client privilege. The Public Access Counselor's confidential review confirmed that the withheld record reflected genuine legal advice to the county board rather than public-relations strategy, so the privilege applied. The denial was upheld and no violation was found.","holding":"The Office of the State's Attorney for Kane County did not violate FOIA by denying Ms. Brenda Schory's FOIA request.","legal_question":"Whether the Office of the State's Attorney for Kane County violated FOIA by denying a request for documents.","disposition":"no_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(m)"],"public_body":"Office of the State's Attorney for Kane County","requesting_party":"Brenda Schory","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"attorney-client privilege","subject_description":"Records concerning reports given to county board members about an official's use of county funds to pay for a degree.","ocr_status":"ok","ocr_quality":89.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2022-Binding-PAC-Opinions/22-001.pdf","sha256":"99a679938985d34e78aedf9e69ddaeffc20f2f810bb60885e5a8d926c64fe8fe","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["attorney-client privilege","FOIA exemption 7(1)(c)","legal advice","state's attorney records"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL.\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nJanuary 31, 2022\nPUBLIC ACCESS OPINION 22-001\n(Request for Review 2021-PAC-C-0536)\nFREEDOM OF INFORMATION ACT:\nCommunications Attorney Provides to\nClient Containing Legal Advice\nProtected by Attomey-Client Privilege\nMs. Brenda Schory\nStaff Writer\nKane County Chronicle\n[street address redacted for site publication -- see original PDF]\nMs. Michele Niermann\nAssistant State's Attorney\nChiofe thfe Civil Division\nOffice oft he State's Attorney for Kane County\n100 South Third Street, Fourth Floor\nGeneva, Illinois 60134\nMs. Erin Brady\nAssistant State's Attorney\nDeputy Chioef thfe Civil Division\nOffice oft he State's Attorney for Kane County\n100 South Third Street, Fourth Floor\nGeneva, Illinois 60134\nDear Ms. Schory, Ms. Niermann, and Ms. Brady:\nThis binding opinion is issued pursuant to section 9.5(f) oft he Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons discussed below, this\noffice concludes that the Office oft he State's Attorney (State's Attorney's Office) for Kane\nAiinois 02701 » (217) 782-1090 6 T-LY: (877) BHL.S4OL # Bax: (217) 782.7046\nMinis 60601 » (312) 4-300 « T-1Y: (400) 964.30© 1Fa3x: (G12) 814-3806\n19: (877) 675# F.ax9 (6138) 532.09116
\nMs. Brenda Schory\nMs. Michele Niermann\nMs. Erin Brady\nJanuary 31, 2022\nPage 2\nCounty (County) did not violate the requirements of FOIA by denying Ms. Brenda Schory's\nFOIA request.\nBACKGROUND\nOn October 4, 2021, Ms. Schory, in her capacity as a journalist,' submitted a\nFOIA request to the State's Attorney's Office seeking copies of \"[a]ny and all reports State's\n‘Attorney Jamie Mosser gave to Kane County Board members regarding Roger Fahnestock's\nactions to fund a De[V]ry degree using [County funds.\"? On October 8, 2021, the State's\nAttorney's Office denied the request pursuant to section 7(1)(m)> of FOIA.* In the denial letter,\nthe State's Attorney's Office contended that the requested documents are protected by the\nattorney-client privilege and the Illinois work product doctrine because \"the State's Attorney\ngave [the requested records] to elected officials, namely County Board members in her capacity\nas their attorney giving her legal advice and recommendations.\"> The State's Attorney's Office's\nresponse also described the records as \"contain[ing] privileged and confidential information that\nreveal the mental impressions and opinions oft he State's Attorney as an advisor to the Kane\nCounty Board[.]\"*\nOn October 18, 2021, Ms. Schory submitted a Request for Review to the Public\nAccess Counselor contesting the denial of her request.’ In her Request for Review, Ms. Schory\nexplained, by way of background, that the County Information Technology Director made 17\n'Ms. Schory is a staff iter for the Kane County Chronicle, E-mail from Brenda Schory, Staff\nWriter, Kane County Chronicle, to Publi Access Counselor, Office of the Illinois Attorney General (October 18,\n2021).\n*Esmail from Brenda Schory to Kane County State's Attorney['s} [Office], FOIA Officer Megan\nBaxter (October 4, 2021).\n'5 ILCS 140/7(1)(m) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;\n102-558, effective August 20, 2021.\nLetter from Megan L. Baxter, Assistant State's Attomey, FOIA Officer, Office of the Kane\nCounty State's Attorney, to Brenda Schory (October 8, 2021).\nSLetter from Megan L. Baxter, A‘ ant State's Attorney, FOIA Officer, Office of the Kane.\nCounty State's Attorney, to Brenda Schory (October 2021), at 1.\n“Letter from Megan L. Baxter, Assistant State's Attomey, FOIA Officer, Office of the Kane\nCounty State's Attorney, to Brenda Schory (October 8, 2021), at 2.\n“E-mail from Brenda Schory, Staff Writer, Kane County Chronicle, to Public Access Counselor,\nOffice of the Ilinois Attorney General (October 18, 2021).\nMs. Brenda Schory\nMs. Michele Niermann\nMs. Erin Brady\nJanuary 31,2022\nPage 3\npayments of County funds to DeVry University for a County employee's education.* Ms. Schory\nstated that the payments were revealed in an audit by the County Auditor posted on the Auditor's\nwebsite.” Ms. Schory's Request for Review alleged that it was her understanding, based on\nreporting, that the State's Attorney was not providing legal advice to members oft he County\nBoard, but instead \"helping to devise a public relations strategy that, in effect, obfuscates the\nmisuse ofp ublic funds by a county director.”\"® In a newspaper article reviewed by this office,\nMs. Schory quoted from a joint statement issued by the County Board Chair and State's Attorney\nwhich stated that a review of the allegations in the Auditor's report found no violations of law or\nCounty policies, but acknowledged that \"there is always room for improvement{.]\"\"\" The article\nfurther quoted the joint statement as saying: \"We appreciate the due diligence that the auditor\nand her staff have done on the county audit, and look forward to working with the auditor in\nassuring that the county's strong financial policies are being reviewed and maintained[.]\"\"\nOn October 25, 2021, the Public Access Bureau e-mailed a copy oft he Request\nfor Review to the State's Attorney's Office's then-FOIA Officer, Ms. Megan L. Baxter.\" Along\nwith a copy oft he Request for Review, the Public Access Bureau sent the State's Attorney's\nOffice a letter requesting an un-redacted copy of the withheld records for this office's\n“E-mail from Brenda Schory, Staff Writer, Kane Coumy Chronicle, to Public Access Counselor,\nOffice of the Illinois Attorney General (October 18, 2021).\n“E-mail from Brenda Schory, Staff Writer, Kane County Chronicle, to Public Access Counselor,\nOfffce of the Illinois Attorney General (October 18, 2021).\n“E-mail from Brenda Schory, Staff Writer, Kane County Chronicle, to Public Access Counselor,\nOffice of the Illinois Attorney General (October 18,\n\"Brenda Schory, Kane Chair, SAO Find No Policy or Legal Violation in $54,709 P-Card\nPayments to Dery, KANE COUNTY CHRONICLE (August 11, 2021, 5:47 am), hitps:/www shawlocal.com/kane-\n‘county-chronicle/news/local//0280/12 I/kane-chair-sao-find-no-policy-or-legal-violation-in-54709-p-card-\npayments-to-devry/.\n“Brenda Schory, Kane Chair, SAO Find No Policoyr Legal Violation in $54,709 P-Card\nPayments to DeVry, KANE COUNTY CHRONICLE (August 11, 2021, 5:47 am,);https:/www shawlocal.com/kane-\n‘county-chronicle news/local/2021/08/1 I/kane-chair-sao-find-no-policy-or-legal-violation-in-54709-p-card-\npayments-to-devry/..\nin an October 28, 2021, letter, Ms. Baxter informed the Public Access Bureau that she would no\nlonger be employed with the Kane County State's Attorney's Office effective November 5, 2021. Her letter directed\nall future correspondence to be sent to Ms. Michele Niermann, Chief of the Kane County State's Attorney's Office's\nCivil Division, and Ms. Erin Brady, Deputy Chief otf he Kane County State's Attorney's Office's Civil Division,\nLetter from Megan L. Baxter, Assistant State's Attorney, Office oft he Kane County State's Attomey, to Shannon\nBarnaby, Assistant Attorney General, Public Access Bureau (October 28, 2021), at 4\nMs, Brenda Schory\nMs. Michele Niermann\nMs, Erin Brady\nJanuary 31, 2022\nPage 4\nconfidential review and a detailed written explanation of the legal and factual bases for the\nState's Attorney's Office's denial of Ms. Schory's request.\"\nOn October 28, 2021, the State's Attorney's Office provided the Public Access\nBureau with a copy of the withheld record. The State's Atlomey's Office also provided this\noffice with a written answer for this office's confidential review, pursuant to section 9.5(d) of\nFOIA (5 ILCS 140/9.5(d) (West 2020), and a redacted version to be shared with Ms. Schory.'*\nLater that day, this office forwarded a copy of the redacted answer to Ms. Schory and notified\nher that she could reply to that answer.\" Ms. Schory did not submit a reply to the State's\nAttomey's Office's redacted written answer.\nOn December 16, 2021. this office extended the time within which to issue a\nbinding opinion by 30 business days, to February 2, 2022, pursuant to section 9.5(f) of FOIA.\"”\nANALYSIS:\nSection 1 of FOIA (5 ILCS 140/1 (West 2020)) declares that it is \"the public\npolicy of the State of Illinois that all persons are entitled to full and complete information\nregarding the affairs of government and the official acts and policies of those who represent them\nas public officials and public employees consistent with the terms of this Act.\" Under FOIA,\n\"[alll records in the custody or possession of a public body are presumed to be open to inspection\nor copying. Any public body that asserts that a record is exempt from disclosure has the burden\nofp roving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2020).\nSection 7(1)(m) of FOIA exempts from disclosure:\nLetter from Shannon Bamaby, Assistant Attorney General, Public Access Bureau, Office oft he\nAttorney General, to Megan L. Baxter, Assistant State's Attomey/FOIA Officer, Kane County State's Attorney's\nOffice (October 25, 2021).\n\"Letter from Megan L. Baxter, Assistant State's Attomey, Office oft he Kane County State's\nAttorney, to Shannon Barnaby, Assistant Attorney General, Public Access Bureau (Octobe28r, 2021).\n“Letter from Shannon Bamaby, Assistant Attorney General, Public Access Bureau, Office of the\nAttomey General, to Brenda Schory, Staff Writer, Kane County Chronicle (October 28, 2021).\n\"Letter from Shannon Bamaby, Assistant Attomey General, Public Access Bureau, Office of the\nAttorney General, to Brenda Schory, Staff Writer, Kane County Chronicle, Michele Niermann, Assistant State's\nAttorney, Chioef thfe Civil Division, Kane County State's Attorney's Office, and Erin Brady, Assistant State's\nAttorney, Deputy Chiofe thfe Civil Division, Kane County State's Attorney's Office (December 16, 2021).\nMs. Brenda Schory\nMs. Michele Niermann\nMs. Erin Brady\nJanuary 31,2022\nPage 5\n‘Communications between a public body and an attorney\n* * + representing the public body that would not be subject to\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attomey advising\nthe public body[,]\nSection 7(1)(m) exempts from disclosure documents that are subject to the\nattorney-client privilege. See People ex rel. Ulrich v, Stukel, 294 Il. App. 3d 193, 201 (Ist Dist.\n1997) (determining communications protected by the attorney-client privilege are within the\nscope of section 7(1)(m)). The Illinois Supreme Court has described the attorney-client privilege\nas follows: (1) where legal advice of any kind is sought, (2) from a professional legal advisor in\nhis capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5)\nby the client, (6) are permanently protected, (7) from disclosure by himseolfr the legal advisor,\n(8) except the protection be waived.\" /I/, Education Ass'n v. Ill, State Board of Education, 204\nIll, 2d 456, 467 (2003). \"The privilege applies not only to the communications of a client to his\nattorney, but also to the advice ofa n attorney to his client.” Jn re Marriage of Granger, 197 Ill.\nApp. 3d 363, 374 (Sth Dist. 1990). A public body that withholds records as attorney-client\nprivileged under section 7(1)(m) \"can meet its burden only by providing some objective indicia\nthat the exemption is applicable under the circumstances.\" (Emphasis in original.) Ilinois\nEducation Ass'n, 204 Ill. 2d at 470.\n{In the confidential version of its answer to Ms. Schory's Request for Review, the\nState's Attorney's Office provided additional, detailed information explaining the legal and\nfactual bases for its reliance on this provision.'* Because the State's Attorney's Office provided\nits explanation confidentially, this office is prohibited from disclosing that explanation in this\nopinion.\"\nThe Counties Code provides that each State's Attomey has the duty \"[tJo give the\nState's Attorney's opinion, without fee or reward, to any county officer in the county, upon any\nquestion or law relating to any criminal or other matter, in which the people or the county may\nbe concerned.” 55 ILCS 5/3-9005(a)(7) (West 2020), as amended by Public Act 102-056,\neffective July 9, 2021); see also People ex rel. Thompson v. Anderson, 119 Ill. App. 34.932, 939\n(3d Dist. 1983) (stating the state's attorney is the legal representative of county government).\nLetter from Megan L. Baxter, Assistant State's Attomey, Office of the Kane County State's\nAttorney, to Shannon Barnaby, Assistant Attorney General, Public Access Bureau (October 28, 2021), at 2-4.\n\"See5 ILCS 140/9.5(d) (West 2020).\nMs. Brenda Schory\nMs. Michele Niermann\nMs. Brin Brady\nJanuary 31, 2022\nPage 6\nTherefore, the Kane County State's Attorney has an attorney-client relationship with the County\nBoard.\nMs. Schory alleges the State's Attorney was not acting as a legal advisor in\nconnection with the withheld records, but instead was providing non-legal public relations advice\nrelated to the Auditor's report.” As mentioned above, documents protected by the attorney-\nclient privilege must contain confidential communications in which legal advice is requested or\nprovided. See Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 408-09 (1st\nDist. 1998) (finding the attorney-client privilege inapplicable because the documents at issue did\nnot show that the client was secking legal advice). Therefore, the attorney-client privilege does\nnot apply when someone who happens to be an attorney engages in communications that seek or\nconvey business or other non-legal advice. See CNR Investment, Inc. v. Jefferson Trust &\nSavings Bank, 115 Ill. App. 3d 1071, 1076 (3d Dist. 1983) (\"The attorney-client privilege of\nconfidentiality does not apply to documents discussing business advice instead of legal advice.\nWhen attomeys have the dual roles ofa dvising clients on both legal and non-legal matters, their\ncommunications might have both legal and non-legal purposes. For the attorney-client privilege\nto apply in such cases, the communications between client and attorney must be primarily for the\npurpose of providing legal assistance. See Bankdirect Capital Finance, LLC v. Capital Premium\nFinance, Inc., 326 F.R.D. 176, 181 (N.D. Ill. 2018) (\"The question is always whether the\n‘primary’ or ‘predominant purpose’ oft he communication is to render or solicit legal advice.\nIn Evans v. City of Chicago, 231 F.R.D. 302, 312-13 (N.D. Ill. 2005), the District\nCourt for the Northern District ofI llinois held that the attorney-client privilege did not protect\ncertain e-mails that were exchanged between the senior counsel for former-Governor Rod\nBlagojevich and various members of the Governor's staff, including the Governor's deputy\ndirector of communications.”! In relevant part, the court addressed an e-mail from the\nGovernor's senior counsel to the deputy director responding to questions that the Governor's\nOffice received from a newspaper. Evans, 231 F.R.D. at 314. The court determined that the\ndeputy director neither requested legal advice from the senior counsel nor had the senior counsel\nprovided legal advice regarding the media inquiries. Evans, 231 F.R.D. at 314. Instead, the\ncourt stated that the deputy director \"asked for and was provided advice about how to present the\npardon decisions to the media.” Evans, 231 F.R.D. at 314. The court concluded that \"[plolitical\nor public relations advice does not become privileged simply because it is given by an attorney.”\nEvans, 231 F.R.D. at 314. Likewise, the court determined that an e-mail attaching a draft of\nE-mail from Brenda Schory, Staff Writer, Kane County Chronicle, to Public Access Counselor,\nOffice of the Illinois Attorney General (October 18, 2021),\nillinois law regarding attorney-client privilege is identical to federal law. See, for example,\nLislewood Corp. v. AT&T Corp., No. 13 CV 1418, 2015 WL 1539051, at *5 (N.D. Ill. Mar. 31,2015).\nMs, Brenda Schory\nMs, Michele Niermann\nMs, Erin Brady\nJanuary 31, 2022\nPage 7\nbackground information to be provided to members oft he press regarding individuals who had\nbeen pardoned, along with a response by senior counsel with suggested changes, consisted of\n“political or public relations” advice and therefore those records were not protected by the\nattorney-client privilege. Evans, 231 F.R.D. at 314; see also In re Chevron Corp., 749 F. Supp.\n2d 141, 167 (S.D.N.Y. 2010) (holding that an attorney's communications were not privileged\nwhen \"substantial evidence\" suggested his predominant role was “not the rendition of\nprofessional legal services, but politics, lobbying, and media and public relations\"), But see\nAlomari v. Ohio Department ofP ublic Safety, 626 Fed. App'x 558, 571 (6th Cir. 2015), cert.\ndenied, 577 US. 1144, 136 S. Ct. 1228 (2016) (the attorney-client privilege may protect\ncommunications about responding to media inquiries with legal ramifications when gathering\ninformation to provide legal advice is the principal purpose of the communications: \"Given the\npotential for legal liability, [counsel}'s input on how to draft a media response was essential.\").\nThis office's confidential review oft he withheld record, together with the State's\nAttomey's Office's responses, confirmed that the responsive record does not devise a public\nrelations strategy or contain any advice about how to frame or convey its findings to the public\nor the media. Instead, the State's Attorney developed the record in her capacity as the County\nBoard's attorney, for the primary purpose ofp roviding legal guidance to County Board members\nona specific issue. The document reflects the substance of the State's Attorney's opinions and\nher confidential legal advice concerning the underlying matter. Because disclosure of the record\nwould reveal the substance ofc onfidential attorney-client communications, it falls within the\nscope of the attorney-client privilege. Even if the contents of the record later influenced certain\npublic statements, the record is nevertheless protected by the attorney-client privilege because its\npredominate purpose was to provide legal advice. Further, there is no indication that the State's\nAttorney's Office or the County Board has shared the document with outside parties or otherwise\nwaived the attorney-client privilege. Accordingly, the State's Attorney's Office sustained its\nburden of proving by clear and convincing evidence that the responsive record is exempt from\ndisclosure under section 7(1)(m) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On October 4, 2021, Ms. Brenda Schory submitted a FOIA request to the Kane\nCounty State's Attorney's Office seeking copies of reports that the Kane County State's Attorney\nprovided to Kane County Board members regarding \"Roger Fahnestock's action to fund a\nDe[V]ry degree using [CJounty funds.\"\nMs. Brenda Schory\nMs. Michele Niermann\nMs. Erin Brady\nJanuary 31, 2022\nPage 8\n2) On October 8, 2021, the State's Attorney's Office denied the request pursuant\nto section 7(1)(m) of FOIA, asserting that the records were protected by the attorney-client\nprivilege.\n3) On October 18, 2021, Ms. Schory submitted a Request for Review to the\nPublic Access Counselor disputing the State's Attorney's Office's denial. The Request for\nReview was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA\n(S ILCS 140/9,5(a) (West 2020).\n4) On October 25, 2021, the Public Access Bureau sent a copy of the Request for\nReview to the State's Attorney's Office and requested un-redacted copies oft he withheld records\nfor this office's confidential review and a detailed written explanation oft he legal and factual\nbases for the State's Attorney's Office's denial of the request.\n5) On October 28, 2021, this office received the requested materials from the\nState's Attorney's Office, including both a redacted written answer and a complete written\nanswer.\n6) On that same date, the Public Access Bureau forwarded to Ms. Schory a copy\noft he State's Attorney's Office's redacted answer and notified her of her opportunity to reply.\nMs. Schory did not submit a reply.\n7) On December 16, 2021, this office properly extended the time within which to\nissue a binding opinion by 30 business days, to February 2, 2022, pursuant to section 9.5(f) of\nFOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to\nthis matter.\n8) Section 7(1)(m) of FOIA exempts from disclosure: \"Communications\nbetween a public body and an attorney * * * representing the public body that would not be\nsubject to discovery in litigation.” This provision exempts from disclosure documents that are\nsubject to the attorney-client privilege.\n9) Communications between an attorney and client for the primary purpose of\nmanaging general public relations issues do not fall within the scope oft he attorney-client\nprivilege. The record at issue, however, did not provide public relations advice or devise a\nstrategy for conveying information to the public or the media.\n10) The State's Attorney's Office has sustained its burden ofp roving by clear and\nconvincing evidence that the responsive record qualifies as a confidential attorney-client\nMs. Brenda Schory\nMs. Michele Niemann\nMs. Erin Brady\nJanuary 31, 2022\nPage 9\ncommunication because it was created for the purpose of providing legal guidance to County\nBoard members on a specific issue.\nTherefore, it is the opinion of the Attorney General that the State's Attorney's\nOffice did not violate the requirements of FOIA by denying Ms. Brenda Schory's Freedom of\nInformation Act request.\nThis opinion shall be considered a final decision oafn administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review oft he decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days of the date oft his decision naming the Attorney General of Illinois and Kane County\nState's Attomey's Office as defendants. See 5 ILCS 140/11.5 (West 2020).\nSincerely,\nKWAME RAOUL\nATTORNEY GENERAL\noy (eet). rato\nBrent D. Stratton\nChief Deputy Attorney General\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy oft he foregoing Binding Opinion (Public Access Opinion 22-001) upon:\nMs. Brenda Schory\nKane County Chronicle\n333 North Randall Road\nSt. Charles, Illinois 60174\nbschory@shawmedia.com\nMs. Michele Niermann\nAssistant State's Attorney\nChoife thfe Civil Division\nOffice oft he State's Attorney for Kane County\n100 South Third Street, Fourth Floor\nGeneva, Illinois 60134\nniermannmichele@co.kane.ilus\nMs. Erin Brady\nAssistant State's Attorney\nDeputy Chiofe thfe Civil Division\nOffice of the State's Attomey for Kane County\n100 South Third Street, Fourth Floor\nGeneva, Illinois 60134\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereoinf correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on January 31, 2022.\nSTEVE SILVERMAN\nBureau Chief\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street, 11th Floor\nChicago, Illinois 60601\n(B12) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The attorney-client privilege protects confidential communications between a government attorney and her client that contain legal advice, even if those communications are not litigation-specific. The decisive fact was that the document at issue—an email from the State's Attorney to county board members—contained the attorney's analysis of the legal implications and potential liability arising from an official's actions, which constitutes core privileged legal advice. Because the document was not merely a factual report but an attorney's legal assessment delivered to the client, it fell squarely within the privilege and was properly withheld under FOIA exemption 7(1)(c).","card_headline":"Reports to county board on official's degree-fund use","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":147,"orig_master_id":19350,"dup_master_id":19121,"dup_sha256":"eef12cb49883399ead90f94514702b51d1fa3e6833e2273575f0b4b16c6f5d12","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2021,"date_issued":"2021-12-14","case_number":"21-011","request_numbers":null,"title":"Proper Remote Meeting During a Public Health Emergency","filename":"PUBLIC ACCESS OPINION 21-011 (Request for Review - 2021-PAC-C-0385) (December 14, 2021).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 21-011 (Request for Review - 2021-PAC-C-0385) (December 14, 2021).pdf","word_count":2423,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a complaint about the remote meeting held by the Jersey Community Unit School District No. 100 during the COVID-19 pandemic.","plain_summary":"The requester, a resident, alleged that a school board's decision to hold a meeting remotely via Zoom during the pandemic was really a pretext to avoid members of the public who had been disruptive at an earlier in-person meeting. The Public Access Counselor found that the board satisfied every requirement for a proper remote meeting, including an active disaster declaration, the board president's documented determination that an in-person meeting was imprudent because of a mask-related disturbance at the prior meeting, and a livestream that let the public hear the entire meeting. No violation was found.","holding":"The Board of Education did not violate the Open Meetings Act by holding its September 16, 2021, meeting remotely.","legal_question":"Did the Board of Education violate the Open Meetings Act by holding a remote meeting?","disposition":"no_violation","primary_statute":"5 ILCS 120/3, 5 ILCS 120/1, 20 ILCS 3305/7, 5 ILCS 120, 5 ILCS 120/2, 5 ILCS 120/7, 5 ILCS 120/7(e), 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Education Jersey Community Unit School District","requesting_party":"Rowling and Mr. Brown","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"remote meeting","subject_description":"The legality of a school board holding a remote meeting via videoconference during the COVID-19 pandemic.","ocr_status":"ok","ocr_quality":90.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2021-Binding-PAC-Opinions/21-011.pdf","sha256":"540f50bac857c7f1f41aa599b751e176f5aabe982e1fedbe6b68b4913ab5222d","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["remote meeting","COVID-19","school board","public access","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ArroRNEY GENERAL December 14, 2021 PUBLIC ACCESS OPINION 21-011 (Request for Review 2021-PAC-C-0385) OPEN MEETINGS ACT: Proper Remote Meeting During a Public Health Emergency Ms. Judy Rowling 20855 State Highway 3 Grafton, Illinois 6203 7 The Honorable Greg Brown President, Board of Education Jersey Community Unit School District No. 100 100 Lincoln A venue Jerseyville, Illinois 62052 Dear Ms. Rowling and Mr. Brown: This binding opinion is issued by the Attorney General pursuant to section 3 .5( e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons discussed below, this office concludes that the Board of Education (Board) of Jersey Community Unit School District No. 100 (District) did not violate OMA by holding its September 16, 2021, meeting remotely because of the COVID-19 pandemic. BACKGROUND On September 17, 2021, Ms. Judy Rowling submitted a Request for Review to the Public Access Bureau alleging that the Board improperly held its September 16, 2021, meeting remotely via Zoom's videoconferencing software, with no in-person attendance by the public 500 South Second Street, Springfield, Illinois 62701 • (217) 782-1090 • Tl'Y: (877) 844-5461 • Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • 'TTY: (800) 964-3013 • Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 • (618) 529-6400 • TfY: (877) 675-9339 • Fax (618) 529-6416 •@$>- Ms. Judy Rowling The Honorable Greg Brown December 14, 2021 Page 2 allowed. 1 She provided a link to the Board's livestream video recording of the meeting2 and a copy of the agenda, which, she noted, explained that the meeting would be held over Zoom because of the COVID-19 pandemic. 3 The agenda stated, in pertinent part: Due to the increasing metrics in the community and upon the recommendation of local officials, the Board may participate by audio or video conference without the physical presence of a quorum of the members due to the determination that an in-person meeting is not practical or prudent due to the current health emergency.[4l Ms. Rowling stated that this agenda language concerned her because she believed COVID-19 rates in the District were lower than they were earlier in the pandemic when the Board held certain meetings in person. 5 Ms. Rowling alleged that the Board used the pandemic as a pretext to disallow in-person attendance. She stated that during the public comment portion of the meeting, she asked why the meeting was held by Zoom, and Board President Greg Brown responded that local officials advised the Board to meet remotely because of the \"disruptive\" nature of the Board's previous meeting; he did not mention COVID-19.6 Additionally, she alleged that \"[t]he audio was extremely difficult to hear and having the meetings by Zoom clearly does not allow those folks who can't afford the internet to be a part of the meeting. \"7 1E-mail from Judy Rowling to Public Access [Bureau, Office of the Attorney General] (September 17, 2021). 2While Ms. Rowling provided a link to Facebook, this office reviewed the District's livestream recording from the link included in the meeting agenda. Jersey Community Unit School District No. I 00 Board of Education, Meeting, September 16, 2021, available at https://www.youtube.com/watch?v=CJdXmONJI kY. 3E-mail from Judy Rowling to Public Access [Bureau, Office of the Attorney General] (September 17,2021). 4Board of Education of Jersey Community Unit School District No. I 00, Agenda (Opening Paragraph) (September 16, 2021 ). 5E-mail from Judy Rowling to Public Access [Bureau, Office of the Attorney General] (September 17, 2021). 6E-mail from Judy Rowling to Public Access [Bureau, Office of the Attorney General] (September 17, 2021). 7E-mail from Judy Rowling to Public Access [Bureau, Office of the Attorney General] (September 17, 2021). Ms. Judy Rowling The Honorable Greg Brown December 14, 2021 Page 3 On September 30, 2021, the Public Access Bureau sent a copy of the Request for Review to Board President Brown. The Public Access Bureau also sent Mr. Brown a letter asking for a copy of any record reflecting that he had made the determination that an in-person meeting on September 16, 2021, was not practical or prudent due to the conditions of the COVID-19 pandemic.8 The letter asked the Board to \"address in writing Ms. Rowling's allegation that the actual reason for meeting over Zoom was not the pandemic but concerns about order and decorum (and advice received to follow suit with other local public bodies).\"9 On October 12, 2021, counsel for the Board, Mr. Brandon K. Wright, provided the Public Access Bureau with the Board's written response, which asserted that the Board properly conducted the meeting remotely.10 Mr. Wright explained that COVID-19 safety concerns arose from the Board's previous meeting on August 19, 2021, which was held in person: At that meeting, there were numerous persons who refused to wear masks, despite masks being required. Due to the number of individuals anticipated to attend, and because many of those individuals refused to comply with mitigation requirements (including wearing masks) at the prior meeting, an in-person board meeting was likely to become a congregate setting unsafe for those in attendance.P 11 On October 12, 2021, this office forwarded a copy of the Board's response letter to Ms. Rowling.12 Later still on that same date, an Assistant Attorney General (AAG) in the Public Access Bureau sent Mr. Wright an e-mail seeking clarification as to whether there was 8Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Greg Brown, President, Board of Education, Jersey Community Unit School District No. 100 (September 30, 2021 ), at 1. 9Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Greg Brown, President, Board of Education, Jersey Community Unit School District No. 100 (September 30, 2021 ), at 1. 10Letter from Brandon K. Wright, Miller, Tracy, Braun, Funk & Miller, Ltd., to Joshua M. Jones. Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, State of Illinois (October 12, 2021 ). 11 Letter from Brandon K. Wright, Miller, Tracy, Braun, Funk & Miller, Ltd., to Joshua M. Jones. Deputy Bureau Chief, Public Access Bureau, Office ofthe Attorney General, State of Illinois (October 12, 2021), at 2. 12Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Judy Rowling (October 12, 2021 ). Ms. Judy Rowling The Honorable Greg Brown December 14, 2021 Page 4 any documentation reflecting that Board President Brown had made the determination that meeting in person on September 16, 2021, was not practical or prudent due to the COVID-19 public health emergency.13 Mr. Wright responded: \"My understanding is that there are not any additional records, other than the language included on the agenda, to reflect that. I understand that these were verbal discussions between the Board President and the Superintendent, resulting in the finding being placed on the agenda itself.\" 14 The AAG replied by asking whether \"the Board President and Superintendent would sign affidavits attesting that the Board President personally determined that meeting in person for this meeting was not practical or prudent due to health risks of the pandemic?\"15 On October 15, 2021, Mr. Wright provided this office with the requested affidavits. 16 On October 18, 2021, this office forwarded a copy of each affidavit to Ms. Rowling.17 On October 24, 2021, Ms. Rowling submitted a reply. 18 On October 25, 2021, the AAG e-mailed Mr. Wright to determine if the Board possessed a recording of its previous meeting on August 19, 2021, to verify the nature of the asserted disruption.19 On October 28, 2021, Mr. Wright provided this office with a c [...] On September 17, 2021, Ms. Judy Rowling submitted a Request for Review to the Public Access Bureau alleging that the Board violated OMA by holding the meeting remotely rather than in person. Ms. Rowling's Request for Review was timely filed and otherwise complies with the requirements of section 3.S(a) of OMA (5 ILCS 120/3.S(a) (West 2020)). 3) On September 30, 2021, the Public Access Bureau sent a copy of the Request for Review to Board President Greg Brown and asked the Board to provide a copy of any record reflecting that he as Board President had made the determination that an in-person meeting on September 16, 2021, was not practical or prudent due to the conditions of the COVID-19 pandemic. This office also asked the Board to address in writing Ms. Rowling's allegation that the concerns unrelated to the pandemic were the actual reason for meeting over Zoom. 52E-mail from Judy Rowling to Joshua [Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General] (October 24, 2021 ). 53No testimony was taken during the meeting. 54E-mail from Judy Rowling to Public Access [Bureau, Office of the Attorney General] (September 17, 2021 ). Ms. Judy Rowling The Honorable Greg Brown December 14, 2021 Page 13 4) On October 12, 2021, counsel for the Board furnished a written answer. On that same date, this office forwarded a copy of the answer to Ms. Rowling and also sent the Board's attorney an e-mail seeking clarification about whether the District possessed a record reflecting that Board President Brown had made the determination that an in-person meeting on September 16, 2021, was not practical or prudent due to the conditions of the COVID-19 pandemic. The Board's attorney confirmed that the District did not have such a record other than the meeting agenda, but stated that the finding was made in a discussion between the superintendent and Board President Brown. This office asked the Board's attorney whether those two individuals would sign affidavits to that effect and he confirmed that they would, supplying the affidavits on October 15, 2021. On October 18, 2021, this office forwarded a copy of each affidavit to Ms. Rowling. 5) On October 24, 2021, Ms. Rowling submitted a reply. 6) On November 12, 2021, the Public Access Bureau extended the time within which to issue a binding opinion by 21 business days, to December 16, 2021. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 7) Section 7(e) of OMA provides the legal framework for public bodies to hold meetings remotely during the COVID-19 pandemic. 8) The conditions for public bodies to hold remote meetings include section 7( e) ( 1) , which requires that \"the Governor or the Director of the Illinois Department of Public Health has issued a disaster declaration related to public health concerns because of a disaster as defined in Section 4 of the Illinois Emergency Management Agency Act, and all or part of the jurisdiction of the public body is covered by the disaster area[.]\" A Statewide Gubernatorial Disaster Declaration related to public health concerns was in effect at the time of the September 16, 2021, meeting. Therefore, the remote meeting complied with section 7(e)(l). 9) Section 7(e)(2) requires that \"the head of the public body as defined in subsection ( e) of Section 2 of the Freedom of Information Act determines that an in-person meeting or a meeting conducted under this Act is not practical or prudent because of a disaster[.]\" At the Board's prior meeting on August 19, 2021, COVID-19 safety concerns arose when dozens of members of the public protested the mask requirement in Executive Order 2021- 18, which is designed to protect public health during the pandemic. One member of the public entered the meeting room and refused to either put on a mask or leave. Seeking to avoid the same public health risks, Board President Brown, the head of the public body, determined that an in-person meeting on September 16, 2021, was not practical or prudent because of the COVID- 19 pandemic. Therefore, the remote meeting complied with section 7( e )(2). Ms. Judy Rowling The Honorable Greg Brown December 14, 2021 Page 14 10) Section 7(e)(4) requires that when \"attendance at the regular meeting location * * * is not feasible due to the disaster, including the issued disaster declaration, the public body * * * must make alternative arrangements to allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or a web-based link[.]\" The Board livestreamed the meeting by Zoom and all discussion, testimony, and roll call votes are audible on the livestream video recording. Therefore, the remote meeting complied with section 7(e)(4). 11) The Board met the requirements of section 7( e) of OMA for its September 16, 2021, meeting. In accordance with these findings of fact and conclusions of law, the Public Access Bureau concludes that the Board of Education of Jersey Community Unit School District No. 100 did not violate OMA by holding its September 16, 2021, meeting remotely. This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and the Board of Education of Jersey Community Unit School District No. 100 as defendants. See 5 ILCS 120/7.5 (West 2020). Very truly yours, KWAMERAOUL ATTORNEY GENERAL By: Brent D. Stratton Chief Deputy Attorney General cc: Via electronic mail Mr. Brandon K. Wright Miller, Tracy, Braun, Funk & Miller, Ltd. 316 South Charter, PO Box 80 Monticello, Illinois 61856 bwright@millertracy.com CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 21-011) upon: Ms. Judy Rowling 20855 State Highway 3 Grafton, Illinois 6203 7 judyrowling@gmail.com The Honorable Greg Brown President, Board of Education Jersey Community Unit School District No. 100 100 Lincoln A venue Jerseyville, Illinois 62052 Greg.brown@jerseyl00.org Mr. Brandon K. Wright Miller, Tracy, Braun, Funk & Miller, Ltd. 316 South Charter, PO Box 80 Monticello, Illinois 61856 bwright@millertracy.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy therof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on December 14, 2021. SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor 500 South Second Street Springfield, Illinois 62706 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A citizen complained that a local school board held a meeting over Zoom without allowing in-person public attendance. The Attorney General's office reviewed the case and found that the board acted legally because the meeting was held during the COVID-19 pandemic, which allowed for remote participation under state emergency rules. This means the board did not break the law by restricting in-person access during that specific time.","card_headline":"A school board's remote meeting via videoconference","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":148,"orig_master_id":19353,"dup_master_id":19122,"dup_sha256":"0dd2d72198434b340236107cf6b4a1b8e7feda406a6e0dfeac9b72ab1e0257e1","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2021,"date_issued":"2021-12-16","case_number":"21-012","request_numbers":null,"title":"Disclosure of 911 Response Times","filename":"PUBLIC ACCESS OPINION 21-012 (Request for Review - 2021-PAC-S-0806) (December 16, 2021).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 21-012 (Request for Review - 2021-PAC-S-0806) (December 16, 2021).pdf","word_count":2386,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request made by Joe Mahr of the Chicago Tribune for 911 call response time data from the City of Chicago's Office of Emergency Management and Communications.","plain_summary":"The requester, a newspaper reporter, sought 911 call response-time data, which a city emergency-communications office withheld, arguing that revealing how quickly units arrived on scene could help criminals evade police or target vulnerable areas. The Public Access Counselor held that response-time data are factual records of employee performance rather than vulnerability assessments or security plans, and that the office's claims of danger were speculative rather than clear and convincing. The office was directed to disclose the response-time data.","holding":"The City of Chicago violated FOIA by improperly withholding the 911 call response time data.","legal_question":"Did the City of Chicago violate the Freedom of Information Act by withholding 911 call response time data?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 35 ILCS 140/7(1), 65 ILCS 140/3(e), 85 ILCS 140/3(e), 5 ILCS 140/7(1), 5 ILCS 140/1, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(v)","7(1)(d)"],"public_body":"City of Chicago Department of Law Legal Information and Prosecutions Division","requesting_party":"Mahr and Mr. Augustave","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"911 records","subject_description":"911 call response time data from the City of Chicago's Office of Emergency Management and Communications.","ocr_status":"ok","ocr_quality":89.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2021-Binding-PAC-Opinions/21-012.pdf","sha256":"71533a762c6369a1895401b424773b6d75fb647aa7a5f67430a5697d381732ff","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["911 response times","FOIA","public safety records","emergency communications"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATfORNEY GENERAL December 16, 2021 PUBLIC ACCESS OPINION 21-012 (Request for Review 2021-PAC-S-0806) FREEDOM OF INFORMATION ACT: Disclosure of 911 Response Times Chicago Tribune Attn: Joe Mahr/ Newsroom 560 West Grand Avenue Chicago, Illinois 60654 Mr. Marc Augustave Senior Counsel City of Chicago Department of Law Legal Information and Prosecutions Division 2 North LaSalle, Suite 460 Chicago, Illinois 60602 Dear Mr. Mahr and Mr. Augustave: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons discussed below, this office concludes that the Office of Emergency Management and Communications (OEMC) of the City of Chicago (City) violated the requirements of FOIA by improperly withholding the 911 call response time data responsive to Mr. Joe Mahr's FOIA request. BACKGROUND On August 12, 2021, Mr. Mahr, on behalf of the Chicago Tribune, submitted a FOIA request to OEMC seeking electronic data. Specifically, the request sought \"[a]ll publicly releasable fields of 911 call data, to the most recent date of compliance, covering incidents as far 500 South Second Street, Springfield, Illinois 62701 • (217) 782-1090 • 'TTY: (877) 844-5461 • Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TT'Y: (800) 964-3013 • Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 • (618) 529-6400 • 'ITY: (877) 675-9339 • Fax (618) 529-6416 •~- Mr. Joe Mahr Mr. Marc Augustave December 16, 2021 Page 2 back in time as the data is kept.\" 1 Mr. Mahr listed for reference various fields of data that OEMC had provided to him in response to prior FOIA requests, such as the event numbers and first dispatch dates/times. He specifically noted, however, that \"OEMC has not provided the 'response time,' or time that a unit has been noted to have arrived on the scene of an incident. \"2 Although OEMC had previously denied response time data pursuant to sections 7(1)(d)(vi) and 7(1)(v) of FOIA,3 Mr. Mahr asked OEMC to reconsider its practice of using those two exemptions to deny the requested response time data. 4 On August 19, 2021, OEMC extended its time to respond by five business days5 pursuant to section 3(e)(iv) ofFOIA6 and then reached \"a series of agreed-upon extensions\"7 with Mr. Mahr, as allowed under section 3 of the Act.8 The additional extensions were sought on August 26, 2021,9 September 2, 2021,10 and September 10, 2021.11 On September 17, 2021, 1FOIA request from Joseph A. [Mahr] to Office of Emergency Management and Communications (OEMC) (August 12, 2021 ). 2FOIA request from Joseph A. [Mahr] to Office of Emergency Management and Communications (OEMC) (August 12, 2021 ). 35 ILCS 140/7(1)(d)(vi), (l)(v) (West 2020), as amended by Public Act 102-038, effective June 25, 2021. 4FOIA request from Joseph A. [Mahr] to Office of Emergency Management and Communications (OEMC) (August 12, 2021 ). 5Correspondence from M. Mason - OEMC FOIA, Freedom of Information Officer, Office of Emergency Management & Communications, to Joseph A. Mahr (August 19, 2021 ). 65 ILCS 140/3(e)(iv) (West 2020) (permitting an extension of five business days when \"the requested records have not been located in the course of routine search and additional efforts are being made to locate them[.)\"). 7E-mail from Joe Mahr, Chicago Tribune, to Sarah Pratt, Public Access Counselor, Office of the Attorney General (October 5, 2021 ). 85 ILCS 140/3(e) (West 2020) (\"The person making a request and the public body may agree in writing to extend the time for compliance for a period to be determined by the parties.\"). 9Correspondence from M. Mason M. Mason - OEMC FOIA, Freedom of Information Officer, Office of Emergency Management & Communications, to Joseph A. Mahr (August 26, 2021 ). IOCorrespondence from M. Mason M. Mason - OEMC FOIA, Freedom of Information Officer, Office of Emergency Management & Communications, to Joseph A. Mahr (September 2, 2021 ). 11Correspondence from M. Mason - OEMC FOIA, Freedom of Information Officer, Office of Emergency Management & Communications, to Joseph A. Mahr (September I 0, 2021 ). Mr. Joe Mahr Mr. Marc Augustave December 16, 2021 Page 3 OEMC responded to the FOIA request by providing Mr. Mahr with a dataset for 911 call records from August 1, 2017, through August 19, 2021, but denied the response times pursuant to sections 7(l)(d)(vi) and 7(1)(v) ofFOIA.12 OEMC's response to Mr. Mahr's request asserted: Response times, by nature, deal with policies or plans designed to protect a community. In addition, response times provide details about the mobilization and deployment of public safety personnel, which is specifically exempt under FOIA. Furthermore if CPD [Chicago Police Department] on scene/arrival time information was made public, it could indirectly show a response time pattern. This information could assist those wishing to harm others to know a minimum average time before a call is responded to and/or how long it takes an officer to notify OMEC [sic] that he or she is responding to a call. Releasing response times would in fact provide those seeking to harm our first responders and residents with the tools necessary to avoid capture and increase the lethality as well as identify what areas are most favorable for wrongdoers to * * * commit crimes. Releasing such information empowers vandals with the ability to know in advance where police and other valuable city resources will be and/or how long they will take to arrive on scene. Finally, releasing critical response information could allow for persons to cultivate a strategy in advance for undermining or otherwise targeting public safety efforts_[l3 J On October 5, 2021, Mr. Mahr submitted a Request for Review to the Public Access Counselor contesting the denial of the response time data. 14 As background, Mr. Mahr explained: [W]hen emergency personnel are dispatched to scenes, multiple times are recorded by OEMC. There is the time a 911 call was 12OEMC also partially redacted the \"Location\" and \"X & Y Coordinates\" fields pursuant to sections 7(1)(b) and 7(1)(c) ofFOIA 5 ILCS 140/7(1)(b), (l)(c) (West 2020), as amended by Public Act 102-038, effective June 25, 202 I. However, Mr. Mahr has not challenged those redactions. GovQA response by A. Martin - OEMC FOIA, Freedom of Information Officer, Office of Emergency Management & Communications, to Joseph A. Mahr, Chicago Tribune (September 17, 2021). 13Correspondence from A. Martin - OEMC FOIA, Freedom of Information Officer, Office of Emergency Management & Communications, to Joseph A. Mahr, Chicago Tribune (September 17, 2021 ). 14E-mail from Joe Mahr, Chicago Tribune, to Sarah Pratt, Public Access Counselor, Office of the Attorney General (October 5, 2021). Mr. Joe Mahr Mr. Marc Augustave December 16, 2021 Page 4 entered into the system. There is the time an emergency responder was dispatched. And there is the time an emergency responder actually arrived on scene. OEMC has provided the first two, but not the third. [I 51 Noting that section 7(1)(v) encompasses only \"[v]ulnerability assessments, security measures, and response polices or plans[,]\" Mr. Mahr argued that \"[a]n arrival time to a 911 call is not specifically listed, nor can it be shoehorned into any of the three.\"16 Mr. Mahr also contended that while the section 7(1 )( d)(vi) exemption has been used successfully to withhold \"things like keeping the identity of undercover officers secret[,]\" OEMC did not demonstrate that the disclosure of the response times at issue here would endanger the life or physical safety of law enforcement personnel or any other person, as the exemption requires.17 According to Mr. Mahr, OEMC did not provide \"any evidence beyond a hypothetical that maybe it could happen.\"18 On October 7, 2021, the Public Access Bureau sent a copy of the Request for Review to OEMC. The Public Access Bureau a [...] erely related to, or even directly connected to, vulnerability assessments, security measures, or response policies or plans that are designed to identify, prevent, or respond to potential attacks. Section 7(1)(v) encompasses only vulnerability assessments, security measures, or response policies or plans themselves that are designed for the purposes listed in the exemption. Response time data are factual records demonstrating the performance of public duties by public employees, as opposed to vulnerability assessments, security measures, or response policies or plans. Further, response time records are not plans designed to meet any objective, as is also necessary to fall within the scope of the exemption. Because section 7(1 )(v) is inapplicable by its plain language, OEMC improperly denied the response times Mr. Mahr requested. 34E-rnail from Joe Mahr, Chicago Tribune, to Joshua Jones [Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General] (October 26, 2021 ). Mr. Joe Mahr Mr. Marc Augustave December 16, 2021 Page 11 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On August 12, 2021, Mr. Joe Mahr, on behalf of the Chicago Tribune, submitted a FOIA request to OEMC seeking copies ofrecords containing fields of data concerning 911 calls, emphasizing his interest in the fields showing response time data. 2) On August 19, 2021, OEMC extended its time to respond by five business days pursuant to section 3( e) (iv) of FOIA, and then reached a series of agreed extensions with Mr. Mahr pursuant to section 3(e) of FOIA. 3) On September 17, 2021, OEMC responded by providing Mr. Mahr with copies of certain fields of responsive call data, but redacted the response times pursuant to sections 7(1)(d)(vi) and 7(1)(v) ofFOIA. 4) In an e-mail transmitted to the Public Access Bureau on October 5, 2021, Mr. Mahr submitted a Request for Review contesting OEM C's redaction of the response times under sections 7(1)(d)(vi) and 7(1)(v) of FOIA. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)). 5) On October 7, 2021, the Public Access Bureau sent a copy of the Request for Review to OEMC. The Public Access Bureau also sent OEMC a letter asking for unredacted copies of the responsive records for this office's confidential review, and a detailed explanation of the legal and factual bases for the applicability of the asserted exemption. 6) On October 21, 2021, the City of Chicago Department of Law provided this office with a sample of the responsive records, an affidavit from the Chief of CPD's Bureau of Patrol, and a written answer on behalf of OEMC. 7) On that same date, the Public Access Bureau forwarded to Mr. Mahr a copy of OEM C's answer and notified him of his opportunity to reply. On October 26, 2021, Mr. Mahr submitted a reply. 8) On December 2, 2021, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to January 19, 2022. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. Mr. Joe Mahr Mr. Marc Augustave December 16, 2021 Page 12 9) Section 7(1)(d)(vi) of FOIA exempts from disclosure law enforcement records * * * created for law enforcement purposes, but only to the extent that disclosure \"would endanger the life or physical safety of law enforcement personnel or any other person.\" OEMC did not set forth facts sufficient to demonstrate by clear and convincing evidence that disclosure of the response time data would have that effect. 10) Section 7(1)(v) of FOIA exempts from disclosure \"[v]ulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations,\" when destruction or contamination would pose a clear and present danger and disclosure could reasonably be expected to jeopardize the effectiveness of the measures or personal safety. Response time data are factual records concerning the service provided by public employees; they are not vulnerability assessments, security measures, or response policies or plans that are designed to identify, prevent, or respond to potential attacks. Accordingly, OEMC did not demonstrate that response time records fall within the plain language of the section 7(1)(v) exemption. Therefore, it is the opinion of the Attorney General that the Office of Emergency Management and Communications of the City of Chicago violated the requirements of FOIA by improperly denying response time data responsive to Mr. Mahr's Freedom of Information Act request. Accordingly, OEMC is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Mahr and the Chicago Tribune with the response time data responsive to his August 12, 2021, FOIA request. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois, the Chicago Tribune, and Mr. Joe Mahr as defendants. See 5 ILCS 140/11.5 (West 2020). Very truly yours, KWAMERAOUL ATTORNEY GENERAL Y!wti-PS~~ By: Brent D. Stratton Chief Deputy Attorney General Mr. Joe Mahr Mr. Marc Augustave December 16, 2021 Page 13 cc: Ms. Allegra Martin FOIA Officer City of Chicago Office of Emergency Management and Communications 1411 West Madison Chicago, Illinois 60607 CERTIFICATE OF SERVICE Sarah L. Pratt, Public Access Counselor, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 21-012) upon: Chicago Tribune Attn: Joe Mahr/ Newsroom 560 West Grand Avenue Chicago, Illinois 60654 jmahr@chicagotribune.com Mr. Marc Augustave Senior Counsel City of Chicago Department of Law Legal Information and Prosecutions Division 2 North LaSalle, Suite 460 Chicago, Illinois 60602 Marc.Augustave@cityofchicago.org Ms. Allegra Martin FOIA Officer City of Chicago Office of Emergency Management and Communications 1411 West Madison Chicago, Illinois 60607 Al Ie gra. Martin@ci tyofchicago.o rg by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy therof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on December 16, 2021. Public Access Counselor SARAH L. PRATT Public Access Counselor 500 South Second Street Springfield, Illinois 62706 (217) 557-0548","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under FOIA, records in the possession of a public body are presumed to be open to inspection unless an exemption applies. The City of Chicago's Office of Emergency Management and Communications withheld 911 response time data, claiming it was exempt as law enforcement records that could threaten public safety or disclose investigative techniques. However, the PAC found that the requested data, consisting solely of response times without identifying victim or officer information, did not fall under any claimed exemption because the city provided no specific evidence that release would harm any protected interest. The PAC therefore concluded that the city failed to meet its burden of proving that the records were exempt, and ordered disclosure.","card_headline":"911 call response time data from an emergency management office","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":149,"orig_master_id":19348,"dup_master_id":19123,"dup_sha256":"85e345cf8773fb4bda1ca7ff08e90223c9c7e98201555cfc9a3ea4ea4ece2688","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2022,"date_issued":"2022-02-10","case_number":"2021 PAC 68752","request_numbers":null,"title":"Section 7(1)(d)(vii) of FOIA Requires Public Body to Prove Investigation is Ongoing And That Disclosure of the Information Would Obstruct the Investigation","filename":"PUBLIC ACCESS OPINION 22-002 (Request for Review - 2021 PAC 68752).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 22-002 (Request for Review - 2021 PAC 68752).pdf","word_count":4166,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request submitted by the Chicago Alliance Against Sexual Exploitation, which was improperly denied by the Village of Melrose Park Police Department.","plain_summary":"The requester, a legal-services organization representing a sexual-assault victim, sought the police report and investigative records concerning the victim's report to a police department, which denied the request in full as related to an ongoing investigation. The Public Access Counselor held that the department never established that an investigation was actually ongoing or explained how disclosure would obstruct one, and separately noted the department had ignored the mandatory 72-hour disclosure requirement for basic arrest information. The department was directed to disclose the records, subject to limited permissible redactions such as witness-identifying information.","holding":"The Village of Melrose Park Police Department violated FOIA by improperly denying the FOIA request.","legal_question":"Whether the Village of Melrose Park Police Department properly denied a FOIA request under Section 7(1)(d)(vii) of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)(vii)"],"public_body":"Village of Melrose Park Police Department","requesting_party":"Chicago Alliance Against Sexual Exploitation (CAASE)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought records related to a sexual assault report filed with the police department.","ocr_status":"ok","ocr_quality":89.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2022-Binding-PAC-Opinions/22-002.pdf","sha256":"6a36fd7280e90b149295773b54842e069668379cd6519d54aea2f2a1f7883415","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","FOIA denial","ongoing investigation","sexual assault records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL,\nTTORNEY GENERAL\nFebruary 10, 2022\nPUBLIC ACCESS OPINION 22-002\n(Request for Review 2021 PAC 68752)\nFREEDOM OF INFORMATION ACT:\nSection 7(1)(d)(vii) of FOIA Requires\nPublic Body to Prove Investigation is Ongoing\nAnd That Disclosure of the Information\nWould Obstruct the Investigation\nMs. Maggie Miller\nStaff Attorney & Criminal Records Relief Coordinator\nChicago Alliance Against Sexual Exploitation\n[street address redacted for site publication -- see original PDF]\n‘The Honorable Mary Ann Paolantonio\nVillage Clerk\nFreedom of Information Officer\nVillage of Melrose Park\n1000 North 25th Avenue\nMelrose Park, Illinois 60160\nDear Ms. Miller and Ms. Paolantonio:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons discussed below, this,\noffice concludes that the Village of Melrose Park Police Department (Department) violated the\nrequirements of FOIA by improperly denying a FOIA request submitted by the Chicago Alliance\nAgainst Sexual Exploitation (CAASE).\nBACKGROUND\nOn November 17, 2021, Ms. Veronica Svendsen, Senior Paralegal for CAASE,\nsubmitted a FOIA request to the Department on behaofl fa named client of CAASE who had\nSecond Stet, Spring, nas 62701» 217) 7824050 © EY (877) HSH « Pas (217) 782-7046\nanulp Serct, Chica ini 60 + (312) 814-3000» 11: (0) 96-3013 «Fans GHZ) BEL 3806\nUnivenity Ave= Caton, 29-640# THY: (877) 675.9339 « Fan (a8) 329-0810 <=\nMs. Maggie Miller\nThe Honorable Mary Ann Paolantonio\nFebruary 10, 2022\nPage 2\nreported a sexual assault to the Department in April! CAASE is a registered not-for-profit\ncorporation under section 501(c)(3) oft itle 26 of the United States Code (26 U.S.C. §501(c)(3)\n(2018) that, among other things, \"provide[s] individualized legal advice, consultation, and\nrepresentation following and related to sexual harm.\"* CAASE's legal services include helping\neach client \"understand the steps in the criminal justice process[,]\" \"navigat[e] the criminal\ninvestigation{,]\" and \"understand and assert [their] rights as a crime victim[.]\"? Ms. Svendsen\nrequested copies of “all records created and maintained by your Department regarding [the\nclient's] report and your investigation, including but not limited to any and all supplements\nand handwritten notes.\" (Emphasis in original.) She enclosed a signed \"Authorization for\nRelease of Records\" signed by the client and naming CAASE attomey Jaime Ann Evans as her\nattorney. The following day, the Department denied the request in its entirety pursuant to\nsections 7(1)(d)(ii) and 7(1)(d)(vii) of FOIA.S In its letter to Ms. Evans, the Department cited as\nthe basis for its denial only that the records \"are related to an ongoing investigation and/or\nprocceding[,]\" and that \"[\\Jhe disclosure oft hese records may reasonably interfere with the * * *\ninvestigation in this matter.\"°\nOn November 30, 2021, Ms. Maggie Miller, Staff Attorney and Criminal Records\nRelief Coordinator for CAASE, submitted to the Public Access Counselor an e-mail’ with four\nattachments containing a Request for Review contesting the validity of the denial. The Request\nfor Review asserted that \"the initial report and supplemental investigatory reports are public\nrecords subject to request for inspection and copying via the FOIA and the Department has not\n'FOIA request from Veronica Svendsen, Senior Paralegal, Chicago Alliance Against Sexual\nExploitation, to Mary Ann Paolantonio, FOIA Officer, Village of Melrose Park (November 17, 2021).\n2Chicago Alliance Against Sexual Exploitation, About Us, https://www.cai .org/mission/ (last\nvisited Decemb2e0r, 2021).\nChicago Alliance Against Sexual Exploitation, Victims’ Rights Representation,\n‘https: /Avww.caase.org/sexual-assault-victims-rights/ (last visited December 20, 2021).\n“FOIA request from Veronica Svendsen, Senior Paralegal, Chicago Alliance Against Sexual\nExploitation, to Mary Ann Paolantonio, FOIA Officer, Village of Melrose Park (November 17, 2021).\n$5 ILCS 140/7(1)(4)(ii), (1)(4)(vi) (West 2020), as amended by Public Acts 102-038, effective\nJune 25, 2021; 102-558, effective August 20, 2021.\n“Letter from Earl M, Wallace, Records Dit jion, Melrose Park Police Department, to Evans, Jamie\nAnn (Novenber 18, 2021).\n7E-mail from Maggie Miller to Public Access [Bureau, Office of the Attorney General]\n(November 30, 2021).\nMs. Maggie Miller\nThe Honorable Mary Ann Paolantonio\nFebruary 10, 2022\nPage 3\nprovided a legally sufficient justification for its decision to withhold them.\"® Ms, Miller further\ncontended:\n[T)he Department has not provided any information about how\ndisclosure of the requested documents would in fact obstruct an\nongoing investigation or administrative proceeding. Rather,\nthey have merely stated this exemption applies because disclosure\nof the records \"may reasonably interfere\" with their investigation\nor administrative proceeding. This is not sufficient to demonstrate\nby clear and convincing evidence that the requested records are\nexempt from their duty to disclose the same under the FOIA.)\nOn December 3, 2021, the Public Access Bureau sent a copy oft he Request for\nReview to the Department. The Public Access Bureau also sent the Department a letter\nrequesting unredacted copies of the withheld records for this office's confidential review and a\ndetailed written explanation of the legal and factual bases for the applicability of the asserted\nexemption!s°.\nOn December 14, 2021, counsel for the Department provided this office with the\nrequested materials.'' On that same date, this office forwarded a copy of the Department's\nanswer to Ms, Miller and notified her of her opportunity to reply.'? On December 17, 2021, Ms.\nMiller submitted a reply.”\nLetter from Maggie Miller, Staff Attorney, Chicago Alliance Against Sexual Exploitation, to\nSarah Pratt, Public Access Counselor, Office oft he Attorney General (November 30, 2021), at 1.\nLeer from Maggie Miller, Staff Attorney, Chicago Alliance Against Sexual Exploitation, to\nSarah Pratt, Public Access Counselor, Office of the Attorney General (November 30, 2021), at 2.\n\"Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to The Honorable Mary Ann Paolantonio, Village Clerk, Freedom ofI nformation Officer, Village\n‘of Melrose Park (December 3, 2021).\n\"Letter from Terrence Casey, An Attorney for the Village of Melrose Park, Del Galdo, {sic] Law\nGroup, LLC, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, [Office of the Attorney General]\n(December 14, 2021).\n\"Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Maggie Miller, Staff Attorney & Criminal Records Relief Coordinator, Chicago Alliance\nAgainst Sexual Exploitation (December 14, 2021).\nLetter from Maggie Miller, Staff Attorney, Chicago Alliance Against Sexual Exploitation, to\nJoshua M. Jones, Deputy Bureau Chief, Public Access Bureau, (Office of the Attorney General] (December 17,\n2021).\nMs. Maggie Miller\nThe Honorable Mary Ann Paolantonio\nFebruary 10, 2022\nPage 4\nOn January 28. 2022, this office extended the time within which to issue a binding\nopinion by 30 business days, to March 15, 2022, pursuant to section 9.5(f) of FOIA.\"\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with\" FOIA. 5 ILCS\n140/1 (West 2020). Under FOIA, “[a]ll records in the custody or possession ofa public body are\npresumed to be open to inspection or copying. Any public body that asserts that a record is\nexempt from disclosure has the burden ofp roving by clear and convincing evidence that it is\nexempt.\" 5 ILCS 140/1.2 (West 2020). Bare assertions without a detailed rationale do not\nsatisfy a public body's burden of proving that exemptions are applicable. Rockford Police\nBenevolent and Protective Ass'n v. Morrissey, 398 Ill. App. 3d 145, 150-51 (2d Dist. 2010).\nRather, \"[t]he public body satisfies its burden when it provides a detailed justification for the\nclaimed exemption which addresses the specific documents requested and allows for adequate\nadversarial testing.” Turner v. Joliet Police Dep't, 2019 IL App (34) 170819, 910, 123 N.E.3d\n1147, 1150 (2019).\nAsa threshold matter, section 2.15(a) of FOIA (5 ILCS 140/2.15(a) (West 2020))\nexpressly requires public disclosure of certain basic information about an arrest within 72 hours\nafter the arrest:\n(a) Arrest reports. The following chronologically\nmaintained arrest and criminal history information maintained by\nState or local criminal justice agencies shall be furnished as soon\nas practical, but in no event later than 72 hours after the arrest,\nnotwithstanding the time limits otherwise provided for in Section 3\nof this Act: (i) information that identifies the individual, including\nthe name, age, address, and photograph, when and if available; (ii)\ninformation detailing any charges relating to the arrest; (iii) the\ntime and location of the arrest; (iv) the name of the investigating or\narresting law enforcement agency; (v) if the individual is\nincarcerated, the amount ofa ny bail or bond; and (vi) if the\nindividual is incarcerated, the time and date that the individual was\nreceived into, discharged from, or transferred from the arresting\nagency's custody.\nLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Maggie Miller, Staff Attorney & Criminal Records Relief Coordinator, Chicago Alliance\n‘Against Sexual Exploitation, and Terrence Casey, An Attorney forthe Village of Melrose Park, Del Galdo Law\nGroup, LLC (January 28, 2022).\nMs. Maggie Miller\nThe Honorable Mary Ann Paolantonio\nFebruary 10, 2022\nPage 5\nSection 2.15(c) of FOIA (5 ILCS 140/2.15(c) (West 2020)), however, does permit a public body\nto withhold some of this information in certain circumstances:\n(c) Information described in items (iii) through (vi) of\nsubsection (a) may be withheld if it is determined that disclosure\n‘would: (i) interfere with pending or actually and reasonably\ncontemplated law enforcement proceedings conducted by any law\nenforcement agency; (ii) endanger the life or physical safety of law\nenforcement or correctional personnel or any other person; or (iii)\ncompromise the security ofa ny correctional facility.\nThe records responsive to CAASE's request include an arrest report. The plain\nlanguage of sections 2.15(a) and 2.15(c) required the Department to provide CAASE with, at the\nvery least, information that would identify the arrestee, including name, age, address, and\nphotograph (when and if available), and information detailing any charges relating to the arrest.\nAdditional information described in section 2.15(a) could properly be withheld only if the\nDepartment demonstrated that disclosure would interfere with a law enforcement proceeding or\nendanger law enforcement or other persons, as set out is section 2.15(c). The Department did not\naddress section 2.15 of FOIA in its answer to this office. Rather, the Department reiterated that\nit denied the request pursuant to sections 7(1)(d)(ii) and 7(1)(d)(vii) of FOIA, which contain\nlanguage somewhat similar (o the language ofs ection 2.15(c)(i) of FOIA (5 ILCS 140/2.15(c)(i)\n(West 2020)).'* Specifically, sections 7(1)(d)(ii) and 7(1)(d)(vii) of FOIA exempt from\ndisclosure:\n(d) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes,\nbut only to the extent that disclosure would:\ntee\n(ii) interfere with active administrative enforcement\nproceedings conducted by the public body that is the\nrecipient of the request; [or]\naes\n'*The language ofs ection 2.15(c)(i) mirrors the language of section 7(1)(d)(i) of FOIA (5 1LCS\n140/7(1 (4) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558, effective August\n20, 2021).\nMs. Maggie Miller\n‘The Honorable Mary Ann Paolantonio\nFebruary 10, 2022\nPage 6\n(vii) obstruct an ongoing criminal investigation by\nthe agency that is the recipient of the request.\n\"The classification of information as ‘law enforcement or ‘investigatory’ does not\nnecessarily foreclose access unless it can be shown, in a particular case, that disclosure would\ninterfere with law enforcement and would, therefore, not be in the public interest.\" Baudin v.\nCity of Crystal Lake, 192 Ill. App. 3d 530, 536 (2d Dist. 1989). “Simply saying there is an\n‘ongoing criminal investigation because the case has not been cleared,' with little additional\nexplanation, is not ‘objective indicia’ sufficient to show the ongoing investigation exemption\napplies.\" Day v. City of Chicago, 388 Ill. App. 3d 70, 76 (Ist Dist. 2009) (quoting Illinois\nEducation Ass'n v. Illinois State Board of Education, 204 Il\\. 2d 456, 470 (2003)). In Day, the\ncourt explained that a public body may not “use the term ‘ongoing criminal investigation’ * * * as\nsome sort of magic talisman, the invocation of which ‘casts a spell ofs ecrecy over the documents\nat issue.\" Day, 388 Ill. App. 3d at 76 (quoting Mlinois Education Ass'n, 204 Ill. 2d at 470).\nIn its response to this office, the Department provided merely the following\nrationale for its denial under the section 7(1)(d)(ii) and section 7(1)(d)(vii) exemptions:\nAs oft he date of this correspondence, it remains the\nVillage's position that the requested records relate to a criminal\ncase that remains pending, and the release o[f] the responsive\nrecords would interfere with the ongoing criminal case, and to the\nextent that any investigation is ongoing, jeopardize the\ninvestigation. Once the case has closed, the Village will release the\nresponsive records to all parties that have requested them,\nincluding Ms. Svendsen.l'61\nIn CAASE's reply to that response, Ms. Miller maintained that \"the Village has\nfailed to demonstrate that disclosure oft he requested records would in fact interfere with an\nongoing investigation or pending proceeding.\"\"7\nNeither the Department's response to the FOIA request nor its response to this\noffice set forth facts indicating that disclosure oft he arrest report information enumerated in\nLetter from Terrence Casey, An Attomey for the Village of Melrose Park, Del Galdo, [sic] Law\nGroup, LLC, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, [Office oft he Attorney General)\n(December 14, 2021),\n\"Letter from Maggie Miller, Staff Attorney, Chicago Alliance Against Sexual Exploitation, to\nJoshua M. Jones, Deputy Bureau Chief, Public Access Bureau, [Office oft he Attorney General] (December 17,\n2021), at |\nMs. Maggie Miller\n‘The Honorable Mary Ann Paolantonio\nFebruary 10, 2022\nPage 7\nitems (iii) through (vi) of section 2.15(a) would interfere with pending or actually and reasonably\ncontemplated law enforcement proceedings conducted by any law enforcement agency.\nLikewise, even if the Department meant to cite section 7(1)(d)(i),'® the Department did not\ndemonstrate that the exemption shields all of the responsive records from disclosure. The\nDepartment did not set forth any facts indicating that the records concern an \"active\nadministrative enforcement proceeding[ ]\" for purposes of section 7(1)(d)(ii). Instead, the\nDepartment's response to this office merely stated \"to the extent that any investigation is\nongoing[,]\"\" the records would be exempt. (Emphasis added.) The Department did not establish\nthat an investigation actually was ongoing, much less explain how or why the disclosure ofa ll of\nthe records would obstruct an ongoing investigation. For instance, the Department provided no\nfacts indicating that any investigative measures were outstanding. The most recent investigative\nactivity documented in the records at issue occurred months before Ms. Svendsen submitted her\nFOIA request. Therefore, the Public Access Bureau concludes that the Department did not\nsustain its burden of proving by clear and convincing evidence that any oft he responsive records\nare exempt from disclosure under section 7(1)(d)(vii).\nFINDINGS AND CONCLUSIONS.\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On November 17, 2021, Ms. Veronica Svendsen, Senior Paralegal for\nCAASE, submitted a FOIA request to the Department on behaolff a named client of CAASE,\nwho had reported a sexual assault to the Department in April. She enclosed a signed\nauthorization from the client. The request sought copies ofa ll records concerning the client's\nreporting of the offense to the Department and the Department's investigation.\n2) On November 18, 2021, the Department denied the request in its entirety,\nciting sections 7(1)(4)(ii) and 7(1)(d)(vii) of FOIA.\n3) In an e-mail on November 30, 2021, Ms. Maggie Miller, Staff Attorney and\nCriminal Records Relief Coordinator for CAASE, submitted a Request for Review contesting the\n\"Given that section 7(1)(d)(ii) is plainly inapplicable to the records and that sections 7(1Xd){i)\nand section 7(1)(€) vii) are similar and often asserted together, this office discusses section 7(1){d)j) for a thorough\nanalysis ofr elated exemptions,\n\"Letter from Terrence Casey, An Attorney for the Village of Melrose Park, Del Galdo, [sic] Law\nGroup, LLC, to Joshua M, Jones, Deputy Bureau Chief, Public Access Bureau, [Office of the Attorney General]\n(December 14, 2021).\nMs. Maggie Miller\nThe Honorable Mary Ann Paolantonio\nFebruary 10, 2022\nPage 8\nvalidity of the denial. The Request for Review was timely filed and otherwise complies with the\nrequirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)).\n4) On December 3, 2021, the Public Access Bureau sent a copy of the Request\nfor Review to the Department and requested unredacted copies of the withheld records for this\noffice's confidential review and a detailed written explanation of the legal and factual bases for\nthe applicability of the asserted exemptions.\n5) On December 14, 2021, this office received those materials from the\nDepartment.\n6) Later on December 14, 2021, the Public Access Bureau forwarded to Ms.\nMiller a copy of the Department's answer and notified her of CAASE's opportunity to reply. On\nDecember 17, 2021, Ms. Miller submitted CAASE's reply to the Department's answer.\n7) On January 28, 2022, this office properly extended the time within which to\nissue a binding opinion by 30 business days, to March 15, 2022, pursuant to section 9.5(f) of\nFOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to\nthis matter.\n8) Section 2.15(a) of FOIA requires a police department to disclose certain basic\ninformation about each arrest within 72 hours oft he arrest, subject to possible exceptions for\nPortions oft he information which are provided in section 2.15(c) of FOIA. The responsive\nrecords in this matter include an arrest report. The Department did not prove that any of the\nexceptions in section 2.15(c) apply to any information in the arrest report. Therefore, the\nDepartment improperly withheld the arrest report.\n9) Section 7(1)(d)(i) of FOIA mirrors section 2.15(c)(i) in permitting law\nenforcement records to be withheld when disclosure would \"interfere with pending or actually\nand reasonably contemplated law enforcement proceedings conducted by any law enforcement\nagency[.]\" Even if the Department had cited the section 7(1)(d)(i) exemption, the Department\nset forth no facts showing the exemption applies.\n10) Section 7(1)(d)(ii) of FOIA exempts from disclosure law enforcement\nrecords to the extent that disclosure would \"interfere with active administrative enforcement\nproceedings conducted by the public body that is the recipient oft he request{.]\" The Department\nset forth no information indicating that it was conducting an active administrative enforcement\nproceeding related to the responsive records. Accordingly, the Department did not prove by\nclear and convincing evidence that any oft hose records are exempt from disclosure under section\nTNA).\nMs. Maggie Miller\n‘The Honorable Mary Ann Paolantonio\nFebruary 10, 2022\nPage 9\n11) Section 7(1)(d)(vii) of FOIA exempts from disclosure law enforcement\nrecords to the extent that disclosure would “obstruct an ongoing criminal investigation by the\nagency that is the recipient oft he request.\" The Department did not establish that a criminal\ninvestigation was ongoing at the time Ms. Svendsen submitted her FOIA request, nor did it set\nforth any facts demonstrating how or why disclosure oft he records would obstruct an ongoing\ncriminal investigation. Accordingly, the Department did not prove by clear and convincing\nevidence that any of the other responsive records are exempt from disclosure under section\nHAa\\vii).\nTherefore, it is the opinion of the Attorney General that the Melrose Park Police\nDepartment violated the requirements of FOIA by improperly denying in its entirety CAASE's\nNovember 17, 2021, Freedom ofI nformation Act request. Accordingly, the Department is\nhereby directed to take immediate and appropriate action to comply with this opinion by\nproviding CAASE with copies oft he records responsive to the FOIA request, subject only to\npermissible redactions of discrete information.\nPursuant to section 7(1)(a) of FOIA, the Department may properly withhold a\nLaw Enforcement Agencies Database System (LEADS) printout that is prohibited from being\ndisclosed by an administrative rule”' that implements the Criminal Identification Act (20 ILCS\n2630/0.01 et seq. (West 2020)). Any record withheld by the Department must be fully justified\nas required by section 9(b) of FOIA.\nPursuant to section 7(1)(b) of FOIA” the Department may properly redact\n5 ILCS 140/7(1(a) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;\n102-558, effective August 20, 2021 (exempting from inspection and copying \"{iJnformation specifically prohibited\nfrom disclosure by federal or State law or rules and regulations implementing federal or State law.\").\n2\"LEADS data shall not be disseminated to any individual or organization that is not legally\nauthorized to have access to the information.\" 20 Ill, Adm. Code §1240.80(4) (2020), last amended at 23 Ill, Reg.\n7521, effective June 18, 1999; see also Better Gov't Ass'n v. Zaruba, 2014 IL App (24) 140071, (27, 21 N.E.34 516,\n525 (2014) (\"The regulations make clear that the public is not entitled to view or possess data that is transmitted\nthrough, received through, or stored in LEADS.\").\n25 ILCS 140/7(1)(b) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;\n102-558, effective August 20, 2021 (exempting from disclosure \"[p}rivate information, unless disclosure is required\nby another provision oft his Act, a State or federal law or a court order.”\nMs. Maggie Miller\nThe Honorable Mary Ann Paolantonio\nFebruary 10, 2022\nPage 10\n“private information\" as that term is defined in FOIA. Pursuant to section 7(1)(c) of FOIA,4\nthe Department also may properly redact as \"personal information\" dates of birth and the names\nof third parties that appear incidentally in the records. In addition, the Department may redact\nthe names and other personally-identifying information of witnesses who provided the\nDepartment with information during the investigation pursuant to section 7(1)(d)(iv).5 If the\nDepartment redacts information from the copies of the reports it provides to CAASE, it must\ninclude a written denial that identifies the factual or legal basis for each redaction and which\notherwise fully complies with the requirements of section 9(b) of FOIA.2°\nSection 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2020)) provides:\n\"Private information” means unique identifiers, including a person's\nsocial security number, driver's license number, employee identification number,\nbiometric identifiers, personal financial information, passwords or other access\ncodes, medical records, home or personal telephone numbers, and personal\n‘email addresses. Private information also includes home address and personal\nlicense plates, except as otherwise provided by law or when compiled without\npossibility ofa tribution to any person,\n5 ILCS 140/7(1)(c) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;\n102-558, effective August 20, 2021 (exempting from disclosure \"[plersonal information contained within public\nrecords, the disclosure of which would constitute a clearly unwarranted invasion ofp ersonal privacy, unless the\ndisclosure is consented to in writing by the individual subjects oft he informatio:\n5 ILCS 140/7(1)(@)(iv) (West 2020), as amended by Public Acts 102-038, effective June 25,\n2021; 102-558, effective August 20, 2021 (exempting from disclosure law enforcement records to the extent that\ndisclosure would \"unavoidably disclose the identity of a confidential source, confidential information furnished only\nby the confidential source, or persons who file complaints with or provide information to administrative,\ninvestigative, law enforcement, or penal agenciesf.]\").\n%65 ILCS 140/9(b) (West 2020) (\"When a request for public records is denied on the grounds that\nthe records are exempt under Section 7 oft his Act, the notice ofd enial shall specify the exemption claimed to\nauthorize the denial and the specific reasons for the denial, including a detailed factual basis and a citation to\nsupporting legal authority.\"),\nMs. Maggie Miller\nThe Honorable Mary Ann Paolantonio\nFebruary 10, 2022\nPage 11\nThis opinion shall be considered a final decision ofa n administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seg. (West 2020). An aggrieved party may obtain judicial review oft he decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days oft he date oft his decision naming the Attorney General ofI llinois, Ms. Maggie Miller,\nand CAASE as defendants. See 5 ILCS 140/11.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nay. (eta St\n' Brent D. Stratton\nChief Deputy Attorney General\nce: Mr. Terrence Casey\nAn Attorney for the Village of Melrose Park\nDel Galdo Law Group, LLC\n1441 South Harlem Avenue\nBerwyn, Illinois 60402\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 22-002) upon:\nMs. Maggie Miller\nStaff Attomey & Criminal Records Relief Coordinator\nChicago Alliance Against Sexual Exploitation\n307 North Michigan Avenue, Suite 1818\nChicago, Illinois 60601\nmmiller@caase.org\nThe Honorable Mary Ann Paolantonio\nVillage Clerk\nFreedom of Information Officer\nVillage of Melrose Park\n1000 North 25th Avenue\nMelrose Park, Illinois 60160\nfoia@melrosepark.org\nMr. Terrence Casey\nDel Galdo Law Group, LLC\n1441 South Harlem Avenue\nBerwyn, Illinois 60402\ncasey@dlglawgroup.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on February 10, 2022.\nSTEVE SILVERMAN\nChief, Public Access Bureau\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\nOffice oft he Attorney General\n100 West Randolph Street, 11th Floor\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Chicago Alliance Against Sexual Exploitation (CAASE) requested police records regarding a sexual assault report, but the Village of Melrose Park Police Department denied the request claiming it would interfere with an ongoing investigation. The Illinois Attorney General's office ruled that the police department failed to provide sufficient evidence that the investigation was still active or that releasing the records would actually obstruct it. Consequently, the Department was ordered to disclose the requested information.","card_headline":"Police records of a sexual assault report","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":150,"orig_master_id":19349,"dup_master_id":19124,"dup_sha256":"cee5a25e2950cae6f3fa508f13d05200b663c516cff4f4c30aaa03df60175f2f","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2022,"date_issued":"2022-02-10","case_number":"2021 PAC 69031","request_numbers":null,"title":"Improper Remote Meeting During a Public Health Emergency","filename":"PUBLIC ACCESS OPINION 22-003 (Request for Review - 2021 PAC 69031).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 22-003 (Request for Review - 2021 PAC 69031).pdf","word_count":4318,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a complaint about an improper remote meeting held by the City Council of Sumner during a public health emergency.","plain_summary":"The requester, a resident, alleged that a city council's remotely held meeting gave the public no way to access it, since no Zoom link or call-in number was posted in advance and the meeting was already underway by the time she was able to join after texting the police chief for a link. The Public Access Counselor held that the council violated the Open Meetings Act by failing to post remote-access information on its website in advance, by failing to clarify that in-person attendance was also allowed, and by failing to make a verbatim recording of the remote meeting. The council was directed to include remote-access information on future meeting notices and to record all future remote meetings.","holding":"The City Council of the City of Sumner held an improper remote meeting on January 11, 2022.","legal_question":"Did the City Council of Sumner provide proper public access to its remote meeting on January 11, 2022?","disposition":"violation_found","primary_statute":["5 ILCS 120/7"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City Council of the City of Sumner","requesting_party":"Ms. Mary Ransome","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"remote meeting","subject_description":"The accessibility and public participation requirements for a remote City Council meeting held during a public health emergency.","ocr_status":"ok","ocr_quality":89.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2022-Binding-PAC-Opinions/22-003.pdf","sha256":"76aa3a4c66d5b577703ee287ce7e853d2d3c4d242075e31d6d17f967383397dc","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["remote meeting","Open Meetings Act","public access","City Council"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENER.\nSTATE OF ILLINOIS\nKWAME RAOUL:\nATTORNEY GENERAL.\nFebruary 10, 2022\nPUBLIC ACCESS OPINION 22-003\n(Request for Review 2021 PAC 69031)\nOPEN MEETINGS ACT:\nImproper Remote Meeting\nDuring a Public Health Emergency\nMs. Mary Ransome\n[street address redacted for site publication -- see original PDF]\nThe Honorable Betty Brian\nMayor\nCity of Sumner\n129 East South Street\nSumner, Illinois 62466\nDear Ms. Ransome and Ms. Brian:\nThis binding opinion is issued by the Attorney General pursuant to section 3.5(e)\nof the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons discussed\nbelow, this office concludes that the City Council oft he City of Sumner (City Council) held an\nimproper remote meeting on January 11, 2022.\nBACKGROUND\nOn December 16, 2021, Ms. Mary Ransome e-mailed the Public Access Bureau\nto raise a concer about the accessibility of the City Council meeting to be held later that day.\nOn December 21, 2021, an Assistant Attomey General (AAG) in the Public Access Bureau\nmailed Ms. Ransome concerning the requirements for filing a Request for Review in connection\n500 South Scand Stet, Springficld, lio 62701 » (257) 782-1080 «1: (77) BHE-S461 © Fax: (217) 782.7046\n100 West Randolph Street, Chicago, Hlinois 60601 » (312) 814-3000 «TTY: (800) 964-3013 # Fax: (312) 814-3805\n‘01 South Univesity Ave., Carbondale IL 62001 « (68) 520-4400« TY: (872) 673.9339» Fa (618) 29-6816,\nMs, Mary Ransome\nThe Honorable Betty Brian\nFebruary 10, 2022\nPage 2\nwith the December 16, 2021, meeting.’ On December 23, 2021, Ms. Ransome replied by stating:\n\"I have decided to wait on the review until the next council meeting which will be held on\nJanuary 11, 2022.\"\nOn January 14, 2022, Ms, Ransome submitted a Request for Review alleging that\nthe City Council did not provide proper public access to its January 11, 2022, Zoom meeting?\nTo provide context, Ms. Ransome first alleged that before the City Council's previous meeting:\nI was told by the mayor of [S]umner (via phone) and the man in\ncharge of the water department (in person conversation) that I\ncould not attend since it was a zoom meeting. Later in the day, I\nasked the man in charge oft he water department if he was aware\noft he open meetings act and he told me that I would need to talk\nwith Travis who is our police chief. He said all he knew about the\nmeetings was that the city provided the means for him to attend.!*)\nTurning to the January 11, 2022, meeting at issue, Ms. Ransome alleged:\nOn January 10, 2022, a picture was taken oft he front door\nof the Sumner City Hall * * * showing the agenda oft he meeting\nto be held on January 11, 2022, via zoom. Please note that there\nwas no link provided to attend the meeting, Therefore, per the\nconversation I had with the water department man [before the\nprevious meeting], I contacted Travis, the police chief, via\nmessenger* * *, At 6:31 p.m. on January 11, 2022, I received a\ntext message on my phone with the link, I joined the meeting, per\nthe mayor, the meeting had already started, like they had the\nopening prayer, etc. but that they were allowing me 5 minutes to\ntalk about the letter I had sent. A discussion ensued. After the 5\nminute time frame, the mayor said my time was up and the\n\"E-mail from Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office oft he Attomey\nGeneral, to [Mary] Ransome (December 21, 2021).\n*E-mail from Mary Ransome to Joshua Jones, [Deputy Bureau Chief, Public Access Bureau,\nOffice of the Attomey General] (December 23, 2021).\nE-mail from Mary Ransome to Joshua Jones, [Deputy Bureau Chief, Public Access Bureau,\nOffice of the Attorney General] (January 14, 2022).\n“E-mail from Mary Ransome to Joshua Jones, (Deputy Bureau Chief, Public Access Bureau,\nOffice of the Attomey General] (January 14, 2022),\nMs. Mary Ransome\nThe Honorable Betty Brian\nFebruary 10, 2022\nPage 3\nmeeting would have to move on and said goodbye, I told her that I\nwanted to listen to the rest of the meeting, she said that was okay\nbut I couldn't talk anymore, I told her I wouldn't. I made no more\ncomments but | did listen to the other parts of the Agenda until the\nmeeting was over.(51\nMs, Ransome attached a photograph of the paper agenda posted on the door of Sumner City Hall\nand a screenshot of her text messages with the police chief. The agenda stated \"ZOOM\nMEETING\" at the top and stated that the meeting would commence at 6:30 p.m., but did not\nprovide a Zoom videoconferencing link or any other means or directions for the public to access\nthe remote meeting.® In the first text message in the screenshot, Ms. Ransome asked for the\nZoom meeting link, apparently sometime in the morning on January 11, 2022: \"You said to let\nyou know ifI needed anything, I need to be able to participate in tonight's meeting. Can you\nprovide the link to the zoom meeting please?\"” The screenshot indicates that the police chief\nresponded that morning: \"No problem just provide info of device you'll be using if phone for\ninstance phone number if computer then an e-mail address[.]\"* Ms. Ransome then provided her\nnumber,’ and the police chief responded: \"Ok they will send link via text just prior to\nmeeting.\"\nLater on January 14, 2022, the Public Access Bureau sent a copy oft he Request\nfor Review to Mayor Betty Brian. The Public Access Bureau also sent Mayor Brian a letter\nasking for copies ofa ny notices, agendas, minutes, and recordings from the City Council's\nJanuary 11, 2022, meeting for this office's confidential review, and a written response \"to the\nallegation that it did not provide the public with a timely link to the meeting or other means of\naccessing the meeting.\"!!\nE-mail from Mary Ransome to Joshua Jones, [Deputy Bureau Chief, Public Access Bureau,\nOffice of the Attorney General] (January 14, 2022).\n‘City of Sumner City Council, Agenda (header) (January 11, 2022).\nText message from Mary Ransome to Travis [Trainer] ([January 11, 2022,] funspecified))\n\"Text message from Travis (Trainer] to Mary Ransome ((Sanuary 11, 2022,) 8:36 a.m.)\n°Text message from Mary Ransome to Travis [Trainer] ({January 11, 2022,] 8:55 a.m.).\n\"Text message from Travis [Trainer] to Mary Ransome ((January 11, 2022,} 8:55 a.m.).\n“Letter from Joshua M, Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to The Honorable Betty Brian, Mayor, City of Sumner (January 14, 2022), at 2.\nMs. Mary Ransome\n‘The Honorable Betty Brian\nFebruary 10, 2022\nPage 4\nOn January 19, 2022, counsel for the City Council, Mr. Brady R. Waldrop,\nprovided the Public Access Bureau with a copy of the agenda, a copy of the unapproved draft\nminutes, and a written response.'? Mr. Waldrop stated:\nNotice of the meeting held on January 11, 2022, was posted\non January 7, 2022, on the front door of City Hall. Said notice\nidentified the meeting as a Zoom meeting. The meeting was open\nand accessible to the public as identified in Mary Ransome's text\nmessage and written statement provided to your office that show\nshe was provided with a link to attend and participate in the\nmeeting and did in fact attend and participate in the meeting. Any\nother member of the public who desired to attend and participate in\nthe meeting was free to do so.!31\nOn that same date, an AAG in the Public Access Bureau sent Mr. Waldrop two e-\nmails seeking clarification as to whether: (1) the City Council posted the Zoom link for the\n‘meeting anywhere or made it available only upon request; and (2) the City Council possessed a\nvideo recording of the meeting.\"* On January 21, 2022, he responded:\n[Wlith regard to the January 11, 2022 meeting, public notice was\ngiven of the meeting date, time, and location but no link or phone\nnumber to the Zoom meeting was publicly posted. Any member of\nthe public could have requested the link or other information and\nthe City would provide that link or other information to that\nmember oft he public. Additionally, there is no audio or video\nrecording oft he meeting.\nThe Chofi Peolicfe, Water Superintendent, Secretary,\nTreasurer, and one Council Member were physically present at the\nmeeting held on January 11, 2022 at City Hall, which is the\nmeeting's regular and standard location, At all times during the\nmeeting, City Hall was accessible to anyone, including members of\n\"Letter from Brady R. Waldrop, Gosnell, Borden, Enloe, Sloss, McCullough & Waldrop, Ltd., to\nJoshua M, Jones, Deputy Bureau Chief, Public Access Bureau, Illinois Attorney General (January 19, 2022).\n\"Letter from Brady R. Waldrop, Gosnell, Borden, Enloe, Sloss, McCullough & Waldrop, Ltd., to\nJoshua M, Jones, Deputy Bureau Chief, Public Access Bureau, Illinois Attorney General (January 19, 2022), at 1\nE-mails from Josh Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Brady Waldrop (January 19, 2022),\nMs. Mary Ransome\nThe Honorable Betty Brian\nFebruary 10, 2022\nPage $\nthe public, who desired to attend the meeting in person.'51\nOn January 21, 2022, this office forwarded a copy of each City Council response\nto Ms, Ransome.\"® On January 24, 2022, Ms. Ransome replied by asking, if the City Council\nallowed in-person attendance for its January 11, 2022, meeting, \"why did the notice say it was a\nzoom meeting?\"\"” On January 26, 2022, Ms. Ransome submitted an expanded reply.'®\nAddressing the City Council's claim that in-person attendance was allowed, Ms. Ransome stated:\n\"How were the citizens of Sumner to know this information since the posted notice did not\nreflect same? For example, notice should have stated Zoom meeting with link and if you wish to\nattend the meeting in person at City Hall you may do so.\"\"?\nOn February 10, 2022, Mr. Waldrop provided this office a copy of the approved\nminutes of the City Council's January 11, 2022, meeting?\nANALYSIS\nOMA declares that it is \"the public policy oft his State that its citizens shall be\ngiven advance notice of and the right to attend all meetings at which any business of a public\nbody is discussed or acted upon in any way.\" 5 ILCS 120/1 (West 2020).\nSection 7(e) of OMA (5 ILCS 120/7(e) (West 2020)) sets forth the requirements\nfor a public body to conduct a remote meeting without a quorum physically present during a\npublic health emergency, such as the COVID-19 pandemic. At the time oft he Board's January\n11, 2022, meeting, a statewide disaster declaration”! was in place that the Governor had issued\n'SLetter from Brady R. Waldrop, Gosnell, Borden, Enloe, Sloss, McCullough & Waldrop, Ltd., to\nJoshua M, Jones, Deputy Bureau Chief, Public Access Bureau, illinois Attomey General (January 21, 2022), at |.\n‘Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to [Mary] Ransome (dated January 20, 2022, and transmitted via e-mail on Januar2y1, 2022).\nE-mail from Mary Ransome to Joshua Jones, [Deputy Bureau Chief, Public Access Bureau,\nOffice of the Atomey General] (January 24, 2022).\nLetter from Mary M. Ransome to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau,\nMlinois Attorney General (January 26, 2022).\n“Letter from Mary M. Ransome to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau,\nWlinois Attomey General (January 26, 2022).\n*-mail from Brady R. Waldrop, Gosnell, Borden, Enloe, Sloss, McCullough & Waldrop, Ltd., to\nJoshua Jones (February 10, 2022).\nMs. Mary Ransome\nThe Honorable Betty Brian\nFebruary 10, 2022\nPage 6\npursuant to his authority under the Illinois Emergency Management Agency Act (20 ILCS\n3305/7 (West 2020). That disaster declaration satisfied section 7(e)(1) of OMA (5 ILCS 7(e)(1)\n(West 2020)? The following three additional subsections are particularly relevant here:\n(©) Subject to the requirements of Section 2.06 but\nnotwithstanding any other provision of law, an open or closed\nmeeting subject to this Act may be conducted by audio or\nvideo conference, without the physical presence ofa quorum of\nthe members, so long as the following conditions are met:\naes\n(4) for open meetings, members of the public present at the\nregular meeting location of the body can hear all discussion\nand testimony and all votes of the members oft he body,\nunless attendance at the regular meeting location is not\nfeasible due to the disaster, * * * in which case the public\nbody must make alternative arrangements and provide\nnotice pursuant to this Section ofs uch alternative\narrangements in a manner to allow any interested member\nof the public access to contemporaneously hear all\ndiscussion, testimony, and roll call votes, such as by\noffering a telephone number or a web-based link;\nwee\n(7) Except in the event ofa bona fide emergency, 48 hours’\nnotice shall be given ofa meeting to be held pursuant to\nthis Section. Notice * * * shall be posted on the website of\nthe public body[.] * * *\neee\n*Gubematorial Disaster Proclamation, issued January 7, 2022, at [7].\nSection 7(¢)(1) of OMA provides:\n(1) the Governor or the Director oft he Illinois Department of Public\nHealth has issued a disaster dectaration related to public health concems because\nofa disastears defined in Section4 oft he Illinois Emergency Management\n‘Agency Act, and all or part oft he jurisdiction oft he public body is covered by\nthe disaster area.)\nMs. Mary Ransome\nThe Honorable Betty Brian\nFebruary 10, 2022\nPage 7\n(9) In addition to the requirements for open meetings under\nSection 2.06, public bodies holding open meetings under\nthis subsection (¢) must also keep a verbatim record ofa ll\ntheir meetings in the form of an audio or video recording.\nVerbatim records made under this paragraph (9) shall be\nmade available to the public under, and are otherwise\nsubject to, the provisions of Section 2.06.\nConstruing the plain language ofs ections 7(¢)(4) and 7(¢)(7) together, when a public body holds\na remote meeting for both its members and the public, the public body must post the remote\nmeeting access information on its website with the meeting notice/agenda at least 48 hours in\nadvance of the meeting, except in the event of a bona fide emergency.\nThe City Council's argument that it conducted its January 11, 2022, meeting\nproperly is unavailing because the City Council provided inadequate advance notice oft he\nmeeting and insufficient access to the meeting. As quoted above, the City Council's first\nresponse to this office asserted that the meeting was proper because the agenda identified the\nmeeting as a Zoom meeting and Ms. Ransome was able to attend and participate in the meeting.\nThe approved meeting minutes, however, corroborate Ms. Ransome's allegation that the meeting\nwas already underway when the City Council granted her access. The minutes show that the\nCity Couneil acted on two motions before a member oft he City Council sent Ms. Ransome the\nweb-based link to the virtual meeting room and granted her five minutes to address the\nCouncil? The City Council neither asserted nor provided evidence reflecting that it gave Ms.\nRansome remote access to the full meeting.\nWhile the City Council claimed in its supplemental response that its January 11,\n2022, meeting was not just a Zoom meeting, but that the meeting room in City Hall was open to\nthe public, the City Council did not provide advance notice of that option. Although the City\nCouncil asserted that \"public notice was given of the meeting * * * location{,]\"TM* the agenda\nprovided no address; it was posted on the door of Sumner City Hall, the City Council's regular\nmeeting location, but the only location information was the \"ZOOM MEETING\" heading.?5\nThat heading implies that the meeting would be accessible to the public only via the Zoom\nplatform. Further, posting notice ofa remote meeting without indicating how to access the\nmeeting remotely plainly falls short of the requirement to \"make alternative arrangements and\nSumner City Council, Meeting, January 11, 2022, Minutes 1.\nLetter from Brady R. Waldrop, Gosnell, Borden, Enloe, Sloss, McCullough & Waldrop, Ltd., to\nJoshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Ilinois Attorney General (January 21, 2022), at 1.\n*City of Sumner City Council, Agenda (header) (January 11, 2022).\nMs. Mary Ransome\nThe Honorable Betty Brian\nFebruary 10, 2022\nPage 8\nprovide notice pursuant to this Section of such alternative arrangements in a manner to allow any\ninterested member of the public access to contemporaneously hear all discussion, testimony, and\nroll call votes, such as by offering a telephone number or a web-based link.\" 5 ILCS 120/7(e)(4)\n(West 2020). The City Council's supplemental response to this office acknowledged that \"no\nlink or phone number to the Zoom meeting was publicly posted.\" An agenda that states a\nmeeting will be held by Zoom or another remote meeting platform without clarifying that in-\nperson public attendance is allowed gives insufficient advance notice.\nFurthermore, ifa public body does provide remote access to any members of the\npublic under section 7(e)(4), it should make the information needed to access the meeting readily\nand continuously accessible to the general public for at least the 48-hour period that precedes the\nmeeting. See 5 ILCS 120/2.02(c) (West 2020) (\"The public body conducting a public meeting\nshall ensure that at least one copy of any requested notice and agenda for the meeting is\ncontinuously available for public review during the entire 48-hour period preceding the\nmeeting.\"). Notice ofa remote meeting is not continuously available if any potentially interested\nmembers oft he public must ask the public body for a web-based link to the meeting, Notably,\nsections 7(e)(4) and 7(e)(7) combine to expressly require that notice of the access information for\na remote meeting under section 7(e) of OMA must be posted on the public body's website,\nregardless ofo ther considerations such as the size of the public body or how its website is\nmaintained. This contrasts with other provisions concerning website postings in OMA, which\nrequire website posting only if \"the full-time staff of the public body maintains\" the public\nbody's website.2” \"The legislature's decision to use certain language in one instance and different\nlanguage in another indicates that the legislature intended different results.\" Julie Q. v. Dep't of\nChildren & Family Services, 2013 IL 113783, $41, 995 N.E.2d 977, 985 (2013). The City\nCouncil confirmed that it did not post the Zoom meeting link or call-in access information on its\nwebsite or anywhere else before its January 11, 2022, meeting,\nThe City Council also violated OMA by failing to make a verbatim audio or video\nrecording oft he meeting, as expressly required by section 7(e)(9) of OMA. While a public body\nmust make verbatim audio or video recordings ofo nly the closed sessions of its normal in-person\nopen meetings, a public body that holds a remote meeting under section 7(e) of OMA must\nmake and keep a verbatim audio or video recording oft he entire meeting.\nLetter from Brady R. Waldrop, Gosnell, Borden, Enloe, Sloss, McCullough & Waldrop, Ltd., to\nJoshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Illinois Attomey General (January 21, 2022), at |.\nM5 ILCS 120/2.02(a), (b) (West 2020); 5 ILCS 120/2.06(b) (West 2020).\n285 ILCS 120/2.06(a) (West 2020) (“All public bodies shall keep * * * a verbatim record ofa ll\ntheir closed meetings in the form of an audio or video recording.\").\nMs. Mary Ransome\nThe Honorable Betty Brian\nFebruary 10, 2022\nPage 9\nAccordingly, because the City Council provided inadequate notice of its January\n11, 2022, meeting, afforded insufficient access to the meeting, and failed to make a verbatim\nrecording oft he meeting, the City Council violated OMA on that date.\nFINDINGS AND CONCLUSIONS\nfier full examination and giving due consideration to the arguments presented,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On January 11, 2022, the City of Sumner City Council held a meeting\nremotely via the Zoom videoconferencing platform. The agenda stated that the meeting was a\n\"ZOOM MEETING.\"\n2) On January 14, 2022, Ms. Mary Ransome submitted a Request for Review to\nthe Public Access Bureau alleging that the City Council violated OMA by holding the meeting\nremotely without providing the public with a web-based link to the meeting before it began. Ms.\nRansome's Request for Review was timely filed and otherwise complies with the requirements of\nsection 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)).\n3) On January 14, 2022, the Public Access Bureau sent a copy oft he Request for\nReview to Mayor Betty Brian and asked the City Council to provide copies ofa ny notices,\nagendas, minutes, and recordings from its January 11, 2022, meeting for this office's confidential\nreview. This office also requested a written response to the allegation that the City Council did\nnot provide the public with advance notice of a web-based link to the meeting or other means of\naccessing the meeting.\n4) On January 19, 2022, counsel for the City Council furnished a copy of the\nagenda, a copy of unapproved draft meeting minutes, and a written answer. On January 21,\n2022, the City Council furnished an answer to this office's follow-up questions. The City\nCouncil acknowledged that it did not publicly post a web-based link to the meeting and did not\nrecord the meeting, but maintained that it held a proper remote meeting because the public was\nallowed to attend in person and Ms. Ransome joined the meeting remotely. On that same date,\nthis office forwarded a copy ofe ach answer to Ms. Ransome.\n5) On January 24, 2022, and January 26, 2022, Ms. Ransome submitted replies.\nOn February 10, 2022, the City Council furnished a copy of the approved minutes.\n6) Section 7(e) of OMA provides the legal framework for public bodies to hold\nmeetings remotely during the COVID-19 pandemic when a Gubernatorial disaster declaration is\nin effect.\nMs. Mary Ransome\nThe Honorable Betty Brian\nFebruary 10, 2022\nPage 10\n7) Section 7(e)(4) requires that when \"attendance at the regular meeting location\nis not feasible due to the disaster, including the issued disaster declaration, * * * the public body\nmust make alternative arrangements * * * to allow any interested member oft he public access to\ncontemporaneously hear all discussion, testimony, and roll call votes, such as by offering a\ntelephone number or a web-based link[.]\" Section 7(e)(7) adds that \"[e}xcept in the event ofa\nbona fide emergency, 48 hours’ notice shall be given ofa meeting to be held pursuant to this,\nSection. Notice * * * shall be posted on the website of the public body[.]\" The City Council held\nits January 11, 2022, meeting by Zoom and the publicly posted agenda stated it was a Zoom\nmeeting, but the agenda did not provide a telephone number or web-based link for accessing the\nmeeting before it began.\n8) Section 7(e)(9) provides that \"[iJn addition to the requirements for open\nmeetings under Section 2.06, public bodies holding open meetings under this subsection (e) must\nalso keep a verbatim record of all their meetings in the form ofa n audio or video recording.”\nThe City Council acknowledged that it did not make any kind of recording of its January 11,\n2022, remote meeting.\n9) Therefore, the City Council improperly held its January 11, 2022, meeting\nremotely without satisfying the remote meeting requirements of section 7(¢) of OMA.\nIn accordance with these findings of fact and conclusions ofl aw, the Public\nAccess Bureau concludes that the City of Sumner City Council violated OMA by failing to\nprovide the public with sufficient notice ofi ts January 11, 2022, meeting, by failing to provide\nadequate public access to the meeting, and by failing to make a verbatim audio or video\nrecording the meeting. The City Council is directed to include the remote access information,\nsuch as a telephone number or a web-based link, in the meeting notice/agenda for any future\nremote meeting where in-person public attendance is not allowed. The City Council must\nspecify on the agenda when in-person attendance is allowed for any remote meeting. The City\nCouncil is also directed to make and keep a verbatim audio or video recording of any future\nremote meeting it holds pursuant section 7(e) of OMA.\nMs. Mary Ransome\n‘The Honorable Betty Brian\nFebruary 10, 2022\nPage I!\nThis opinion shall be considered a final decision oafn administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review oft he decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date oft his decision, naming the Attlomey General ofI llinois and Ms. Mary\nRansas odefmendanets, See 5 ILCS 120/7.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBrent D. Stratton\nChief Deputy Attomey General\nce: Mr. Brady R. Waldrop\nGosnell, Borden, Enloe, Sloss, McCullough & Waldrop, Ltd.\n815 12th Street, P.O. Box 737\nLawrenceville, Illinois 62439\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy oft he foregoing Binding Opinion (Public Access Opinion 22-003) upon:\nMs. Mary Ransome\n605 South Christy Avenue\nSumner, Illinois 62466\nMaryransome21@gmail.com\nThe Honorable Betty Brian\nMayor\nCity of Sumner\n129 East South Street\n‘Sumner, Illinois 62466\ncityofsumner@bspeedy.com\nMr. Brady R. Waldrop\nGosnell, Borden, Enloe, Sloss, McCullough & Waldrop, Ltd.\n815 12th Street, P. O. Box 737\nLawrenceville, Illinois 62439\nbrady@gbeslaw.com\nby causing a true copy thereotof be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereoinf correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on February 10, 2022.\naa erat si —\ned\nSTEVE SILVERMAN\nChief, Public Access Bureau\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\nOffice oft he Attorney General\n100 West Randolph Street, 11th Floor\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A resident complained that the Sumner City Council did not allow the public to properly attend or participate in a remote meeting held on January 11, 2022. The Illinois Attorney General's office investigated and found that the City Council violated the Open Meetings Act by failing to provide the necessary access for the public to observe the meeting. This means the City Council failed to follow state laws designed to ensure government meetings remain transparent and accessible to the public.","card_headline":"Remote city council meeting accessibility during a health emergency","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":151,"orig_master_id":19351,"dup_master_id":19125,"dup_sha256":"907d0a5376617e0a3a4832e211c88e4d9bbd8fdbfb8764300416384d8715f224","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2022,"date_issued":"2022-03-11","case_number":"2022 PAC 69424","request_numbers":null,"title":"E-mail from Police Chief to Staff Concerning Policies, Procedure, and Employee Conduct is a Public Record That is Not Exempt From Disclosure Under Sections 7(1)(¢) or 7(1)(f) of FOIA","filename":"PUBLIC ACCESS OPINION 22-004 (Request for Review - 2022 PAC 69424).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 22-004 (Request for Review - 2022 PAC 69424).pdf","word_count":4670,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request made by Mr. Richard Mayer for an email from the Village's Police Chief, which was denied by the Village.","plain_summary":"The requester, a newspaper reporter, sought a retiring police chief's farewell email to department staff, which a village withheld and then largely redacted, arguing it was a personal communication rather than a public record. The Public Access Counselor held that because the email commented on department policy, procedure, and staff conduct, it was a public record pertaining to public business rather than private affairs, and that its content bore on the chief's public duties so was not exempt as an invasion of privacy or as deliberative material. The village was directed to disclose the email in full, except for the chief's personal phone number and email address.","holding":"The Village of Mount Prospect violated FOIA by improperly denying the request for the email.","legal_question":"Whether the email from the Police Chief is a public record that is exempt from disclosure under FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(f)"],"public_body":"Village of Mount Prospect","requesting_party":"Mr. Richard Mayer","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"An email sent by the outgoing police chief to all department employees regarding policies, procedures, and employee conduct.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2022-Binding-PAC-Opinions/22-004.pdf","sha256":"95ce024e0585c7de62eda47afbbe5b9a536bdec37d13ad909a14fd420adbe6a3","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police records","email disclosure","FOIA request","public record"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nMa1r1,c 20h22\nPUBLIC ACCESS OPINION 22-004\n(Request for Review 2022 PAC 69424)\nFREEDOM OF INFORMATION ACT:\nE-mail from Police Chief to Staff Concerning\nPolicies, Procedure, and Employee Conduct is\na Public Record That is Not Exempt From Disclosure\nUnder Sections 7(1)(¢) or 7(1)(f) of FOIA\nMr. Richard Mayer\nAssociate Editor\nJournal & Topics Media Group\n[street address redacted for site publication -- see original PDF]\nThe Honorable Karen M. Agoranos\nVillage Clerk/Freedom of Information Officer\nVillage of Mount Prospect\n50 South Emerson Street\nMount Prospect, Illinois 60056\nDear Mr. Mayer and Ms. Agoranos:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons discussed below, this\noffice concludes that the Village of Mount Prospéct (Village) violated the requirements of FOIA\nby improperly denying a FOJA request submitted by Mr. Richard Mayer.\nBACKGROUND\nOn January 3, 2022, Mr. Mayer, on behalf of Journal & Topics Media Group,\nsubmitted a FOIA request to the Village's Police Department (Police Department) seeking a copy\n500 South Second Street, Springfield, Illinois 62701 * (217) 782-1090 © T’T'Y: (877) 844-5461 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © T’T’Y: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, HL 62901 # (618) 529-6400 © ‘TTY: (877) 675-9339 © Fax (618) 529-6416 Scr ~\nMr. Richard Mayer\nMs. Karen Agoranos\nMarch 11, 2022\nPage 2\nof \"the e-mail * * * that John Koziol sent to all employees Friday.\"’ nl The request concerned an e-\nmail that Mr. Koziol sent on his last day of employment as the Village's police chief using his\nPolice Department e-mail account. On January 4, 2022, the Village's Freedom of Information\nOfficer denied the request pursuant to section 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) (West 2020),\nas amended by Public Acts 102-038, effective June 25, 2021; 102-558, effective August 20,\n2021), stating that the e-mail \"is very personal; the Chief's last heartfelt message to his team\nupon his retirement.\"? Later that same day, the Village issued an amended response and\ndisclosed a copy of the e-mail at issue but redacted most portions under section 7(1)(c).?\nOn January 14, 2022, Mr. Mayer submitted to the Public Access Bureau a copy of\nthe Village's amended response and a Request for Review disputing the redactions; he stated that\nJournal & Topics Media Group was told that the \"'goodbye’ e-mail\" Mr. Koziol sent to Police\nDepartment employees \"contains information about the police department.\"* On January 21,\n2022, Mr. Mayer completed his submission by forwarding to this office copies of the January 3,\n2022, FOIA request,° and the Village's January 4, 2022, initial response.®\nOn January 26, 2022, the Public Access Bureau sent a copy of the Request for\nReview to the Village. The Public Access Bureau also sent the Village a letter requesting an\nunredacted copy of the e-mail in question for this office's confidential review and a detailed\nwritten explanation of the legal and factual bases for the applicability of the section 7(1)(c)\n‘E-mail from Richard Mayer, Associate Editor, Journal & Topics Media Group, to Greg (Sill,\nVillage of Mount Prospect Police Department] (January 3, 2022).\n*Letter from Karen Agoranos, Freedom of Information Officer, [Village of Mount Prospect], to\nRichard May[e]r (January 4, 2022).\n3Letter from Karen Agoranos, Freedom of Information Officer, Village of Mount Prospect, to\nRichard May[e]r (January 4, 2022).\n4E-mail from Richard Mayer, Associate Editor, Journal & Topics Media Group, to Public Access\n(Bureau, Office of the Attorney General] (January 14, 2022).\n>E-mails from Richard Mayer, Associate Editor, Journal & Topics Media Group, to Steven\nSilverman [Bureau Chief, Public Access Bureau, Office of the Attorney General] (January 21, 2022).\nSection 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)) requires a Request for Review to be\n\"signed by the requester, and include (i) a copy of the request for access to records and (ii) any responses from the\npublic body.\"\nMr. Richard Mayer\nMs. Karen Agoranos\nMarch 11, 2022\nPage 3\nexemption to the redacted portions.’ On February 11, 2022, counsel for the Village furnished’an\nunredacted copy of the e-mail, an unredacted written explanation, and another version of the\nwritten explanation from which it redacted the information it provided to this office\nconfidentially pursuant to section 9.5(d) of FOIA (5 ILCS 140/9.5(d) (West 2020)).8 On\nFebruary 14, 2022, this office sent Mr. Mayer a copy of the Village's redacted response.’ On\nFebruary 21, 2022, Mr. Mayer e-mailed this office a reply from Mr. Todd Wessell, the Editor\nand Publisher of Journal & Topics Media Group.'°\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with\" FOIA. 5 ILCS\n140/1 (West 2020). Under FOIA, \"[a]ll records in the custody or possession of a public body are\npresumed to be open to inspection or copying. Any public body that asserts that a record is\nexempt from disclosure has the burden of proving by clear and convincing evidence that it is\nexempt.” 5 ILCS 140/1.2 (West 2020).\nIn addition to reiterating that the redacted portions of the e-mail are exempt from\n_ disclosure under section 7(1)(c), the Village's response to this office asserted that the e-mail is\nnot a public record subject to the requirements of FOJA. Alternatively, the Village contended\nthat the redacted portions of the e-mail are exempt from disclosure under section 7(1)(f) of FOIA\n(5 ILCS 140/7(1)(£) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;\n102-558, effective August 20, 2021). This office will consider each argument in turn.\nSection 2(c) of FOIA\nSection 2(c) of FOIA (5 ILCS 140/2(c) (West 2020)) defines \"public records\" as:\n7Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney -\nGeneral, to Karen Agoranos, Village Clerk/Freedom of Information Officer, Village of Mount Prospect (January 26,\n2022).\n’Letter from Mallory A. Milluzzi, Klein, Thorpe & Jenkins, Ltd. to Steve Silverman (February 11,\n2022). ,\n°Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Richard Mayer, Associate Editor, Journal & Topics Media Group (February 14, 2022).\n'0F-mail from Todd Wessell, Editor & Publisher, [Journal & Topics Media Group], to [Steve]\nSilverman (February 21, 2022).\nMr. Richard Mayer\nMs. Karen Agoranos\nMarch 11, 2022\nPage 4\nall records, reports, forms, writings, letters, memoranda, books,\npapers, maps, photographs, microfilms, cards, tapes, recordings,\nelectronic data processing records, electronic communications,\nrecorded information and all other documentary materials\npertaining to the transaction of public business, regardless of\nphysical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body.\nIn City of Champaign v. Madigan, 2013 IL App (4th) 120662, 931, 992 N.E.2d 629, 637 (2013),\nthe Illinois Appellate Court examined the meaning of the term \"public business\" in the context of\na FOIA request seeking communications sent and received by members of a public body during\nan open meeting. The court found that the term \"public business\" has a plain and ordinary\nmeaning: \"to qualify as a public record a communication must first pertain to business or\ncommunity interests as opposed to private affairs.\" City of Champaign, 2013 IL App (4th)\n120662, 931, 992 N.E.2d at 637 (quoting Merriam~Webster's Collegiate Dictionary 941 (10th ed.\n2000)). Because the request was \"limited to nonpersonal communications, i.e., communications\npertaining to public business, sent and received during the time the city council was in session[,]\"\nthe court held that the responsive communications were public records even though they were\ntransmitted on the personal electronic devices of members of the public body. City of\nChampaign, 2013 IL App (4th) 120662, 43, 992 N.E.2d at 640.\nThe Village's response to this office acknowledged that the e-mail contains Mr.\n\"Mr. Koziol's frank.opinions on Village policies and procedure[,]\" but characterized it as a\npersonal communication sent by Mr. Koziol on his final day as police chief when he \"was barely\na public employee[.]\"!' The Village contended that the \"email was a personal goodbye\ncorrespondence sent to colleagues and friends. It expressed his personal opinions and beliefs\nabout leaving and his personal thoughts on his history with the Village. This is clearly his own\nprivate affairs.\"!* In support of its argument that the e-mail is not a public record, the Village\ncited an Arizona Supreme Court decision in which the Court concluded that the meaning of\n\"public records\" in that state's public records law'3 \"does not encompass documents of a purely:\nprivate or personal nature. Instead, only those documents having a ‘substantial nexus' with a\n\"Letter from Mallory A. Milluzzi, Klein, Thorpe & Jenkins, Ltd. to Steve Silverman (February\n11, 2022), at [4].\n\"Letter from Mallory A. Milluzzi, Klein, Thorpe & Jenkins, Ltd. to Steve Silverman (February\n11, 2022), at [4].\nAriz, Rev. Stat. Ann. §§ 39-121 to 39-121.03 (2001 & Supp. 2006).\nMr. Richard Mayer\nMs. Karen Agoranos\nMarch 11, 2022\nPage 5\ngovernment agency's activities qualify as public records.\" Griffis v. Pinal County, 215 Ariz. 1,\n410, 156 P.3d 418, 421 (Ariz. 2007) (quoting Salt River Pima-Maricopa Indian Community v.\nRogers, 168 Ariz. 531, 541, 815 P.2d 900, 910 (Ariz. 1991)). Additionally, the Village cited a\nWisconsin Supreme Court decision in which the Court held that e-mails of public school teachers\nwhich \"have no connection to a government function\" do not meet the definition of a \"record\"\nsubject to the requirements of Wisconsin's Public Records Law.'* Schill v. Wisconsin Rapids\nSchool District, 2010 WI 86, (23, 327 Wis. 2d 572, 587, 786 N.W.2d 177, 185 (Wis. 2010). The\nVillage also cited remarks by an Illinois State Senator during legislative debate on a bill she\nsponsored to amend section 11 of the Personnel Record Review Act!> to prohibit disclosure of\npublic employees' performance evaluations, in which the Senator indicated that the legislation\nwas intended to protect public employees from ridicule.'®\nIn his reply, Mr. Wessell stated that while Journal & Topics Media Group did not\ndispute that \"public employees are legally allowed to send quick messages on non-governmental\nmatters, like a wife asking her husband to bring home a gallon of milk,\" it did \"believe very\nstrongly that a police chief allegedly commenting on probable highly-charged matters related to\nhis job and the operation of the community he swore to serve is\" germane to public business.!”\nThe legislative history cited in the Village's response to this office has no\nrelevance to this matter because the e-mail at issue is not a performance evaluation. The e-mail\nalso is readily distinguishable from the cases the Village cited because it concerns public\nbusiness rather than private affairs. The records in Schill included messages about family and\nsocial matters such \"as an e-mail from a teacher to her spouse about child care responsibilities\nand an email from a friend to a teacher regarding social plans.\" Schill, 2010 WI 86, 429, 327\nWis. 2d at 590, 786 N.W.2d at 187. It was \"uncontested that the Teachers' personal e-mails at\nissue were not prepared for work-related purposes. It is also uncontested that the contents of the\ne-mails at issue do not relate to the school district or government affairs or any official actions of\nthe Teachers or other public officers or employees or the conduct of governmental business.\"\nSchill, 2010 WI 86, 930, 327 Wis. 2d at 590, 786 N.W.2d at 187. Similarly, the issue considered\nin Griffis was whether \"e-mails generated or maintained on a government-owned computer\nsystem are automatically public records.\" Griffis, 215 Ariz. at 12, 914, 156 P.3d at 422. As was\nthe case in City of Champaign, the court explained that e-mails that \"relate solely to personal\nl4Wis. Stat. § 19.32(2) (2007-08).\n'5820 ILCS 40/11 (West 2008), as amended by Public Act 96-1483, effective December 1, 2010.\n‘Remarks of Sen. Lightford, April 29, 2010, Senate Debate on House Bill 5154, at 189.\n\"E-mail from Todd Wessell, Editor & Publisher, [Journal & Topics Media Group], to [Steve]\nSilverman (February 21, 2022). .\nMr. Richard Mayer\nMs. Karen Agoranos\nMarch 11, 2022\nPage 6\nmatters\" are not public records, unlike records that’ 'relate to government business.\" Griffis, 215\nAriz. at 12, 914, 156 P.3d at 422.\nThe e-mail at issue in this matter does not concern private affairs such as child\ncare responsibilities or social plans. The e-mail directly comments on Police Department\npolicies and procedure and the conduct of Village police officers and other employeés. Mr.\nKoziol prepared the e-mail for a work-related purpose and it directly relates to his public duties\nand the public duties of the employees who received the e-mail. Although the e-mail does\n_ express Mr. Koziol's personal opinions and beliefs, those opinions and beliefs concern Police\nDepartment policy and operation. That is the very type of record the General Assembly intended\nFOIA to address. See 5 ILCS 140/1 (West 2020) (declaring it \"to be the public policy of the\nState of Illinois that all persons are entitled to full and complete information regarding the affairs\nof government and the official acts and policies of those who represent them as public officials\nand public employees consistent with the terms of this Act.\"). The proximity of the e-mail to Mr.\nKoziol's retirement is of no consequence. It is undisputed that he was employed as the Village's\npolice chief when he sent the e-mail to Village employees in the Police Department. Because the\ne-mail was prepared by a Village employee using his Police Department e-mail account and is in\nthe possession of the Village, and because it pertains to the transaction of public business rather\nthan private affairs, it is a public record subject to the requirements of FOIA.'®\nSection 7(1)(c) of FOTIA\nSection 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal\nprivacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\" The exemption further provides: \"The disclosure of information that\nbears on the public duties of public employees and officials shall not be considered an invasion\nof personal privacy.\"\nThe Village's explanation for the applicability of the section 7(1)(c) exemption\nasserted that \"a goodbye email froma retiring [police] chief on the eve of his retirement does not\n'8The Village also cited a non-binding determination in which the Public Access Bureau\ndetermined that communications on a village's computer system containing sexually explicit material, which \"by\ntheir very nature do not relate to the municipal business of the Village[,]\" were not public records under FOIA. III.\nAtt'y Gen. PAC Req. Rev. Ltr. 24259, February 7, 2017, at 3. That determination has no relevance in this matter\nbecause such sexually graphic materiali s not comparable to a police chief's e-mail concerning Police Department\nbusiness and employees.\nMr. Richard Mayer\nMs. Karen Agoranos\nMarch 11, 2022\nPage 7\npertain to public duties.\"'? The Village further argued that the e-mail contains highly personal\nthoughts and feelings for which there is no public interest in disclosure because the police chief\nretired and \"has no sway or impact on policies at this point.\"?°\nAs discussed above, the e-mail was not written by a private citizen and it does not\nconcern private affairs. Mr. Koziol prepared and transmitted the e-mail while he was employed\nby the Village, and the message comments on Police Department policies and procedure and the\nconduct of police officers and other public employees. Such an e-mail unequivocally bears on\nthe public duties of the police chief and other employees. Because the scope of the section -\n7(1)(c) exemption expressly excludes information that bears on the public duties of public\nemployees, it is unnecessary to weigh Mr. Koziol's right to privacy against the public interest in\ndisclosure of the e-mail. Accordingly, this office concludes that the Village improperly redacted\nthe e-mail under section 7(1)(c) of FOIA.\nSection 7(1)(f) of FOIA\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the recordi s publicly cited and identified by the head of the public body.\" The\nVillage's response to this office contended that:\nThe plain language of Section 7(1)(f) does not require an opinion\nto relate to the formulation of a policy. This language is distinctly\ndifferent than the Federal FOIA exemption * * * languag2e!,\nwhich does not mention opinions at all. As such, Mr. Koziol's\nfrank opinions on Village policies and procedure are exempt under\nFOIA.)\n‘Letter from Mallory A. Milluzzi, Klein, Thorpe & Jenkins, Ltd. to Steve Silverman (February\n11, 2022), at [4].\n2°] etter from Mallory A. Milluzzi, Klein, Thorpe & Jenkins, Ltd. to Steve Silverman (February\n11, 2022), at [4].\n2'\\Federal FOIA Exemption 5 (5 U.S.C. § 552(b)(5) (West 2018)) applies to \"inter-agency or intra-\nagency memorandums or letters which would not be available by law to a party other than an agency in litigation\nwith the agency[.]\"\n2Letter from Mallory A. Milluzzi, Klein, Thorpe & Jenkins, Ltd. to Steve Silverman (February\n11, 2022), at [4].\nMr. Richard Mayer\nMs. Karen Agoranos\nMarch 11, 2022\nPage 8\nThe Village's argument is contrary to court decisions that have consistently -\nconstrued the section 7(1)(f) exemption as limited to communications exchanged in the process\nof deliberating about potential decisions. It is appropriate to consider interpretations of Federal\nFOIA when analyzing exemptions in the State statute because of the laws' similarities. State\nJournal-Register v. University of Illinois-Springfield, 2013 IL App (4th) 120881, 421, 994\nN.E.2d 705, 712 (2013). In Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003),\nthe Illinois Appellate Court explained that section 7(1)(f) of the Act \"is the equivalent of the\n‘deliberative process’ exemption found in section 552(b)(5) of the federal Freedom of\nInformation Act[.]\" Section 7(1)(f) \"protects the opinions that public officials form while\ncreating government policy.\" Kalven v City of Chicago, 2014 IL App (Ist) 121846, 24, 7\nN.E.3d 741, 747-48 (2013), rev'd on other grounds by Perry v. Dep't of Financial and\nProfessional Regulation, 2018 IL 123349, 106 N.E.3d 1016 (2018). \"[I]t is well settled that\n‘(o]nly those portions of a predecisional document that reflect the give and take of the\ndeliberative process may be withheld.\" Kalven, 2014 IL App (lst) 121846, 424, 7 N.E.3d at 748\n(quoting Public Citizen, Inc.,v. Office of Management & Budget, 598 F.3d 865, 876 (D.C. Cir.\n2010)); see also Chicago Tribune Co. v. Cook County Assessor's Office, 2018 IL App (ist)\n170455, 928, 109 N.E.3d 872, 880 (2018) (\"In order to qualify for the deliberative process\nexemption, a document must be both predecisional in the sense that it is actually antecedent to\nthe adoption of an agency policy, and deliberative in the sense that it is actually related to the\nprocess by which policies are formulated.\" (Emphasis added.)).\nThus, section 7(1)(f) does not exempt from disclosure all opinions expressed by\npublic officials or employees regardless of the context. The exemption encompasses only\npredecisional opinions that are exchanged as part of a public body's process of formulating\naction.\nDespite arguing earlier in its response that Mr. Koziol \"has no sway or impact on\npolicies at this point[,]\"”’ the Village alternatively asserted that section 7(1)(f) is applicable to his\ne-mail because Village employees \"could use this email to further current preliminary policy\ndecisions and discussions all of which are still ongoing[.]\"’* The Village provided additional\ninformation about this claim confidentially. However, the response did not provide clear and\nconvincing evidence that the e-mail was sent in connection with the Village or its Police\nDepartment deliberating on policy decisions and discussions. Coastal States Gas Corp. v. Dep't\nof Energy, 617 F.2d 854, 868 (D.C. Cir. 1980) (a public body that asserts the deliberative process\nLetter from Mallory A. Milluzzi, Klein, Thorpe & Jenkins, Ltd. to Steve Silverman (February\n11, 2022), at [4].\n. 4Letter from Mallory A. Milluzzi, Klein, Thorpe & Jenkins, Ltd. to Steve Silverman (February\n11, 2022), at [4].\nMr. Richard Mayer\nMs. Karen Agoranos\nMarch 11, 2022\nPage 9\nexemption \"has the burden of establishing what deliberative process is-involved, and the role\nplayed by the documents in issue in the course of that process.\"). Accordingly, the Village has\nnot sustained its burden of demonstrating that the e-mail is exempt from disclosure under section\n7(1)(f) of FOIA. *\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On January 3, 2022, Mr. Richard Mayer, on behalf of Journal & Topics Media\nGroup, submitted a FOJA request to the Village of Mount Prospect Police Department seeking a\ncopy of an e-mail that Mr. John Koziol sent to employees on the previous Friday. Mr. Koziol\nsent the e-mail during his final day of employment before retiring as the Village's Police Chief.\n2) On January 4, 2022, the Village's Freedom of Information Officer denied the\nrequest in its entirety, citing section 7(1)(c) of FOIA. Later that day, the Village issued an\namended response and disclosed a copy of the responsive e-mail but redacted most portions\nunder section 7(1)(c). . ,\n. 3) On January 14, 2022, Mr. Mayer submitted to the Public Access Bureau a\ncopy of the Village's amended response and a written Request for Review disputing the\nredactions. On January 21, 2022, Mr. Mayer completed his submission by providing this office\nwith a copy of his FOJA request and the Village's initial response. The Request for Review was\ntimely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS\n140/9.5(a) (West 2020)). Accordingly, the Attorney General may issue a binding opinion with.\nrespect to this matter.\n4) On January 26, 2022, the Public Access Bureau sent a copy of the Request for\nReview to the Village. The Public Access Bureau also sent the Village a letter requesting an\nunredacted copy of the e-mail in question for this office's confidential review and a detailed\nwritten explanation of the legal and factual bases for the applicability of the section 7(1)(c)\nexemption to the redacted portions.\n5) On February 11, 2022, counsel for the Village sent this office a copy of the e-\nmail, an unredacted written response for the Public Access Bureau's review, and a copy of the\nresponse with confidential information redacted.\n6) On February 14, 2022, the Public Access Bureau forwarded a copy of the\nredacted response to Mr. Mayer and notified him of the opportunity to reply. On February 21,\nMr. Richard Mayer\n_Ms. Karen Agoranos\nMarch 11, 2022\nPage 10\n2022, Mr. Mayer provided this office with a written reply from Mr. Todd Wessell, Editor &\nPublisher of Journal & Topics Media Group.\n7) Section 2(c) of FOIA defines \"public records\" as \"all records * * * pertaining\nto the transaction of public business, regardless of physical form or characteristics, having been\nprepared by or for, or having been or being used by, received by, in the possession of, or under\nthe control of any public body.\" Public records are records that pertain to community or business\ninterests rather than private affairs.\n_ 8) The e-mail at issue is in the possession of the Village and it was prepared by\nMr. Koziol during his employment as the Village's Police Chief. The e-mail addresses Police\nDepartment policies and procedure and the conduct of Police Department employees. These\ntopics pertain to the transaction of public business. Therefore, the e-mail is a public record\nsubject to the requirements of FOIA.\n9) Section 7(1)(c) of FOIA exempts from disclosure \"{p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" The exemption expressly provides: \"The disclosure of\ninformation that bears on the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy.\"\n10) The e-mail at issue, which Mr. Koziol prepared and transmitted while\nemployed as the Village's police chief, addresses Police Department policies and procedure and\nthe conduct of Village police officers. The content of the e-mail unequivocally bears on Mr.\nKoziol's and staff members’ public duties. Therefore, disclosure would not constitute an\nunwarranted invasion of personal privacy under section 7(1)(c) of FOIA.\n11) Section 7(1)(f) exempts from disclosure \"[p]reliminary drafts, notes, ~\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" This\nexemption permits public bodies to withhold portions of predecisional communications that\nreflect the give and take of deliberations in the process of formulating decisions.\n12) The Village has neither demonstrated that the opinions in the e-mail were\nprepared by Mr. Koziol in connection with a deliberative process, nor established any role that\nthe e-mail played in such a process. Accordingly, the Village has not demonstrated that the e-\nmail is exempt from disclosure pursuant to section 7(1)(f) of FOIA.\nMr. Richard Mayer\nMs. Karen Agoranos\nMarch 11, 2022\nPage 11]\n- Therefore, it is the opinion of the Attorney General that the Village of Mount\nProspect violated the requirements of FOIA by improperly redacting the e-mail responsive to Mr.\nRichard Mayer's January 3, 2022, Freedom of Information Act request. Accordingly, the Village\nis hereby directed to take immediate and appropriate action to comply with this opinion by\nproviding Mr. Mayer with an unredacted copy of the e-mail responsive to the FOIA request,\n‘except for the permissible redaction of Mr. Koziol's personal phone number and personal e-mail\naddress as \"private information\" under section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West\n2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558, effective August\n20, 2021).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days of the date of this decision naming the Attorney General of Illinois, Mr. Richard Mayer,\nand Journal & Topics Media Group as defendants. See 5 ILCS 140/11.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBy: nap at __\nBrent D. Stratton\n’ Chief Deputy Attorney General\ncc: Ms. Mallory A. Milluzzi_.\nKlein, Thorpe & Jenkins, Ltd.\n20 North Wacker Drive, Suite 1660\nChicago, Illinois 60606-2903\n5Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2020)) defines “private information\" as\n\"unique identifiers, including * * * home or personal telephone numbers[.]\"\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Bindirig Opinion (Public Access Opinion 22-004) upon:\nMr. Richard Mayer\nAssociate Editor ~\nJournal & Topics Media Group\n622 Graceland Avenue\nDes Plaines, Illinois 60016\nNews-MP@journal-topics.info\nThe Honorable-Karen M. Agoranos\nVillage Clerk/Freedom of Information Officer\nVillage of Mount Prospect\n50 South Emerson Street\nMount Prospect, Illinois 60056\nkagoranos@mountprospect.org\nMs. Mallory A. Milluzzi —\nKlein, Thorpe & Jenkins, Ltd.\n20 North Wacker Drive, Suite 1660\nChicago, Illinois 60606-2903\nmamilluzzi@ktjlaw.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on March 11, 2022.\nSTEVE SILVERMAN\nBureau Chief\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street, 11th Floor\nChicago, Illinois 60601\n(312) 814- 6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Richard Mayer requested an email sent by the outgoing Police Chief of Mount Prospect to all staff. The Village denied the request, claiming the email was private or exempt from disclosure. The Attorney General's office ruled that the email was a public record and that the Village failed to prove it was exempt, ordering the Village to release the document.","card_headline":"An outgoing police chief's email to staff on policies","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":152,"orig_master_id":19355,"dup_master_id":19126,"dup_sha256":"0aa6783ee9b52f2c0d812b34d1e43514f11ea78afcc82fa12e0320cedc1f6b1d","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2022,"date_issued":"2022-06-02","case_number":"2022 PAC 70322","request_numbers":null,"title":"Improper Remote Meetings During a Public Health Emergency","filename":"PUBLIC ACCESS OPINION 22-007 (Request for Review - 2022 PAC 70322).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 22-007 (Request for Review - 2022 PAC 70322).pdf","word_count":3318,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding allegations of improper remote meetings held by the Village of University Park Board of Trustees during a public health emergency.","plain_summary":"The requester alleged that a village board of trustees held two regular meetings remotely without providing the public any way to access them, since the posted agendas said only that the meetings would be held on a virtual platform. The Public Access Counselor held that the board violated the Open Meetings Act by failing to post a telephone number, web link, or other access information on its website in advance of either meeting, noting that posting access information only on social media did not satisfy the requirement to post it on the public body's own website. The board was directed to include remote-access information in its meeting notices for future remote meetings.","holding":"The Village of University Park Board of Trustees held improper remote meetings on January 25, 2022, and February 22, 2022.","legal_question":"Whether the Village of University Park Board of Trustees held meetings in violation of the Open Meetings Act.","disposition":"violation_found","primary_statute":["5 ILCS 120/7","5 ILCS 120/7.5"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of University Park Board of Trustees","requesting_party":"Ms. Star Lawson","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"remote meeting","subject_description":"The Village of University Park held board meetings during a public health emergency without providing the public with in-person access or a functional remote link.","ocr_status":"ok","ocr_quality":90.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2022-Binding-PAC-Opinions/22-007.pdf","sha256":"cbe0f27757b10ce193c2bf32d3fab650a2478e4616a4b7442c33586e84ef93a0","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["remote meeting","public access","Open Meetings Act","transparency"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nJune 2, 2022\nPUBLIC ACCESS OPINION 22-007\n(Request for Review 2022 PAC 70322)\nOPEN MEETINGS ACT:\nImproper Remote Meetings\nDuring a Public Health Emergency\nMs. Star Lawson\n[street address redacted for site publication -- see original PDF]\nThe Honorable Joseph E. Roudez III\nMayor\nVillage of University Park\nVillage Hall\n44 Town Center Drive\nUniversity Park, Illinois 60484\nThe Honorable Dorothy R. Jones\nClerk\nVillage of University Park\nVillage Hall\n44 Town Center Drive\nUniversity Park, Illinois 60484\nDear Ms. Lawson, Mayor Roudez, and Clerk Jones:\nThis binding opinion is issued by the Attorney General pursuant to section 3.5(e)\nof the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons discussed\nbelow, this office concludes that the Village of University Park (Village) Board of Trustees\n(Board) held improper remote meetings on January 25, 2022, and February 22, 2022.\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © TTY: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 # (312) 814-3000 © TTY: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 ¢ ‘T’'T'Y: (877) 675-9339 © Fax (618) 529-6416 Gees»:\nMs. Star Lawson\nThe Honorable Joseph E. Roudez III\nThe Honorable Dorothy R. Jones\nJune 2, 2022\nPage 2\nBACKGROUND\nOn March 7, 2022, Ms. Star Lawson submitted a Request for Review alleging that\n\"the Mayor of University Park, Joseph E. Roudez, III, * * * has been holding Board of Trustee\nmeetings, but not allowing the residents to attend in person meetings. These board meetings\nprovide no link on the website for residents to have access to these meetings[.]\"! On March 8,\n2022, Ms. Lawson called Public Access Counselor Leah Bartelt, clarifying that her allegations\npertained, in relevant part, to the Board's January 2022 and February 2022 regular meetings and\nthe Board's failure to provide remote access information for those meetings.” That same day,\nPublic Access Counselor Bartelt accessed the section of the Village's website? where notices and\na were posted for the Board's regular meetings on January 25, 2022,’ and February 22,\n2022,\nOn March 17, 2022, the Public Access Bureau sent a copy of the Request for\nReview to Mayor Joseph E. Roudez III. The Public Access Bureau also sent Mayor Roudez a\nletter asking for copies of any notices, agendas, minutes, and recordings from the Board's\nJanuary 25, 2022, and February 22, 2022, regular meetings, and a written response to the\nallegation that \"the Board has routinely failed to provide the public with a link, or other means of\naccess, to various recent Board meetings.\"® Having received no response, on April 7, 2022, the\nPublic Access Bureau sent a second copy of the Request for Review to Mayor Roudez, again\nrequesting that the Board \"provide a written response to Ms. Star Lawson's Request for Review\nand copies of the records this office has requested.\"’\n'E-mail from Star Lawson to Public Access [Bureau, Office of the Attorney General] (March 7,\n2022).\nTelephone conversation between Star Lawson and Leah Bartelt, Public Access Counselor, Office\nof the Attorney General (March 8, 2022).\n3Village of University Park, Agendas and Minutes, https://www.university-park-\nil.com/agendalist/index.php (last visited May 20, 2022).\n‘Village of University Park, Board of Trustees, Agenda, Regular Meeting (January 25, 2022).\nVillage of University Park, Board of Trustees, Agenda, Regular Meeting (February 22, 2022).\n°Letter from Christopher R. Boggs, Supervising Attorney, Public Access Bureau, Office of the\nAttorney General, to The Honorable Joseph E. Roudez III, Mayor, Village of University Park (March 17, 2022).\n‘Letter from Christopher R. Boggs, Supervising Attorney, Public Access Bureau, Office of the\nAttorney General, to The Honorable Joseph E. Roudez III, Mayor, Village of University Park (April 7, 2022).\nMs. Star Lawson\nThe Honorable Joseph E. Roudez III\nThe Honorable Dorothy R. Jones\nJune 2, 2022\nPage 3\nOn April 11, 2022, Mayor Roudez and Village Clerk Dorothy R. Jones called\nSupervising Attorney Christopher R. Boggs to acknowledge receipt of this office's April 7, 2022,\nfurther inquiry letter. Mayor Roudez confirmed that the Board would provide the requested\nmaterials and a written response to this office by close of business the following day.’ On April\n25, 2022, having still received no response from the Board, the Public Access Bureau e-mailed\nMayor Roudez, copying Clerk Jones, inquiring: \"Following our April 11, 2022, telephone\nconversation, you and Clerk Jones ensured that the Village would provide its written response to\nthe Public Access Bureau as soon as possible. As of this writing, I have yet to receive any\nwritten response from the Village for this matter. Please advise.\"? That e-mail also contained\ncopies of the Request for Review and the two further inquiry letters seeking a response from the\nBoard.\nOn May 3, 2022, the Public Access Bureau extended the time within which to\nissue a binding opinion by 21 business days, to June 7, 2022, pursuant to section 3.5(e) of\nOMA.'°\nOn May 18, 2022, Clerk Jones submitted to this office, in relevant part, copies of\nthe meeting notices/agendas in question, links to view verbatim recordings of the two meetings,\nand a written answer on behalf of the Board. The Board's written answer asserted:\nThe allegations are false and without merit. Attached to this email\nis the agenda for the meetings of January 25, 2022, and February\n22, 2022, along with an explanation from the Communications\nSpecialist Neva Jenkins on how notice is given to residents on how\nto view the meetings on our website and on our You Tube\nStation.\"\n8Telephone conversation between Joseph E. Roudez III, Mayor, Village of University Park,\nDorothy R. Jones, Village Clerk, University of Village Park, and Christopher R. Boggs, Supervising Attorney,\nPublic Access Bureau, Office of the Attorney General (April 11, 2022).\n°E-mail from Christopher R. Boggs, AAG, Supervising Attorney, Public Access Bureau, Office of\nthe Attorney General, to Mayor [Joseph E.] Roudez [III] (April 25, 2022).\nLetter from Christopher R. Boggs, Supervising Attorney, Public Access Bureau, Office of the\nAttorney General, to Star Lawson, The Honorable Joseph E. Roudez III, Mayor, Village of University Park, and The\nHonorable Dorothy R. Jones, Clerk, Village of University Park (May 3, 2022).\nE-mail from Dorothy \"Dee\" Jones, MMC, RMC, Village Clerk/Chief FOIA Officer, Village of\nUniversity Park, to [Christopher] Boggs (May 18, 2022).\nMs. Star Lawson\nThe Honorable Joseph E. Roudez III\nThe Honorable Dorothy R. Jones\nJune 2, 2022\nPage 4\nMs. Jenkins' explanation, provided in an e-mail to Clerk Jones, described her process for posting\nnotice of Board meetings:\nWhen the Board Meeting Agenda is emailed to me, I create a zoom\nlink and share it to the Mayor[,] Board of Trustees, Clerk, and\nmeeting guests. The agenda is posted to our website. The website\nlink to view the post is then shared on our social media Facebook\npage with the YouTube link https://www.youtube.com/\nchannel/UCHul9H2F XssoBuZrGyt2Rfw This link is to our\nYouTube channel. All of the links are listed here. During the\nboard meeting when we are on live the square flashes LIVE. That\nis where the meeting can be viewed. * * *. After the meeting is\nover, the meeting can be viewed immediately afterwards. The\nmeeting is then listed on our YouTube librar|y\"?.!\nOn May 19, 2022, this office forwarded a copy of the Board's answer to Ms.\nLawson.'? She did not reply.\nANALYSIS\nOMA declares that it is \"the public policy of this State that its citizens shall be\ngiven advance notice of and the right to attend all meetings at which any business of a public\nbody is discussed or acted upon in any way.\" 5 ILCS 120/1 (West 2020).\nSection 7(e) of OMA (5 ILCS 120/7(e) (West 2020)) sets forth the requirements\nfor a public body to conduct a remote meeting without a quorum physically present during a\npublic health emergency, such as the COVID-19 pandemic. At the time of the Board's January\n25, 2022, and February 22, 2022, regular meetings, statewide disaster declarations'* were in\nplace that the Governor had issued pursuant to his authority under the Illinois Emergency\nManagement Agency Act (20 ILCS 3305/7 (West 2020)). Those disaster declarations satisfied\nE-mail from Nai Neva Jenkins, Village of University Park, Village Communications &\nCommunity Engagement Specialist, to Clerk [Dorothy] Jones (May 17, 2022).\n'3Letter from Christopher R. Boggs, Supervising Attorney, Public Access Bureau, Office of the\nAttorney General, to Star Lawson (May 19, 2022).\n'4Gubernatorial Disaster Proclamation, issued January 7, 2022, at [7]; Gubernatorial Disaster\nProclamation, issued February 4, 2022, at [7].\nMs. Star Lawson\nThe Honorable Joseph E. Roudez III\nThe Honorable Dorothy R. Jones\nJune 2, 2022\nPage 5\nsection 7(e)(1) of OMA (5 ILCS 7(e)(1) (West 2020)).'° The following two additional\nsubsections are particularly relevant here:\n(e) Subject to the requirements of Section 2.06 but\nnotwithstanding any other provision of law, an open or closed\nmeeting subject to this Act may be conducted by audio or\nvideo conference, without the physical presence of a quorum of\nthe members, so long as the following conditions are met:\n* KOK\n(4) for open meetings, members of the public present at the\nregular meeting location of the body can hear all discussion\nand testimony and all votes of the members of the body,\nunless attendance at the regular meeting location is not\nfeasible due to the disaster, * * * in which case the public\nbody must make alternative arrangements and provide\nnotice pursuant to this Section of such alternative\narrangements in a manner to allow any interested member\nof the public access to contemporaneously hear all\ndiscussion, testimony, and roll call votes, such as by\noffering a telephone number or a web-based link;\nOK OK\n(7) Except in the event of a bona fide emergency, 48 hours'\nnotice shall be given of a meeting to be held pursuant to\nthis Section. Notice * * * shall be posted on the website of\nthe public body].\nConstruing the plain language of sections 7(e)(4) and 7(e)(7) together, when a public body holds\na remote meeting that is not accessible to the public at the regular meeting location, the public\n'SSection 7(e)(1) of OMA provides:\n(1) the Governor or the Director of the Illinois Department of Public\nHealth has issued a disaster declaration related to public health concerns because\nof a disaster as defined in Section 4 of the Illinois Emergency Management\nAgency Act, and all or part of the jurisdiction of the public body is covered by\nthe disaster area[.]\nMs. Star Lawson\nThe Honorable Joseph E. Roudez III\nThe Honorable Dorothy R. Jones\nJune 2, 2022\nPage 6\nbody must post the remote meeting access information on its website with the meeting\nnotice/agenda at least 48 hours in advance of the meeting, except in the event of a bona fide\nemergency. This contrasts with other provisions concerning website postings in OMA, which\nrequire website posting only if \"the full-time staff of the public body maintains\" the public\nbody's website.'© See Julie Q. v. Dep't of Children & Family Services, 2013 IL 113783, 941, 995\nN.E.2d 977, 985 (2013). (\"The legislature's decision to use certain language in one instance and\ndifferent language in another indicates that the legislature intended different results.\").\nThis office has reviewed copies of the January 25, 2022, and February 22, 2022,\nmeeting agendas provided in the Board's response. Each of the agendas begin with the same\nstatement indicating, in relevant part:\nPursuant to Governor Pritzker's Executive Order 2020-07\n(COVID-19 Executive Order No. 5) As Amended, which suspends\nthe requirement of the Illinois Open Meetings Act requiring in-\nperson attendance by members of a public body during the\nduration of the Gubernatorial Disaster Proclamation, the members\nof the Village Board will not be physically present for the\ndesignated board meeting but will instead be participating in the\nmeeting through audio access using a virtual meeting platform.\"'7)\nThe January 25, 2022, and February 22, 2022, agendas plainly stated that the meetings would be\nheld through a virtual platform. However, they provided no notice of how members of the public\ncould access the meetings in real time, nor do they indicate that members of the public would be\nallowed to attend the meetings in-person. Posting notice of remote meetings that were not\naccessible to the public at the regular meeting location without indicating how to access the\nmeetings failed to satisfy the Board's statutory obligation to \"make alternative arrangements and\nprovide notice pursuant to this Section of such alternative arrangements in a manner to allow\nany interested member of the public access to contemporaneously hear all discussion, testimony,\nand roll call votes, such as by offering a telephone number or a web-based link.\" (Emphasis\nadded.) 5 ILCS 120/7(e)(4) (West 2020). Posting this information on a public body's social\nmedia accounts does not satisfy the requirement in section 7(e)(7) of OMA to post notice \"on the\nwebsite of the public body[.]\"\n'©65 ILCS 120/2.02(a), (b) (West 2020); 5 ILCS 120/2.06(b) (West 2020) as amended by Public\nAct 102-653, effective January 1, 2022.\nVillage of University Park, Board of Trustees, Agenda, Regular Meeting (January 25, 2022);\nVillage of University Park, Board of Trustees, Agenda, Regular Meeting (January 25, 2022).\nMs. Star Lawson\nThe Honorable Joseph E. Roudez III\nThe Honorable Dorothy R. Jones\nJune 2, 2022\nPage 7\nAccordingly, because the Board provided insufficient advance notice and\nafforded inadequate access to its January 25, 2022, and February 22, 2022, regular meetings, the\nBoard violated OMA on those dates.\nFINDINGS AND CONCLUSIONS\nAfter full examination based on the evidence available, the Public Access\nCounselor's review, and the applicable law, the Attorney General finds that:\n1) On January 25, 2022, and February 22, 2022, the Village of University Park\nBoard of Trustees held remote regular meetings. The agendas posted on the Village's website\nstated that the Board would be \"participating in the meeting through audio access using a virtual\nmeeting platform.\" The agendas did not indicate that members of the public could attend the\nmeeting at the regular meeting location, or provide notice of alternative arrangements for the\npublic to attend the meetings remotely.\n2) On March 7, 2022, Ms. Star Lawson submitted a Request for Review to the\nPublic Access Bureau alleging that the Board violated OMA by holding the meetings remotely\nwithout providing the public with information for accessing the meetings before they began. Ms.\nLawson's Request for Review was timely filed and otherwise complies with the requirements of\nsection 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)).\n3) On March 17, 2022, the Public Access Bureau sent a copy of the Request for\nReview to Mayor Joseph E. Roudez III and asked the Board to provide copies of any notices,\nagendas, minutes, and recordings from its January 25, 2022, and February 22, 2022, meetings.\nThis office also requested a written response to the allegation that the Board did not provide the\npublic with advance notice of a web-based link to the meeting or other means of accessing the\nmeeting. On April 7, 2022, having received no response from the Board, the Public Access\nBureau sent a second copy of the Request for Review to Mayor Roudez, and again requested\nmeeting materials and a written response to Ms. Lawson's allegations.\n4) On May 3, 2022, the Public Access Bureau extended the time within which to\nissue a binding opinion by 21 business days, to June 7, 2022, pursuant to section 3.5(e) of OMA.\nAccordingly, the Attorney General may properly issue a binding opinion with respect to this\nmatter.\n5) On May 18, 2022, Village Clerk Dorothy R. Jones provided copies of the\nnotices/agendas for the meetings in question, links to view verbatim recordings of the two\nmeetings, and a written answer on behalf of the Board. The Board's written answer asserted that\nMs. Star Lawson\nThe Honorable Joseph E. Roudez III\nThe Honorable Dorothy R. Jones\nJune 2, 2022\nPage 8\nit shared on its Facebook page (1) the website link to view the meeting notice/agenda and (2) the\nYouTube link to view the meeting. The Board has not contested the allegation that it failed to\ninclude in its notices/agendas a web-based link or other means to contemporaneously access the\nremote meetings.\n6) On May 19, 2022, this office forwarded a copy of the Board's answer to Ms.\nLawson. She did not reply.\n7) Section 7(e) of OMA provides the legal framework for public bodies to hold\nmeetings remotely during the COVID-19 pandemic when a Gubernatorial disaster declaration is\nin effect.\n8) Section 7(e)(4) requires that when \"attendance at the regular meeting location\nis not feasible due to the disaster, including the issued disaster declaration, * * * the public body\nmust make alternative arrangements * * * to allow any interested member of the public access to\ncontemporaneously hear all discussion, testimony, and roll call votes, such as by offering a\ntelephone number or a web-based link[.]\" Section 7(e)(7) adds that \"[e]xcept in the event of a\nbona fide emergency, 48 hours' notice shall be given of a meeting to be held pursuant to this\nSection. Notice * * * shall be posted on the website of the public body[.]\" When read in tandem,\nthese provisions combine to expressly require that public bodies post on their website notice of\nthe access information for a remote meeting under section 7(e) of OMA.\n9) The Board held its January 25, 2022, and February 22, 2022, regular meetings\nvia a virtual platform, but the agendas posted on the Village's website did not provide advance\nnotice of a telephone number, web-based link, or any other means for the public to access the\nmeetings before they began.\n10) Therefore, the Board improperly held its January 25, 2022, and February 22,\n2022, meetings remotely without satisfying the remote meeting requirements of section 7(e) of\nOMA.\nIn accordance with these findings of fact and conclusions of law, the Public\nAccess Bureau concludes that the Village of University Park Board of Trustees violated OMA by\nfailing to provide the public with adequate public access to its January 25, 2022, and February\n22, 2022, regular meetings. The Board is directed to include the remote access information, such\nas a telephone number or a web-based link, in the meeting notice/agenda for any future remote\nmeeting.\nMs. Star Lawson\nThe Honorable Joseph E. Roudez III\nThe Honorable Dorothy R. Jones\nJune 2, 2022\nPage 9\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Ms. Star\nLawson as defendants. See 5 ILCS 120/7.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nee ae\nBrent D. Stratton\nChief Deputy Attorney General\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 22-007) upon:\nMs. Star Lawson\n517 Landau Road\nUniversity Park, Illinois 60484\ngydnSTAR4u@gmail.com\nThe Honorable Joseph E. Roudez III\nMayor\nVillage of University Park\nVillage Hall\n44 Town Center Drive\nUniversity Park, Illinois 60484\njroudez@university-park-il.com\nThe Honorable Dorothy R. Jones\nClerk\nVillage of University Park\nVillage Hall\n44 Town Center Drive\nUniversity Park, Illinois 60484\ndjones@university-park-il.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on June 2, 2022.\n“STEVE SILVERMAN\nBureau Chief\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street, 11th Floor\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A resident complained that the Village of University Park was holding board meetings that the public could not attend in person and for which no online access was provided. The Attorney General's office investigated and found that the Village failed to follow the Open Meetings Act rules for remote meetings during the pandemic. This means the Village did not provide the necessary transparency or access required by law for those specific meetings.","card_headline":"A village board's remote meetings without public access","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":153,"orig_master_id":19354,"dup_master_id":19127,"dup_sha256":"f90d33800ac16c9ba8bf72c0c2d6e6baaa22d4941e736e2140cbff26d806f2db","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2022,"date_issued":"2022-05-06","case_number":"2022 PAC 69940","request_numbers":null,"title":"Taking Final Action on Matter Not on Meeting Agenda","filename":"PUBLIC ACCESS OPINION 22-006 (Request for Review - 2022 PAC 69940).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 22-006 (Request for Review - 2022 PAC 69940).pdf","word_count":3871,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a complaint about the Community Consolidated School District No. 93's violation of the Open Meetings Act during a meeting on February 10, 2022.","plain_summary":"The requester alleged that a school board changed its COVID-19 masking policy during a meeting without listing the topic on the agenda. The Public Access Counselor held that although the board never took a formal roll-call vote, its discussion reaching a consensus to make masks optional and directing the superintendent to notify the community constituted final action, which required the agenda to identify the general subject matter of that decision. The board was directed to hold a properly noticed vote in open session on its masking policy.","holding":"The Board of Education violated the Open Meetings Act by taking final action on a matter not included in the meeting agenda.","legal_question":"Did the Board of Education violate the Open Meetings Act by failing to include the general subject matter of a final action on the meeting agenda?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Community Consolidated School District No. 93","requesting_party":"Mr. Jay Bastian","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The Board of Education took final action on a change to student and staff masking guidelines without including the topic on the meeting agenda.","ocr_status":"ok","ocr_quality":90.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2022-Binding-PAC-Opinions/22-006.pdf","sha256":"f470ba140a0c88430926f5db29fa534063303e0f404872219599f3599a4a26db","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["meeting agenda","school board","mask mandate","public notice","final action"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nMay 6, 2022\nPUBLIC ACCESS OPINION 22-006\n(Request for Review 2022 PAC 69940)\nOPEN MEETINGS ACT:\nTaking Final Action on\nMatter Not on Meeting Agenda\nMr. Jay Bastian\n[street address redacted for site publication -- see original PDF]\nThe Honorable Scott Stone\nPresident, Board of Education\nCommunity Consolidated School District No. 93\n230 Covington Drive\nBloomingdale, Illinois 60108\nDear Mr. Bastian and Mr. Stone:\nThis binding opinion is issued by the Attorney General pursuant to section 3.5(e)\nof the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons discussed\nbelow, this office concludes that the Board of Education (Board) of Community Consolidated\nSchool District No. 93 (District) violated OMA at its February 10, 2022, regular meeting by\nimplementing a change in the District's masking guidelines for students and staff without setting\nforth the general subject matter of that final action on the meeting agenda.\nBACKGROUND\nOn February 15, 2022, Mr. Jay Bastian submitted an e-mail to the Public Access\nBureau complaining that the Board \"voted to make masks optional without a vote on the\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © I’V’Y: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © T’T'Y: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © ‘I’ PY: (877) 675-9339 ¢ Fax (618) 529-6416»\nMr. Jay Bastian\nThe Honorable Scott Stone\nMay 6, 2022\nPage 2\nagenda.\"' The e-mail contained a link to the agenda of the Board's February 10, 2022, meeting.”\nThe Public Access Bureau construed this Request for Review as alleging that the Board violated\nsection 2.02(c) of OMA? by taking final action concerning the District's mask guidelines when it\nfailed to include the general subject matter of that action on the meeting agenda.\nOn February 28, 2022, the Public Access Bureau sent a copy of the Request for\nReview to then-Board President Keith Briggs.4 The Public Access Bureau also requested a\nresponse to Mr. Bastian's allegation, as well as copies of the notice, agenda, minutes (of both\nopen and closed sessions), and any recordings from the February 10, 2022, meeting.” By e-mail\ndated March 9, 2022,° counsel for the Board, Mr. Eric B. Bernard, provided the Public Access\nBureau with a copy of the Board's schedule of regular meeting dates for the 2021-2022 school\nyear, a copy of the February 10, 2022, regular meeting agenda, a copy of a draft of the\nunapproved open session minutes from the February 10, 2022, regular meeting, and a written\nresponse.’ Mr. Bernard also provided, for this office's confidential review, a copy of a draft of\nthe unapproved closed session minutes and a copy of the closed session verbatim recording.* In\nthe Board's non-confidential response to this office, Mr. Bernard stated:\n'E-mail from Jay Bastian to Public Access [Bureau, Office of the Attorney General] (February 15,\n2022).\n°E-mail from Jay Bastian to Public Access [Bureau, Office of the Attorney General] (February 15,\n2022).\n35 ILCS 120/2.02(c) (West 2020).\n‘Based on this office's review oft he District's website, Mr. Scott Stone assumed the role of Board\nPresident in March 2022. Former Board President Keith Briggs was appointed Board Vice President at that same\ntime. Community Consolidated School District 93, Board of Education Home, https://www.ccsd93.com/domain/10\n(last visited April 15, 2022).\n*Letter from Christopher R. Boggs, Supervising Attorney, Public Access Bureau, Office of the\nAttorney General, to The Honorable Keith Briggs, President, Community Consolidated School District 93, Board of\nEducation (February 28, 2022).\n°E-mail from Eric Bernard, Petrarca, Gleason, Boyle & Izzo, LLC, to [Christopher] Boggs [Office\n(March 9, 2022).\n7Letter from Eric B. Bernard, Petrarca, Gleason, Boyle & Izzo, LLC, to Christopher R. Boggs,\nOffice of the Attorney General (March 9, 2022).\n‘Letter from Eric B. Bernard, Petrarca, Gleason, Boyle & Izzo, LLC, to Christopher R. Boggs,\nOffice of the Attorney General (March 9, 2022).\nMr. Jay Bastian\nThe Honorable Scott Stone\nMay 6, 2022\nPage 3\nAt the February 10, 2022 Board meeting, the Board\nconsidered a Layered Mitigation Reduction Plan recommended by\n[Superintendent David] Hill. This plan addressed, among other\nthings, whether the District would continue to require all staff and\nstudents to wear masks while inside school buildings. As shown in\nSection 4.d.8 of the February 10, 2022 meeting minutes [citation],\nthis discussion occurred during the Board Member Reports portion\nof the meeting. * * * The minutes demonstrate that the Board did\nnot take any final action on the proposed plan. Rather, the Board\n\"had a very thorough discussion of the plan, questions were asked,\nand all members expressed their opinions.\" Although the Board\nreached a \"consensus\" to make masks optional beginning February\n14, it did not at any point take a roll call vote.\nBecause the Board did not take any final action on the\nproposed mitigation plan, it was not required to place this\ndiscussion on its agenda. Furthermore, although the mitigation\nplan was not listed on its agenda, [the Board] was permitted to\nconsider and discuss the plan because the February 10 meeting was\na regularly scheduled board meeting. 5 ILCS 120/2.02(a).!?!\nOn March 11, 2022, the Public Access Bureau forwarded a copy of the Board's\nwritten answer to Mr. Bastian and notified him of his opportunity to reply.'° Mr. Bastian did not\nsubmit a reply.\nOn April 13, 2022, the Public Access Bureau extended the time within which to\nissue a binding opinion by 21 business days, to May 16, 2022, pursuant to section 3.5(e) of\nOMA.!!\n*Letter from Eric B. Bernard, Petrarca, Gleason, Boyle & Izzo, LLC, to Christopher R. Boggs,\nOffice of the Attorney General (March 9, 2022).\nLetter from Christopher R. Boggs, Supervising Attorney, Public Access Bureau, Office of the\nAttorney General, to Jay Bastian (March 11, 2022).\n\"Letter from Christopher R. Boggs, Supervising Attorney, Public Access Bureau, Office of the\nAttorney General, to Jay Bastian, The Honorable Scott Stone, President, Board of Education, Community\nConsolidated School District No. 93, and Eric B. Bernard, Petrarca, Gleason, Boyle & Izzo, LLC (April 13, 2022).\nMr. Jay Bastian\nThe Honorable Scott Stone\nMay 6, 2022\nPage 4\nANALYSIS\n\"It is the public policy of this State that its citizens shall be given advance notice\nof and the right to attend all meetings at which any business of a public body is discussed or\nacted upon in any way.\" 5 ILCS 120/1 (West 2020). \"The Open Meetings Act provides that\npublic agencies exist to aid in the conduct of the people's business, and that the intent of the Act\nis to assure that agency actions be taken openly and that their deliberations be conducted\nopenly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (Sth Dist. 1989).\nSection 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2020)) provides, in relevant\npart, that \"[a]n agenda for each regular meeting shall be posted at the principal office of the\npublic body and at the location where the meeting is to be held at least 48 hours in advance of the\nholding of the meeting.\" A public body that has a website maintained by its full-time staff also\nmust post on its website agendas of any regular meetings of the public body's governing body. 5\nILCS 120/2.02(a) (West 2020). Section 2.02(a) adds that \"[t]he requirement of a regular meeting\nagenda shall not preclude the consideration of items not specifically set forth in the agenda.\"\nSection 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2020)) further provides that \"[a]ny agenda\nrequired under this Section shall set forth the general subject matter of any resolution or\nordinance that will be the subject of final action at the meeting.\" (Emphasis added.)\nIn this matter, the Board's response to this office acknowledged that it did not list\nthe District's COVID-19 Layered Mitigation Reduction Plan (Reduction Plan) on the agenda for\nits February 10, 2022, regular meeting.'* The response also acknowledged that the unapproved\ndraft minutes demonstrate that the Board discussed the Reduction Plan, but the Board asserted\nthat section 2.02(a) authorized it to do so without including it on the agenda because the Board\ndid not take final action on the Reduction Plan.'? The portion of the draft minutes documenting\nthe Board's discussion of\"? the Reduction Plan provides, in pertinent part:\n\"etter from Eric B. Bernard, Petrarca, Gleason, Boyle & Izzo, LLC, to Christopher R. Boggs,\nOffice of the Attorney General (March 9, 2022), at 1.\n‘Letter from Eric B. Bernard, Petrarca, Gleason, Boyle & Izzo, LLC, to Christopher R. Boggs,\nOffice of the Attorney General (March 9, 2022), at 1-2.\n''The approved February 10, 2022, meeting minutes, which are identical to the draft minutes\nprovided by the Board to this office, are presently available on the District's website. See\nhttps://meetings. boardbook.org/Documents/CustomMinutesForMeeting/1266?meeting=5 15548.\nMr. Jay Bastian\nThe Honorable Scott Stone\nMay 6, 2022\nPage 5\nThe Board had reviewed the plan recommended by Dr. Hill prior\nto the meeting. Dr. Hill explained to the Board that he worked with\nhis Senior Leadership Team and the District nurses to develop this\nplan in light of the temporary restraining order against Governor\nPritzker's Executive Order to mandate masks and other mitigation\nstrategies. He explained that [the District] was not named in the\ncase, and therefore, the case does not apply to our District, and the\nDistrict will continue to abide by the Executive Order. A strategy\nto remove some of the mitigations to keep kids safe is dependent\nupon the transmission level in Carol Stream, zip code 60188,\nwhich is still High Transmission Level. The Board had a very\nthorough discussion of the plan, questions were asked, and all\nmembers expressed their opinions. After some debate on the\ntiming (before or after the conclusion of the appeal process), the\nconsensus of the Board was to remove the mask requirement\nbeginning Monday, February 14. The Board directed the\nSuperintendent to send out messaging that beginning Monday,\nFebruary 14, masks in [the District] are recommended, but not\nrequired.!'*! (Emphasis added.)\nAlthough not provided by the District in its response in this matter, this office has also reviewed\nthe District's publicly-available \"CCSD93 Mitigation Guide: 2021-22 School Year - Family\nEdition,\" which includes an introductory letter from the District's Superintendent that provides,\nin relevant part: \"This message is to inform you that after careful consideration of the state\nof the TRO halting the Governor's mask mandate for some Illinois school districts, at last\nnight's Board of Education meeting the decision was made to transition CCSD93 from\nmasks required to mask recommended but not required beginning Monday, February\n14.\"'° (Emphasis in original.)\nThe Board's written response to this office contended that the Board did not\nmanifest final action by reaching \"a 'consensus' to make masks optional beginning February 14\n'SCommunity Consolidated School District 93, Board of Education Meeting, Draft Minutes of\nFebruary 10, 2022, at 4-5.\n‘Letter from David H. Hill, Ed.D., Superintendent of Schools, CCSD93, to CCSD93 Community\n(updated February 27, 2022),\nhttps://docs.google.com/document/d/1fHhRV6ScURPILVvxdwjNImMM7vz7_MaEj_6evpOTNJU/edit (last visited\nApril 19, 2022).\nMr. Jay Bastian\nThe Honorable Scott Stone\nMay 6, 2022\nPage 6\n[ ]\" because \"it did not at any point take a roll call vote.\"!’ The Board's discussion of the\nReduction Plan did not violate OMA because section 2.02(a) of OMA specifically authorizes\npublic bodies to discuss subjects that do not appear on agendas of regular meetings. The issue in\nthis Request for Review is whether the Board took \"final action\" to change the masking\nguidelines without providing advance notice of the general subject matter of that change on the\nagenda of the February 10, 2022, meeting.\nOMA does not define \"final action,\" and no Illinois reviewing court has precisely\ndefined that term. Courts have indicated, however, that \"final action\" generally must bring a\nmatter to a resolution. Davis v. Board of Education of Farmer City — Mansfield Community Unit\nSchool District No. 17, 63 Ill. App. 3d 495, 499 (4th Dist. 1978) (adoption of resolution in closed\nsession stating tentative intent to terminate superintendent's employment \"did not dispose of the\nquestion of whether that employment should be terminated and, therefore, was not final\naction[,|\" where board subsequently took final action to terminate the superintendent's\nemployment in open session).\nHere, the Board disposed of the question of whether to change the District's\nmasking requirement for students and staff in the Reduction Plan recommended by the\nSuperintendent, as demonstrated both by the February 10, 2022, meeting minutes and the\nSuperintendent's introductory letter in the Mitigation Guide as quoted above. The meeting\nminutes plainly reflect that the Board (1) discussed the opportune moment to remove the\nmasking requirement and make masking optional, (2) reached a consensus to eliminate the\nmasking requirement on February 14, 2022, and (3) directed the Superintendent to notify the\nDistrict community of its effective date, thus bringing the matter to a resolution. It is undisputed\nthat the Board did not ratify its decision by voting on it in open session.\nThe Board also did not dispute that the District's masking policy changed and that\nthe Superintendent implemented that change at the Board's direction. Nevertheless, the Board\nargues that it did not take final action on this issue because it did not take a roll call vote.!® To\nbe sure, in Board of Education of Springfield School District No. 186 v. Attorney General of\nIllinois, 2017 IL 120343, 77 N.E.3d 625 (2017), the Illinois Supreme Court concluded that a\nschool board did not improperly take final action in closed session by reaching a consensus to\nenter into a settlement agreement because the school board voted at a later meeting to approve\nthe agreement in open session. The Court explained: \"Under the plain language of section 2(e)\nof the Open Meetings Act, the public vote is not merely a ratification of final action taken earlier\nLetter from Eric B. Bernard, Petrarca, Gleason, Boyle & Izzo, LLC, to Christopher R. Boggs,\nOffice of the Attorney General (March 9, 2022), at 2.\n‘Letter from Eric B. Bernard, Petrarca, Gleason, Boyle & Izzo, LLC, to Christopher R. Boggs,\nOffice of the Attorney General (March 9, 2022), at 2.\nMr. Jay Bastian\nThe Honorable Scott Stone\nMay 6, 2022\nPage 7\nin a closed session; it is the final action. Without the public vote, no final action has occurred.\"\nBoard of Education of Springfield School District No. 186, 2017 IL 120343, 974, 77 N.E.3d at\n637. In reaching that conclusion, the Court cited two cases that both held that written decisions\nissued by public bodies were invalid because the public bodies did not vote to approve them\nduring open meetings. Howe v. Retirement Board of the Firemen's Annuity & Benefit Fund,\n2013 IL App (1st) 122446, 426, 996 N.E.2d 664, 669 (2013) (\"No public body in Illinois subject\nto the Open Meetings Act can take final action by merely circulating some document for\nsignature and not voting on it publicly.\"); Lawrence y. Williams, 2013 IL App (1st) 130757, 21,\n988 N.E.2d 1039, 1043 (2013) (public body did not properly take final action when one member\nappeared at a meeting to issue written decisions that two of the three members of the public body\nhad signed but not publicly voted to approve: \"Issuing the signed written decisions was the ‘final\naction’ by the electoral board and had to occur in an open meeting with a quorum present.\").\nCollectively, these three decisions stand for the proposition that public bodies must hold a vote in\nopen session in order to take final action pursuant to OMA.\nAs was the case in Howe and Lawrence, the Board did not hold a ratifying vote\nconcerning the making requirement. However, the measures described above at the February 10,\n2022, meeting implemented a change to the District's masking guidelines. Adopting the Board's\nrationale that the omission of a roll call vote concerning that matter means this change to the\nmasking guidelines does not constitute \"final action\" such that the Board was relieved of the\nobligation to include the general subject matter of this decision on the agenda of the meeting\nwould yield a result that is contrary to the legislative intent of OMA and the requirements of\nsection 2.02. Phoenix Bond & Indemnity Co. v. Pappas, 194 Ill. 2d 99, 107 (2000) (A statute\nshould not be construed in a way that would defeat its purpose \"or yield an absurd or unjust\nresult.\"). As discussed above, section 1 of OMA states that \"citizens shall be given advance\nnotice of and the right to attend all meetings at which any business ofa public body is discussed\nor acted upon in any way[,]\" while section 2.02(c) expressly requires public bodies to include on\nmeeting agendas the \"general subject matter of any resolution or ordinance that will be the\nsubject offi nal action at the meeting.\" These requirements would be meaningless if public\nbodies could circumvent them by simply choosing not to hold formal roll call votes despite\nagreeing on courses of actions and issuing directives. OMA does not permit a public body to\nmake and implement a decision concerning a substantive matter, such as masking guidelines in\npublic schools for students and staff during a pandemic, without providing the general subject\nmatter of that decision on the meeting agenda. Because the Board brought the matter to\nresolution, the Board took final action even though it did not ratify the decision with a vote as\nrequired by OMA. Accordingly, this office concludes that the Board violated OMA by taking\nfinal action to change the masking guidelines in its Reduction Plan without including the general\nsubject matter of that final action on its February 10, 2022, meeting agenda.\nMr. Jay Bastian\nThe Honorable Scott Stone\nMay 6, 2022\nPage 8\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments presented,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On February 15, 2022, Mr. Jay Bastian submitted this Request for Review\nalleging that at its February 10, 2022, meeting the Board voted on a change in the District's\nmasking guidelines without listing that item on the meeting agenda. Mr. Bastian's Request for\nReview was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA\n(5 ILCS 120/3.5(a) (West 2020)).\n2) On February 28, 2022, the Public Access Bureau sent a copy of the Request\nfor Review to then-Board President Keith Briggs and requested copies of the notice, agenda,\nminutes (both open and closed), and any recordings from the February 10, 2022, meeting.\n3) On March 9, 2022, the Board's legal counsel provided a copy of the Board's\nschedule of regular meeting dates for the 2021-2022 school year, a copy of the February 10,\n2022, regular meeting agenda, a copy of the unapproved draft minutes from the February 10,\n2022, regular meeting, and a written response. The Board also provided, for this office's\nconfidential review, a copy of the Board's February 10, 2022, closed session minutes and closed\nsession verbatim recording.\n4) On March 11, 2022, the Public Access Bureau forwarded a copy of the Board's\nwritten answer to Mr. Bastian and notified him of his opportunity to reply. He did not reply.\n5) On April 13, 2022, the Public Access Bureau extended the time within which\nto issue a binding opinion in this matter by 21 business days, to May 16, 2022, pursuant to\nsection 3.5(e) of OMA. Accordingly, the Attorney General may properly issue a binding opinion\nwith respect to this matter.\n6) Section 2.02(c) of OMA requires that a meeting agenda set forth the general\nsubject matter of any resolution or ordinance that will be the subject of final action at the\nmeeting.\n7) The Board's February 10, 2022, regular meeting agenda did not contain an\nagenda item identifying the general subject matter of a change to the District's masking\nguidelines in its Reduction Plan.\n8) During its February 10, 2022, meeting, the Board considered the Reduction\nPlan recommended by the Superintendent, reached a consensus on removing the masking\nMr. Jay Bastian\nThe Honorable Scott Stone\nMay 6, 2022\nPage 9\nrequirement and making masks optional for students and staff, and directed the Superintendent to\nnotify the District community of the change effective as of February 14, 2022. That decision and\ndirective constituted final action that brought the matter to a resolution even though the Board\ndid not conduct a formal vote to approve the change to the District's masking guidelines.\n9) As aresult, the agenda did not provide the public with advance notice that\nfinal action might be taken at the February 10, 2022, meeting to implement a change to the\nDistrict's masking guidelines. Accordingly, the Attorney General concludes that the Board\nviolated section 2.02(c) of OMA by failing to include the general subject matter of this final\naction on the February 10, 2022, regular meeting agenda.\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to vote in open session on whether to change its COVID-19 Layered Mitigation\nReduction Plan to make masks optional rather than mandatory for students and staff, after\nproperly providing notice of that final action on the meeting agenda. This office also directs the\nBoard to conduct its future meetings in full compliance with OMA. As required by section\n3.5(e) of OMA, the Board shall either take necessary action as soon as practical to comply with\nthe directives of this opinion or shall initiate administrative review under section 7.5 of OMA (5\nILCS 120/7.5 (West 2020).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Jay\nBastian as defendants. See 5 ILCS 120/7.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nwe [eateStors\n‘Brent D. Stratton\nChief Deputy Attorney General\nMr. Jay Bastian\nThe Honorable Scott Stone\nMay 6, 2022\nPage 10\n6G: Mr. Eric B. Bernard\nPetrarca, Gleason, Boyle & Izzo, LLC\n1415 West 22nd Street, Suite 200\nOak Brook, Illinois 60523\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 22-006) upon:\nMr. Jay Bastian\n648 Larch Drive\nCarol Stream, Illinois 60188\nJay.miles@gmail.com\nThe Honorable Scott Stone\nPresident, Board of Education\nCommunity Consolidated School District No. 93\n230 Covington Drive\nBloomingdale, Illinois 60108\nboard@ccsd93.com\nMr. Eric B. Bernard\nPetrarca, Gleason, Boyle & Izzo, LLC\n1415 West 22nd Street, Suite 200\nOak Brook, Illinois 60523\nebernard@petrarcagleason.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on May 6, 2022.\nSTEVE SILVERMAN\nBureau Chief\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street, 11th Floor\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A school board reached a consensus to change its mask policy during a meeting, but the topic was not listed on the meeting agenda provided to the public. The Illinois Attorney General issued a binding opinion concluding that the board violated the Open Meetings Act by implementing a change in masking guidelines without setting forth the general subject matter of that final action on the meeting agenda. This ensures that the public is aware of significant decisions before they are made.","card_headline":"A school board's final action on masking guidelines","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":154,"orig_master_id":19356,"dup_master_id":19128,"dup_sha256":"ace22fd5d4b69f04f7ce1acad1ee6669d5991e3054de43a6be8411fa0ba53d78","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2022,"date_issued":"2022-03-24","case_number":"2021 PAC 69011","request_numbers":null,"title":"Disclosure of Complaints Alleging Public Employee Misconduct","filename":"PUBLIC ACCESS OPINION 22-005 (Request for Review - 2021 PAC 69011).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 22-005 (Request for Review - 2021 PAC 69011).pdf","word_count":7456,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a FOIA request submitted by CBS Chicago reporter Timothy McNicholas, which was improperly denied by the City of Chicago's Department of Human Resources.","plain_summary":"The requester, a television reporter, sought a city employee's disciplinary record and copies of racism, discrimination, and harassment complaints filed against that employee and others at a facility, which a city human resources department withheld in full as an invasion of privacy and as predecisional deliberative material. The Public Access Counselor held that complaints describing workplace misconduct bear on employees' public duties and were not exempt in their entirety, though complainants' and witnesses' identities and any graphic or highly personal details could properly be redacted, and that the complaints were factual records rather than deliberative material. The department was directed to disclose the complaints with those limited redactions.","holding":"The City of Chicago Department of Human Resources violated FOIA by improperly denying the FOIA request.","legal_question":"Did the City of Chicago Department of Human Resources violate FOIA by denying the FOIA request?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"City of Chicago Department of Human Resources","requesting_party":"Timothy McNicholas (CBS Chicago)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought disciplinary records and complaints of misconduct filed against a specific city employee.","ocr_status":"ok","ocr_quality":89.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2022-Binding-PAC-Opinions/22-005.pdf","sha256":"58790e97eb17c1cfb4bdaf79e57858658811bc197c1d98ebb4fe569faa2dcb8c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["disciplinary records","misconduct","personnel records","FOIA denial"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nMarch 24, 2022\n- PUBLIC ACCESS OPINION 22-005\n(Request for Review 2021 PAC 69011)\nFREEDOM OF INFORMATION ACT:\nDisclosure of Complaints\nAlleging Public Employee Misconduct\nMr. Timothy McNicholas\nCBS Chicago Reporter\nCBS 2 Broadcast Center\n[street address redacted for site publication -- see original PDF]\nMs. Melissa Nunchuck\nFOIA Officer\nCity of Chicago — Department of Human Resources\n121 North LaSalle Street, Room 100\nChicago, Illinois 60602\nDear Mr. McNicholas and Ms. Nunchuck:\nThis binding opinion is issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons\ndiscussed below, this office concludes that the City of Chicago (City) Department of Human\nResources (Department) violated the requirements of FOIA by improperly denying in its entirety\na FOIA request submitted by Mr. Timothy McNicholas.\nBACKGROUND\nOn November 8, 2021, Mr. McNicholas, on behalf of CBS Chicago, submitted a\nFOIA request to the Department seeking:\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © I’ V'Y: (877) 844-5461 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © T’'Y: (800) 964-3013 ¢ Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL, 62901 © (618) 529-6400 © I’T'Y: (877) 675-9339 © Fax (618) 529-6416 or\nMr. Timothy McNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 2\n[1] Any disciplinary records for Streets and Sanitations\nemployee Eric Duszynski.\n[2] Records of any complaints of racism, discrimination or\nharassment ever filed against Eric Duszynski.\n[3] Records of any complaints of racism, harassment or\ndiscrimination filed within the last 5 years regarding\nemployees at the 34th and Lawndale Streets and San.\nfacility.\"\nMr. MeNicholas indicated to the Department that he was resubmitting this FOIA request in light\nof the Public Access Bureau's non-binding determination concluding that the Department had\nviolated FOIA by denying his October 22, 2020, FOIA request for the same records.” With his\nsubmission, Mr. McNicholas included copies of his October 22, 2020, FOIA request? and the\nNovember 8, 2021, determination in which the Public Access Bureau concluded that the\nDepartment improperly denied Mr. McNicholas' October 22, 2020, FOIA request in its entirety\npursuant to sections 7(1)(c)* and 7(1)(f)° of FOIA.® This office had requested that the\nDepartment disclose to Mr. McNicholas copies of the complaints responsive to the second and\nthird portions of the request, subject only to redactions of certain personal and private\ninformation.’ Because the Department did not comply with the Public Access Bureau's non-\nbinding determination letter, on November 8, 2021, Mr. McNicholas sent the second FOIA\nrequest seeking the same records.\n'E-mail from Tim McNicholas, CBS Chicago Reporter, to DHRFOIA @cityofchicago.org\n(November 8, 2021).\n°E-mail from Tim McNicholas, CBS Chicago Reporter, to DHRFOIA @cityofchicago.org\n(November 8, 2021).\n3E-mail from Tim McNicholas, CBS Chicago Reporter, to DHRFOIA @cityofchicago.org\n(October 22, 2020).\n45 ILCS 140/7(1)(c) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;\n102-558, effective August 20, 2021.\n°5 ILCS 140/7(1)(f) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;\n102-558, effective August 20, 2021.\nSTII. Att'y Gen. PAC Req. Rev. Ltr. 65673, issued November 8, 2021, at 6-7.\nIll. Att'y Gen. PAC Req. Rev. Ltr. 65673, issued November 8, 2021, at 7-8.\nMr. Timothy MecNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 3\nOn November 24, 2021, the Department provided Mr. McNicholas with a\n\"redacted work history and suspension notice\"® in response to the first portion of his request.°\nThe Department redacted certain information from those records pursuant to sections 7(1)(a)'°\nand 7(1)(b)!! of FOIA.'? The Department further stated that it was still working on a response to\nthe second and third portions of Mr. McNicholas' request and expected to complete its response\nby December 3, 2021.\"\nOn December 15, 2021, Mr. McNicholas sent an e-mail to the Public Access\nBureau concerning the Department's response to his FOIA request.'* Mr. McNicholas stated that\nthe Department had complied with the first part of his request, but he had not yet received a\nresponse to the remaining portions of his request.'> He inquired whether this office could\nintervene or advise him of any other methods of recourse he might have. Because Mr.\nMeNicholas had submitted a new FOIA request on November 8, 2021, this office properly\ntreated Mr. McNicholas' December 15, 2021, e-mail as a Request for Review of the Department's\nresponse to that request. On December 23, 2021, an Assistant Attorney General in the Public\nAccess Bureau e-mailed the Department a copy of that Request for Review and asked for the\n‘Letter from Maureen Lawless, HR Records Administration Manager, Department of Human\nResources, City of Chicago, to Tim McNicholas, CBS Chicago Reporter (November 24, 2021), at 1.\n°The Department's November 24, 2021, response letter indicated that on November 17, 2021, it\nhad sought an extension for additional time to respond. Mr. McNicholas informed this office that he did not receive\nthat extension notice but was told by the Department that it had tried to send it to him using its FOIA portal. E-mail\nfrom [Timothy J. McNicholas] to [Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the\nIllinois Attorney General] (January 20, 2022).\n'05 ILCS 140/7(1)(a) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;\n102-558, effective August 20, 2021.\n''5 ILCS 140/7(1)(b) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;\n102-558, effective August 20, 2021.\n\"Letter from Maureen Lawless, HR Records Administration Manager, Department of Human\nResources, City of Chicago, to Tim McNicholas, CBS Chicago Reporter (November 24, 2021), at 1.\n‘Letter from Maureen Lawless, HR Records Administration Manager, Department of Human\nResources, City of Chicago, to Tim McNicholas, CBS Chicago Reporter (November 24, 2021), at 1.\n'4E-mail from Tim McNicholas, CBS Chicago Reporter, to Public Access [Bureau, Office oft he\nAttorney General] (December 15, 2021).\n'SE-mail from Tim McNicholas, CBS Chicago Reporter, to Public Access [Bureau, Office of the\nAttorney General] (December 15, 2021).\nMr. Timothy McNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 4\nstatus of the disclosure of the records responsive to the remaining portions of Mr. McNicholas'\nunderlying FOIA request.'®\nOn January 5, 2022, the Department e-mailed the Public Access Bureau a letter in\nwhich it maintained that it had properly denied Mr. McNicholas' October 22, 2020, FOIA\nrequest, which sought the same records as the November 8, 2021, FOIA request.'? The\nDepartment stated that the letter was \"[i]n response to the remainder of Mr. McNicholas' FOIA\nrequest, received by our office on November 9, 2021,\" and copied Mr. McNicholas on the e-mail\ntransmitting the letter.'* The Department explained that it was withholding a complaint against\nthe employee specified in the FOIA request and six additional responsive complaints.'? In its\nletter, the Department reiterated its assertion that the records of complaints were exempt from\ndisclosure pursuant to sections 7(1)(c) and 7(1)(f) of FOIA.”° This letter constituted the\nDepartment's final denial of Mr. McNicholas' November 8, 2021, FOIA request.\nOn January 7, 2022, Mr. McNicholas replied to the Department and copied two\nAssistant Attorneys General in the Public Access Bureau, maintaining that he is entitled to\nreceive the withheld records under FOIA.”! This office construed Mr. MeNicholas' message as a\nRequest for Review challenging the Department's January 5, 2022, denial of the second and third\nportions of his November 8, 2021, FOIA request.\n'°E-mail from Jane Sternecky, Assistant Attorney General, Public Access Bureau, to DHR\n(December 23, 2021).\nLetter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(January 5, 2022).\n'8E-mail from Melissa [Nunchuck] to [Jane] Sternecky, [Assistant Attorney General, Public\nAccess Bureau, Office of the Attorney General] (January 5, 2021) (copying DHRFOIA, Teresa Lim, and Timothy J.\nMcNicholas).\nLetter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(February 7, 2022), at 5.\n*°L etter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(January 5, 2022), at 3, 5.\n2IE-mail from Tim MeNicholas, CBS Chicago Reporter, to [DHRFOIA, Jane Sternecky, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General, Teresa Lim, Assistant Attorney General,\nPublic Access Bureau, Office of the Attorney General] (January 7, 2022).\nMr. Timothy McNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 5\nOn January 20, 2022, Mr. McNicholas provided the Public Access Bureau with\nthe materials necessary to complete his Request for Review.” Later that day, the Public Access\nBureau sent a copy of the Request for Review to the Department and asked it to provide for this\noffice's confidential review copies of the records it withheld in response to Mr. McNicholas'\nNovember 8, 2021 request.?? The Public Access Bureau also asked the Department to provide a\nwritten response addressing the factual and legal bases for the applicability of the asserted FOIA\nexemptions to those records.”\nOn February 7, 2022, the Department e-mailed the requested materials to this\noffice.?> The Department also separately e-mailed to this office copies of its written response\nand the records that it had previously released to Mr. McNicholas.”°\nOn February 8, 2022, this office forwarded a copy of the Department's written\nresponse to Mr. McNicholas;7’ he did not reply to that response.\nPursuant to section 9.5(f) of FOIA, on February 9, 2022, this office extended the\ntime within which to issue a binding opinion by 30 business days, to March 28, 2022.78\n“E-mail from Timothy J. McNicholas to Teresa Lim (January 20, 2022).\nLetter from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Melissa Nunchuck, FOIA Officer, City of Chicago — Department of Human Resources\n(January 20, 2022), at 2.\n4 etter from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Melissa Nunchuck, FOIA Officer, City of Chicago — Department of Human Resources\n(January 20, 2022), at 2.\n*5E-mail from Melissa Nunchuck to [Teresa] Lim (February 7, 2022).\n*E-mail from Melissa Nunchuck to [Teresa] Lim and [Timothy J. McNicholas] (February 7,\n2022). In its e-mail, the Department advised: \"Please see the attached response letter and documents. In response\nto 2021 PAC 69011 (as a continuation of 2020 PAC 65673).\" Although the Department's written response\nreferenced Mr. McNicholas' October 2020 Request for Review, 2020 PAC 65673, and stated that its \"letter is in\nresponse to the non-binding opinion by the Public Access Counselor (‘PAC’) in connection with\" 2020 PAC 65673,\nRequest for Review 2020 PAC 65673 was already closed and the Department's February 7, 2022, correspondence\nserved only as an answer to the present Request for Review, 2021 PAC 69011.\n27Letter from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Timothy McNicholas, CBS Chicago Reporter (February 8, 2022).\n81 etter from Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Timothy McNicholas, CBS Chicago Reporter, and Melissa Nunchuck, FOIA Officer, City of\nChicago — Department of Human Resources (February 9, 2022).\nMr. Timothy McNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 6\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS\n140/1 (West 2020). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2020)), \"[a]ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"\nSection 3(a) of FOIA (5 ILCS 140/3(a) (West 2020)) provides that \"[e]ach public body shall\nmake available to any person for inspection or copying all public records, except as otherwise\nprovided in Sections 7 and 8.5 of this Act.\" The exemptions from disclosure contained in section\n7 of FOIA”? are to be construed narrowly. See Lieber v. Board of Trustees of Southern Illinois\nUniversity, 176 Ill. 2d 401, 407 (1997).\nSection 7(1)(c) of FOIA\nSection 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal\nprivacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\" However, the exemption specifies that \"[t]he disclosure of\ninformation that bears on the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy.\"\nA public body's contention that the release of information would constitute a\nclearly unwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers’ Local Union 130 v. Dep't of Public Health, 327 Ill. App. 3d 192, 196 (1st\nDist. 2001). The phrase \"clearly unwarranted invasion of personal privacy\" evinces a strict\nstandard to claim the exemption, and the burden is on the public body having charge of the\nrecord to prove that standard has been met. Schessler v. Dep't of Conservation, 256 Ill. App. 3d\n198, 202 (4th Dist. 1994). Illinois courts consider the following factors in determining whether\ndisclosure of information would constitute an unwarranted invasion of personal privacy: \"(1) the\nplaintiff's interest in disclosure, (2) the public interest in disclosure, (3) the degree of invasion of\npersonal privacy, and (4) the availability of alternative means of obtaining the requested\ninformation.\" National Ass'n of Criminal Defense Lawyers yv. Chicago Police Dep't, 399 Ill.\nApp. 3d 1, 13 (1st Dist. 2010).\n2°5 ILCS 140/7 (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-\n558, effective August 20, 2021.\nMr. Timothy McNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 7\nUnder the first two factors of the balancing test, Mr. McNicholas' interest as a\nmember of the media seeking to disseminate information to the public through news reporting\naligns with the public interest in disclosure of the records. He contends that \"the public has a\nright to know to what extent racism and discrimination exists in this taxpayer-funded\ndepartment.\"°° In its answer to this office, the Department appeared to acknowledge that there\nwas a public interest in disclosure of the complaints because the information bears on the public\nduties of public employees, but argued that the complainants' privacy rights outweighed the\npublic interest in disclosure of the information.*! The Department also argued that there are\npublic policy reasons for maintaining the confidentiality of the complaint information:\nto protect complainants from retaliation; to encourage\ncomplainants to come forward with complaints without fear that\nthe details of their complaint will be subject to workplace gossip;\nand, to protect the integrity of the investigative process. The fact\nthat a complainant happens to work for a public employer who is\nsubject to FOIA should not abrogate the reasonable and legitimate\nexpectation that their complaint will be kept confidential.?!\nIn addition, the Department argued that disclosure of the records would discourage City\nemployees from seeking internal resolutions of complaints, and instead lead them to pursue\noutside resolutions at a higher cost to the City and its taxpayers.*?\nIn addressing the third factor of the balancing test, the degree of invasion of\npersonal privacy, the Department asserted that \"[t]he written interview statements of the\ncomplainants contain discussions of intimate interactions of a sexual or racial nature and as such,\n30E-mail from Tim McNicholas, CBS Chicago Reporter, to [DHRFOIA, Jane Sternecky, Assistant\nAttorney General, Public Access Bureau, Office of the Illinois Attorney General, Teresa Lim, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Illinois Attorney General] (January 7, 2022).\n3'Letter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(February 7, 2022), at 3.\nLetter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(February 7, 2022), at 3.\n3Letter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(February 7, 2022), at 4.\nMr. Timothy McNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 8\ndisclosure of those statements would be objectionable to a reasonable person.\" The\nDepartment contended that information provided by the complainants \"could be highly\nembarrassing to\" the complainants if released and \"subject them to additional workplace\nharassment,\" as well as subject the accused \"to embarrassment and unwarranted negative\nattention if such accusations are determined to have been unfounded.\"*>\nFurther, the Department cited Federal, State, and local policies and guidance in\nsupport of \"the legitimate privacy expectations\" complainants have in their complaints.°° The\nDepartment referenced Federal guidance from the Equal Employment Opportunity Commission\n(EEOC) concerning complaints of sexual harassment for which \"employers are encouraged to\ntake steps to ‘ensure confidentiality as much as possible [citation].'\"\"\"’ The regulations provide, in\npart, that \"[n]either a charge, nor information obtained during the investigation of a charge of\nemployment discrimination under title VII [of the Civil Rights Act of 1964], the ADA\n[Americans with Disabilities Act], or GINA [Genetic Information Nondiscrimination Act] * * *\nshall be made matters of public information by the Commission prior to the institution of any\nproceeding under\" those Federal laws.** The Department noted that the Illinois Department of\nHuman Rights' regulations also provide that its agency files related to charges are not subject to\npublic disclosure, with certain exceptions.*? The Department also explained that the City's\nDiversity and Equal Employment Opportunity Policy (EEO Policy) is consistent with the\nLetter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(February 7, 2022), at 2.\n5Letter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(February 7, 2022), at 3-4.\n36Letter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(February 7, 2022), at 3.\n37Letter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(February 7, 2022), at 3 (citing U.S. Equal Employment Opportunity Commission, \"Policy Guidance on Current\nIssues of Sexual Harassment,\" https://www.ceoc.gov/laws/guidance/policy-guidance-current-issues-sexual-\nharassment).\n3829 C.F.R. § 1601.22.\nSee 2 Ill. Adm. Code. § 926.210(a) (1980), amended at 41 Ill. Reg. 11555, effective August 29,\n2017.\nMr. Timothy McNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 9\nEEOC's guidance and provides, that for complaints of discrimination, harassment, or retaliation:\n\"All complaints and investigations will be kept confidential, to the extent possible.\"*”\nAs to the fourth factor of the balancing test, the Department contended that \"the\npublic's right to know about the extent of harassment or sexual harassment taking place in the\nworkplace can still be satisfied through other records. Specifically, disciplinary action taken\nagainst employees who violate the City's EEO Policy is not exempt from disclosure.\"4!\nThis office has reviewed the parties' arguments and the withheld records and\nconcludes that, on balance, disclosure of most of the complaints' contents would not constitute a\nclearly unwarranted invasion of any individual's personal privacy. There is a significant public\ninterest in information that sheds light on claims of racial discrimination, harassment, and other\nforms of public employee misconduct and the circumstances surrounding those claims. Greer v.\nBoard of Education of the City of Chicago, 2021 IL App (lst) 200429, 913, = N.E.3d___\n(2021) (\"\"[R]acial discrimination [is] a matter inherently of public concern.' [Citation.] The\npublic has a substantial interest in allegations of racial discrimination by public bodies and the\nBoard's response to the allegations, even when the allegations pertain to a single employee.\");\nState Journal-Register v. University of Illinois Springfield, 2013 IL App (4th) 120881, 9948, 51,\n994 N.E.2d 705, 717 (2013) (recognizing a legitimate public concern in actions and behaviors of\ncoaches preceding alleged sexual misconduct but minimal interest in explicit details of that\nconduct).\nDisclosure of the complaint records implicates the privacy interests of three\ncategories of individuals: the City employees accused of alleged misconduct, the complainants,\nand third parties mentioned incidentally. The complaints describe alleged workplace misconduct\nby City employees, but section 7(1)(c) of FOIA expressly provides that the disclosure of\ninformation that bears on the public duties of public employees does not constitute an\nunwarranted invasion of personal privacy. Ill. Att'y Gen. Pub. Acc. Op. No. 18-018, issued\nDecember 31, 2018, at 6 (complaints or allegations of misconduct against public employees are\ngenerally not exempt from disclosure in whole under section 7(1)(c) because such information\nbears on the performance of the employees' public duties).\n“City of Chicago Diversity and Equal Employment Opportunity Policy XIII. Investigation\nReports and Communications with Parties, c. Confidentiality (effective February 1, 2019), at 7, available at\nhttps://www.chicago.gov/content/dam/city/depts/dhr/supp_info/HRpPoolliiccyie Fsi/nCaOl_eCff__E0E_O01 _19.\npdf.\n“'Letter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(February 7, 2022), at 4.\nMr. Timothy MecNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 10\nFurther, disclosure of such complaints would not be an unwarranted invasion of\nthe accused employees' privacy interests even if those complaints are later determined to be\nunfounded. In Gekas yv. Williamson, 393 Ill. App. 3d 573, 574 (4th Dist. 2009), the Illinois\nAppellate Court considered whether citizen complaints against a deputy sheriff and related\nrecords were exempt from disclosure under a prior version of section 7(1)(c), which also\nexpressly excluded from its scope information that bears on the public duties of public\nemployees.” The trial court had ruled that files concerning unfounded complaints could be\nwithheld to protect the deputy's privacy interests. Gekas, 393 Ill. App. 3d at 578. The appellate\ncourt reversed, holding that records concerning alleged wrongdoing in the course of the deputy's\npublic duties were subject to disclosure regardless of whether the underlying allegations had\nmerit. Gekas, 393 Ill. App. 3d at 586.\nBy contrast, the complainants, as well as witnesses and third parties described\nincidentally in the complaints, have legitimate privacy interests in the disclosure of their\nidentities. As the Attorney General recognized in Binding Opinion 18-018, \"[i]nformation\nidentifying individuals who made complaints of this nature against public employees is highly\npersonal; the subjects’ privacy rights outweigh any legitimate public interest in disclosure of their\nidentities.\" Ill. Att'y Gen. Pub. Acc. Op. No. 18-018, at 6. The Attorney General concluded that\n\"names and other discrete information in the reports that identify the complainants are exempt\nfrom disclosure pursuant to section 7(1)(c).\" Ill. Att'y Gen. Pub. Acc. Op. No. 18-018, at 6.\nSimilarly, courts have concluded that the identifying information of third parties is generally\nexempt from disclosure to protect personal privacy interests. See, e.g., Mays v. Drug\nEnforcement Administration, 234 F.3d 1324, 1327 (D.C. Cir. 2000) (\"Absent exceptional\ncircumstances, the balance [between the public interest in disclosure and the right to privacy]\ncategorically favors withholding the names and addresses of third parties as\" such information\ndoes not provide insight into the conduct or performance of a government agency).\n“At the time of the Gekas case, section 7(1)(b)(ii) of FOIA (5 ILCS 140/7(1)(b)(ii) (West 2006))\nprovided:\n(b) Information that, if disclosed, would constitute a clearly\nunwarranted invasion of personal privacy, unless the disclosure is consented to\nin writing by the individual subjects of the information. The disclosure of\ninformation that bears on the public duties of public employees and officials\nshall not be considered an invasion of personal privacy. Information\nexempted under this subsection (b) shall include but is not limited to:\n* OK OK\n(ii) personnel files and personal information maintained with\nrespect to employees, appointees or elected officials of any public body\nor applicants for those positions[.] (Emphasis added.)\nMr. Timothy McNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 11\nHere, the names and other identifying information of the complainants and third\nparties mentioned in the complaints are likewise highly personal, and those individuals' privacy\nrights outweigh the public's interest in the disclosure of that information.\nThe complainants also have a privacy interest in certain graphic or salacious\ndetails in portions of the complaints. In State Journal-Register, the Illinois Appellate Court\nconsidered whether two categories of information related to a sexual misconduct allegation\ninvolving a softball team fell within the scope of section 7(1)(c): \"(1) the detailed accounting of\nthe sexual misconduct and (2) the actions and behaviors of the coaches preceding the act of\nsexual misconduct.\" State Journal-Register, 2013 IL App (4th) 120881, 955, 994 N.E.2d at 718.\nThe court found that certain witness statements contained \"salacious\" and \"explicit\" information\nconcerning the alleged sexual misconduct and that \"[t]he details of that sexual misconduct are\nhighly personal, which weighs heavily in favor of exemption.\" State Journal-Register, 2013 IL\nApp (4th) 120881, 9948, 56, 994 N.E.2d at 717-18. The court concluded that those witness\nstatements fell within the scope of section 7(1)(c), but statements from the team's coaches did\nnot, except for certain discrete parts. State Journal-Register, 2013 IL App (4th) 120881, 958,\n994 N.E.2d at 719.\nBased on this office's review of the complaints at issue, portions of some of the\ncomplaints contain graphic or salacious details. The complainants have legitimate privacy\ninterests in highly specific information describing sexually explicit conduct or remarks. State\nJournal-Register, 2013 IL App (4th) 120881, 9948, 56, 994 N.E.2d at 717-18. Those graphic or\nsalacious details are inherently highly personal, and the complainants! right to privacy outweighs\nthe public interest in that information. In addition, some of the complaints contain details about\nthe complainants’ families or private lives that are highly personal in nature and do not pertain to\ntheir public duties. Therefore, the complainants' right to privacy also outweighs the public\ninterest in that particular information.\nThe privacy rights of complainants and third parties, however, can be protected by\nredacting discrete portions of the records rather than by withholding them in their entireties.\nOnly small portions of the records contain descriptions that could be characterized as graphic or\nsalacious. The complaints contain many general descriptions of alleged discrimination or\nharassment by City employees while on the job. The complainants' identities cannot be\ndiscerned from those general descriptions if their names and other discrete personally-identifying\ndetails are redacted, and they have a minimal privacy interest in the content. In contrast, there is\na significant public interest in disclosure of alleged instances of workplace harassment and\ndiscrimination. Although the Department highlighted certain Federal and State regulations\ncontaining confidentiality provisions for certain types of employee complaints and\ninvestigations, the Department did not assert that those laws or regulations prohibit it from\ndisclosing the portions of the complaints at issue in this matter.\nMr. Timothy McNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 12\nThis office acknowledges the Department's policy concern that failing to protect\nthe confidentiality of complainants could discourage employees from reporting alleged\nmisconduct. This office also acknowledges the Department's interest in protecting complainants\nfrom embarrassment or other negative attention. As previously noted, however, the identities of\ncomplainants and third parties, and salacious details concerning them and the alleged incidents,\ncan be protected by redacting portions of the complaints that contain personally-identifying\ninformation, highly personal information such as graphic details of the incidents that occurred,\nand details about family matters or other aspects of private lives.*? Disclosing those records with\nsuch redactions would strike an appropriate balance between the public interest in disclosure and\nthe complainants' privacy interests. See State Journal-Register, 2013 IL App (4th) 120881, 66,\n994 N.E.2d at 720 (student's correspondence not exempt from disclosure in its entirety under\nsection 7(1)(c) because redaction of student's name protected the student's privacy interests).\nState courts in other jurisdictions have taken similar approaches in balancing the\npublic interest in information concerning public employee misconduct and protecting the privacy\ninterests of complainants. See, e.g., Rocque v. Freedom of Information Comm'n, 255 Conn. 651,\n668, 774 A.2d 957, 967 (Conn. 2001) (reversing lower court's finding that entire sexual\nharassment complaint and all of the complainant's statement were exempt from disclosure under\nthe personal privacy exemption in Connecticut's version of FOIA, but agreeing that the\ncomplainant's identity and sexually explicit portions of documents fell within scope of the\nexemption); Linzmeyer v. Forcey, 2002 WI 84, 9940-42, 254 Wis. 2d 306, 331-32, 646 N.W.2d\n811, 821-22 (Wis. 2002) (affirming lower court's finding that investigation report concerning\nteacher's alleged inappropriate conduct was not exempt from disclosure under Wisconsin's open\nrecords law but remanding for appropriate redactions, such as identities of students who were\ninterviewed); Deseret News Publishing Co. v. Salt Lake County, 2008 UT 26, 9934-36, 182 P.3d\n372, 381 (Utah 2008) (reversing lower court's ruling that county properly withheld investigative\nreport concerning a sexual harassment complaint under Utah's version of FOIA because there\nwas a legitimate public interest in disclosure of the report despite the remote possibility that \"a\ndedicated and enterprising person [could] derive the identities of one or more witnesses\nregardless of the precautions taken to preserve their anonymity.\"). But see Morales y. Ellen, 840\nS.W.2d 519, 525 (Tex. App. 1992) (finding \"that the public does not possess a legitimate interest\nin the identities of the individual witnesses, nor the details of their personal statements beyond\nwhat is contained in the documents that have been ordered released.\").\n85 ILCS 140/7(1) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-\n558, effective August 20, 2021 (\"When a request is made to inspect or copy a public record that contains\ninformation that is exempt from disclosure under this Section, but also contains information that is not exempt from\ndisclosure, the public body may elect to redact the information that is exempt. The public body shall make the\nremaining information available for inspection and copying.\")\nMr. Timothy MeNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 13\nFinally, there does not appear to be an alternative means for Mr. McNicholas to\nobtain the responsive records. The Department contended that the public interest in the extent of\nharassment or discrimination in the workplace might be satisfied by the records of disciplinary\naction taken against employees who are found to have violated the City's EEO policy. However,\nthe information the City disclosed to Mr. McNicholas in response to the first portion of his FOIA\nrequest concerning one disciplinary action was limited. Specifically, the records reflect that an\nemployee received a suspension. The notice of suspension merely referenced a City EEO\ninvestigation number and stated that the individual was in violation of a specified rule number.\nThe notice provides no other information regarding any complaints or incidents that served as the\nbasis for the Department's decision to issue the suspension. Further, the Department has not\ndemonstrated that there is any other means by which Mr. McNicholas could obtain information\nabout the accusations of workplace misconduct that have not resulted in a finding of an EEO\npolicy violation.\nAccordingly, this office concludes that the Department has not demonstrated by\nclear and convincing evidence that the complaints responsive to Mr. McNicholas' FOIA request\nare exempt from disclosure in their entireties under section 7(1)(c) of FOIA.\nSection 7(1)(f) of FOIA\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption applies to \"inter- and intra-agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). Section 7(1)(f)\nis \"intended to protect the communications process and encourage frank and open discussion\namong agency employees before a final decision is made.\" Harwood, 344 Ill. App. 3d at 248.\nThe Illinois Appellate Court has stated that \"purely factual material\" is not exempt from\ndisclosure under section 7(1)(f) unless the factual material is \"inextricably intertwined\" with\npredecisional discussions. Watkins v. McCarthy, 2012 IL App (1st) 100632, 936, 980 N.E.2d\n733, 740 (2012) (quoting Enviro Tech International, Inc., v. United States Environmental\nProtection Agency, 371 F.3d 370, 374-75 (7th Cir. 2004)). Rather, \"[o]nly those portions of a\npredecisional document that reflect the give and take of the deliberative process may be\nwithheld.\" Kalven y. City of Chicago, 2014 IL App (Ist) 121846, §24, 7 N.E.3d 741, 748 (2013),\nrev'd on other grounds by Perry v. Dep't of Financial and Professional Regulation, 2018 IL\n123349, 106 N.E.3d 1016 (2018) (quoting Public Citizen, Inc. v. Office of Management &\nBudget, 598 F.3d 865, 876 (D.C. Cir. 2010)).\nMr. Timothy MeNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 14\nThe Department's response to this office stated that \"the purpose of the Section\n7(1)(f) exemption is to allow decision makers to engage in frank discussions consisting of the\nfree flow exchange of opinions and thoughts without the worry of public scrutiny.\"*4 The\nDepartment contended that the withheld complaints fell within the scope of section 7(1)(f)\nbecause they \"demonstrate the opinions and deliberations by the authors in preparation for an\naction or policy which had not yet been accomplished.\"** According to the Department, the\ncomplaint against the named employee falls within the scope of section 7(1)(f) because \"it is a\nstatement presenting alleged facts and opinions of one employee.\"*° The remaining withheld\ncomplaints similarly \"present descriptions of events and conduct as experienced by the\ncomplaining employees.\"*’ The Department argued that the complaints are preliminary in\nnature, as at the time that they were submitted, it \"had not taken any steps to substantiate the\nallegations and had not yet made a decision about which of the facts DHR would investigate.\"*®\nThe Department has not demonstrated that the complaints reveal information that\nwould provide insight into the give-and-take of any Department decision-making process.\nComplaints may lead to a process that involves deliberative discussions culminating in final\naction, but the complaints themselves are not part of that deliberative process. The complaints\ndo not, for instance, reveal the mental impressions or opinions of the investigators who reviewed\nthem. Instead, the complaints precede the decision-making process and are factual in nature,\nproviding the dates of particular incidents and descriptions of the alleged conduct that occurred.\nNoting that purely factual information is not exempt from disclosure, the court in State Journal-\nRegister advised that \"[f]actual information includes that which is collected within investigative\nreports, such as affidavits of witnesses and investigator's interviews[.]\" State Journal-Register,\n“Letter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(February 7, 2022), at 5.\n‘Letter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(February 7, 2022), at 5.\n46Letter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(February 7, 2022), at 5.\n“\"Letter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(February 7, 2022), at 5-6.\n‘8Letter from Melissa Nunchuck, FOIA Officer, Department of Human Resources, City of\nChicago, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office\n(February 7, 2022), at 6.\nMr. Timothy McNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 15\n2013 IL App (4th) 120881, §27, 994 N.E.2d at 713. In that case, the court concluded that\nwitness statements did not fall within the scope of section 7(1)(f) because they \"contain factual\naccountings of the events by witnesses, [and] are capable of standing alone, with no evidence\nthey are ‘inextricably intertwined’ with the predecisional process.\" State Journal-Register, 2013\nIL App (4th) 120881, 930, 994 N.E.2d at 714.\nBecause the complaints do not reveal the Department's predecisional deliberative\nprocess for responding to the complaints, this office concludes that the Department did not\nsustain its burden of demonstrating by clear and convincing evidence that the records are exempt\nfrom disclosure pursuant to section 7(1)(f) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the available information,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On November 8, 2021, Mr. Timothy MeNicholas, on behalf of CBS Chicago,\nsubmitted a FOIA request to the City of Chicago Department of Human Resources seeking: (1)\nany disciplinary records for a named City employee; (2) records of any complaints of racism,\ndiscrimination or harassment against that named employee; and (3) records of any complaints of\nracism, discrimination or harassment against any employees at a particular Streets and Sanitation\nfacility filed within the previous five years.\n2) On November 24, 2021, the Department responded to Mr. McNicholas by\nproviding copies of records responsive to the first item in his request. The Department stated it\nwas working on a response to the remaining portions of his request and planned to respond by\nDecember 3, 2021.\n3) On December 15, 2021, Mr. McNicholas submitted a Request for Review to\nthe Public Access Bureau stating that the Department did not respond to the second and third\nportions of his request.\n4) On December 23, 2021, an Assistant Attorney General in the Public Access\nBureau notified the Department that it was in receipt of a Request for Review, 2021 PAC 69011,\nand asked it to provide a status update on the disclosure of records to Mr. McNicholas.\n5) On January 5, 2022, the Public Access Bureau received a letter from the\nDepartment in which the Department maintained that it had properly denied a request that was\nthe subject of a previous Request for Review, 2020 PAC 65673; that request was identical to Mr.\nMcNicholas' November 8, 2021, FOIA request. The Department asserted that the records\nMr. Timothy McNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 16\nresponsive to the second and third portions of the request are exempt from disclosure pursuant to\nsections 7(1)(c) and 7(1)(f) of FOIA.\n6) On January 7, 2022, Mr. McNicholas submitted an updated Request for\nReview in which he informed the Department and the Public Access Bureau that he remained\ninterested in the withheld records and maintained that he is entitled to receive them under FOIA.\n7) On January 20, 2022, Mr. McNicholas provided this office with a copy of his\nNovember 8, 2021, FOIA request, thereby completing his Request for Review. Mr. McNicholas\nRequest for Review was timely filed and otherwise complies with the requirements of section\n9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)).\n8) On January 20, 2022, the Public Access Bureau sent a copy of the Request for\nReview to the Department and asked it to provide for this office's confidential review copies of\nthe withheld records responsive to Mr. McNicholas' November 8, 2021, request. This office also\nasked the Department to provide a detailed explanation of the factual and legal bases for\nwithholding those records.\n9) On February 7, 2022, the Department furnished the requested materials to this\noffice by e-mail. Although the Department's written response referenced 2020 PAC 65673, the\nDepartment's transmittal e-mail advised that it was also in response to 2021 PAC 69011.\n10) On February 8, 2022, this office forwarded a copy of the Department's\nwritten response to Mr. MeNicholas and notified him of his opportunity to reply. He did not\nsubmit a reply.\n11) On February 9, 2022, this office properly extended the time within which to\nissue a binding opinion by 30 business days, to March 28, 2022, pursuant to section 9.5(f) of\nFOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to\nthis matter.\n12) Section 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)(c) defines \"unwarranted invasion of personal privacy\"\nas \"the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject's right to privacy outweighs any legitimate public interest in obtaining\nthe information.\" The exemption expressly provides that \"[t]he disclosure of information that\nbears on the public duties of public employees and officials shall not be considered an invasion\nof personal privacy.\"\nMr. Timothy MeNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 17\n13) Complaints describing alleged workplace misconduct bear directly on the\npublic duties of public employees. The records at issue describe alleged racism, discrimination,\nor harassment by City employees while on duty. Therefore, they are not exempt from disclosure\nin their entireties pursuant to section 7(1)(c) of FOIA. However, the identifying information of\ncomplainants, witnesses, and third parties mentioned incidentally in the records may be redacted\nbecause disclosure of that information would constitute a clearly unwarranted invasion of those\nindividuals' personal privacy.\n14) The Department asserted that disclosure of the complainants' statements\nwould be objectionable to a reasonable person because they \"contain discussions of intimate\ninteractions of a sexual or racial nature.\" However, the records also include more general\ndiscussions concerning alleged harassment or discrimination in the workplace. While\ncomplainants have a legitimate privacy interest in details that are highly personal and graphic or\nsalacious in nature, there is a strong public interest in information that sheds light on the\ncircumstances surrounding the alleged inappropriate conduct or behavior. Therefore, the\nDepartment did not demonstrate by clear and convincing evidence that the complaints are\nexempt in their entireties pursuant to section 7(1)(c) of FOIA. Pursuant to that exemption,\nhowever, the Department may redact discrete portions of the statements containing details that\nare graphic or salacious in nature, such as details that are sexually explicit. The Department may\nalso redact details concerning the complainants' family and private lives because they are highly\npersonal do not bear directly on the employees' public duties.\n15) Section 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\"\n16) The Department asserted that the complaints are preliminary in nature, but\nthey consist of factual information and precede any decision-making process in which the\nDepartment formulated responses to the complaints. Therefore, the Department did not sustain\nits burden of demonstrating by clear and convincing evidence that the records are exempt from\ndisclosure pursuant to section 7(1)(f) of FOIA.\nTherefore, it is the opinion of the Attorney General that the Department's response\nto Mr. McNicholas' November 8, 2021, Freedom of Information Act request violated the\nrequirements of FOIA. Accordingly, the Department is directed to take immediate and\nappropriate action to comply with this opinion by disclosing to Mr. McNicholas copies of the\nresponsive records, subject only to the redactions authorized above.\nMr. Timothy McNicholas\nMs. Melissa Nunchuck\nMarch 24, 2022\nPage 18\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision naming the Attorney General of Illinois and Mr.\nTimothy McNicholas and CBS 2 Chicago News as defendants. See 5 ILCS 140/11.5 (West\n2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBrent D. Stratton\nChief Deputy Attorney General\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 22-005) upon:\nMr. Timothy McNicholas\nCBS Chicago Reporter\nCBS 2 Broadcast Center\n22 West Washington Street\nChicago, Illinois 60602\ntjmcnicholas@cbs.com\nMs. Melissa Nunchuck\nFOIA Officer\nCity of Chicago — Department of Human Resources\n121 North LaSalle Street, Room 100\nChicago, Illinois 60602\ndhrfoia@cityofchicago.org\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on March 24, 2022.\nSTEVE SILVERMAN\nBureau Chief\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street, 11th Floor\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested disciplinary records and complaints of racism or harassment regarding a city employee. The City of Chicago denied the request entirely, but the Attorney General ruled that this denial was improper under FOIA. The City must now provide the requested records, as they did not prove the information was legally protected from public view.","card_headline":"Disciplinary records of a city employee","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":155,"orig_master_id":19359,"dup_master_id":19129,"dup_sha256":"f098e8f22835581090a4720e440460a9de2d11015adc3c556f0ef28aa42dce74","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2022,"date_issued":"2022-06-30","case_number":"2022 PAC 71237","request_numbers":null,"title":"Taking Final Action on Matter Not Sufficiently Identified on Meeting Agenda","filename":"PUBLIC ACCESS OPINION 22-008 (Request for Review - 2022 PAC 71237).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 22-008 (Request for Review - 2022 PAC 71237).pdf","word_count":4304,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a violation of the Open Meetings Act by the Farm Committee of the Shelby County Board for not properly identifying final actions on their meeting agenda.","plain_summary":"The requester, a resident, alleged that a county farm committee voted to hire someone to obtain crop insurance and to borrow money for crop expenses without listing either action on its meeting agenda. The Public Access Counselor held that the agenda's generic reference to \"farming options\" did not identify the general subject matter of those specific votes as the Open Meetings Act requires, rejecting the committee's argument that the actions were sufficiently \"germane\" to the broader agenda item. The committee was directed to properly identify the general subject matter of its anticipated final actions on future agendas.","holding":"The Farm Committee violated the Open Meetings Act by voting on resolutions not listed on the agenda.","legal_question":"Did the Farm Committee violate the Open Meetings Act by taking final action on matters not sufficiently identified on the meeting agenda?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Farm Committee of the Shelby County Board","requesting_party":"Mr. Jeremy D. Williams","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The Committee took final action on hiring a crop insurance agent and borrowing funds for crop expenses without including these items on the meeting agenda.","ocr_status":"ok","ocr_quality":90.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2022-Binding-PAC-Opinions/22-008.pdf","sha256":"c43a70c1c1cbfb719350ca442f9fabaa1df91a89a98a9a475b214391100b3807","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["meeting agenda","final action","Open Meetings Act","public notice"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nJune 30, 2022\nPUBLIC ACCESS OPINION 22-008\n(Request for Review 2022 PAC 71237)\nOPEN MEETINGS ACT:\nTaking Final Action on Matter Not\nSufficiently Identified on Meeting Agenda\nMr. Jeremy D. Williams\n[street address redacted for site publication -- see original PDF]\nThe Honorable Jeff Slifer\nChairman\nFarm Committee\nShelby County Board\nP.O. Box 230\nShelbyville, Illinois 62565\nDear Mr. Williams and Mr. Slifer:\nThis binding opinion is issued by the Attorney General pursuant to section 3.5(e)\nof the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons discussed\nbelow, this office concludes that the Farm Committee (Committee) of the Shelby County Board\n(Board) violated OMA at its April 7, 2022, meeting by voting to approve two resolutions without\nproviding advance notice of those final actions on the Committee's meeting agenda.\nBACKGROUND\nIn an e-mail addressed to the Public Access Counselor and sent to an Assistant\nAttorney General in the Public Access Bureau on April 13, 2022, Mr. Jeremy D. Williams\nsubmitted a Request for Review alleging that the Committee violated OMA by voting on two\nitems, the hiring of Jim Schwerman to buy crop insurance for the county, and borrowing $ 7,500\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © I’ 'Y: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 ¢ (312) 814-3000 ¢ T’LY: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © ‘IY: (877) 675-9339 © Fax (618) 529-6416 » Lecce) <\nMr. Jeremy D. Williams\nMr. Jeff Slifer\nJune 30, 2022\nPage 2\nfor crop expenses, which were not listed on the agenda for its April 7, 2022, meeting.' On April\n14, 2022, Mr. Williams sent an e-mail to the Public Access Bureau containing the agenda and\nminutes of the Committee's April 7, 2022, meeting.” The Public Access Bureau construed this\nRequest for Review as alleging that the Committee violated section 2.02(c) of OMA (5 ILCS\n120/2.02(c) (West 2020)) by taking final action to borrow money for crop expenses and hire a\ncertain individual to obtain crop insurance without including the general subject matter of those\nactions on the meeting agenda.\nOn April 26, 2022, the Public Access Bureau sent a copy of the Request for\nReview to Mr. Jeff Slifer, the Chairman of the Shelby County Farm Committee, and requested a\nwritten response to Mr. Williams! allegations, as well as copies of the agenda and minutes of the\nApril 7, 2022, meeting.* By e-mail dated May 5, 2022, Ms. Nichole Kroncke, Shelby County\nState's Attorney, provided the Public Access Bureau with a written response on behalf of the\nCommittee. The Committee's response acknowledged that during its April 7, 2022, meeting, the\nCommittee voted to recommend that the Board approve borrowing money for herbicide\nexpenses, and to use the services of Mr. Jim Schwerman, at no charge, to secure crop insurance.>\nThe Committee asserted that it provided sufficient advance notice of those recommendations\nbecause they were \"germane\" to a matter listed on its agenda,° specifically item 3, which\nprovided \"Discussion and vote on recommendation to the County Board regarding farming\noptions for the County Farm[.]\"’ On May 13, 2022, Ms. Kroncke e-mailed this office copies of\nthe agenda and minutes of the Committee's April 7, 2022, meeting.®\n'E-mail from Jeremy Williams to Public Access Counselor [Office of the Attorney General] (April\n13, 2022).\nE-mail from Jeremy Williams to [Lorraine] Dunham, [Paralegal II, Public Access Bureau, Office\nof the Attorney General (April 14, 2022).\n3Letter from Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, Office of\nthe Attorney General, to Mr. Jeff Slifer, Chair, Shelby County Farm Committee (April 26, 2022).\n‘Letter from Nichole Kroncke, Shelby County State's Attorney, to Edie Steinberg, Senior Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (May 5, 2022).\n>Letter from Nichole Kroncke, Shelby County State's Attorney, to Edie Steinberg, Senior Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General, State ofI llinois (May 5, 2022), at 2.\n°Letter from Nichole Kroncke, Shelby County State's Attorney, to Edie Steinberg, Senior Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (May 5, 2022), at 2-3.\n7Shelby County Farm Committee, Meeting, Agenda Item 3 (April 7, 2022).\n8E-mail from Nichole Kroncke, Shelby County State's Attorney, to [Edie] Steinberg (May 13,\n2022).\nMr. Jeremy D. Williams\nMr. Jeff Slifer\nJune 30, 2022\nPage 3\nAlso on May 13, 2022, the Public Access Bureau forwarded a copy of the\nCommittee's written answer to Mr. Williams and notified him of his opportunity to reply.? On\nJune 20, 2022, Mr. Williams submitted a reply.!°\nOn June 9, 2022, the Public Access Bureau extended the time within which to\nissue a binding opinion by 21 business days, to July 12, 2022, pursuant to section 3.5(e) of\nOMA.!!\nANALYSIS\nThe OMA \"provides that public bodies exist to aid in the conduct of the people's\nbusiness[.]\" Gosnell vy. Hogan, 179 Ill. App. 3d 161, 171 (Sth Dist. 1989). The intent of OMA is\n\"to protect the citizen's right to know[.]\" 5 ILCS 120/1 (West 2020). Further, the General\nAssembly \"declares it to be the public policy of this State that its citizens shall be given advance\nnotice of and the right to attend all meetings at which any business of a public body is discussed\nor acted upon in any way.\"\nSection 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2020)) provides that \"[a]n\nagenda for each regular meeting shall be posted at the principal office of the public body and at\nthe location where the meeting is to be held at least 48 hours in advance of the holding of the\nmeeting.\" Section 2.02(c) of OMA further provides that \"[a]ny agenda required under this\nSection shall set forth the general subject matter of any resolution or ordinance that will be the\nsubject of final action at the meeting.\" (Emphasis added.)\n\"The primary objective * * * when construing the meaning of a statute is to\nascertain and give effect to the intent of the legislature.\" DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n(2006). \"The most reliable indicator of legislative intent is the statutory language, given its plain\nand ordinary meaning.\" Gaffney v. Board of Trustees of the Orland Fire Protection District,\n2012 IL 110012, 456, 969 N.E.2d 359, 372 (2012). When statutory language is ambiguous, the\n*Letter from Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, Office of\nthe Attorney General, to Jeremy Williams (May 13, 2022).\n'F-mail from Jeremy Williams to [Edie] Steinberg (June 20, 2022).\n''Letter from Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, Office of\nthe Attorney General, to Jeremy D. Williams, and to Jeff Slifer, Chair, Shelby County Farm Committee (June 9,\n2022).\nMr. Jeremy D. Williams\nMr. Jeff Slifer\nJune 30, 2022\nPage 4\nstatute's legislative history and debates are \"[v]aluable construction aids[.]\" Advincula v. United\nBlood Services, 176 Ill. 2d 1, 19 (1996).\nOMA does not define \"general subject matter,\" and no Illinois reviewing court\nhas precisely defined that term. \"General\" is defined as \"[i]nvolving only the main features of\nsomething rather than details or particulars.\" The American Heritage Dictionary 552 (2d coll.\ned. 1985). \"Subject matter\" is defined as \"[t]he issue presented for consideration[.]\" Black's\nLaw Dictionary 1561 (9th ed. 2009). These definitions are broad in scope, and provide little\nguidance as to the amount of information the General Assembly intended public bodies to\ninclude on agendas for topics of final action. Although the modifier \"general\" signifies that an\nagenda item may identify a broad subject matter, the word is inherently ambiguous.\nHowever, the Illinois Supreme Court has indicated that section 2.02(c) requires\nthat a public body's agenda include sufficient detail to notify members of the public of the types\nof final actions that public bodies anticipate taking. Board of Education of Springfield School\nDistrict No. 186 v. Attorney General of Illinois, 2017 IL 120343, §{§ 32-33, 77 N.E.3d 625, 632\n(2017). In that case, the meeting agenda at issue \"listed item 9.1, 'Approval of a Resolution\nregarding the Separation Agreement and Release between Superintendent Dr. Walter Milton, Jr.,\nand the Board of Education.\" Board of Education of Springfield School District No. 186, 2017\nIL 120343, 98, 77 N.E.3d at 628. During the meeting, the Board of Education voted in favor of a\nresolution that its president recited: \"I have item 9.1, approval of a resolution regarding the\nseparation agreement. The Board President recommends that the Board of Education of\nSpringfield School District No. 186 vote to approve the separation agreement and release\nbetween Dr. Walter Milton, Jr., and the Board of Education.\" Board of Education of Springfield\nSchool District No. 186, 2017 IL 120343, 99, 77 N.E.3d at 628. The Court determined that\nagenda item 9.1 \"not only set forth the general subject matter—approval of a resolution\nregarding a separation agreement—it specifically identified the individual employee with whom\nthe agreement had been negotiated, and it contained a link to the full text of the agreement\nitself.\" Board of Education of Springfield School District No. 186., 2017 IL 120343, 933, 77\nN.E.3d at 632.\"\nThe Illinois Supreme Court's analysis is consistent with the reason section 2.02(c)\nof OMA was enacted and the problems this provision was intended to remedy. The Senate\ndebate on House Bill No. 4687, which as Public Act 97-827, effective January 1, 2013, added\nsection 2.02(c) of OMA, indicates that the General Assembly enacted this provision to ensure\n'2 Although the adequacy of the Board of Education's public recital rather than the agenda item was\nat issue, the Court analyzed the agenda item in holding that \"an agenda posting standing alone cannot fulfill the\npublic recital requirement in section 2(e).\" Board of Education of Springfield School District No. 186., 2017 IL\n120343, 935, 77 N.E.3d at 632.\nMr. Jeremy D. Williams\nMr. Jeff Slifer\nJune 30, 2022\nPage 5\nthat agendas provide sufficiently descriptive advance notice of the matters upon which a public\nbody anticipates taking final action:\n[T]here was just no real requirement as to how specific [public\nbodies] needed to be to the public of what they were going to\ndiscuss that would be final action. And this just says that you have\nto have a * * * general notice, if you're going to have and take final\naction, as to generally what's going to be discussed so that — that\npeople who follow their units of local government know what\nthey're going to be acting upon. (Emphasis added.) Remarks of\nSen. Dillard, May 16, 2012, Senate Debate on House Bill No.\n4687, at 47.'3\nHere, the agenda for the April 7, 2022, meeting listed as item three: \"Discussion\nand vote on recommendation to the County Board regarding farming options for the County\nFarm[.]\"'* The handwritten minutes of the Committee's April 7, 2022, meeting, provide in\nrelevant part:\n7. Motion by Swits, 2nd by Coffman\nto hire Jim Schwerman (N/C) to attain crop insurance\nNo - Orman, Bennett\nYes - Coffman, Slifer, Swits PASSED\n8. Motion by Swits, 2nd by Coffman\nTo borrow up to $7500 at 0% interest for crop expense\nNo - Orman, Bennett\nYes - Coffman, Slifer, Swits PASSED\n9. To be presented to full board[.]!\">!\nThe general subject matter of these final actions were to recommend that the\nBoard (1) attain crop insurance and (2) borrow money for crop expenses. The agenda for the\n'3See also Ill. Att'y Gen. Pub. Acc. Op. No. 19-012, issued November 13, 2019, at 7 (\"The Senate\ndebate on House Bill No. 4687, which as Public Act 97-827, effective January 1, 2013, added section 2.02(c) to\nOMA, indicates that the General Assembly intended this provision to ensure that agendas provide sufficient detail to\nnotify members of the public of the types of final actions public bodies anticipated taking at their meetings.\").\n'4Shelby County Farm Committee, Meeting, Agenda Item 3 (March 28, 2022).\n'SShelby County Farm Committee, Meeting, April 7, 2022, Minutes 2.\nMr. Jeremy D. Williams\nMr. Jeff Slifer\nJune 30, 2022\nPage 6\nApril 7, 2022, meeting did not list attaining crop insurance or borrowing money for crop\nexpenses as any item. Rather, the agenda merely states that the Committee will make\nrecommendations about \"farming options for the County Farm[.]\"!© Therefore, the general\nsubject matter of the Committee's final actions are absent.\nIn support of its position that its agenda did not violate OMA, the Committee's\nresponse to this office explained:\nThe Farm Committee of the Shelby County Board exists\nfor the purpose of addressing all issues related to the County Farm.\nVarious options are available to the county with respect to the\nCounty Farm, including: selling the land; maintaining ownership\nof the land without farming it (as in 2021); leasing the farm to a\nprivate entity; licensing / custom farming the land; and engaging in\na pilot program with local schools to educate students on\nagriculture. The Farm Committee was tasked with considering\nvarious options as they relate to the County Farm and making its\nrecommendation(s) to the full county board for a final decision.\nOK OK\nWith respect to the allegation that the committee voted on a\nmatter that was not identified on the meeting agenda, it is the\ncounty's position that no violation of the Open Meetings Act\noccurred for the following reasons: discussions and\nrecommendations regarding procurement of funding for herbicides\nand obtaining crop insurance were closely related to, appropriate,\nrelative and pertinent to the discussion and recommendations of\n\"farming options\" for the Shelby County Farm.!!7!\nAs explained by the Committee, its purpose is to address issues related to the County Farm and\nmake recommendations to the Board regarding options for the County Farm. Thus, agenda item\nthree (\"Discussion and vote on recommendation to the County Board regarding farming options\nfor the County Farm\") merely restates the Committee's purpose rather that describing the subject\n'6Shelby County Farm Committee, Meeting, Agenda Item 3 (April 7, 2022).\n\"Letter from Nichole Kroncke, Shelby County State's Attorney, to Edie Steinberg, Senior\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (May 5, 2022),\nat 1-2.\nMr. Jeremy D. Williams\nMr. Jeff Slifer\nJune 30, 2022\nPage 7\nmatter of particular options on which the Committee might vote at that particular meeting. The\nCommittee's argument is analogous to contending that an agenda item for a county board\nmeeting sufficiently identified the general subject matter of a final action if it stated the county\nboard would discuss matters regarding the county, which is patently overbroad and insufficient.\nThe Committee's agenda was simply too vague and imprecise to provide any meaningful notice\nto the public that the Committee would take action concerning borrowing money for crop\nexpenses or obtaining crop insurance. Because agenda item three merely restates the\nCommittee's purpose, the agenda did not satisfy the requirements of section 2.02(c) of OMA by\nsetting forth the general subject matter of the Committee's actions concerning its\nrecommendations to attain crop insurance and to borrow money for crop expenses, such as\nherbicides.\nThe Committee also argued that its agenda provided sufficient advance notice\nbecause both of the Committee's final actions were \"germane\" to agenda item three.\nSpecifically, the Committee asserted that the actions are closely related, appropriate, relative, and\npertinent to recommending farming options for the County Farm.'* The Committee cited two\ncases to support its position that being \"germane\" to an agenda item satisfies the requirements of\nsection 2.02(c) of OMA: In re Foxfield Subdivsion, 396 Ill. App. 3d 989 (2d Dist., 2009); Argo\nHigh School Council of Local 571 vy. Argo Community High School District, 163 Ill. App. 3d 578\n(1st Dist. 1987). The court in those cases, however, considered whether agendas provided\nsufficient advance notice pursuant to language that is similar or substantively identical to the\ncurrent version of section 2.02(a) of OMA.’ In re Foxfield Subdivsion, 396 Ill. App. 3d at 994;\nArgo High School Council of Local 571, 163 Ill. App. 3d at 581-82. Both decisions pre-date the\nenactment of section 2.02(c) of OMA, which became effective on January 1, 2013. The General\nAssembly manifested an intent to impose on public bodies an additional advance notice\nrequirement by amending OMA to require public bodies to include the general subject matter of\nfinal actions on meeting agendas. See People v. Woodard, 175 Ill. 2d 435, 444 (1997) (statutory\namendments are \"presumed to have a purpose, and a court must consider the language of an\n'8Letter from Nichole Kroncke, Shelby County State's Attorney, to Edie Steinberg, Senior\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (May 5, 2022),\nat 3-4.\n'Section 2.02(a) (5 ILCS 120/2.02(a) (West 2020)) provides, in relevant part:\nPublic notice of any special meeting except a meeting held in the event ofa\nbona fide emergency, or of any rescheduled regular meeting, or of any\nreconvened meeting, shall be given at least 48 hours before such meeting, which\nnotice shall also include the agenda for the special, rescheduled, or reconvened\nmeeting, but the validity of any action taken by the public body which is\ngermane to a subject on the agenda shall not be affected by other errors or\nomissions in the agenda.\"\nMr. Jeremy D. Williams\nMr. Jeff Slifer\nJune 30, 2022\nPage 8\namended statute in light of the need for amendment and the purpose it serves.\"). The term\n\"germane\" in section 2.02(a) of OMA is not synonymous with the phrase \"general subject\nmatter\" in section 2.02(c). \"Germane\" is defined as \"[r]elevant; pertinent[.]\" Black's Law\nDictionary 756 (9th ed. 2009). Ifthe legislature meant to use the term \"germane\" in section\n2.02(c) of OMA, it could have done so. See Jacobson v. General Finance Corp., 227 Ill. App.\n3d 1089, 1098 (2d Dist. 1992) (\"In construing statutory enactments, the General Assembly is\npresumed to know existing law[.]\") Instead, it chose the language \"general subject matter,\"\nsignifying that it intended a public body to provide the public with more detailed advance notice\nof its upcoming actions.\nThe Committee also asserted that even if the Committee had violated OMA, the\nBoard cured the violation by considering and voting on the Committee's recommendations at its\nApril 14, 2022 meeting. The minutes of the Board's April 14, 2022, meeting establish that the\nBoard considered the Committee's recommendations to borrow money for the crop expense of\nprocuring chemicals and to use the services of Mr. Schwerman to procure crop insurance on\nbehalf of the county. During the meeting, Committee Chair Slifer pulled the Committee's\nrecommendation for borrowing money, and the Board voted to approve the motion allowing Mr.\nSchwerman to procure crop insurance on behalf of the county.”” As such, the Committee argued\nthat if it had violated OMA, the Board cured its violation. A committee of a public body, such as\na board, is a separate public body from the board for purposes of compliance with the\nrequirements of OMA. III. Att'y Gen. Pub. Acc. Op. No. 13-002, issued April 16, 2013, at 5.7!\nThus, the Board's actions at its April 14, 2022, meeting did not cure the Committee's violation of\nOMA. However, because the Board already considered and voted on the Committee's\nrecommendations, there is no legal or practical reason for the Committee to prepare a new\nagenda and re-vote on its final actions.\nBased on the foregoing, this office concludes that the Committee violated section\n2.02(c) of OMA during its April 7, 2022, meeting, by taking final action to recommend that the\nBoard attain crop insurance and borrow money for crop expenses without including the general\nsubject matter of those final actions on the meeting agenda.\n0Shelby County Board, Meeting, April 14, 2022, Minutes 2.\n21See also section 1.02 of OMA (5 ILCS 120/1.02) (West 2020), which defines a \"Public body\" to\ninclude \"all legislative, executive, administrative or advisory bodies of the State, counties, * * * boards, bureaus,\ncommittees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not\nlimited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend\ntax revenue[.]\" (Emphasis added.)\nMr. Jeremy D. Williams\nMr. Jeff Slifer\nJune 30, 2022\nPage 9\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments presented,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On April 13, 2022, Mr. Jeremy D. Williams submitted a Request for Review\nalleging that at its April 7, 2022, meeting the Farm Committee of the Shelby County Board voted\nto buy crop insurance and to borrow $7,500 for crop expenses without listing those items on the\nmeeting agenda. Mr. Williams' Request for Review was timely filed and otherwise complies\nwith the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)).\n2) On April 26, 2022, the Public Access Bureau sent a copy of the Request for\nReview to Mr. Jeff Slifer, the Chairman of the Committee, and requested a written response to\nMr. Williams' allegations, along with copies of the agenda and minutes of the April 7, 2022,\nmeeting.\n3) On May 5, 2022, Ms. Nichole Kroncke, Shelby County State's Attorney,\nprovided the Public Access Bureau with a written response on behalf of the Committee. On May\n13, 2022, Ms. Kroncke provided this office with the requested agenda and minutes.\n4) On May 13, 2022, the Public Access Bureau forwarded a copy of the\nCommittee's written answer to Mr. Williams and notified him of his opportunity to reply. On\nJune 20, 2022, Mr. Williams submitted a reply.\n5) On June 9, 2022, the Public Access Bureau extended the time within which to\nissue a binding opinion in this matter by 21 business days, to July 12, 2022, pursuant to section\n3.5(e) of OMA. Accordingly, the Attorney General may properly issue a binding opinion with\nrespect to this matter.\n6) Section 2.02(c) of OMA requires that a meeting agenda \"set forth the general\nsubject matter of any resolution or ordinance that will be the subject of final action at the\nmeeting.\" This provision requires public bodies to include on agendas sufficient detail to notify\nmembers of the public of the types of final actions that public bodies anticipate taking at their\nmeetings.\n7) The purpose of the Committee is to address issues related to the county farm\nand to make recommendations to the Board regarding options for the farm.\nMr. Jeremy D. Williams\nMr. Jeff Slifer\nJune 30, 2022\nPage 10\n8) Agenda item 3 of the agenda for the Committee's April 7, 2022, meeting\nindicated that the Committee would discuss and vote on recommendations to the Board\nregarding farming options for the county farm.\n9) During its April 7, 2022, meeting, the Committee voted to recommend to the\nBoard that it borrow up to $7,500 for crop expenses and use the services of Mr. Schwerman, at\nno charge, to attain crop insurance.\n10) The general subject matter of the Committee's final actions were to (1)\nrecommend that the Board borrow money for crop expenses, and (2) recommend that the Board\nattain crop insurance.\n11) The Committee's agenda for its April 7, 2022, meeting did not contain\nagenda items identifying the general subject matter of its final actions to recommend that the\nBoard borrow money for crop expenses or to recommend that the Board attain crop insurance.\n12) Accordingly, the Attorney General concludes that the Committee violated\nsection 2.02(c) of OMA by failing to include the general subject matter of those final actions on\nthe agenda for its April 7, 2022, meeting.\nIn accordance with these findings of fact and conclusions of law, directs the\nCommittee to include the general subject matter of its anticipated final actions on its agendas for\nfuture meetings and to conduct its future meetings in full compliance with OMA. As required by\nsection 3.5(e) of OMA, the Committee shall either take necessary action as soon as practical to\ncomply with the directives of this opinion or shall initiate administrative review under section\n7.5 of OMA (5 ILCS 120/7.5 (West 2020)).\nMr. Jeremy D. Williams\nMr. Jeff Slifer\nJune 30, 2022\nPage 11\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Mr.\nJeremy Williams as defendants. See 5 ILCS 120/7.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBy: [it a tf o9—_\nBrent D. Stratton\nChief Deputy Attorney General\nrete The Honorable Nichole Kroncke\nShelby County State’s Attorney\n301 East Main Street\nShelbyville, Illinois 62565\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 22-008) upon:\nMr. Jeremy D. Williams\n997 North 2300 East\nShelbyville, Illinois 62565\nCardinalsfan1968@juno.com\nThe Honorable Jeff Slifer\nChairman\nFarm Committee\nShelby County Board\nP.O. Box 230\nShellbyville, Illinois 62565\nSlifarms4@gmail.com\nThe Honorable Nichole Kroncke\nShelby County State’s Attorney\n301 East Main Street\nShelbyville, Illinois 62565\nstatesattorney@shelbycounty-il.gov\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on June 30, 2022.\n“ STEVE SILVERMAN -\nBureau Chief\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street, 11th Floor\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Shelby County Board's Farm Committee held a meeting where they voted on two financial resolutions that were not listed on the meeting agenda. The Illinois Attorney General ruled that this violated the Open Meetings Act, which requires public bodies to provide advance notice of final actions. This means the Committee failed to give the public a fair opportunity to know what decisions were being made at the meeting.","card_headline":"Votes on agenda items not listed","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":156,"orig_master_id":19357,"dup_master_id":19130,"dup_sha256":"3dd9be25e51e51bac943a6d44cf8031ba7ed113605ab072a13a4fc4bd14b59cb","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2022,"date_issued":"2022-06-30","case_number":"2022 PAC 70948","request_numbers":null,"title":"Section 7.5(zz) of FOIA Exempts from Disclosure Information Identifying City Employees in Bargaining Unit Positions Represented By a Particular Union","filename":"PUBLIC ACCESS OPINION 22-009 (Request for Review - 2022 PAC 70948).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 22-009 (Request for Review - 2022 PAC 70948).pdf","word_count":4495,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request made by Ms. Erin Volz for the identities of City employees in bargaining unit positions represented by SEIU Local 73.","plain_summary":"The requester, on behalf of an advocacy organization, sought the names, job titles, and work contact information of city employees covered by a specific union's collective bargaining agreement, which the city denied as prohibited disclosure of union-membership information. The Public Access Counselor held that identifying which employees belong to that particular bargaining unit would necessarily reveal protected information about union membership and the union's identity under the Illinois Public Labor Relations Act. The city's denial was upheld and no violation was found.","holding":"The City of Berwyn did not violate FOIA by denying the request for employee identities.","legal_question":"Does Section 7.5(zz) of FOIA exempt from disclosure information identifying city employees in bargaining unit positions?","disposition":"no_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7.5"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7.5(zz)"],"public_body":"City of Berwyn","requesting_party":"Ms. Erin Volz","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought the names and contact information of municipal employees represented by a specific labor union.","ocr_status":"ok","ocr_quality":89.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2022-Binding-PAC-Opinions/22-009.pdf","sha256":"67c6931b7721031bbf34d4832b357fc1b365f88e6f30ed0760187eca3cb07652","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["union employees","personnel records","FOIA exemption","employee privacy"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nJune 30, 2022\nPUBLIC ACCESS OPINION 22-009\n(Request for Review 2022 PAC 70948)\nFREEDOM OF INFORMATION ACT:\nSection 7.5(zz) of FOIA Exempts from\nDisclosure Information Identifying City\nEmployees in Bargaining Unit Positions\nRepresented By a Particular Union\nMs. Erin Volz\nPolicy & Outreach Associate\nFreedom Foundation\nP.O, Box 352\n[street address redacted for site publication -- see original PDF]\nThe Honorable Margaret Paul\nCity Clerk/FOIA Officer\nCity of Berwyn\n6700 West 26th Street\nBerwyn, Illinois 60402\nDear Ms. Volz and Ms. Paul:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons discussed below, this\noffice concludes that the City of Berwyn (City) did not violate the requirements of FOIA by\ndenying Ms. Erin Volz's FOIA request seeking the identities and contact information of the City\nemployees who work in bargaining unit positions represented by Service Employees\nInternational Union (SEIU) Local 73.\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © TY: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Ilinois 60601 © (312) 814-3000 © TTY: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © TTY: (877) 675-9339 © Fax (618) 529-6416 » SECCABT DY\nMs. Erin Volz\nThe Honorable Margaret Paul\nJune 30, 2022\nPage 2\nBACKGROUND\nOn January 17, 2022, Ms. Volz, a Policy & Outreach Associate for the Freedom\nFoundation (Foundation), submitted a FOIA request to the City seeking \"the following\ninformation for each City of Berwyn employee covered by the collective bargaining agreement\nwith SEIU Local 73:\"\n1) First name\n2) Middle name\n3) Last name\n4) Job title\n5) Hire date\n6) Department name\n7) Work address\n8) Work email address\n9) Union!!!\nOn January 25, 2022, the City extended its time to respond by five business days pursuant to\nsection 3(e) of FOIA (5 ILCS 140/3(e) (West 2020)).? On January 31, 2022, the City denied the\nrequest under section 7.5(zz) of FOIA,’ which exempts from disclosure \"[i]nformation prohibited\nfrom being disclosed under the Illinois Public Labor Relations Act.\"* The City asserted that\nsections 6(c-5), 10(a)(8), and 10(a)(9) of the Illinois Public Labor Relations Act (IPLRA)>\nprohibit disclosure of the responsive information. In particular, the City asserted that section\n6(c-5) of the IPLRA:\n'Letter from Erin Volz, Policy & Outreach Associate, Freedom Foundation, to City of Berwyn,\nMargaret M. Paul, City Clerk (January 17, 2022).\n*Letter from Sandra Anderson, Deputy City Clerk, City of Berwyn, to Erin Volz, Freedom\nFoundation (January 25, 2022).\n35 ILCS 140/7.5(zz) (West 2020), as amended by Public Acts 102-036, effective June 25, 2021;\n102-237, effective January 1, 2022; 102-292, effective January 1, 2022; 102-520, effective August 20, 2021; 102-\n559, effective August 20, 2021.\n‘Letter from Margaret Paul, City Clerk/FOIA Officer, City of Berwyn, to Erin Volz, Freedom\nFoundation (January 31, 2022).\n°5 ILCS 315/6(c-5) (West 2020), as amended by Public Act 102-038, effective June 25, 2021; 5\nILCS 315/10(a)(8), (a)(9) (West 2020), as amended by Public Act 102-596, effective August 27, 2021.\nMs. Erin Volz\nThe Honorable Margaret Paul\nJune 30, 2022\nPage 3\nprohibits the City of Berwyn from providing any information\npersonally identifying employee membership or membership status\nin a labor organization or other voluntary association affiliated\nwith a labor organization or a labor federation (including whether\nemployees are members of such organization, the identity of such\norganization, whether or not employees pay or authorize the\npayment of any dues or moneys to such organization, and the\namounts of such dues or moneys).!°\nIn an e-mail on April 1, 2022, Ms. Volz submitted a Request for Review to the\nPublic Access Counselor contesting the denial.’ She argued that section 6(c-5) of the IPLRA\ndoes not apply, claiming that her request did not seek the items covered by that provision.\nAccording to Ms. Volz:\nThe Foundation did not seek information regarding membership\nstatus, dues payments, or any other indication of these employees'\nmembership status with the state-appointed union beyond whether\nthey work in a union-represented position. Identifying which\nemployees are in a particular bargaining unit does not indicate\nwhether they are union members.!*!\nOn April 7, 2022, the Public Access Bureau sent a copy of the Request for\nReview to the City, along with a letter requesting a detailed explanation of its legal and factual\nbases for denying Ms. Volz's request.’ This office asked the City to explain in its response the\nextent to penieh City employees are covered by a collective bargaining agreement with SEIU\nLocal 73.!\nSLetter from Margaret Paul, City Clerk/FOIA Officer, City of Berwyn, to Erin Volz, Freedom\nFoundation (January 31, 2022), at 1.\n7Letter from Erin Volz, Outreach Associate, Freedom Foundation, to Leah Bartelt, Public Access\nCounselor, Office of the Attorney General (April 1, 2022).\n8Letter from Erin Volz, Outreach Associate, Freedom Foundation, to Leah Bartelt, Public Access\nCounselor, Office of the Attorney General (April 1, 2022), at 3.\n*Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to The Honorable Margaret Paul, City Clerk/FOIA Officer, City of Berwyn (April 7, 2022).\n‘Ol etter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to The Honorable Margaret Paul, City Clerk/FOIA Officer, City of Berwyn (April 7, 2022), at 2.\nMs. Erin Volz\nThe Honorable Margaret Paul\nJune 30, 2022\nPage 4\nOn April 25, 2022, the City provided via-email!! two versions of its answer in\nundated letters maintaining that its denial was proper: a complete version for this office's\nconfidential review, and a redacted version for forwarding to Ms. Volz.'? On that same date, this\noffice forwarded a copy of the City's redacted answer to Ms. Volz and notified her of her\nopportunity to reply to that answer.'? On May 12, 2022, Ms. Volz submitted the Foundation's\nreply.'4\nOn May 18, 2022, this office extended the time within which to issue a binding\nopinion by 30 business days, to July 14, 2022, pursuant to section 9.5(f) of FOIA.\"\nANALYSIS\nSection | of FOIA (5 ILCS 140/1 (West 2020)) declares that \"it is the public\npolicy of the State of Illinois that access by all persons to public records promotes the\ntransparency and accountability of public bodies at all levels of government.\" Under FOIA,\n\"[a]ll records in the custody or possession of a public body are presumed to be open to inspection\nor copying. Any public body that asserts that a record is exempt from disclosure has the burden\nof proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2020).\nSection 6(c-5) of the IPLRA provides, in relevant part:\n\"E-mail from Margaret Paul, Berwyn City Clerk, to Deputy Bureau Chief Jones [Public Access\nBureau, Office of the Attorney General] (April 25, 2022),\n\"25 ILCS 140/9.5(d) (West 2020) (\"The Public Access Counselor shall forward a copy of the\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy.\").\n'3Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Erin Volz, Policy & Outreach Associate, Freedom Foundation (April 25, 2022).\n4. etter from Erin Volz, Outreach Associate, Freedom Foundation, to Joshua M. Jones, Deputy\nBureau Chief, Public Access Bureau, Office of the Attorney General, State of Illinois (May 12, 2022).\n'SLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Erin Volz, Policy & Outreach Associate, Freedom Foundation, and Margaret Paul, City\nClerk/FOIA Officer, City of Berwyn (May 18, 2022).\nMs. Erin Volz\nThe Honorable Margaret Paul\nJune 30, 2022\nPage 5\nNo employer shall disclose the following information of\nany employee: (1) the employee's home address (including ZIP\ncode and county); (2) the employee's date of birth; (3) the\nemployee's home and personal phone number; (4) the employee's\npersonal email address; (5) any information personally identifying\nemployee membership or membership status in a labor\norganization or other voluntary association affiliated with a labor\norganization or a labor federation (including whether employees\nare members of such organization, the identity of such\norganization, whether or not employees pay or authorize the\npayment of any dues or moneys to such organization, and the\namounts of such dues or moneys); and (6) emails or other\ncommunications between a labor organization and its members.\n* OK OK\nIf an employer discloses information in violation of this\nsubsection (c-5), an aggrieved employee of the employer or his or\nher exclusive bargaining representative may file an unfair labor\npractice charge with the Illinois Labor Relations Board pursuant to\nSection 10 of this Act or commence an action in the circuit court to\nenforce the provisions of this Act, including actions to compel\ncompliance, if an employer willfully and wantonly discloses\ninformation in violation of this subsection. * * *\nMs. Erin Volz\nThe Honorable Margaret Paul\nJune 30, 2022\nPage 6\nThis subsection does not apply to disclosures (i) required\nunder the Freedom of Information Act,!!® (ii) for purposes of\nconducting public operations or business, or (iii) to the exclusive\nrepresentative. (Emphasis added.)\nIn contrast, section 6(c) of the IPLRA!” specifies that a public body shall provide the applicable\nlabor organization with its employees' names, addresses, and other contact information for\ncollective bargaining representation purposes. An employee's ability to bring an unfair labor\npractice charge before the Illinois Labor Relations Board or file suit in circuit court against an\nemployer for disclosing employee information in violation of section 6(c-5) underscores the\nmandatory nature of the provision.\nIn the City's non-confidential answer in this matter, City Clerk and FOIA Officer\nMargaret Paul stated that the City's denial of Ms. Volz's request was predicated \"on the City of\nBerwyn's clear duties toward the protection of public employees' right to organize established by\n'6This office notes that the following colloquy between Senator Don Harmon and Senator Andy\nManar during the Senate debate on the bill that led to the enactment of this provision clarifies that this limited carve-\nout is not relevant here:\nManar: This bill includes a prohibition on disclosure of certain information to\noutside entities, but it also contains language stating that the bill does not apply\nto disclosures required under the Freedom of Information Act. Given the\nlanguage concerning the Freedom of Information Act, what information would\nbe prohibited from disclosure?\nHarmon: Thank you, Mr. President. Under current law, employers and pension\nsystems are not required to provide information that is exempt from disclosure\nunder FOIA, but they are not prohibited from such -- from disclosing such\ninformation. For example, employees' and annuitants' personal identifying\ninformation, like home addresses, are exempted but not prohibited from\ndisclosure under the Freedom of Information Act. This bill would prohibit the\ndisclosure of home addresses if the information is exempted by the Freedom of\nInformation Act. This bill does not, however, prohibit the disclosure of\ninformation that is actually required to be disclosed under FOIA. Remarks of\nSen. Harmon and Sen. Manar, November 13, 2019, Senate Debate on Senate\nBill No. 1784 (which as Public Act 101-620, effective December 20, 2019,\nenacted the provision in question), at 13.\n'75 ILCS 315/6(c) (West 2020), as amended by Public Act 102-038, effective June 25, 2021.\nMs. Erin Volz\nThe Honorable Margaret Paul\nJune 30, 2022\nPage 7\nthe Illinois General Assembly under\" sections 6(c-5), 10(a)(8), and 10(a)(9)'* of the IPLRA.!?\nThe City contended that it \"would explicitly be in violation of\" section 6(c-5) of the IPLRA if it\nwere to comply with the request, because disclosure of the requested information would entail\nidentifying both the employees who have chosen to become members of a labor organization and\nthat organization.”” The City claimed:\nBy providing Job Titles, Hire Dates, Department Names\nand Work Addresses of any employee covered under a specifically\nnamed union, the requestor confirms that such a union has\nmembers working at the municipality. * * * Moreover, while the\nnames of members belonging to a particular union is prohibited,\nproviding the information of Job Titles, Hire Dates, Department\nNames and Work Addresses limited to a specific union gives the\nrequestor back-door entry to determine the name of union\nmembers. The Freedom Foundation would be able to submit a\nsecond FOIA asking for the names of employees working in\n'8Sections 10(a)(8) and 10(a)(9) of the IPLRA provide, in relevant part:\n(a) It shall be an unfair labor practice for an employer or its agents:\n* KOK\n(8) to interfere with, restrain, coerce, deter, or discourage public\nemployees or applicants to be public employees from: (i) becoming or\nremaining members of a labor organization; (ii) authorizing representation by a\nlabor organization; or (iii) authorizing dues or fee deductions to a labor\norganization, nor shall the employer intentionally permit outside third parties to\nuse its email or other communication systems to engage in that conduct. An\nemployer's good faith implementation of a policy to block the use of its email or\nother communication systems for such purposes shall be a defense to an unfair\nlabor practice; [or]\n(9) to disclose to any person or entity information set forth in\nsubsection (c-5) of Section 6 of this Act that the employer knows or should\nknow will be used to interfere with, restrain, coerce, deter, or discourage any\npublic employee from: (i) becoming or remaining members of a labor\norganization, (ii) authorizing representation by a labor organization, or (iii)\nauthorizing dues or fee deductions to a labor organization[.]\nLetter from Margaret Paul, City Clerk, City of Berwyn FOIA Officer, to Joshua M. Jones,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General, State of Illinois (undated), at 1.\nLetter from Margaret Paul, City Clerk, City of Berwyn FOIA Officer, to Joshua M. Jones,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General, State of Illinois (undated), at 2.\nMs. Erin Volz\nThe Honorable Margaret Paul\nJune 30, 2022\nPage 8\nparticular categories of jobs, working in particular departments,\nhired at particular times, or working at particular locations so as to\ntarget those employees as probable union members[.] (Emphasis\nin original. )?@\"]\nThe City also explained that providing the responsive work e-mail addresses would identify the\nemployees because their e-mail addresses contain their names.”\nMs. Volz replied to the City's response by arguing that the Foundation \"did not\nrequest any information that would disclose a public employees' relationship to their union[,]\"\nbecause it \"sought their bargaining unit, not their membership status in the union.\"”* Citing the\nUnited States Supreme Court's decision in Janus v. American Federation of State, County, &\nMunicipal Employees, Council 31, __ U.S. __, 138 S. Ct. 2448 (2018), Ms. Volz noted that:\nBeing a member of a union is not necessary for public\nemployment, yet in certain positions, the position itself requires the\nemployee to be in a specified bargaining unit. While a bargaining\nunit is necessarily represented by a labor union, it is not necessary\nfor an employee who is a member of the bargaining unit to be a\nseparate, dues paying member of the labor union.!4!\nThus, Ms. Volz stated, \"[i]dentifying which employees are in a particular bargaining unit does\nnot indicate whether they are union members.\"”> Notably, however, the ninth part of the\nFoundation's request specifically sought each employee's \"unionf.]\"”°\n*IL_etter from Margaret Paul, City Clerk, City of Berwyn FOIA Officer, to Joshua M. Jones,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General, State of Illinois (undated), at 2-3.\nLetter from Margaret Paul, City Clerk, City of Berwyn FOIA Officer, to Joshua M. Jones,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General, State of Illinois (undated), at 3\nLetter from Erin Volz, Outreach Associate, Freedom Foundation, to Joshua M. Jones, Deputy\nBureau Chief, Public Access Bureau, Office of the Attorney General, State of Illinois (May 12, 2022), at 2-3.\n4Letter from Erin Volz, Outreach Associate, Freedom Foundation, to Joshua M. Jones, Deputy\nBureau Chief, Public Access Bureau, Office of the Attorney General, State of Illinois (May 12, 2022), at 3.\n5Letter from Erin Volz, Outreach Associate, Freedom Foundation, to Joshua M. Jones, Deputy\nBureau Chief, Public Access Bureau, Office of the Attorney General, State of Illinois (May 12, 2022), at 3.\n*6Letter from Erin Volz, Policy & Outreach Associate, Freedom Foundation, to City of Berwyn,\nMargaret M. Paul, City Clerk (January 17, 2022).\nMs. Erin Volz\nThe Honorable Margaret Paul\nJune 30, 2022\nPage 9\nIn Janus, the Court issued a landmark decision concerning the IPLRA. Under a\nprovision of that Act at the time, a public employee in a position represented by a bargaining unit\nwas required to pay the union a fair share fee to cover the cost of the union's legally-obligated\nrepresentation, even if the employee did not wish to become a union member (by paying full\nunion dues). Janus, U.S. __, 138 S. Ct. at 2460. The Court held that \"States and public-\nsector unions may no longer extract agency fees from nonconsenting employees|,]\" striking\ndown the provision of the IPLRA that authorized automatic deductions of fair share fees from\nnon-union members' wages. Janus, _ U.S. ___, 138 S. Ct. at 2486.\nIn response to the Janus decision, the General Assembly passed legislation to\naffirm and facilitate the exercise of collective bargaining rights by, among other things, adding\nsections 6(c-5), 10(a)(8), and 10(a)(9) to the IPLRA.”’ During legislative debate, a House\nsponsor of the bill (which as Public Act 101-620, effective December 20, 2019, enacted these\nprovisions) explained:\nThis is what I would call the post-Janus piece of legislation. It is a\nresponse to the U.S. Supreme Court's 2018 ruling in the Janus\ncase, which overturned 40 years of settled collective bargaining\nlaw. Basically, the provisions of this Bill can be divided into 3\ncategories. Number 1, it protects employees' personal information\nand would prohibit the disclosure to third parties of personal\ninformation regarding employees. Remarks of Rep. Hoffman,\nOctober 29, 2019, House Debate on Senate Bill No. 1784, at 16-\n17.\nRepresentative Hoffman further explained that \"basically, [the Bill] ensures that the privacy of\nemployees is paramount.\" Remarks of Rep. Hoffman, October 29, 2019, House Debate on ~\nSenate Bill No. 1784, at 21. Moreover, Representative Hoffman stated that \"regarding to\ndisclosure under things like the Freedom of Information Act,\" the bill \"would prohibit this\nsensitive employee information from being disclosed so that it could... it would not allow\norganizations to send certain things to the employees and it would protect the safety of the\nemployees.\" Remarks of Rep. Hoffman, October 29, 2019, House Debate on Senate Bill No.\n1784, at 27-28.\nThe Foundation's FOIA request asked the City for information concerning all the\nemployees in bargaining unit positions represented by SEIU Local 73. Section 6(c-5) of the\nIPLRA”® expressly applies not just to \"any information personally identifying employee\n27Public Act 101-620, effective December 20, 2019.\n*85 ILCS 315/6(c-5) (West 2020), as amended by Public Act 102-038, effective June 25, 2021.\nMs. Erin Volz\nThe Honorable Margaret Paul\nJune 30, 2022\nPage 10\nmembership\" but to \"membership status\" as well. (Emphasis added.) \"Membership status\" must\nbe construed to mean something broader than \"membership\" to avoid rendering the term\nmeaningless or superfluous. See, e.g., In re Appointment of Special Prosecutor, 2019 IL 122949,\n423, 129 N.E.3d 1181, 1188 (2019) (\"Each word, clause, and sentence of a statute must be given\na reasonable meaning, if possible, and should not be rendered superfluous.\"). The membership\nand membership status information that is prohibited from being disclosed by section 6(c-5) of\nthe IPRLA includes even \"the identity of such organization[.]\" Although a public body's staff\nroster, employee business addresses, and addresses for public body-issued e-mail accounts\ngenerally do not fall within the scope of a FOIA exemption, the Foundation's FOIA request\nexpressly concerns only employees covered by the City's collective bargaining agreement with\nSEIU Local 73. Confirming that certain specific City employees are within a bargaining unit\nrepresented by SEIU Local 73 would necessarily reveal the identity of the organization and\ninformation concerning employee membership or membership status; the Foundation would be\ninformed that only these City employees are either members of the union or eligible to be\nmembers of the union, and that a majority voted to be represented by the union.\nMoreover, the ninth part of the Foundation's request to the City also sought each\nemployee's \"union[.]\"?? Complying with that part of the request would require the City to\nindicate whether or not each employee is a member of SEIU Local 73. And even if not all the\nemployees whose information is responsive to the Foundation's FOIA request are union\nmembers, compliance with the request would require the City to disclose the full names, job\ntitles, hire dates, department names, and direct contact information of numerous City employees\nwithin bargaining unit positions represented by SEIU Local 73. The legislative history behind\nsection 6(c-5) as quoted above demonstrates that the provision was intended to insulate\nemployees from third party communications concerning their union membership status. It would\ndefeat the purpose of the General Assembly's post-Janus legislation to conclude that the City\nmust furnish the specific employee information requested here, which would include identifying\nthe union that represents the bargaining unit for those identified employees. See County of Du\nPage v. Illinois Labor Relations Board, 231 Ill. 2d 593, 604, 900 N.E.2d 1095, 1101 (2008) (\"In\naddition to the statutory language, [a reviewing body] may consider the purpose behind the law\nand the evils sought to be remedied, as well as the consequences that would result from\nconstruing the law one way or the other.\"). Therefore, the City has proven by clear and\nconvincing evidence that the requested record is exempt from disclosure pursuant to section\n7.5(zz) of FOIA.*°\nLetter from Erin Volz, Policy & Outreach Associate, Freedom Foundation, to City of Berwyn,\nMargaret M. Paul, City Clerk (January 17, 2022).\n>°Although both parties made arguments concerning the applicability of sections 10(a)(8) and\n10(a)(9) of the IPLRA to the Foundation's request, this binding opinion rests on section 6(c-5).\nMs. Erin Volz\nThe Honorable Margaret Paul\nJune 30, 2022\nPage 11\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On January 17, 2022, Ms. Erin Volz, a Policy & Outreach Associate for the\nFreedom Foundation, submitted a FOIA request to the City of Berwyn seeking certain\nidentifying information for each City employee in a position covered by the collective bargaining\nagreement with SEIU Local 73, including their full names and work contact information and\ntheir \"union[.]\"\n2) On January 31, 2022, the City denied the request under section 7.5(zz) of\nFOIA, citing sections 6(c-5), 10(a)(8), and 10(a)(9) of the Illinois Public Labor Relations Act.\n3) In an e-mail on April 1, 2022, Ms. Volz submitted a Request for Review\ncontesting the denial. The Request for Review was timely filed and otherwise complies with the\nrequirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)).\n4) On April 7, 2022, the Public Access Bureau sent a copy of the Request for\nReview to the City and requested a detailed explanation of its legal and factual bases for denying\nMs. Volz's request.\n5) On April 25, 2022, the City provided two versions of its answer, in which it\nmaintained that its denial was proper: a complete version for this office's confidential review,\nand a redacted version for forwarding to Ms. Volz.\n6) On that same date, this office forwarded a copy of the City's non-confidential\nanswer to Ms. Volz and notified her of the Freedom Foundation's opportunity to reply. On May\n12, 2022, Ms. Volz submitted a reply.\n7) On May 18, 2022, this office extended the time within which to issue a\nbinding opinion by 30 business days, to July 14, 2022, pursuant to section 9.5(f) of FOIA.\nTherefore, the Attorney General may properly issue a binding opinion with respect to this matter.\n8) Section 7.5(zz) of FOIA exempts from disclosure \"[i]nformation prohibited\nfrom being disclosed under the Illinois Public Labor Relations Act.\"\n9) Section 6(c-5) of the IPLRA prohibits a public body from disclosing certain\nemployee information, including \"any information personally identifying employee membership\nor membership status in a labor organization or other voluntary association affiliated with a labor\nMs. Erin Volz\nThe Honorable Margaret Paul\nJune 30, 2022\nPage 12\norganization or a labor federation (including whether employees are members of such\norganization, the identity of such organization, whether or not employees pay or authorize the\npayment of any dues or moneys to such organization, and the amounts of such dues or moneys).\"\n10) Compliance with the Freedom Foundation's request would require the City to\ndisclose personally identifying employee membership or membership status in a labor\norganization and the identity of such organization, as it would reveal which specific employees\nare either members of SEIU Local 73 or eligible to join the union as part of the bargaining unit.\nFurther, the ninth part of the request specifically sought each employee's \"union[.]\" Section 6(c-\n5) was intended to insulate employees from third party communications concerning their union\nmembership status.\n11) The City sustained its burden of proving by clear and convincing evidence\nthat the responsive record is exempt from disclosure under section 7.5(zz).\nTherefore, it is the opinion of the Attorney General that the City of Berwyn did\nnot violate the requirements of FOIA by denying Ms. Erin Volz's and the Freedom Foundation's\nFreedom of Information Act request.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days of the date of this decision naming the Attorney General of Illinois and City of Berwyn\nas defendants. See 5 ILCS 140/11.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\n‘ Brent D. Stratton\nChief Deputy Attorney General\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 22-009) upon:\nMs. Erin Volz\nPolicy & Outreach Associate\nFreedom Foundation\nP.O. Box 352\nOlympia, Washington 98507\nevolz@freedomfoundation.com\nThe Honorable Margaret Paul\nCity Clerk/FOIA Officer\nCity of Berwyn\n6700 West 26th Street\nBerwyn, Illinois 60402\nmpaul@ci.berwyn.il.us\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on June 30, 2022.\nSTEVE SILVERMAN\nBureau Chief\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street, 11th Floor\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Ms. Erin Volz requested the names and contact information of City of Berwyn employees covered by the collective bargaining agreement with SEIU Local 73, meaning those in bargaining unit positions. The Attorney General's office ruled that the City was allowed to keep this information private because a specific state law exempts the disclosure of information identifying employees' membership or membership status in a labor organization. This means the City did not break the law by refusing to release the requested employee list.","card_headline":"A city's list of union-represented employees","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":157,"orig_master_id":19358,"dup_master_id":19131,"dup_sha256":"2f8ef8df70be700068499883b9b37e9d24e3480f97b9feac1efbbe9489c9207d","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2022,"date_issued":"2022-07-12","case_number":"2022 PAC 71177","request_numbers":null,"title":"Discussion in Closed Session oft he Appointment, Employment, Compensation, or Performance of Specific Employees Failure to Cite an Applicable Exception Before Closing a Meeting to the Public; Improper Closed Session Discussion of Bids for a Student Transportation Contract","filename":"PUBLIC ACCESS OPINION 22-010 (Request for Review - 2022 PAC 71177).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 22-010 (Request for Review - 2022 PAC 71177).pdf","word_count":6132,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a violation of the Open Meetings Act by the Du Quoin Community Unit School District during a closed session meeting.","plain_summary":"The requester, a newspaper publisher, challenged three closed sessions held during a single school board meeting, alleging that discussion of the bidding process for the district's student transportation contract exceeded the scope of any Open Meetings Act exception. The Public Access Counselor held that the board properly discussed personnel matters during two of the sessions, but that its discussion of the transportation-bid dispute in the third session was not shown to involve probable or imminent litigation, and the board also failed to publicly cite any exception before closing that portion of the meeting. The board was directed to disclose the recording and minutes of the improperly closed third session.","holding":"The Board of Education violated section 2(a) of the Open Meetings Act.","legal_question":"Did the Board of Education violate the Open Meetings Act during its closed session discussions?","disposition":"violation_found","primary_statute":["5 ILCS 120/2(a)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(1)"],"public_body":"Board of Education of Du Quoin Community Unit School District Number 300","requesting_party":"Mr. Jeff Egbert, Publisher, Perry County Weekly-Press","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board improperly discussed bids for a student transportation contract during a closed session.","ocr_status":"ok","ocr_quality":89.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2022-Binding-PAC-Opinions/22-010.pdf","sha256":"16bf14e66bdf8304d2151f850e8b3c160c64b16ec1d24024c36fa75f8791e626","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","school board","contract bids","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nJuly 12, 2022\nPUBLIC ACCESS OPINION 22-010\n(Request for Review 2022 PAC 71177)\nOPEN MEETINGS ACT:\nDiscussion in Closed Session oft he\nAppointment, Employment, Compensation,\nor Performance of Specific Employees\nFailure to Cite an Applicable Exception\nBefore Closing a Meeting to the Public;\nImproper Closed Session Discussion of\nBids for a Student Transportation Contract\nMr. Jeff Egbert\nPublisher\nPerry County Weekly-Press\n[street address redacted for site publication -- see original PDF]\nThe Honorable Brian Rodely\nPresident, Board of Education\nDu Quoin Community Unit School District Number 300\n845 East Jackson Street\nDu Quoin, Illinois 62832\nDear Mr. Egbert and Mr. Rodely:\nThis binding opinion is issued by the Attorney General pursuant to section 3.5(e)\nof the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons discussed\nbelow, this office concludes that the Board of Education (Board) of Du Quoin C ommunity Unit\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © ‘TTY: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 ¢ (312) 814-3000 © ‘T’TY: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © TTY: (877) 675-9339 © Fax (618) 529-6416 *&eocner>~«\nMr. Jeff Egbert\nThe Honorable Brian Rodely\nJuly 12, 2022\nPage 2\nSchool District Number 300 (School District) violated section 2(a) of OMA! during one of the\nclosed sessions that occurred at its April 7, 2022, special meeting. During that meeting, the\nBoard held three closed sessions. This office concludes that the Board limited its discussion\nduring the first and third closed sessions to topics within the scope of the exception in section\n2(c)(1) of OMA? that the Board cited as its basis for entering closed session. Although\ninformation provided by the Board indicated that it entered its second closed session to discuss\n\"[a]nticipated litigation\" and \"[c]riminal investigations[,]\"? this office concludes that the Board's\ndiscussion during that closed session addressed issues involving bids for a student transportation\ncontract that were beyond the scope of any exceptions in OMA to the general requirement that\npublic bodies conduct public business openly.\nBACKGROUND\nOn April 11, 2022, Mr. Jeff Egbert, on behaolff the Perry County Weekly-Press,\nsubmitted a Request for Review to the Public Access Bureau seeking review of the three closed\nsessions held during the Board's April 7, 2022, special meeting.? Mr. Egbert stated that the\nagenda for the April 7, 2022, special meeting listed two closed sessions to discuss the\nappointment, employment, compensation, and performance of specific employees. He stated\nthat the additional closed session \"was added after a failed vote and a tie vote on on [sic] bids for\nthe district's transportation contract.\"* He alleged that \"two and/or possibly all three\" closed\nsessions included discussion of the School District's student transportation contract or bus\ndrivers. He noted that the bus drivers are employed by a third party contractor and are not\n'5 ILCS 120/2(a) (West 2020), as amended by Public Acts 102-520, effective August 20, 2022:\n102-558, effective August 20, 2021; 102-237, effective January 1, 2022.\n*5 ILCS 120/2(c)(1) (West 2020), as amended by Public Acts 102-520, effective August 20, 2022:\n102-558, effective August 20, 2021; 102-237, effective January 1, 2022.\n‘Letter from Matthew Hickam, Superintendent, Du Quoin Community Unit School District #300,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (April 27, 2022), at\n[1].\n‘E-mail from Jeff Egbert, Publisher, Perry County Weekly-Press, to Public Access [Bureau, Office\nof the Attorney General] (April 11, 2022).\n°E-mail from Jeff Egbert, Publisher, Perry County Weekly-Press, to Public Access [Bureau, Office\nof the Attorney General] (April 11, 2022).\n°E-mail from Jeff Egbert, Publisher, Perry County Weekly-Press, to Public Access [Bureau, Office\nof the Attorney General] (April 11, 2022).\nMr. Jeff Egbert\nThe Honorable Brian Rodely\nJuly 12, 2022\nPage 3\nSchool District employees. He alleged, therefore, that any discussion of the bus drivers or the\ntransportation contract bids should have occurred in open session.’\nOn April 19, 2022, the Public Access Bureau forwarded a copy of the Request for\nReview to Mr. Brian Rodely, the Board President. The Public Access Bureau also sent Mr.\nRodely a letter asking for copies of the April 7, 2022, special meeting agenda, open and closed\nsession minutes, and the closed session verbatim recordings for this office's confidential review.®\nThis office also asked for a copy of the recording of the April 7, 2022, open session, if one\nexisted. In addition, this office requested a written response describing the Board's public recital,\npursuant to section 2a of OMA,” identifying the specific exception(s) in section 2(c) of OMA!”\nthat the Board publicly cited as its basis for entering closed session during its April 7, 2022,\nspecial meeting. This office further asked the Board to explain how the cited exception, or any\nother exceptions listed in section 2(c) of OMA, applied to the Board's closed session\ndiscussions.'' Later that day, the School District's superintendent sent an e-mail to this office\nconfirming receipt of our correspondence and stating that he would respond within seven\nbusiness days|.!\nOn April 27, 2022, the School District's superintendent, on behoaf tlhfe Board,\nprovided this office via e-mail with copies of the April 7, 2022, special meeting agenda, open\nsession minutes, and closed session minutes.'* The superintendent also provided the Board's\n’E-mail from Jeff Egbert, Publisher, Perry County Weekly-Press, to Public Access [Bureau, Office\nof the Attorney General] (April 11, 2022).\n‘Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to The Honorable Brian Rodely, President, Board of Education, DuQuoin [sic] Community Unit School\nDistrict No. 300 (April 19, 2022), at 2.\n°5 ILCS 120/2a (West 2020).\n'°5 ILCS 120/2(c) (West 2020), as amended by Public Acts 102-520, effective August 20, 2022:\n102-558, effective August 20, 2021; 102-237, effective January 1, 2022.\n\"Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office oft he Attorney\nGeneral, to The Honorable Brian Rodely, President, Board of Education, DuQuoin [sic] Community Unit School\nDistrict No. 300 (April 19, 2022), at 2.\n'°E-mail from [Matthew Hickam] to [Laura S. Harter, Deputy Bureau Chief, Public Access\nBureau, Office of the Attorney General] (April 19, 2022).\n'SE-mail from [Matthew Hickam] to [Laura S. Harter, Deputy Bureau Chief, Public Access\nBureau, Office of the Attorney General] (April 27, 2022).\nMr. Jeff Egbert\nThe Honorable Brian Rodely\nJuly 12, 2022\nPage 4\nwritten answer, which described, in part, the content of the closed sessions under review.'* The\nsuperintendent also submitted, for this office's confidential review, two memoranda.'* Upon\nreviewing the Board's answer, an Assistant Attorney General (AAG) in the Public Access\nBureau e-mailed the superintendent to confirm that this office may forward the Board's answer to\nMr. Egbert, noting that if the Board believed any part of the answer to be confidential, it may\nsubmit a redacted copy for this office to forward to Mr. Egbert.'® On April 28, 2022, the\nsuperintendent submitted via e-mail!’ a second version of the Board's answer to this office,!®\nwith redactions made to certain matters at issue.'? The Board's answer confirmed that it entered\nclosed session three times during its April 7, 2022, special meeting.*” The answer asserted that\nthe Board properly entered the first and third closed sessions to discuss the appointment.\nemployment, compensation, and performance of specific employees.”! The Board acknowledged\nthat it did not make a public recital of the applicable exception before entering its second closed\nsession, but asserted that two exceptions applied to the discussion: \"[a]nticipated litigation\" and\n\"[c]riminal investigations|.]\"?\n“Letter from Matthew Hickam, Superintendent, Du Quoin Community Unit School District #300,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (April 27, 2022).\n'SE-mail from [Matthew Hickam] to [Laura S. Harter, Deputy Bureau Chief, Public Access\nBureau, Office of the Attorney General] (April 27, 2022).\n'SE-mail from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to [Matthew Hickam] (April 27, 2022).\n'\"E-mail from [Matthew Hickam] to Laura [S. Harter, Deputy Bureau Chief, Public Access\nBureau, Office of the Attorney General] (April 28, 2022).\n'SLetter from Matthew Hickam, Superintendent, Du Quoin Community Unit School District #300\ncy\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (April 27, 2022).\n'°5 ILCS 120/3.5(c) (West 2020) (\"the public body may also furnish the Public Access Counselor\nwith a redacted copy oft he answer excluding specific references to any matters at issue.\").\nLetter from Matthew Hickam, Superintendent, Du Quoin Community Unit School District #300,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (April 27, 2022).\n*!Letter from Matthew Hickam, Superintendent, Du Quoin Community Unit School District #300,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (April 27, 2022), at\n1-2.\nLetter from Matthew Hickam, Superintendent, Du Quoin Community Unit School District #300,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (April 27, 2022), at\n2.\nMr. Jeff Egbert\nThe Honorable Brian Rodely\nJuly 12, 2022\nPage 5\nOn April 29, 2022, this office forwarded a copy of the Board's redacted answer to\nMr. Egbert.?? He did not reply other than to inform this office on May 6, 2022, that the Board\nuses two recorders, one for each side of the meeting room, to record its closed sessions, adding\nthat he wanted to ensure that this office received all relevant tapes.7* In response to that\nmessage, the School District's superintendent explained that there are two microphones feeding\ninto the audio recorder, but only one tape recording for each closed session.”>\nOn May 2, 2022, this office received via the United States Postal Service three\ncassette tapes of the verbatim recordings of the Board's April 7, 2022. closed sessions and\nduplicate copies of the Board's written response materials: its confidential answer and attached\nconfidential memoranda, and the agenda and open and closed session minutes from the April 7,\n2022, special meeting.”°\nOn June 10, 2022, the Public Access Bureau properly extended the time within\nwhich to issue a binding opinion by 21 business days, to July 12, 2022, pursuant to section 3.5(e)\nof OMA.’\nANALYSIS\nOMA is intended \"to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020). Section 2(a) of OMA\nprovides that \"[a]ll meetings of public bodies shall be open to the public unless excepted in\nsubsection (c) and closed in accordance with Section 2a.\" Such exceptions \"are in derogation of\nthe requirement that public bodies meet in the open, and therefore, the exceptions are to be\n*Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Jeff Egbert, Publisher, Perry County Weekly-Press (April 29, 2022).\n“E-mail from Jeff Egbert to [Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office\nof the Attorney General] (May 6, 2022).\n*°E-mail from [Matthew Hickam] to [Jeff Egbert] (May 6, 2022).\n*°Letter from Matthew Hickam, Superintendent, Du Quoin Community Unit School District #300,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (April 27, 2022).\n*7Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Jeff Egbert, Publisher, Perry County Weekly-Press and The Honorable Brian Rodely, President, Board\nof Education, DuQuoin [sic] Community Unit School District No. 300 (June 10, 2022).\nMr. Jeff Egbert\nThe Honorable Brian Rodely\nJuly 12, 2022\nPage 6\nstrictly construed, extending only to subjects clearly within their scope.\"*® Further,\n\"{nJothing in [OMA] shall be construed to require that any meeting be closed to the public.\"29\nSection 2(c)(1) of OMA\nThe minutes of the Board's April 7, 2022, special meeting indicate that it publicly\ncited and identified section 2(c)(1) of OMAa s its basis for closing its meeting at 6:02 p.m. and\nagain at 8:52 p.m.*° In its answer to this office, the Board stated that it entered closed session at\n6:02 p.m. to discuss \"a retirement request and the employment of two teaching positions.\"*! The\nBoard stated that it entered closed session at 8:52 p.m. to discuss \"the performance of members\nof the administrative team as it pertained to the student transportation bid process.\"*?\nSection 2(c)(1) provides, in pertinent part, that a public body is permitted to\ndiscuss in closed session:\nThe appointment, employment, compensation, discipline,\nperformance, or dismissal of specific employees, * * * of the\npublic body or legal counsel for the public body, including hearing\ntestimony on a complaint lodged against an employee, * * * of the\npublic body or against legal counsel for the public body to\ndetermine its validity.\nIn construing this section, the Attorney General has concluded that \"language referencing\n‘specific employees' signifies that the General Assembly did not intend to permit public bodies to\nhold general discussions concerning categories of employees in closed session pursuant to\nsection 2(c)(1).\" Ill. Att'y Gen. Pub. Acc. Op. No. 16-013, issued December 23, 2016, at 4.\n85 ILCS 120/2(b) (West 2020), as amended by Public Acts 102-520, effective August 20, 2022;\n102-558, effective August 20, 2021; 102-237, effective January 1, 2022. (Emphasis added.)\n°5 ILCS 120/2a (West 2020).\n*°Du Quoin Community Unit School District #300 Board of Education, Special Meeting, April 7,\n2022, Minutes [1-2].\n3!Letter from Matthew Hickam, Superintendent, Du Quoin Community Unit School District #300,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (April 27, 2022), at\n[1].\nLetter from Matthew Hickam, Superintendent, Du Quoin Community Unit School District #300,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (April 27, 2022), at\n[2].\nMr. Jeff Egbert\nThe Honorable Brian Rodely\nJuly 12, 2022\nPage 7\nRather, \"section 2(c)(1) of OMA ‘is intended to permit public bodies to candidly discuss the\nrelative merits of individual employees, or the conduct ofi ndividual employees.\" Ill. Att'y Gen.\nPub. Acc. Op. No. 16-013, at 5 (quoting III. Att'y Gen. Pub. Acc. Op. No. 12-011, issued July 11,\n2012, at 3).\nThis office has reviewed the verbatim recordings of the 6:02 p.m. and 8:52 p.m.\nApril 7, 2022, closed sessions furnished by the Board.** The Board's response to the Request for\nReview accurately described the discussions held during those closed sessions. The 6:02 p.m.\nsession discussion focused on the retirement of one specific employee, and the hiring of two\nother specific employees. The 8:42 p.m. closed session discussion focused on two specific\nadministrators' performances during the student transportation bid process. Because those\ndiscussions directly concerned the employment and performance of specific employees, section\n2(c)(1) of OMA authorized the Board to hold the discussions in closed session. Accordingly,\nthis office concludes that the Board's discussions of those matters did not violate OMA\nSection 2(c)(11) of OMA\nIn its answer to this office, the Board asserted that its closed session discussion\nthat began at 7:24 p.m. on April 7, 2022, falls within the scope of the exception for \"[a]nticipated\nlitigation[.]\"** This office construes the Board's answer as citing section 2(c)(11) of OMA.*°\nThat exception permits a public body to enter closed session to discuss \"[I]itigation, when an\naction against, affecting or on behaolff the particular public body has been filed and is pending\nbefore a court or administrative tribunal, or when the public body finds that an action is probable\nor imminent, in which case the basis for the finding shall be recorded and entered into the\nminutes of the closed meeting.\"\nIn Henry v. Anderson, 356 Ill. App. 3d 952, 953 (4th Dist. 2005), the Illinois\nAppellate Court analyzed the section 2(c)(11) exception in considering whether a school board\nviolated OMA by closing a meeting to discuss \"potential\" litigation without making a finding\n3Du Quoin Community Unit School District No. 300, Closed Meeting No. |, April 7, 2022,\nAudio File (on file with Public Access Bureau, Office of the Attorney General); Du Quoin Community Unit School\nDistrict No. 300, Closed Meeting No. 3, April 7, 2022, Audio File (on file with Public Access Bureau, Office oft he\nAttorney General).\n“Letter from Matthew Hickam, Superintendent, Du Quoin Community Unit School District #300,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (April 27, 2022), at\n[1].\n$55 ILCS 120/2(c)(11) (West 2020), as amended by Public Acts 102-520, effective August 20,\n2022; 102-558, effective August 20, 2021; 102-237, effective January 1, 2022.\nMr. Jeff Egbert\nThe Honorable Brian Rodely\nJuly 12, 2022\nPage 8\nthat litigation was \"probable\" or \"imminent.\" The court found that \"the legislature intended to\nprevent public bodies from using the distant possibility of litigation as a pretext for closing their\nmeetings to the public[,|\" holding that \"the board violated the Act by failing to state, on the\nrecord, (1) a finding that litigation was probable or imminent and (2) a basis for such a finding.\"\nHenry, 356 Ill. App. 3d at 957.\nThe meaning of \"probable or imminent\" was analyzed in an opinion of the\nAttorney General concerning a city council's closed session discussion related to the possibility\nofl itigation in the event that the city council approved a proposed annexation. III. Att'y Gen. Op.\nNo. 83-026, issued December 23, 1983.°° Based onj udicial definitions of the terms \"probable\"\nand \"imminent,\" Attorney General Hartigan concluded that \"[f]or litigation to be probable or\nimminent, warranting the closing ofa meeting, there must be reasonable grounds to believe that\na lawsuit is more likely than not to be instituted or that such an occurrence is close at hand.\" III.\nAtt'y Gen. Op. No. 83-026, at 10. Indeed, \"[t]he fact that the public body may become a party to\njudicial proceedings because of the action it takes does not permit it to utilize the litigation\nexception to conduct its deliberations in closed sessions.\" (Emphasis added.) III. Att'y Gen. Op.\nNo. 83-026, at 12. Because an attorney for the annexation opponents declared that his clients\nwere not contemplating a lawsuit and because litigation over the annexation could not be\nprobable or imminent until the city council approved the annexation, Attorney General Hartigan\nconcluded that the city council improperly closed the meeting to the public under the litigation\nexception. Ill. Att'y Gen. Op. No. 83-026, at 11-13; see generally Ill. Att'y Gen. Pub. Acc. Op.\nNo. 16-007, issued September 13, 2016, at 8 (\"[T]he section 2(c)(11) exception does not permit a\npublic body to enter closed session to discuss the possibility of litigation merely because it has\ntaken action that generated public opposition].]\").\nIn City of Bloomington v. Raoul.*’ the Illinois Appellate Court affirmed a binding\nopinion by this office that found members of the Bloomington City Council had entered closed\nsession without reasonable grounds to believe that litigation against the City of Normal\n*°At the time of the issuance of opinion No. 83-026, an earlier but substantively identical version\nof section 2(c)(11) of OMA excepted from the open meeting requirements:\nmeetings held to discuss litigation when an action against or on behalf of the\nparticular public body has been filed and is pending in a court or administrative\ntribunal, or when the public body finds that such an action is probable or\nimminent, in which case the basis for such a finding shall be recorded and\nentered into the minutes of the closed meeting in accordance with Section 2.06.\nIll Rev. Stat. 1981, ch. 102, par. 42(h).\n“City of Bloomington v. Raoul, 2021 1L App (4th) 190539, §§ 30-31, 184 N.E.3d 366, 371-72\n(2021) (affirming III. Att'y Gen. Pub. Acc. Op. No. 17-004, issued June 6, 2017).\nMr. Jeff Egbert\nThe Honorable Brian Rodely\nJuly 12, 2022\nPage 9\nconcerning the cities' intergovernmental agreement was probable or imminent. Illustrating the\nspeculative nature of board's closed session discussion, the court explained:\nFor example, Bloomington's attorney advised the group that\nlitigation \"could be plausible.\" The attorney did not know if\nNormal had a valid claim, as Normal had shared nothing with him.\nOne council member noted there was \"no clear cut road\" to\nlitigation. Yet another member characterized any possible\nlitigation as a \"minor issue.\" More than one member surmised\nNormal's threat ofa lawsuit could be a \"negotiating tactic.\" The\nMayor told the press after the meeting he doubted Normal would\nfile suit. Finally, the gist of the City Council's discussion\ndescribed elsewhere herein was not of a group that thought\nlitigation was probable or imminent. City of Bloomington, 2021 IL\nApp (4th) 190539, 930, 184 N.E.3d at 371-372.\nThe City of Bloomington court also concluded \"that even if the City Council\nlawfully closed the meeting, the City Council violated the Act by failing to abide by the\nconditions that confined their discussion to probable or imminent litigation.\" City of\nBloomington, 2021 IL App (4th) 190539, 935, 184 N.E.3d at 372. The court noted, \"[a]bsent\nfrom the closed session was any discussion of legal theories, defenses, claims, or possible\napproaches to litigation. The commentary that did concern litigation related to (1) concern about\nthe uncertainty of any outcome, (2) how to best avoid a lawsuit, and (3) whether Bloomington or\nNormal had or could use the threat of litigation in the course of negotiation.\" City of\nBloomington, 2021 IL App (4th) 190539, 936, 184 N.E.3d at 372. The Court concluded that\n\"[t]he only court the group seemed concerned with was the court of public opinion.\" City of\nBloomington, 2021 IL App (4th) 190539, 937, 184 N.E.3d at 372.\nAttorney General Hartigan also addressed the limited scope of any permissible\nclosed session discussion held pursuant to section 2(c)(11), advising that \"the litigation exception\nmay not be utilized to conduct deliberations on the merits ofa matter under consideration\nregardless of how sensitive or controversial the subject matter may be. [Citation.]\" III. Att'y\nGen. Op. No. 83-026, at 12. He explained,\nconsultations between the public body and its attorney concerning\nthe potential legal impact and the legal ramifications of an item\nunder consideration must be done publicly unless pending,\nprobable, or imminent litigation is the subject matter of the\nconsultations. Consequently, once the litigation exception is\nproperly invoked, the only matters which may lawfully be\nMr. Jeff Egbert\nThe Honorable Brian Rodely\nJuly 12, 2022\nPage 10\ndiscussed at the closed meeting are the strategies, posture,\ntheories, and consequences of the litigation itself. (Emphasis\nadded.) Ill. Att'y Gen. Op. No. 83-026, at 13-14.\nApplying this reasoning to the closed session at issue in Opinion 83-026, Attorney General\nHartigan explained that \"if the possibility of a lawsuit over the annexation\" influenced the city\ncouncil's decision on whether to annex the property, that \"matter should have been discussed in\nan open meeting since it goes to the merits of the question rather than to the litigation itself.\" III.\nAtt'y Gen. Op. No. 83-026, at 13; see generally Ill. Att'y Gen. Pub. Acc. Op. No. 12-013, issued\nNovember 5, 2012, at 4 (\"[E]ven if there are reasonable grounds to believe that litigation is\nprobable or imminent, it is not permissible for a public body to use the closed session to discuss\ntaking an action or to make a decision on the underlying issue that is likely to be the subject of\nthe litigation.\").\nHere, the Board contended that its closed session discussion concerning the\nstudent transportation bid was permitted by section 2(c)(11) of OMA because litigation was\nanticipated; the Board did not state that any litigation was pending. In its redacted answer, the\nBoard explained that it called the 7:24 p.m. closed session in the context of the consideration of\nthe awarding oft he student transportation bid. In its redacted answer, the Board asserted that\nonce in closed session, the Board members \"noted their concerns\" and that the Board's attorney,\nwho participated in the session, \"validated\" their concerns.**\nThis office's review of the verbatim recording of the Board's 7:24 p.m. closed\nsession meeting revealed that the Board's discussion of its concerns did not focus on probable or\nimminent litigation.*” Similar to the city council in City of Bloomington, the Board's discussion\nof litigation was speculative. Further, none of the materials the Board submitted to this office\nindicate that at the time of the April 7, 2022, special meeting, the Board had a reasonable basis to\nbelieve that litigation was more likely than not to occur. Moreover, even ift here existed a\nreasonable basis to believe litigation was probable or imminent, the Board did not limit its\ndiscussion to the strategies, posture, theories, and consequences of the litigation. Rather, the\nBoard's discussion primarily concerned what course of action to take in awarding a bid for the\nstudent transportation contract.\nLetter from Matthew Hickam, Superintendent, Du Quoin Community Unit School District #300,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (April 27, 2022), at\n[1-2].\n*°Du Quoin Community Unit School District No. 300, Closed Meeting No. 2, April 7, 2022,\nAudio File (on file with Public Access Bureau, Office of the Attorney General).\nMr. Jeff Egbert\nThe Honorable Brian Rodely\nJuly 12, 2022\nPage 11\nIn addition, this office's review of the closed session minutes”? confirmed that the\nBoard did not determine or find that litigation concerning the student transportation bids was\nprobable or imminent, or record such a finding in its minutes. The plain language of section\n2(c)(11) required the Board to do so under these circumstances. The mere possibility of\nlitigation concerning the bid process was an insufficient basis for the closed session discussion\nunder section 2(c)(11). The exception does not authorize closed session discussion of an\nunderlying decision or course of action merely because it could potentially give rise to litigation\nat some point in the future.\nBecause the Board's 7:24 p.m. closed session discussion did not concern pending,\nprobable, or imminent litigation, this office concludes that section 2(c)(11) of OMA did not\nauthorize the discussion.\nSection 2(c)(14) of OMA\nIn its answer to this office, the Board also indicated that its closed session\ndiscussion that began at 7:24 p.m. on April 7, 2022, falls within the scope of the exception for\n\"[c]riminal investigations[.]'*! This office construes the Board's contention as referencing\nsection 2(c)(14) of OMA” because that is the only exception that references criminal\ninvestigations. That section permits public bodies to hold closed meetings to discuss\n\"[iJnformant sources, the hiring or assignment of undercover personnel or equipment, or\nongoing, prior or future criminal investigations, when discussed by a public body with\ncriminal investigatory responsibilities.\" (Emphasis added.)\nUnder the plain language of section 2(c)(14) of OMA, only public bodies with\n\"criminal investigatory responsibilities\" may enter closed session pursuant to section 2(c)(14) to\ndiscuss criminal investigations. The Board did not identify for this office any source of authority\nit has to conduct criminal investigations. Further, there are no provisions in Article 10 of the\nIllinois School Code (105 ILCS 5/10, ef seg. (West 2020)), which describes the powers and\nduties of school boards of education, that authorize the Board to conduct criminal investigations.\n“Du Quoin Community Unit School District Number 300 Board of Education, Special Meeting,\nApril 7, 2022, Closed Session Minutes [1].\n\"'Letter from Matthew Hickam, Superintendent, Du Quoin Community Unit School District #300,\nto Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (April 27, 2022), at\n1.\n5 ILCS 120/2(c)(14) (West 2020), as amended by Public Act 102-520, effective August 20,\n2022; 102-558, effective August 20, 2021; 102-237, effective January 1, 2022.\nMr. Jeff Egbert\nThe Honorable Brian Rodely\nJuly 12, 2022\nPage 12\nFurther, even if the Board had authority to conduct criminal investigations, its 7:24 p.m. closed\nsession did not include discussion of an ongoing, prior, or future criminal investigation.\nAccordingly, this office concludes that section 2(c)(14) of OMA did not authorize\nthe Board's 7:24 p.m. closed session discussion. Because neither that exception nor section\n2(c)(11) permitted the Board to hold the discussion in closed session, the Board violated section\n2(a) of OMA.\nSection 2a of OMA\nSection 2a of OMA*® provides that \"[t]he vote of each member on the question of\nholding a meeting closed to the public and a citation to the specific exception contained in\nSection 2 of this Act which authorizes the closing of the meeting to the public shall be\npublicly disclosed at the time of the vote and shall be recorded and entered into the minutes of\nthe meeting.\" (Emphasis added.)\nIn its response to this office, the Board acknowledged that it did not cite a specific\nexception at the time it entered the 7:24 p.m. closed session. The minutes of the April 7, 2022,\nspecial meeting state only that a motion was made to enter closed session: the minutes do not\nstate the basis for closing the meeting. Accordingly, the Board violated section 2a of OMA by\nfailing to publicly disclose and record in the minutes that it entered into closed session pursuant\nto one of the exceptions enumerated in section 2(c) of OMA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments presented,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On April 7, 2022, the Board of Education of Du Quoin Community Unit\nSchool District Number 300 closed three portions of its special meeting to the public.\n2) On April 11, 2022, Mr. Jeff Egbert, on behoaf tlhfe Perry County Weekly-\nPress, submitted a Request for Review to the Public Access Bureau alleging that the closed\nsession portions of the Board's April 7, 2022, meeting involved improper discussions of pending\nbids for the School District's student transportation contract or the School District's bus drivers.\nMr. Egbert's Request for Review was timely filed and otherwise complied with the requirements\nof section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)).\n85 ILCS 120/2a (West 2020).\nMr. Jeff Egbert\nThe Honorable Brian Rodely\nJuly 12, 2022\nPage 13\n3) On April 19, 2022, the Public Access Bureau forwarded a copy of the Request\nfor Review to Mr. Brian Rodely, Board President, and asked the Board to provide copies of the\nagenda, open and closed session minutes, and the closed session verbatim recordings of its April\n7, 2022, special meeting for this office's confidential review, along with a written answer to Mr.\nEgbert's OMA allegations. This office also requested a copy of a recording of its open session, if\none existed.\n4) On April 27, 2022, the School District's superintendent, on behalf of the\nBoard, furnished the agenda, open and closed session minutes, confidential memoranda, and a\nconfidential written answer. On April 28, 2022, the superintendent furnished the Board's\nredacted answer.\n5) On April 29, 2022, this office sent a copy of the Board's redacted answer to\nMr. Egbert. On May 6, 2022, Mr. Egbert sent this office a message about the Board's verbatim\nrecording practices, but did not provide a substantive reply.\n6) On May 2, 2022, this office received three cassette tapes of the verbatim\nrecordings of the three closed sessions that occurred at the April 7, 2022, special meeting and\nduplicate copies of the written materials the Board provided to this office on April 27, 2022.\n7) On June 10, 2022, the Public Access Bureau properly extended the time within\nwhich to issue a binding opinion by 21 business days, to July 12, 2022, pursuant to section 3.5(e)\nof OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to\nthis matter.\n8) Section 2(a) of OMA requires that all meetings of public bodies be open to the\npublic unless the subject of the meeting is covered by one of the limited exceptions enumerated\nin section 2(c).\n9) Section 2(c)(1) of OMA permits a public body to enter closed session to\ndiscuss \"[t]he appointment, employment, compensation, discipline, performance. or dismissal of\nspecific employees]]\".\n10) At 6:02 p.m. on April 7, 2022, the Board entered closed session pursuant to\nsection 2(c)(1). The Board properly limited its discussion during that closed meeting to the\nappointment, employment, compensation, and performance of specific employees.\n11) At 8:52 p.m. on April 7, 2022, the Board entered closed session pursuant to\nsection 2(c)(1). The Board properly limited its discussion during that closed meeting to the\nperformance of specific employees.\nMr. Jeff Egbert\nThe Honorable Brian Rodely\nJuly 12, 2022\nPage 14\n12) Section 2(c)(11) permits a public body to close a portion ofa meeting to\ndiscuss \"[l]itigation, when an action against, affecting or on behaolff the particular public body\nhas been filed and is pending before a court or administrative tribunal, or when the public body\nfinds that an action is probable or imminent, in which case the basis for the finding shall be\nrecorded and entered into the minutes of the closed meeting.\"\n13) If there is no litigation pending, then section 2(c)(11) authorizes a closed\nsession discussion only when the public body has reasonable grounds to believe that litigation is\nmore likely than not to be instituted or that such an occurrence is close at hand.\n14) The Board's 7:24 p.m. April 7, 2022, closed session discussion concerning\nthe bids for the student transportation contract did not pertain to pending, probable, or imminent\nlitigation. Section 2(c)(11) of OMA does not authorize a public body to discuss in closed session\nan underlying decision or course of action that could potentially give rise to litigation.\nAccordingly, the Board violated section 2(a) of OMA by discussing in closed session matters\nbeyond the scope of section 2(c)(11) of OMA.\n15) The Board also failed to determine or find that litigation was probable or\nimminent or record and enter into the closed session minutes the basis for such a finding, as\nrequired by section 2(c)(11).\n16) The Board's closed session discussion held at 7:24 p.m. at its April 7, 2022,\nspecial meeting was not authorized by section 2(c)(14) of OMA because the Board does not have\ncriminal investigatory responsibilities and because the discussion did not address an ongoing,\nprior or future criminal investigation.\n17) The Board did not in open session cite a specific exception enumerated in\nsection 2 as a basis for closing its April 7, 2022, special meeting at 7:24 p.m. Accordingly, the\nBoard violated section 2a of OMA by failing to publicly disclose and enter into the minutes an\nexception authorizing it to close that portion of the April 7, 2022, special meeting.\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to remedy this violation by disclosing to Mr. Egbert and making publicly available the\nverbatim recording of the 7:24 p.m. closed session that occurred during the April 7, 2022, special\nmeeting and the corresponding portion of the April 7, 2022, closed session minutes. As required\nby section 3.5(¢) of OMA, the Board shall either take necessary action as soon as practical to\ncomply with the directives of this opinion or shall initiate administrative review under section\n7.5 of OMA. 5 ILCS 120/7.5 (West 2020).\nMr. Jeff Egbert\nThe Honorable Brian Rodely\nJuly 12, 2022\nPage 15\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Jeff\nEgbert as defendants. See 5 ILCS 120/7.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATFORNEY GENERAL\nBy:\nNathalina Hudson\nChief of Staff\noe Via electronic mail\nMr. Matthew Hickam\nSuperintendent\nDu Quoin Community Unit School District Number 300\n845 East Jackson Street\nDu Quoin, Illinois 62832\nmhickam@duquoinschools.org\nCERTIFICATE OF SERVICE\nEdie Steinberg, Senior Assistant Attorney General, Public Access Bureau, hereby\ncertifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 22-\n010) upon:\nMr. Jeff Egbert\nPublisher\nPerry County Weekly-Press\nP.O. Box 411\nDu Quoin, Illinois 62832\nIInewsman2@yahoo.com\nThe Honorable Brian Rodely\nPresident, Board of Education\nDu Quoin Community Unit School District Number 300\n845 East Jackson Street\nDu Quoin, Illinois 62832\nschoolboard@duquoinschools.org\nMr. Matthew Hickam\nSuperintendent\nDu Quoin Community Unit School District Number 300\n845 East Jackson Street\nDu Quoin, Illinois 62832\nmhickam@duquoinschools.org\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on July 12, 2022.\n“a\nEdie Steinberg aaa -\nSenior Assistant Attorney General\nEdie Steinberg\nSenior Assistant Attorney General\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street\nChicago, Illinois 60601\n(872) 272-0820","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Du Quoin School Board held three closed sessions during its April 7, 2022, special meeting. The Attorney General found that the first and third closed sessions properly discussed personnel matters under the Open Meetings Act exception, but the second closed session improperly discussed bids for a student transportation contract, which is not a permitted topic for closed session. The opinion concludes that the Board violated section 2(a) of the Open Meetings Act by discussing the transportation contract in closed session.","card_headline":"Closed-session discussion of transportation contract bids","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":158,"orig_master_id":19360,"dup_master_id":19132,"dup_sha256":"4f535490a01854b4ed096502d80dfde94f4416f4e120208fffe68e206a8ffded","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2022,"date_issued":"2022-07-25","case_number":"2022 PAC 71261","request_numbers":null,"title":"Applications of Individuals Not Appointed to Village Board of Trustees Are Public Records and Are Not Exempt From Disclosure Under Sections 7(1)(c) or 7(1)(f) of FOIA","filename":"PUBLIC ACCESS OPINION 22-011 (Request for Review - 2022 PAC 71261).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 22-011 (Request for Review - 2022 PAC 71261).pdf","word_count":6905,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request submitted by Mr. Zach Burtle for the names and applications of candidates for a vacancy on the Village Board of Trustees, which was denied by the Village of Chatham.","plain_summary":"The requester sought the application materials submitted by unsuccessful candidates for a vacant seat on a village board of trustees, which the village withheld, arguing the materials were not public records and were protected by personal privacy. The Public Access Counselor held that the applications were public records because the village president used them to fulfill his statutory duty to fill the vacancy, and that the public interest in knowing who sought the appointed office and their qualifications outweighed the applicants' privacy interest. The village was directed to disclose the application materials, redacting only private contact information such as phone numbers, addresses, and signatures.","holding":"The Village of Chatham violated FOIA by improperly denying the FOIA request.","legal_question":"Are applications of individuals not appointed to the Village Board of Trustees public records and exempt from disclosure under FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(f)"],"public_body":"Village of Chatham","requesting_party":"Mr. Zach Burtle","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought the names and applications of individuals who applied to fill a vacancy on the Village Board of Trustees.","ocr_status":"ok","ocr_quality":91,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2022-Binding-PAC-Opinions/22-011.pdf","sha256":"251c16f9561233d667d6f88e8b2eb4675f5fc97eb90e1f30061a5b39e4c423f9","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["board vacancy applications","personal privacy exemption","predecisional exemption","public body appointment records","7(1)(c)"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nJuly 25, 2022\nPUBLIC ACCESS OPINION 22-011\n(Request for Review 2022 PAC 71261)\nFREEDOM OF INFORMATION ACT:\nApplications of Individuals Not Appointed to\nVillage Board of Trustees Are Public Records and\nAre Not Exempt From Disclosure\nUnder Sections 7(1)(c) or 7(1)(f) of FOIA\nMr. Zach Burtle\n[street address redacted for site publication -- see original PDF]\nThe Honorable Dave Kimsey\nVillage President\nVillage of Chatham\n116 East Mulberry Street\nChatham, Illinois 62629\nDear Mr. Burtle and Mr. Kimsey:\nThis binding opinion is issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons\ndiscussed below, this office concludes that the Village of Chatham (Village) violated the\nrequirements of FOIA by improperly denying a FOIA request submitted by Mr. Zach Burtle.\nBACKGROUND\nOn April 10, 2022, Mr. Burtle used the Village's website to submit a FOIA\nrequest seeking the \"names and applications of the candidates for\" a vacancy on the Village\nBoard of Trustees (Board).'! On April 11, 2022, legal counsel for the Village denied the request\n'E-mail from NOREPLY @chathamil.net to Jill Butler [Administrative Assistant, Village of\nChatham] (April 10, 2022) (\"Form submission from: FOIA Request\"; requester Zach Burtle).\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © T’TY: (877) 844-5461 ¢ Fax: (21 7) 782-7046\n100 West Randolph Street, Chicago, Hlinois 60601 © (312) 814-3000 © ‘TTY: (800) 964-3013 ¢ Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © ‘I’T'Y: (877) 675-9339 ¢ Fax (618) 529-6416 €éocis>!\nThe Village's reliance on the City of Champaign decision is misplaced. In City of\nChampaign, a reporter sought copies of the communications exchanged between members of a\ncity council during city council meetings, including messages from both their city-issued devices\nand accounts and their personal devices and accounts. The city argued that the communications\non privately-owned devices were not \"public records\" because individual city council members\ndo not constitute public bodies. City of Champaign, 2013 IL App (4th) 120662, 430, 992 N.E.2d\nat 636. Therefore, the court had to look further to determine whether the communications of\nindividual council members were records of the \"public body\" when those records were not in\nthe physical custody of the city but were contained on the city officials’ personally owned\ndevices. The court held that the communications responsive to the request were in the\npossession of the city council because a quorum was present and acting collectively as a public\nbody at the time the messages were sent. City of Champaign, 2013 IL App (4th) 120662, 4940,\n42-43, 992 N.E.2d at 639-40.\nIn contrast, the responsive records in this matter were submitted to the Village\npresident's Village-issued e-mail account, not to a private account or to a private device. There is\nno question that materials transmitted by the Village's e-mail server and received by the Village\npresident's Village e-mail account are under the control of the Village. Secondly, unlike the City\nof Champaign city council members, the Village president has unilateral authority. In Better\nGovernment Association, 2020 IL App (1st) 190038, 419, 169 N.E.3d 1066, 1073, the Illinois\nAppellate Court distinguished the FOIA requests submitted in that case (to the City of Chicago\nMayor's Office and Department of Public Health) from the requests seeking communications of\nindividual city council members in City of Champaign. The court explained:\nAlthough we agree with defendants that the individual officials\nidentified in the requests are not themselves public bodies\nunder FOIA, this does not mean that their communications\nabout public business cannot be public records. Instead, it is\nsufficient that the communications were either prepared for, used\n°5Letter from Gregory E. Moredock, Sorling Northrup, to Shannon Barnaby, Assistant Attorney\nGeneral, Office of the Attorney General, Public Access Bureau (May 2, 2022), at 4.\nMr. Zach Burtle\nMr. Dave Kimsey\nJuly 25, 2022\nPage 8\nby, received by, or in the possession ofa public body. * * * [T]he\nofficials in question here are not limited by a quorum\nrequirement. Rather, defendants—through their individual officials\nsuch as those named in the requests at issue—can function as\npublic bodies without any official meeting having been\nconvened. For example, the mayor and the director of CDPH can\nmake unilateral decisions that are binding on their respective\npublic bodies. (Emphasis added.) Better Gov't Ass'n, 2020 IL App\n(1st) 190038, 419, 169 N.E.3d at 1073.\nThe court thus concluded that \"the e-mails and text messages from those officials' personal\naccounts are 'in the possession of' a public body within the meaning of FOIA. It is also\nreasonable to conclude that, at a minimum, many such communications are prepared for or\neventually used by the public body.\" Better Gov't Ass'n, 2020 IL App (1st) 190038, 919, 169\nN.E.3d at 1073.\nLikewise, the Village president in this matter has unilateral authority and may\nperform duties on behaolff the Village without the requirement of a Board meeting. Indeed, in\nits answer, the Village stated that the Village president \"did not share the [applicants' materials]\nwith the Village Board, as the appointment was his alone to make.\"”° Therefore, records\npertaining to the transaction of public business sent to the Village president are public records.”’\nBecause the Village president used the application materials submitted by the\nindividuals who were not appointed to the Board to assist him in fulfilling a public duty on\nbehalf of the Village, those records pertain to the transaction ofp ublic business rather than\nprivate affairs. Because the records were sent to a Village-issued e-mail account, they were\nreceived by the Village and are in the possession of the Village. Accordingly, the materials are\npublic records subject to the requirements of FOIA.\nSection 7(1)(c) of FOIA\nSection 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal\nprivacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable\n*°Letter from Gregory E. Moredock, Sorling Northrup, to Shannon Barnaby, Assistant Attorney\nGeneral, Office of the Attorney General, Public Access Bureau (May 2, 2022), at 2.\n765 ILCS 5/3.1-35-5 (West 2020) (\"The mayor or president shall perform all the duties which are\nprescribed by law, including ordinances, and shall take care that the laws and ordinances are faithfully executed.\").\nMr. Zach Burtle\nMr. Dave Kimsey\nJuly 25, 2022\nPage 9\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\" The exemption further provides: \"The disclosure of information that\nbears on the public duties of public employees and officials shall not be considered an invasion\nof personal privacy.\"\nA public body's assertion that the release of information would constitute an\nunwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers' Local Union 130 v. Dep't of Public Health, 327 Ill. App. 3d 192, 196 (1st\nDist. 2001). The condition that the invasion of personal privacy must be \"clearly unwarranted\"\nevinces a strict standard to claim the exemption. Schessler v. Dep't of Conservation, 256 IIl.\nApp. 3d 198, 202 (4th Dist. 1994). Illinois courts balance the following factors in determining\nwhether disclosure of information would constitute an unwarranted invasion of personal privacy:\n\"(1) the plaintiff's interest in disclosure, (2) the public interest in disclosure, (3) the degree of\ninvasion of personal privacy, and (4) the availability of alternative means of obtaining the\nrequested information.\" National Ass'n of Criminal Defense Lawyers v. Chicago Police\nDepartment, 399 Ill. App. 3d 1, 13 (1st Dist. 2010).\nUnder the first factor, Mr. Burtle, as a Village resident, has a personal interest in\nmonitoring how the Village president performs his public duties, including the manner in which\nhe selected an individual to serve on the Board. This interest aligns with the broader public\ninterest in monitoring the affairs of local government to hold public officials accountable.\nAdditionally, there are strong personal and public interests in disclosure of information that\nsheds light on the identities and qualifications of applicants who were considered to fill a\nposition on a governing body such as the Board.\nIn its answer, the Village minimized the significance of the applicants' materials\nand emphasized that the submissions were an early step in the appointment process. The Village\nargued, therefore, that the records' disclosure would not fulfill either Mr. Burtle's personal\ninterest or a broader public interest. The Village stated that \"[t]hese documents were not\nintended to serve as evaluation criteria for the Village President, but rather were intended to\nserve as the starting point for a discussion involving the position ofV illage Trustee.\"”* The\nVillage argued:\nFirst, there were no official candidates for appointment, rather,\nthere were individuals who were interested in having a\nconversation with the Village President regarding what Trustee\nappointment would entail. Next, there are no qualifications other\n*8Letter from Gregory E. Moredock, Sorling Northrup, to Shannon Barnaby, Assistant Attorney\nGeneral, Office of the Attorney General, Public Access Bureau (May 2, 2022), at 3.\nMr. Zach Burtle\nMr. Dave Kimsey\nJuly 25, 2022\nPage 10\nthan the person is a qualified elector of the Village, has resided in\nthe Village for more than a year, is not in debt to the Village, and\nhas not been convicted of specified crimes. There is no public\ninterest in the education, work history, and other resume items of\nthose potentially interested in the position who ultimately were not\nappointe7d°,!\nRegardless of the informality of the process by which the individuals submitted\ntheir applications, the Village acknowledged that the Village president used the withheld\nmaterials to aid his decision making.*° The Village president presumably acquired and used\nthose materials as an assessment and screening tool to consider which of the applicants would be\nthe right fit for the vacant trustee position. The fact that there may have been later steps in the\nappointment process does not diminish the degree of public interest in the withheld materials. It\nis important for the public to be able to evaluate not only who was appointed to the Board, but\nalso those who were considered. The disclosure of the materials submitted by the individuals\nwho were not appointed to the Board would give the public the opportunity to compare those\nindividuals’ skills, educational and professional backgrounds, and reasons for seeking the\nposition, with those of the individual who was selected. Therefore, the Village's contention that\nthere is no real public interest in the disclosure of the application materials of the individuals\nwho were not appointed to the Board is unavailing.\nAddressing the third factor of the personal privacy analysis—the degree of\ninvasion of personal privacy—the Village argued that the disclosure of the records in question\nwould constitute an unwarranted invasion of the individuals' personal privacy, noting that they\nare \"not public officials, nor are they a part of any public body. Indeed, it is likely they had no\nknowledge that their information could and would become public, because ordinary citizens are\noften not aware of the requirements of FOIA.\"*!\nThe individuals seeking appointment might not have known that their submissions\nwould become public records subject to disclosure even if they were not appointed, but the fact\nthey are private individuals, alone, does not warrant withholding the records in full. The privacy\nrights of applicants for appointments to elected offices are diminished by the inherently public\nLetter from Gregory E. Moredock, Sorling Northrup, to Shannon Barnaby, Assistant Attorney\nGeneral, Office of the Attorney General, Public Access Bureau (May 2, 2022), at 5.\n*°Letter from Gregory E. Moredock, Sorling Northrup, to Shannon Barnaby, Assistant Attorney\nGeneral, Office of the Attorney General, Public Access Bureau (May 2, 2022), at 7.\n*'Letter from Gregory E. Moredock, Sorling Northrup, to Shannon Barnaby, Assistant Attorney\nGeneral, Office of the Attorney General, Public Access Bureau (May 2, 2022), at 6.\nMr. Zach Burtle\nMr. Dave Kimsey\nJuly 25, 2022\nPage 11\nnature of the election process, in which candidates willingly subject themselves to public\nscrutiny. /n Lambert v. Belknap County Convention, 157 N.H. 375, 949 A.2d 709 (N.H. 2008),\nthe New Hampshire Supreme Court concluded that the privacy rights of applicants for\nappointment to a county sheriff vacancy did not outweigh the public interest in disclosure of\ntheir applications, which had been withheld in their entireties under the version of section 7(1)(c)\nin New Hampshire's Right to Know Law (RSA 91—A:5, IV (West 2006)):\nUnder normal circumstances, they would have run for election and\nmuch of their personal information would have been subject to\npublic scrutiny. * * * Each candidate's employer as well as the\ngeneral public would have had full knowledge that the candidate\nsought to become county sheriff, and, thus, the candidate could not\nhave reasonably expected to keep his or her \"application\" private.\nOK OK\nWe see no reason why candidates who apply for a vacancy\nin an elected office should have a greater privacy interest than\ncandidates who run for that same office during an election year. In\nboth situations, a candidate's decision to apply for an elected public\noffice places his or her qualifications for that office at issue, and,\nconsequently, requires members of the public, either individually\nor through their representatives, to evaluate the particular\ncandidate. Thus, a candidate voluntarily seeking to fill an elected\npublic office has a diminished privacy expectation in personal\ninformation relevant to that office. Lambert, 157 N.H. at 383-84,\n949 A.2d at 718.\nAlthough information about the applicants' educational background and work\nhistory may be considered highly personal, it is notable that the information was presented by the\nindividuals themselves in a favorable manner. The records do not appear to contain any\nembarrassing or unflattering details about any individuals. Although members of the Board do\nreceive a salary,*° there is no indication that Board members are prohibited from having outside\nemployment.*’ Therefore, unlike the negative impact that the disclosure of records concerning\n*°The court remanded the case to the trial court to determine whether any discrete information in\nthe applications could be properly redacted. Lambert, 157 N.H. at 386, 949 A.2d at 720.\nChatham City Ordinance No. 81-1 (passed January 27, 1981), as amended by Ordinance No. 95-\n02 (passed January 24, 1995).\n*4The Public Officer Prohibited Activities Act (50 ILCS 105/2) (West 2020)) precludes a member\nof a village board from holding another office, with the exception of certain enumerated positions, but does not\nprohibit outside employment.\nMr. Zach Burtle\nMr. Dave Kimsey\nJuly 25, 2022\nPage 12\npending or unsuccessful applications for public employment could have on an applicant's current\nemployment, there is no evidence that the disclosure oft he individuals' applications would\nnegatively affect their current employment or otherwise harm them. To the contrary, their\nstatements of their dedication to their community and interest in public service were clearly\nintended to portray themselves in a positive light. Although the Village argued that candidates\nrunning for elective office have the ability to decide what to publically release as a part of their\ncampaign strategy, it is reasonable to presume that, at a minimum, those candidates would share\nthe same type of information at issue in this matter: their interest in serving the community, their\neducational background, and their work history.\nAs to the fourth factor of the privacy analysis, the Village's response\nacknowledged that there is no other way for Mr. Burtle to obtain the responsive information.\nWeighing the four factors together as set out in National Ass'n of Criminal\nDefense Lawyers vy. Chicago Police Department, for the reasons explained above, this office\nconcludes that the public interest in the disclosure of the materials submitted by the individuals\nwho were not appointed to the Board outweighs those individuals' privacy interests. Therefore,\nthe Village did not sustain its burden of proving by clear and convincing evidence that the\nrecords are exempt from disclosure under section 7(1)(c) of FOIA.\nSection 7(1)(f) of FOIA\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" Section\n7(1)(f) is equivalent in most respects to the \"deliberative process\" exemption in the Federal\nFOIA,*° which applies to \"inter- and intra-agency predecisional and deliberative material.\"\nHarwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). Section 7(1)(f) is \"intended\nto protect the communications process and encourage frank and open discussion among agency\nemployees before a final decision is made.\" Harwood, 344 Ill. App. 3d at 248. It is well settled\nthat the scope of section 7(1)(f) only \"protects the opinions that public officials form while\ncreating government policy| |\" and materials that \"reflect the give and take of the\ndeliberative process|.|\" (Emphasis added.) Kalven v. City of Chicago, 2014 IL App (1st)\n121846, § 24, 7 N.E.3d 741, 747-48 (2014), rev'd on other grounds by Perry v. Dep't of\nFinancial and Professional Regulation, 2018 IL 123349, 106 N.E.3d 1016 (2018) (quoting\nFederal FOIA Exemption 5 (5 U.S.C. § 552(b)(5) (West 2018)) applies to \"inter-agency or intra-\nagency memorandums or letters that would not be available by law to a party other than an agency in litigation with\nthe agency[.]\"\nMr. Zach Burtle\nMr. Dave Kimsey\nJuly 25, 2022\nPage 13\nPublic Citizen, Inc. v. Office of Management & Budget, 598 F.3d 865, 876 (D.C. Cir. 2010)); see\nalso Chicago Tribune Co. v. Cook County Assessor's Office, 2018 IL App (1st) 170455, 428, 109\nN.E.3d 872, 880 (2018) (\"In order to qualify for the deliberative process exemption, a document\nmust be both predecisional in the sense that it is actually antecedent to the adoption of an agency\npolicy, and deliberative in the sense that it is actually related to the process by which policies\nare formulated.\" (Emphasis added.)). Further, the Illinois Appellate Court has stated that\n\"purely factual material\" is not exempt from disclosure under section 7(1)(f) unless the factual\nmaterial is \"inextricably intertwined\" with predecisional discussions. Watkins v. McCarthy,\n2012 IL App (1st) 100632, 436, 980 N.E.2d 733, 740 (2012) (quoting Enviro Tech International,\nInc., v. United States Environmental Protection Agency, 371 F.3d 370, 374-75 (7th Cir. 2004)).\nThe Village contends that the responsive records fall within the scope of this\nexemption because the Village president gathered and considered the individuals' application\nmaterials to formulate opinions concerning whom to appoint to the Board. Therefore, the\nVillage argues \"this information was used solely by him as predecisional information.\"*°\nThe records, however, consist only of information that the individuals seeking\nappointment to the Board provided to the Village president. Although he may have considered\nthe application materials in the process of determining which individual to appoint to the vacant\ntrustee position, the contents of the records do not reveal the Village president's opinions, reflect\nthe give-and-take of his deliberations, or provide insight into how he formulated action. Further,\nthe work history and educational background information are purely factual. The applicants'\nstatements ofi nterest contain opinions, but those individuals had interests independent of the\nVillage's interests, and they were not part of the Village at the time they submitted their\nmaterials; their opinions are third party communications rather than inter- or intra-agency\ncommunications. Accordingly, the Village has not sustained its burden of demonstrating that the\nmaterials submitted by the individuals who were not appointed to the trustee position are exempt\nfrom disclosure under section 7(1)(f) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On April 10, 2022, Mr. Zach Burtle submitted a FOIA request to the Village\nof Chatham seeking copies of the applications submitted by the individuals seeking appointment\nto fill a vacancy on the Village's Board of Trustees.\n361 etter from Gregory E. Moredock, Sorling Northrup, to Shannon Barnaby, Assistant Attorney\nGeneral, Office of the Attorney General, Public Access Bureau (May 2, 2022), at 7.\nMr. Zach Burtle\nMr. Dave Kimsey\nJuly 25, 2022\nPage 14\n2) On April 11, 2022, legal counsel for the Village denied the request in its\nentirety citing sections 7(1)(b), 7(1)(c), and 7(1)(f) of FOIA. On April 14, 2022, the Village\nissued an amended response and disclosed copies of the application materials for the individual\nwho was appointed to the Board, but continued to withhold the materials submitted by the\nindividuals who were not appointed.\n3) On April 14, 2022, Mr. Burtle submitted to the Public Access Bureau a copy\nof the Village's initial response, amended response, and a written Request for Review disputing\nthe denial. On April 15, 2022, Mr. Burtle completed his submission by providing this office with\na copy of his FOIA request. The Request for Review was timely filed and otherwise complies\nwith the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)).\n4) On April 21, 2022, the Public Access Bureau sent a copy of the Request for\nReview to the Village. The Public Access Bureau also sent the Village a letter requesting an\nunredacted copy of the application materials in question for this office's confidential review and\na detailed written explanation of the legal and factual bases for withholding the records in their\nentireties pursuant to the section 7(1)(c) and 7(1)(f) exemptions.\n5) On May 2, 2022, counsel for the Village sent this office copies of the\napplication materials, an unredacted written response for the Public Access Bureau's review, and\na copy of the response with confidential information redacted.\n6) On May 3, 2022, the Public Access Bureau forwarded a copy of the redacted\nresponse to Mr. Burtle and notified him of the opportunity to reply. On May 12, 2022, Mr.\nBurtle informed an Assistant Attorney General in the Public Access Bureau that he did not plan\nto submit a reply.\n7) On June 9, 2022, the Public Access Bureau extended the time within which to\nissue a binding opinion by 30 business days, pursuant to section 9.5(f) of FOIA. Therefore, the\nAttorney General may properly issue a binding opinion with respect to this matter.\n8) Section 2(c) of FOIA defines \"public records\" as \"all records * * * pertaining\nto the transaction of public business, regardless of physical form or characteristics, having been\nprepared by or for, or having been or being used by, received by, in the possession of, or under\nthe control of any public body.\" Public records are records that pertain to government or public\nbusiness interests rather than private affairs.\n9) The materials submitted by individuals who sought appointment to the Board\nwere used by the Village president to assist him in fulfilling his statutory duty of appointing an\nindividual to the vacant Board seat. Applications for appointment to public office directly\nMr. Zach Burtle\nMr. Dave Kimsey\nJuly 25, 2022\nPage 15\nconcern government affairs, and therefore, pertain to the transaction of public business rather\nthan private affairs. The records are in the possession of the Village because they were received\non the Village president's Village-issued e-mail account. Accordingly, the records are public\nrecords subject to the requirements of FOIA.\n10) Section 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal\nprivacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\" The Village did not demonstrate by clear and convincing evidence\nthat the disclosure of the records submitted by individuals who sought appointment to the Board\nwould constitute an unwarranted invasion of personal privacy under section 7(1)(c) of FOIA.\n11) Section 7(1)(f) exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head oft he public body.\" This\nexemption permits public bodies to withhold portions of predecisional communications that\nreflect the give and take of deliberations in the process of formulating decisions.\n12) The Village has not demonstrated the contents of the records would reveal\nthe Village president's opinions concerning the applicants, reflect the give-and-take of his\ndeliberations, or provide insight into how he formulated action concerning the appointment\nprocess. These records submitted to the Village by third parties with independent interests do\nnot constitute inter-agency or intra-agency predecisional and deliberative material. Accordingly,\nthe Village has not demonstrated by clear and convincing evidence that the materials submitted\nby individuals who were not appointed to the Board are exempt from disclosure pursuant to\nsection 7(1)(f) of FOIA.\nTherefore, it is the opinion of the Attorney General that the Village of Chatham\nviolated the requirements of FOIA by improperly withholding the records responsive to Mr.\nZach Burtle's April 10, 2022, Freedom of Information Act request. Accordingly, the Village is\nhereby directed to take immediate and appropriate action to comply with this opinion by\nproviding Mr. Burtle with copies of the application materials responsive to his FOIA request,\nexcept for the permissible redaction of private individuals' personal phone numbers, home\naddresses, personal e-mail addresses, and signatures as \"private information\" under section\n7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2020), as amended by Public Acts 102-038, effective\nMr. Zach Burtle\nMr. Dave Kimsey\nJuly 25, 2022\nPage 16\nJune 25, 2021; 102-558, effective August 20, 2021; 102-694, effective January 7, 2022, revised\nFebruary 3, 2022; 102-791, effective May 13, 2022; 102-1055, effective June 10, 2022).>”\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days of the date of this decision naming the Attorney General of Illinois and Mr. Zach Burtle\nas defendants. See 5 ILCS 140/11.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBy: f PVVE| eg 2 |\n| Brent D. Stratton\nChief Deputy Attorney General\nCC: Mr. Gregory E. Moredock\nSorling Northrup\n1 North Old State Capitol Plaza, Suite 200\nP.O. Box 5131\nSpringfield, Illinois 62705\n*7Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2020)) defines \"private information\" as\n\"unique identifiers, including * * * home or personal telephone numbers, and personal email addresses * * * [and]\nhome address[es.]\" Because signatures are \"unique identifiers\" they also qualify as a form of \"private information.\"\nCERTIFICATE OF SERVICE\nEdie Steinberg, Senior Assistant Attorney General, Public Access Bureau, hereby\ncertifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 22-\n011) upon:\nMr. Zach Burtle\n117 Grizzly Drive\nChatham, Illinois 62629\nzburtle@gmail.com\nThe Honorable Dave Kimsey\nVillage President\nVillage of Chatham\n116 East Mulberry Street\nChatham, Illinois 62629\ndkimsey@chathamil.gov\nMr. Gregory E. Moredock\nSorling Northrup\n1 North Old State Capitol Plaza, Suite 200\nP.O. Box 5131\nSpringfield, Illinois 62705\ngemoredock@sorlinglaw.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndepositedi n the United States mail at Chicago, “blest LA\ndie Steinberg ~\nSenior Assistant Attorney General\nEdie Steinberg\nSenior Assistant Attorney General\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street\nChicago, Illinois 60601\n(872) 272-0820","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under FOIA, records in the possession of a public body are presumed public unless a specific statutory exemption applies, and the burden is on the public body to prove by clear and convincing evidence that an exemption applies. The Village argued that applications from unsuccessful candidates were exempt as private personal information (7(1)(c)) or as preliminary drafts/recommendations (7(1)(f)), but the Attorney General found that the applications did not constitute the kind of highly personal information those exemptions protect (aside from discrete private details like signatures or personal contact information, which could be redacted) and were not predecisional deliberative material exempt from disclosure. Because the Village failed to meet its evidentiary burden to justify withholding the records wholesale, it violated FOIA by denying the request rather than producing the records with only narrowly tailored redactions.","card_headline":"Applications for a village board vacancy","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":159,"orig_master_id":19361,"dup_master_id":19133,"dup_sha256":"56bb575bd59937c4f116659e2b48c65b187ee0ebffd4c74c887ae831189a113e","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2022,"date_issued":"2022-09-30","case_number":"2022 PAC 72503","request_numbers":null,"title":"Improper Closed Session Discussion of New School Under the Exception for Purchasing or Leasing Real Property","filename":"PUBLIC ACCESS OPINION 22-012 (Request for Review - 2022 PAC 72503).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 22-012 (Request for Review - 2022 PAC 72503).pdf","word_count":5396,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a complaint about the Decatur Public School Board's improper closed session discussions related to the opening of a new school using COVID-19 relief funds.","plain_summary":"The requester, a resident, alleged that a school board secretly deliberated for months, across sixteen separate closed sessions, about building a new school funded by federal pandemic relief funds and a special legislative waiver, disclosing the plan publicly only after the fact. The Public Access Counselor held that the closed-session exception for purchasing or leasing real property covered only the narrow question of which parcel to acquire, not the board's broader deliberations about whether to build a new school or how to fund and legislatively authorize it, so those portions of all sixteen sessions violated the Open Meetings Act. The board was directed to disclose the portions of the recordings and minutes concerning the new school and its funding, while portions specifically about the merits of particular properties may remain redacted.","holding":"The Decatur Public School Board violated the Open Meetings Act during 16 meetings by improperly entering closed session.","legal_question":"Did the Decatur Public School Board violate the Open Meetings Act by discussing matters in closed session that were not permissible under the Act?","disposition":"violation_found","primary_statute":["5 ILCS 120/2(a)","5 ILCS 120/2(c)(5)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(5)"],"public_body":"Decatur Public School District No. 61 Board of Education","requesting_party":"Mrs. Lee Ann Clary","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The School Board improperly used the real property exception to discuss the opening of a new school in closed session.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2022-Binding-PAC-Opinions/22-012.pdf","sha256":"50401c5cbc33a05b5dee7ac02270e5ace4ebe9cc5177370df13762b959e3d83d","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","school board","Open Meetings Act","real property exception"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nSeptember 30, 2022\nPUBLIC ACCESS OPINION 22-012\n(Request for Review 2022 PAC 72503)\nOPEN MEETINGS ACT:\nImproper Closed Session Discussion of New\nSchool Under the Exception for Purchasing or\nLeasing Real Property\nMrs. Lee Ann Clary\n[street address redacted for site publication -- see original PDF]\nThe Honorable Andrew Taylor\nPresident, Board of Education\nDecatur Public Schools\nKeil Administration Building\n101 West Cerro Gordo Street\nDecatur, Illinois 62523\nDear Mrs. Clary and Mr. Taylor:\nThis binding opinion is issued by the Attorney General pursuant to section 3.5(e)\nof the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons discussed\nbelow, this office concludes that the Board of Education (School Board) of Decatur Public\nSchool District No. 61 (District) violated section 2(a) of OMA (5 ILCS 120/2(a) (West 2021\nSupp.)) during 16 separate meetings held between October 12, 2021, and June 28, 2022. During\nthese meetings, the School Board improperly entered closed session pursuant to the exception in\nsection 2(c)(5) of OMA (5 ILCS 120/2(c)(5) (West 2021 Supp.)) and discussed various aspects\nof opening a new school using COVID-19 relief funds.\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © T’l'Y: (877) 844-5461 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 ¢ (312) 814-3000 ¢ ITY: (800) 964-3013 ¢ Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 ¢ ‘T’T'Y: (877) 675-9339 ¢ Fax (618) 529-6416 °&eccast>~\nMrs. Lee Ann Clary\nThe Honorable Andrew Taylor\nSeptember 30, 2022\nPage 2\nBACKGROUND\nOn July 6, 2022, Mrs. Lee Ann Clary submitted a Request for Review to the\nPublic Access Bureau alleging that in recent months the School Board may have improperly\nengaged in private discussions concerning the building of a new grade school.!' She stated that\nshe became aware of the potential violations on June 29, 2022, after the School Board and the\nDecatur Park District Board (Park Board)? announced on June 27, 2022, that they were\nconsidering the construction of a new school building in Lincoln Park.? The announcement\nstated that on April 19, 2022, the General Assembly granted’ the District a waiver to build a new\nschool using Federal pandemic relief funds° totaling more than $76,000,000.° Mrs. Clary\nappeared to assert, however, that no agenda items of School Board meetings indicated that the\nSchool Board discussed or voted on that waiver, nor did any minutes indicate that the School\nBoard discussed building a new school at all.’ Mrs. Clary posited that the School Board may\n_ have improperly discussed the matter in closed session pursuant to section 2(c)(5) of OMA (5\nILCS 120/2(c)(S) (West 2021 Supp.)), as the only potentially relevant information she\ndiscovered in reviewing meeting agendas is that the School Board adjourned to closed session to\ndiscuss purchasing or leasing land.®\n'Letter from Lee Ann Clary to Illinois Attorney General OAG FOIA Officer, Office of Attorney\nGeneral (dated July 5, 2022; transmitted via e-mail July 6, 2022).\n*On July 11, 2022, a Deputy Bureau Chieinf the Public Access Bureau called Mrs. Clary to clarify\nif she also sought review of the actions of the Park Board and Decatur City Council, as she mentioned those public\nbodies in her allegations, too. Mrs. Clary stated that she sought review of only the School Board's conduct at that\ntime.\n*Valerie Wells, Decatur Public Schools exploring new school in Lincoln Park, HERALD & REVIEW\n(June 27, 2022), https://herald-review.com/news/local/education/decatur-public-schools-exploring-new-school-in-\nlincoln-park/article_857c4d6e-f658-1 lec-a5fa-9fb2a5ee20d1 html.\n“Referencing Public Act 102-699, which was signed into law on April 19, 2022. Some provisions\nof the Public Act took effect upon passage, but the part concerning the District did not take effect until July 1, 2022.\nCoronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136, 134\nStat. 281 (codified as amended in scattered sections of 2, 5, 12, 15, 20, 21, 29, 42, and 45 U.S.C.).\n°Valerie Wells, Decatur Public Schools exploring new school in Lincoln Park, THE HERALD-\nREVIEW (June 27, 2022), https://herald-review.com/news/local/education/decatur-public-schools-exploring-new-\nschool-in-lincoln-park/article_857c4d6e-f658-1 lec-a5fa-9fb2a5ee20d1.html.\n\"Letter from Lee Ann Clary to Illinois Attorney General OAG FOIA Officer, Office of Attorney\nGeneral (dated July 5, 2022; transmitted via e-mail July 6, 2022), at 1.\n‘Letter from Lee Ann Clary to Illinois Attorney General OAG FOIA Officer, Office of Attorney\nGeneral (dated July 5, 2022; transmitted via e-mail July 6, 2022), at 1.\nMrs. Lee Ann Clary\nThe Honorable Andrew Taylor\nSeptember 30, 2022\nPage 3\nOn July 18, 2022, the Public Access Bureau sent a copy of the Request for\nReview to the School Board President at that time, Mr. Dan Oakes. The Public Access Bureau\nalso sent Mr. Oakes a letter asking for copies of the minutes and audio or video recordings of any\nmeetings, open or closed, in which a majority of a quorum of the School Board discussed the\npotential construction of the new school, noting that this office would keep the closed session\nmaterials confidential.” This office also asked the School Board to respond in writing to the\nallegation that it violated OMA by discussing the potential construction of a new school outside\nof open session, including by addressing whether deliberating about building the school\nexceeded the scope of section 2(c)(5) of OMA.!°\nOn August 10, 2022, counsel for the School Board provided the Public Access\nBureau with those materials, including copies of closed session minutes and closed session\nverbatim recordings from the following meetings: October 12, 2021; October 26, 2021;\nNovember 16, 2021; December 14, 2021; January 13, 2022;'! January 25, 2022; February 8,\n2022; February 22, 2022; March 8, 2022; March 22, 2022; April 12, 2022; April 26, 2022; May\n10, 2022; May 24, 2022; June 14, 2022; and June 28, 2022; and the open session recording from\nthat most recent meeting. In a written answer to Mrs. Clary's allegations, counsel for the School\nBoard denied that it had violated OMA.!2\nOn August 11, 2022, this office forwarded a copy of the School Board's response\nletter to Mrs. Clary.'> On August 16, 2022, she submitted a reply, reiterating her concerns!4.\n*Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to The Honorable Dan Oakes, President, Board of Education, Decatur Public Schools (July 18, 2022), at 2.\n‘OT etter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to The Honorable Dan Oakes, President, Board of Education, Decatur Public Schools (July 18,\n2022), at 2.\n\"'The School Board provided a copy of the closed session verbatim recording but not the closed\nsession minutes for the January 13, 2022, meeting.\n\"Letter from Christine G. Christensen, Miller, Tracy, Braun, Funk & Miller, Ltd., to Joshua M.\nJones, Deputy Bureau Chief, Public Access Bureau, [Office of the Attorney General] (August 10, 2022).\nSetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Lee Ann Clary (August 11, 2022).\n‘Letter from Lee Ann Clary to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau,\n[Office of the Attorney General] (August 16, [2022]).\nMrs. Lee Ann Clary\nThe Honorable Andrew Taylor\nSeptember 30, 2022\nPage 4\nOn September 4, 2022, this office extended the time within which to issue a\nbinding opinion by 21 business days, to October 4, 2022.!5\nANALYSIS\nOMA is intended \"to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020).\nAuthority for Review\nAs an initial matter, although the School Board has not objected to the scope of\nthis review,'® this office notes that section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020))\nauthorizes the Public Access Counselor to review the allegations in Mrs. Clary's Request for\nReview from its October 12, 2021, meeting through the date of the submission of Mrs. Clary's\nRequest for Review. Section 3.5(a) of OMA provides, in relevant part:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\nconcerning the violation are not discovered within the 60-day\nperiod, but are discovered at a later date, not exceeding 2 years\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days\nof the discovery of the alleged violation. (Emphasis added.)\nAlthough twelve of the sixteen meetings at issue during which the School Board\ndiscussed a potential new school and related issues occurred more than 60 days prior to the filing\nof Mrs. Clary's Request for Review, a person using reasonable diligence would not have been\nable to discover facts concerning the alleged improper closed-door decision-making process\nabout the new school and its funding because the School Board held the deliberations in closed\nsession. Further, the School Board made no mention of the potential new school in open session\n‘Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Lee Ann Clary and Christine G. Christensen, Miller, Tracy, Braun, Funk & Miller, Ltd\n(September 4, 2022).\n'*In fact, in its written response to this Request for Review, the School District identified the\nOctober 12, 2021, meeting as the first meeting where a new school, along with location and funding, was discussed,\nand provided documentation concerning that and 15 subsequent meetings. Further, the School Board has not\nsuggested that the alleged violations could have been discovered earlier.\nMrs. Lee Ann Clary\nThe Honorable Andrew Taylor\nSeptember 30, 2022\nPage 5\nuntil its June 28, 2022, meeting.'’ The legislation Mrs. Clary referenced that would have\nenabled the District to build a new school with CARES Act funds could have been discovered\nwithin the 60 days after it was enacted on April 19, 2022, because the text of each Public Act is\nposted on the General Assembly's website.!® However, the bill did not mention the District until\nSenate Floor Amendment 1 passed on April 9, 2022, and the provision concerning the District\ncomprises just one sentence out of the hundreds of pages of the wide-ranging FY2023 Budget\nImplementation Act. Mrs. Clary alleged that the legislation passed \"without specific comment\nby legislators or in the press[,]\"! and this office has not received information to the contrary.2°\nMore importantly, because nothing in its meeting agendas or minutes indicated that the School\nBoard was considering a new school or how to fund it, a person using reasonable diligence in\nfollowing School Board business would have had no reason to search for the related legislation.\nThus, it would have required significantly more than reasonable diligence to discover the alleged\nviolations prior to the School Board's announcement of the plans on June 27, 2022, as reported\nby the news media. Because Mrs. Clary's July 6, 2022, Request for Review was submitted\nwithin 60 days after her discovery of the alleged violations, this office has the authority to review\nall of the School Board meetings at issue in her allegations.\nSection 2(a) of OMA\nTurning to the substance of Mrs. Clary's allegations, section 2(a) of OMA (5\nILCS 120/2(a) (West 2021 Supp.)) provides that \"[a]ll meetings of public bodies shall be open to\nthe public unless excepted in subsection (c) and closed in accordance with Section 2a.\" Such\nexceptions \"are in derogation of the requirement that public bodies meet in the open, and\ntherefore, the exceptions are to be strictly construed, extending only to subjects clearly within\ntheir scope.\" (Emphasis added.) 5 ILCS 120/2(b) (West 2021 Supp.). The section 2(c)(5)\nexception permits a public body to enter into closed session to discuss only \"[t]he purchase or\nDecatur Public School District No. 61 Board of Education, Meeting, June 28, 2022, Minutes 3\n(Superintendent Rochelle Clark read the joint statement between the School Board and Park Board making the\nannouncements).\n'8Tllinois General Assembly, 102nd General Assembly Public Acts,\nhttps://www.ilga.gov/legislation/publicacts/default.asp (last visited September 20, 2022).\nLetter from Lee Ann Clary to [Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau,\nOffice of the Attorney General] (undated; sent by e-mail July 14, 2022).\n0One of the questions posed in the Frequently Asked Questions document posted by the District\nafter it announced the plans for the new school on June 27, 2022, is: \"Why has this been kept quiet for so long?\"\nDecatur Public School District No. 61, FREQUENTLY ASKED QUESTIONS: Proposed New School,\nhttps://docs.google.com/document/d/151WBZPO_Xz1IMkOh95 uOPIn70l4WvEIhEUIZxHbsP_UY/edit (last visited\nSeptember 20, 2022).\nMrs. Lee Ann Clary\nThe Honorable Andrew Taylor\nSeptember 30, 2022\nPage 6\nlease of real property for the use of the public body, including meetings held for the purpose of\ndiscussing whether a particular parcel should be acquired.\"\nIn its response to this office, counsel for the School Board explained the events\ndocumented by the closed session materials:\nBeginning on October 12, 2021, the Board of Education\nbegan discussing possible real estate sites that could be acquired\nand upon which a new school could be built. Over the next several\nmonths, the Board of Education evaluated multiple sites, including\nsites proposed by the City of Decatur and/or owned by the Decatur\nPark District.2!)\nThe School Board analogized this matter to an Illinois Appellate Court decision, Galena Gazette\nPublications, Inc. v. County of Jo Daviess, 375 Ill. App. 3d 338, 344-45 (2d Dist. 2007). The\nSchool Board argued:\nLike in Galena Gazette Publications, Inc., the Board of\nEducation's discussions of the real estate sites proposed by the City\nand/or owned by the Park District were crucial to the Board's\nstrategy in deciding whether to proceed with the purchase or lease\nof real property for the constructioonf a new school. The Board of\nEducation similarly needed to discuss \"whether and on what terms\nthe [District] out to sublet\" or buy property from the Park District.\n[Citation.] The Board of Education also needed to consider how\nmuch it \"would pay [and] how much space the [new building]\nwould occupy[.] ... The participants also discussed whether it was\ndesirable to enter into the arrangement at all, what alternatives\nexisted, and how the [District and the Park District] could arrive at\nan agreement of some sort.\" [Citation.] These discussions, as\nconfirmed by the Second District Appellate Court of Illinois, are\npermissible during a closed session meeting of a public body under\nthe Open Meetings Act. Accordingly, no violation of the Open\nMeetings Act occurred,!?7!\n*ILetter from Christine G. Christensen, Miller, Tracy, Braun, Funk & Miller, Ltd., to Joshua M.\nJones, Deputy Bureau Chief, Public Access Bureau (August 10, 2022), at 2.\nLetter from Christine G. Christensen, Miller, Tracy, Braun, Funk & Miller, Ltd., to Joshua M.\nJones, Deputy Bureau Chief, Public Access Bureau, [Office oft he Attorney General] (August 10, 2022), at 3.\nMrs. Lee Ann Clary\nThe Honorable Andrew Taylor\nSeptember 30, 2022\nPage 7\nMrs. Clary replied to that argument by identifying \"deliberations and decisions\nwith regard to three related actions\" that she alleged the School Board improperly undertook\noutside of open session:\n1. The decision to pursue construction of a new building.\n2. The decision to at least partially fund the building with\nARP ESSER\"?! funds already allocated to [the District].\n3. The decision to obtain a waiver of referendum from the\nstate legislature to raise up to half the cost of any building partially\nfunded with ARP ESSER funds.4!\nMrs. Clary noted that the School Board \"does not claim to have held any discussions or made\nany decisions\" regarding those three subjects \"in [an] open meeting.\"?° She contended that the\nSchool Board exceeded the scope of section 2(c)(5) because its closed session \"[d]iscussions of\n‘whether and howa specific property would meet the needs of the District' were separately\npreceded by and independent of discussions and a decision to pursue building and funding a\nnew school building.\" (Emphasis in original.)*° Asserting that \"it is common practice and\naccording to Illinois law to pursue building and funding a new school building in the open and to\nrequire public approval via referendum[,]\" Mrs. Clary alleged that the School Board took action\nto get the referendum requirement removed via legislation \"without public knowledge or\napproval.\"*® As referenced above, Public Act 102-699, effective July 1, 2022, amended section\n10-22.36(a) of the School Code”? to specifically exclude the District from the general\nrequirement to hold a referendum to build a new school building as long as at least half the cost\n*Elementary and Secondary School Emergency Relief (ESSER) under the American Rescue Plan\nAct (ARPA), Pub. L. No. 117-2, tit. II, § 2001, 135 Stat. 4, 19 (2021) (codified in scattered sections of 7, 12, 15, 19,\n20, 26, 29, 42, and 45 U.S.C.). The ESSER funding was established by the CARES Act.\n**Letter from Lee Ann Clary to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau,\n[Office of the Attorney General] (August 16, [2022]), at 1. :\n*>Letter from Lee Ann Clary to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau,\n[Office of the Attorney General] (August 16, [2022]), at 2.\nLetter from Lee Ann Clary to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau,\n[Office of the Attorney General] (August 16, [2022]), at 2.\n*8Letter from Lee Ann Clary to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau,\n[Office of the Attorney General] (August 16, [2022]), at 2.\n9105 ILCS 5/10-22.36(a) (West 2021 Supp.), as amended by Public Act 102-699, effective July 1,\n2022.\nMrs. Lee Ann Clary\nThe Honorable Andrew Taylor\nSeptember 30, 2022\nPage 8\nof the project is paid for with COVID-19 relief funds. Mrs. Clary alleged that the School Board's\nimproper discussions and decisions concerning building a new school included secretly applying\nfor those pandemic relief funds for that purpose. She contended the School Board \"sought to\nconceal every aspect of the proposed new school building in question that it could from its\ncitizens for as long as it possibly could.\"°”\nThis office's confidential review of each of the closed session verbatim recordings\nand closed session minutes from the 16 meetings at issue confirmed that the School Board\nexceeded the scope of section 2(c)(5) by discussing plans for the creation of a new school,\nfunding via the CARES Act, and a legislative waiver of the statutory referendum requirement.\nThe School Board did spend considerable time during certain meetings discussing the relative\nmerits of particular properties to potentially acquire, as authorized by the exception in section\n2(c)(5) of OMA. The School Board, however, also discussed various matters outside that narrow\nscope across the extended series of closed session discussions as an unavoidable consequence of\nplanning a new school. Deliberating about opening a new school is not a legitimate topic for\nclosed session. Neither is strategizing about obtaining and using COVID-19 aid funding, nor\npursuing legislation to amend a State law to bypass a referendum requirement. Had the School\nBoard openly discussed building a new school with pandemic relief funds and a legislative\nwaiver of the referendum requirement, it could have properly deliberated in closed session about\nthe narrow topic of acquiring the most beneficial parcel of property for constructing the new\nschool. Instead, the School Board held closed session discussions over an extended period of\ntime about plans to build a new school with COVID-19 relief funds, improperly invoking an\nexception to OMA's public discussion requirements that covers only the real estate acquisition\naspect of that plan. The School Board's closed session deliberations about building a new school\nwere not pertinent to an underlying consideration about buying real property; the real property-\nrelated discussions only arose because the Board first considered using the available CARES Act\nfunding to reconfigure its schools. Thus, Galena Gazette is inapposite.\nIn Galena Gazette, the Illinois Appellate Court analyzed whether closed session\ndiscussions concerning subleasing a specific property for use by a public body fell within the\nscope of section 2(c)(5). The City of Galena had sublet the \"Old Train Depot\" to the Galena\nArea Chamber of Commerce, and Jo Daviess County's Convention & Visitors Bureau sought to\nlease a portion of the building. Galena Gazette, 375 Ill. App. 3d at 339-40. The plaintiff\nconceded that the involved public bodies could have properly discussed the \"material terms\" of\nthe sublease in closed session under section 2(c)(5), but argued that the public bodies improperly\nincluded \"peripheral matters'\" in the closed session discussion, such as how to utilize the\nsubleased space. Galena Gazette, 375 Ill. App. 3d at 344. The court disagreed, finding that\n*°Letter fram Lee Ann Clary to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau,\n[Office of the Attorney General] (August 16, 2022), at 2.\nMrs. Lee Ann Clary\nThe Honorable Andrew Taylor\nSeptember 30, 2022\nPage 9\nnothing in the language of section 2(c)(5) distinguishes \"'material'\" lease matters from\n“peripheral ones. Galena Gazette, 375 Ill. App. 3d at 344. Rather, the court explained, the\nrelevant question was whether the sublease conditions discussed in closed session, such as the\nChamber's racking of promotional brochures within the subleased property, were relevant\nconsiderations in determining whether to enter the sublease:\nEven when participants discussed the racking of promotional\nbrochures at the Old Train Depot— past, present, or future— they\ndid so only because it was pertinent to the terms, effects, or\ndesirability of the proposed subleasing arrangement. The\nparticipants did not discuss the racking of promotional literature\nseparately from their consideration of the proposed subleasing\narrangement * * *. To abstract any such discussions from the\nlarger context would ignore the participants’ purposes in raising the\nissue of the display of promotional materials. Galena Gazette, 375\nIll. App. 3d at 344.\nThe court added that it would be impractical for the public bodies to have a meaningful\ndiscussion of the sublease terms if they were precluded from discussing the related details\nneeded to put the terms in context. Galena Gazette, 375 Ill. App. 3d at 345. Because the public\nbodies' closed session discussion centered on the terms and conditions of the potential sublease,\nand because the issues that the plaintiff characterized as \"peripheral\" were relevant components\nof those considerations, the court held that the entire closed session discussion was proper under\nsection 2(c)(5). Galena Gazette, 375 Ill. App. 3d at 346.\nThus, Galena Gazette stands for the proposition that when the matter under\nconsideration is a public body's interest in purchasing or leasing real property, section 2(c)(5)\npermits the public body to discuss the attributes of the properties under consideration and the\nterms and conditions of a potential sale or lease. Galena Gazette lends no support to the notion\nthat section 2(c)(5) encompasses all aspects of a public body's deliberations about a new\nendeavor such as the creation of a new school simply because the project may require the\npurchase or lease of real property as one of its main elements. Indeed, the court emphasized:\n\"We do not suggest that a public body may shelter deliberations that must be public merely by\ndepositing them among discussions of exempt matters. That is not what happened here.\" Galena\nGazette, 375 Ill. App. 3d at 346.\nIn contrast, the Board entered closed session pursuant to section 2(c)(5) to\ndiscuss whether to build a new school, funding for the school, legislative considerations, and\nvarious other topics concerning the project that were not considered in the context of the narrow\ntopic of purchasing or leasing property for the school. The exception did not permit those\nMrs. Lee Ann Clary\nThe Honorable Andrew Taylor\nSeptember 30, 2022\nPage 10\ndistinct discussions simply because the District eventually would have to acquire property if it\nwere to build a new school. Accordingly, certain portions of the Board's October 12, 2021,\nOctober 26, 2021, November 16, 2021, December 14, 2021, January 13, 2022, January 25, 2022,\nFebruary 8, 2022, February 22, 2022, March 8, 2022, March 22, 2022, April 12, 2022, April 26,\n2022, May 10, 2022, May 24, 2022, June 14, 2022, and June 28, 2022, closed session\ndiscussions were not authorized by section 2(c)(5) of OMA, and therefore violated section 2(a)\nof OMA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments presented,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On July 6, 2022, Mrs. Lee Ann Clary submitted a Request for Review to the\nPublic Access Bureau questioning whether the School Board of Decatur Public School District\nNo. 61 had in recent months improperly held discussions in closed session to plan the building of\na new school using COVID-19 relief funds. Mrs. Clary alleged that the public was unaware of\nthe School Board's deliberations on that subject until a June 27, 2022, joint announcement by the\nSchool Board and Decatur Park District Board. Mrs. Clary's Request for Review was timely\nfiled and otherwise complies with the requirements of section 3.5(a) of OMA.\n2) On July 18, 2022, the Public Access Bureau sent a copy of the Request for\nReview to the School Board President at that time, Dan Oakes, and asked the School Board to\nprovide for this office's confidential review copies of the minutes and audio or video recordings\nof any meetings, open or closed, in which a majority of a quorum of the School Board discussed\nthe potential construction of the new school. This office also asked the School Board to respond\nin writing to the allegation that it violated OMA by discussing the potential construction of a new\nschool outside of open session, including by addressing whether deliberating about building the\nschool exceeded the scope of section 2(c)(5) of OMA.\n3) On August 10, 2022, counsel for the School Board provided the Public Access\nBureau with those materials, including copies of closed session minutes and closed session\nverbatim recordings from its meetings on October 12, 2021, October 26, 2021, November 16,\n2021, December 14, 2021, January 13, 2022 (except no minutes), January 25, 2022, February 8,\n2022, February 22, 2022, March 8, 2022, March 22, 2022, April 12, 2022, April 26, 2022, May\n10, 2022, May 24, 2022, June 14, 2022, and June 28, 2022, and the open session recording from\nthat most recent meeting. The School Board denied that it violated OMA.\n4) On August 11, 2022, this office sent a copy of the School Board's answer to\nMrs. Clary. On August 16, 2022, she submitted a reply.\nMrs. Lee Ann Clary\nThe Honorable Andrew Taylor\nSeptember 30, 2022\nPage 11\n5) On September 4, 2022, the Public Access Bureau properly extended the time\nwithin which to issue a binding opinion by 21 business days, to October 4, 2022, pursuant to\nsection 3.5(¢) of OMA. Therefore, the Attorney General may properly issue a binding opinion\nwith respect to this matter.\n6) Section 3.5(a) of OMA grants the Public Access Counselor the authority to\nreview the School Board deliberations concerning the new school dating back to October 12,\n2021, because Mrs. Clary submitted allegations that encompass School Board meetings since.\nthat date within 60 days after discovering the alleged violations and could not have discovered\nthem earlier despite using reasonable diligence. The School Board conducted the discussions\nduring a series of closed sessions and did not publicly disclose information about possibly\nbuilding the new school until the June 27, 2022, joint announcement that received news media\ncoverage, precluding the public from learning about the matter sooner.\n7) Section 2(a) of OMA requires that all meetings of public bodies be open to the\npublic unless the subject of the meeting is covered by one of the limited exceptions enumerated\nin section 2(c). Section 2(c)(5) permits a public body to close a portion of a meeting to discuss\n\"[t]he purchase or lease of real property for the use of the public body, including meetings held\nfor the purpose of discussing whether a particular parcel should be acquired.\"\n8) On October 12, 2021, October 26, 2021, November 16, 2021, December 14,\n2021, January 13, 2022, January 25, 2022, February 8, 2022, February 22, 2022, March 8, 2022,\nMarch 22, 2022, April 12, 2022, April 26, 2022, May 10, 2022, May 24, 2022, June 14, 2022,\nand June 28, 2022, the School Board closed a portion of each of its meetings to the public to\ndiscuss issues involving building a new school using COVID-19 relief funds.\n9) The section 2(c)(5) exception did not authorize the School Board to enter\nclosed session to discuss either building a new school using COVID-19 relief funds or pursuing\nan amendment to State law in order to do so, because the School Board's consideration of those\nobjectives was not pertinent to deliberations about purchasing or leasing real property. Rather,\nthe School Board's closed session discussions concerning potential sites for the new school\nstemmed from the broader underlying matter of building a new school with pandemic relief\nfunds, which does not fall within the scope of section 2(c)(5), or any other exception. The\nSchool Board improperly subsumed the over-arching open session topic of building a new school\nwith pandemic relief funds into the limited OMA exception for purchasing real property.\nIn accordance with these findings of fact and conclusions of law, the School\nBoard is directed to remedy this violation by disclosing to Mrs. Clary and making publicly\navailable the portions of the closed session verbatim recordings and closed session minutes that\nMrs. Lee Ann Clary\nThe Honorable Andrew Taylor\nSeptember 30, 2022\nPage 12\nconcern (1) building a new school; and (2) securing funding via legislation and the CARES Act.\nThe disclosure must include closed session recordings and minutes of the following meetings:\nOctober 12, 2021; October 26, 2021; November 16, 2021; December 14, 2021; January 13,\n2022; January 25, 2022; February 8, 2022; February 22, 2022; March 8, 2022; March 22, 2022:\nApril 12, 2022; April 26, 2022; May 10, 2022; May 24, 2022; June 14, 2022; and June 28, 2022.\nThose limited portions of these recordings and minutes that directly concern the relative merits\nof the particular properties under consideration for acquisition may be redacted.*! As required\nby section 3.5(e) of OMA, the School Board shall either take necessary action as soon as\n_practical to comply with the directives of this opinion or shall initiate administrative review\n‘under section 7.5 of OMA. 5 ILCS 120/7.5 (West 2020).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Mrs. Lee\nAnn Clary as defendants. See 5 ILCS 120/7.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBy: [:in ti tet a\nBrent D. Stratton\nChief Deputy Attorney General\nce: Ms. Christine G. Christensen\nMiller, Tracy, Braun, Funk & Miller, Ltd.\n316 South Charter Street, P.O. Box 80\nMonticello, Illinois 61856\n3!However, the School Board may wish to consider whether, as a result of changes in\ncircumstances, it is necessary to still maintain confidentiality of those portions of the minutes and verbatim\nrecordings. If not, the School Board may determine they no longer require confidential treatment and make them\navailable for public inspection. See 5 ILCS 120/2.06(d), (e) (West 2021 Supp.).\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 22-012) upon:\nMrs. Lee Ann Clary\n605 South Crea Street\nDecatur, Illinois 62522\nleeannclary@att.net\nThe Honorable Andrew Taylor\nPresident, Board of Education\nDecatur Public Schools\nKeil Administration Building\n101 West Cerro Gordo Street\nDecatur, Illinois 62523\nataylor@dps61.org\nMs. Christine G. Christensen\nMiller, Tracy, Braun, Funk & Miller, Ltd.\n316 South Charter Street, P.O. Box 80\nMonticello, Illinois 61856\ncchristensen@millertracy.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on September 30, 2022.\n~ ed\nOf\nenernone\ne\nP\nee\na\na, ee\n/ —~—.\nSteve Silverman\nBureau Chief\nSteve Silverman\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Decatur School Board held 16 meetings where they went into private 'closed sessions' to discuss opening a new school using COVID-19 relief money. The Illinois Attorney General ruled that these topics did not qualify for private discussion under the law. Consequently, the Board was found to have violated the Open Meetings Act.","card_headline":"Closed-session discussion of a new school opening","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":160,"orig_master_id":19363,"dup_master_id":19134,"dup_sha256":"35e565214378ec91de6e9346839759e14676f1b200c0a4b9260078a074235147","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2022,"date_issued":"2022-12-15","case_number":"2022 PAC 74070","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 22-014 (Request for Review - 2022 PAC 74070).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 22-014 (Request for Review - 2022 PAC 74070).pdf","word_count":2608,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act (FOIA) request submitted by Mr. Patrick Morrissey to the Cook County State's Attorney's Office.","plain_summary":"The requester, an attorney, sought a list of attorney's fees and litigation costs a county state's attorney's office paid to outside counsel in a specific lawsuit, and despite months of follow-up from both the requester and this office, the office never substantively responded. The Public Access Counselor held that the office violated FOIA's requirement to comply with, extend, or deny a request within the statutory time period. The office was directed to provide the requester with all records responsive to the request, subject only to permissible redactions.","holding":"The Cook County State's Attorney's Office violated section 3(d) of FOIA by failing to appropriately respond to the FOIA request.","legal_question":"Did the Cook County State's Attorney's Office comply with the requirements of the Freedom of Information Act in responding to a FOIA request?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Cook County State's Attorney's Office","requesting_party":"Mr. Patrick Morrissey","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought records concerning attorney's fees and litigation costs paid to an outside law firm.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2022-Binding-PAC-Opinions/22-014.pdf","sha256":"e6fcc359dcbaa6dd1d7b2cddac0ca2b4bf1d363120fb20c56f28302e75da6c28","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["attorney fees","failure to respond","FOIA request","litigation costs"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GEN ERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nDecember 15, 2022\nPUBLIC ACCESS OPINION 22-014\n(Request for Review 2022 PAC 74070)\nFREEDOM OF INFORMATION ACT:\nDuty to Respond to FOIA Requests\nMr. Patrick W. Morrissey\nThomas G. Morrissey, Ltd.\n[street address redacted for site publication -- see original PDF]\nMs. Elyssa Shull\nFreedom of Information Act Officer\nCook County State's Attorney's Office\n50 West Washington Street, 3rd Floor\nChicago, Illinois 60602\nDear Mr. Morrissey and Ms. Shull:\nThis binding opinion is issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons\ndiscussed below, this office concludes that the Cook County State's Attorney's Office (State's\nAttorney's Office) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2020)) by failing to\ncomply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request\nsubmitted by Mr. Patrick Morrissey.\nBACKGROUND\nOn September 29, 2022, Mr. Morrissey used the State's Attorney's Office's online\nFOIA Center to submit a FOIA request seeking a list of the attorney's fees and litigation costs\npaid to the law firm Johnson & Bell, Ltd. for serving as the State's Attorney's Office's outside\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © ‘IVY: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © T’l'Y: (800) 964-3013 ¢ Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © TTY: (877) 675-9339 © Fax (618) 529-6416 °\nMr. Patrick W. Morrissey\nMs. Elyssa Shull\nDecember 15, 2022\nPage 2\ncounsel in the lawsuit Kellum v. Dart, 20-cv-3795.' On the same day, Mr. Morrissey received,\nvia the FOIA Center, an automated message from the State's Attorney's Office confirming\nreceipt of his request and assigning it reference number R000219-092922.” On October 4, 2022,\nthe State's Attorney's Office informed Mr. Morrissey via the FOIA Center that it was \"submitting\nthe statutory request for a five-day extension beyond the initial five days provided by law[.]\"?\nOn October 19, 2022, Mr. Morrissey sent the State's Attorney's Office a message via the FOIA\nCenter noting that he had not yet received a response to his FOIA request and asking for the\nstatus of the response.*\nOn October 24, 2022, Mr. Morrissey submitted a Request for Review to the\nPublic Access Counselor alleging that the State's Attorney's Office had failed to respond to his\nFOIA request or his October 19, 2022, request for the status of the response.> On October 28,\n2022, the Public Access Bureau e-mailed Ms. Jeaneane Booker, FOIA Officer for the State's\nAttorney's Office, attaching a copy of the Request for Review and a letter asking whether the\nState's Attorney's Office had provided a substantive response to Mr. Morrissey's FOIA request.®\nThe October 28, 2022, letter also requested that if the State's Attorney's Office had not yet\nresponded to Mr. Morrissey, it do so and provide this office with a copy of its response.’ Later\nthat day, Ms. Booker replied via e-mail that Mr. Morrissey's FOIA request was assigned to a\n'FOIA Request, Reference No. R000219-092922, from pwm@morrisseylawchicago.com to [Cook\nCounty State's Attorney's Office] (undated). The State's Attorney's Office's online FOIA submission form can be\naccessed from its FOIA Center at\nhttps://cookcountystatesattorney.govqa.us/WEBAPP/_rs/(S(jjvtnp4cjuc3sjzmhrq | 5tsp))/SupportHome.aspx.\n2FOIA Center Message from Cook County State's Attorney[\"]s Office to [P]atrick [M]orrissey\n(September 29, 2022).\n3FOIA Center Message from Elyssa Shull, FOIA Officer, [Cook County State's Attorney's Office],\nto [R]equestor [Patrick Morrissey] (October 4, 2022).\n‘FOIA Center Message from Pat Morrissey to [Cook County State's Attorney's Office] (October\n19, 2022).\nSLetter from Patrick Morrissey to Public Access Counselor, Office of the Attorney General\n(October 24, 2022).\n°E-mail from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Jeaneane Booker, Freedom of Information Act Officer, Cook County State's Attorney's Office (October\n28, 2022).\n\"Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Jeaneane Booker, Freedom of Information Act Officer, Cook County State's Attorney's Office (October\n28, 2022) at [1].\nMr. Patrick W. Morrissey\nMs. Elyssa Shull\nDecember 15, 2022\nPage 3\ndifferent FOIA Officer in the State's Attorney's Office, Ms. Elyssa Shull.’ Ms. Booker stated\nthat she would forward this office's correspondence to Ms. Shull for a response.’ Shortly\nthereafter, Ms. Shull sent this office an e-mail stating that she was working on Mr. Morrissey's\nrequest.'° The State's Attorney's Office did not provide any additional response to the Public\nAccess Bureau's October 28, 2022, correspondence.\nOn November 15, 2022, the Public Access Bureau e-mailed Ms. Shull a letter\nexplaining that the Public Access Bureau had not received any indication that the State's\nAttorney's Office had substantively responded to Mr. Morrissey's FOIA request.!! This office\nalso attached to the e-mail copies of our October 28, 2022, correspondence and Ms. Booker's and\nMs. Shull's responses to that correspondence.'* The November 15, 2022, letter requested that if\nthe State's Attorney's Office had not yet responded to Mr. Morrissey's request, it do so and\nprovide this office with a copy of its response.'? On November 16, 2022, the Public Access\nBureau sent to the State's Attorney's Office via the United States Postal Service a hardcopy\nversion of the November 15, 2022, letter and the October 28, 2022, correspondence. The State's\nAttorney's Office did not respond to the Public Access Bureau's November 15, 2022, letter.\nOn November 22, 2022, Mr. Morrissey sent the State's Attorney's Office a\nmessage via the FOIA Center asking for the status of its response to his FOIA request.'4 On\nNovember 28, 2022, Mr. Morrissey confirmed for this office that he had not received a response\n8E-mail from Jeaneane Booker, FOIA Officer, [Cook County State's Attorney's Office], to [Laura]\nHarter, [Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General] (October 28, 2022).\n°E-mail from Jeaneane Booker, FOIA Officer, [Cook County State's Attorney's Office], to [Laura]\nHarter, [Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General] (October 28, 2022).\n'°E-mail from Elyssa Shull, [FOIA Officer, Cook County State's Attorney's Office], to [Laura\nHarter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General] (October 28, 2022).\n\"Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Elyssa Shull, Freedom of Information Act Officer, Cook County State's Attorney's Office (November\n15, 2022), at [1].\n'2E-mail from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to [Elyssa Shull, Freedom of Information Act Officer, Cook County State's Attorney's Office]\n(November 15, 2022).\n‘Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Elyssa Shull, Freedom of Information Act Officer, Cook County State's Attorney's Office (November\n15, 2022), at [1].\n'4FOIA Center Message from Pat Morrissey to [Cook County State's Attorney's Office]\n(November 22, 2022).\nMr. Patrick W. Morrissey\nMs. Elyssa Shull\nDecember 15, 2022\nPage 4\nto his November 22, 2022, message or any additional correspondence from the State's Attorney's\nOffice.!>\nAs of the date of the issuance of this binding opinion, this office has not received\nconfirmation from the State's Attorney's Office or Mr. Morrissey that the State's Attorney's\nOffice has responded to the FOIA request at issue in this matter.\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS\n140/1 (West 2020). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2020)), \"[a]ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"\nSection 3(a) of FOIA (5 ILCS 140/3(a) (West 2020)) provides that \"[e]ach public body shall\nmake available to any person for inspection or copying all public records, except as otherwise\nprovided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides:\nEach public body shall, promptly, either comply with or\ndeny a request for public records within 5 business days after its\nreceipt of the request, unless the time for response is properly\nextended under subsection (e) of this Section. Denial shall be in\nwriting as provided in Section 9 of this Act. Failure to comply\nwith a written request, extend the time for response, or deny a\nrequest within 5 business days after its receipt shall be considered\na denial of the request. A public body that fails to respond to a\nrequest within the requisite periods in this Section but thereafter\nprovides the requester with copies of the requested public records\nmay not impose a fee for such copies. A public body that fails to\nrespond to a request received may not treat the request as unduly\nburdensome under subsection (g).\nSection 3(e) of FOIA (5 ILCS 140/3(e) (West 2020)) permits a public body to extend its\nresponse time by no more than five business days for any of seven enumerated reasons. Any\nadditional extension requires a written agreement between the requester and the public body. 5\nILCS 140/3(e) (West 2020).\nOn October 4, 2022, the State's Attorney's Office extended its time to respond to\nMr. Morrissey's FOIA request by five business days, citing language in section 3(e) of FOIA that\npermits such an extension when \"the requested records are stored in whole or in part at other\n'SE-mail from Pat Morrissey, to [Laura] Harter, [Deputy Bureau Chief, Public Access Bureau,\nOffice of the Attorney General] (November 28, 2022).\nMr. Patrick W. Morrissey\nMs. Elyssa Shull\nDecember 15, 2022\nPage 5\nlocations than the office having charge of the requested records;\" Wot\"the requested records require\nexamination and evaluation by personnel having the necessary competence and discretion to\ndetermine if they are exempt from disclosure under Section 7 of this Act or should be revealed\nonly with appropriate deletions;\" or \"the request for records cannot be complied with by the\npublic body within the time limits prescribed by subsection (d) of this Section without unduly\nburdening or interfering with the operations of the public body[.]\" 5 ILCS 140/3(e)(i), (e)(v),\n(e)(vi) (West 2020).!° However, the State's Attorney's Office neither complied with the request\nnor denied the request in writing within the extended response period. Further, Mr. Morrissey\ndid not agree in writing to extend the response period beyond five business days. The failure of\nthe State's Attorney's Office to comply with the requisite response procedures violated section\n3(d) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On September 29, 2022, Mr. Patrick Morrissey submitted a FOJA request to\nthe Cook County State's Attorney's Office seeking a copy of a list of attorney's fees and litigation\ncosts paid to outside counsel in Kellum v. Dart, 20-cv-3795. The same day, the State's\nAttorney's Office acknowledged receiving Mr. Morrissey's request. On October 4, 2022, the\nState's Attorney's Office extended its time to respond to the request by five business days\npursuant to section 3(e)(i) of FOIA.\n2) On October 24, 2022, Mr. Morrissey submitted his Request for Review to the\nPublic Access Counselor alleging that the State's Attorney's Office had not responded to his\nFOIA request or to his request for an update on the status of the response. Mr. Morrissey's\nRequest for Review was timely filed and otherwise complies with the requirements of section\n9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)). Therefore, the Attorney General may issue a\nbinding opinion with respect to this matter.\n3) On October 28, 2022, the Public Access Bureau forwarded a copy of the\nRequest for Review to the State's Attorney's Office along with a letter asking whether it had\nprovided a substantive response to Mr. Morrissey's FOIA request. The same day, the State's\nAttorney's Office acknowledged receipt of this office's correspondence and Mr. Morrissey's\nSeptember 29, 2022, FOIA request and indicated that it was working on a response to the FOIA\nrequest.\n‘Records Center Message from Elyssa Shull, FOIA Officer, [Cook County State's Attorney's\nOffice], to [R]equestor [Patrick Morrissey] (October 4, 2022).\nMr. Patrick W. Morrissey\nMs. Elyssa Shull\nDecember 15, 2022\nPage 6\n4) On November 15, 2022, and November 16, 2022, the Public Access Bureau\nsent a second letter and copies of its previous correspondence to the FOIA Officer for the State's\nAttorney's Office, explaining that the Public Access Bureau had not received any indication that\nthe State's Attorney's Office had provided a substantive response to Mr. Morrissey's FOIA\nrequest. The State's Attorney's Office did not respond to the Public Access Bureau's November\n15, 2022, correspondence.\n5) As of the date of the issuance of this binding opinion, this office has received\nno information indicating that the State's Attorney's Office has provided a substantive response\nto Mr. Morrissey's September 29, 2022, FOIA request.\nTherefore, it is the opinion of the Attorney General that the Cook County State's\nAttorney's Office has violated section 3(d) of FOIA by failing, within the statutory time for\nresponding to Mr. Morrissey's September 29, 2022, FOIA request, to provide him with copies of\nthe requested records or to deny the request in writing in whole or in part. Accordingly, the\nState's Attorney's Office is hereby directed to take immediate and appropriate action to comply\nwith this opinion by providing Mr. Morrissey with copies of all records responsive to his\nSeptember 29, 2022, request, subject only to permissible redactions, if any, under section 7 of\nFOIA (5 ILCS 140/7 (West 2021 Supp.), as amended by Public Acts 102-791, effective May 13,\n2022; 102-1055, effective June 10, 2022).'’ If the State's Attorney's Office determines that any\nportion of the responsive records is exempt from disclosure under section 7, it is directed to issue\na written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS\n140/9(a) (West 2020)).\n'7Because the State's Attorney's Office did not comply with the statutory requirements for\nresponding to Mr. Morrissey's FOIA request, the State's Attorney's Office is precluded from treating the request as\nunduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d) (West 2020).\nMr. Patrick W. Morrissey\nMs. Elyssa Shull\nDecember 15, 2022\nPage 7\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision naming the Attorney General of Illinois and Mr.\nMorrissey as defendants. See 5 ILCS 140/11.5 (West 2020).\nSincerely,\nKWAME RAOUL\nATTORNEY GENERAL\natsP ath\nBrent D. Stratton\nChief Deputy Attorney General\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 22-014) upon:\nMr. Patrick W. Morrissey\nThomas G. Morrissey, Ltd.\n10257 South Western Avenue\nChicago, Illinois 60643\npwm@morrisseylawchicago.com\nMs. Elyssa Shull\nFreedom of Information Act Officer\nCook County State's Attorney's Office\n50 West Washington Street, 3rd Floor\nChicago, Illinois 60602\nElyssa.shull@cookcountyil.gov\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on December 15, 2022.\n- vA\nSteve Silverman\nBureau Chief\nSteve Silverman\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Morrissey requested records from the Cook County State's Attorney's Office regarding legal fees paid to an outside law firm. The office failed to respond to his request entirely, which is a violation of the law. The Attorney General's office ruled that the State's Attorney's Office must comply with the law by providing a proper response to the request.","card_headline":"Records of attorney's fees paid to an outside firm","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":161,"orig_master_id":19135,"dup_master_id":19362,"dup_sha256":"f4801bcddbc438e4c2fe281c862c73bd8f84061df538aa727e6cf6933d5dd9e4","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-01-12","case_number":"2022 PAC 73904","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 23-001 (Request for Review - 2022 PAC 73904).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 23-001 (Request for Review - 2022 PAC 73904).pdf","word_count":2315,"summary":"Proviso Township High School District 209 (District) violated section 3(d) of FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Frederick D. Franzwa . Franzwa alleged that the District acknowledged having received his FOIA request in its FOIA report .","plain_summary":"The requester, a member of the public, sought records relating to teacher staffing levels for the 2023 school year, and a school district failed to substantively respond to the request despite acknowledging receipt. The Public Access Counselor held that the district violated section 3(d) of FOIA by failing to comply with, deny, or otherwise properly respond to the request within the statutory time period. The district was directed to disclose all records responsive to the request, subject only to permissible redactions.","holding":"The District violated section 3(d) of FOIA by failing to provide a timely response to the requester's FOIA request.","legal_question":"Whether a public body violates section 3(d) of FOIA by failing to provide any response to a properly submitted FOIA request.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Jenkins Executive Assistant to Board of Education","requesting_party":"Franzwa and Ms. Jenkins","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"duty to respond","subject_description":"The request sought records concerning teacher staffing levels and related communications for the 2023 school year.","ocr_status":"ok","ocr_quality":89.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-001.pdf","sha256":"574d13ed221b80a106f41a60af2354c6d99ac6b55545f11200c21bb2233a9b3c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","school district","staffing records"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL January 12, 2023 PUBLIC ACCESS OPINION 23-001 (Request for Review 2022 PAC 73904) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Frederick D. Franzwa 2422 West Martindale Drive Westchester, Illinois 60154 Ms. Tiffany N. Jenkins Executive Assistant to Board of Education and Superintendent Proviso Township High School District 209 8601 West Roosevelt Road Forest Park, Illinois 60130 Dear Mr. Franzwa and Ms. Jenkins: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons discussed below, this office concludes that Proviso Township High School District 209 (District) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2020)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Frederick D. Franzwa. BACKGROUND On August 12, 2022, Mr. Franzwa submitted by e-mail a FOIA request to the District seeking any records relating to staffing levels for teachers in school year 2023, including e-mails to or from eight identified individuals containing certain key words, and analysis or recommendations regarding the decision to approve 253 full-time teachers for that school year.! 'E-mail from Fred Franzwa to \"FOIA\" and Tiffany Jenkins, [Executive Assistant to Board of Education and Superintendent, Proviso Township High School District 209] (August 12, 2022). 500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 ¢ T’l'Y: (877) 844-5461 ¢ Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 ¢ I’'Y: (800) 964-3013 ¢ Fax: (312) 814-3806 601 South University Ave., Carbondale, IL, 62901 © (618) 529-6400 © I’ l'Y: (877) 675-9339 © Fax (618) 529-6416 scene Mr. Frederick D. Franzwa Ms. Tiffany N. Jenkins January 12, 2023 Page 2 On October 13 and October 14, 2022, Mr. Franzwa submitted the records required to file a Request for Review with the Public Access Counselor, in which he alleged that the District had failed to respond to his FOIA request.” In his Request for Review, Mr. Franzwa alleged that the District acknowledged having received his FOIA request in its FOIA report to the District's Board of Education in connection with its September 13, 2022, meeting; he attached a copy of the report, which indicated \"information will be provided.\"? However, Mr. Franzwa asserted that the District had not provided responsive records or otherwise responded to his request.* On October 21, 2022, the Public Access Bureau e-mailed Ms. Tiffany Jenkins, Executive Assistant to the Board of Education and Superintendent for the District, a copy of the Request for Review and a letter asking whether the District had received and responded to Mr. Franzwa's FOIA request.> The October 21, 2022, letter also requested that if the District had not yet responded to Mr. Franzwa, it do so and provide this office with a copy of its response.®° The District did not respond to the Public Access Bureau's October 21, 2022, correspondence. On November 15, 2022, the Public Access Bureau sent an e-mail to the e-mail address identified on the District's website as the designated address for FOIA requests’ and explained that the Public Access Bureau had not received a response to its October 21, 2022, letter to Ms. Jenkins.® This office also attached to the e-mail a copy of the October 21, 2022, E-mail from Fred Franzwa to Public Access [Bureau, Office of the Attorney General] (October 14, 2022); e-mail from Fred Franzwa to Public Access [Bureau, Office of the Attorney General] (October 13, 2022). 3E-mail from Fred Franzwa to Public Access [Bureau, Office of the Attorney General] (October 13, 2022); Proviso Township High School District 209 Board of Education, Agenda Item 13, FOIA Report — August 2022 (September 13, 2022). ‘E-mail from Fred Franzwa to Public Access [Bureau, Office of the Attorney General] (October 13, 2022). Letter from Leah Bartelt, Public Access Counselor, Public Access Bureau, Office of the Attorney General, to Tiffany Jenkins, Executive Assistant to Board of Education and Superintendent, Proviso Township High School District 209 (October 21, 2022). Letter from Leah Bartelt, Public Access Counselor, Public Access Bureau, Office of the Attorney General, to Tiffany Jenkins, Executive Assistant to Board of Education and Superintendent, Proviso Township High School District 209 (October 21, 2022). ’Proviso Township High School District 209, Public and Community Relations: FOIA Requests, available at https://www.pths209.org/Page/2 139 (last visited December 19, 2022). 8E-mail from Leah Bartelt, Public Access Counselor, Illinois Attorney General's Office, to FOIA Officer, [Proviso Township High School District 209] (November 15, 2022). Mr. Frederick D. Franzwa Ms. Tiffany N. Jenkins January 12, 2023 Page 3 letter.? The District did not respond to that e-mail. On that same date, Mr. Franzwa confirmed for this office that he had not received a response from the District to his August 12, 2022, request. !° On November 16, 2022, the Public Access Bureau sent to the District via U.S. Postal Mail a letter!’ stating that this office had not received a response to its October 21, 2022, letter, attaching a copy of that letter, and requesting a response to that letter. The District did not respond to the Public Access Bureau's November 16, 2022, letter. On December 12, 2022, this office extended the time for issuing a binding opinion for 30 business days, pursuant to section 9.5(f) of FOIA (5 ILCS 140/9.5(f) (West 2022)).!* On December 19, 2022, and again on January 11, 2023, Mr. Franzwa confirmed for this office that he had not received a response to his August 12, 2022, FOIA request.!? As of the date of the issuance of this binding opinion, this office has not received confirmation from the District or Mr. Franzwa that the District has responded to the FOIA request at issue in this matter. ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2020). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2020)), \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2020)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: °E-mail from Leah Bartelt, Public Access Counselor, Office of the Attorney General, to FOIA Officer, [Proviso Township High School District 209] (November 15, 2022). '0F-mail from Fred Franzwa to Leah Bartelt, [Public Access Counselor, Office of the Attorney General] (November 15, 2022). \"Letter from Leah Bartelt, Public Access Counselor, Public Access Bureau, Office of the Attorney General, to Freedom of Information Act Officer, Proviso Township High School 209 (November 16, 2022). 27e tter from Leah Bartelt, Public Access Counselor, Public Access Bureau, Office of the Attorney General, to Freedom of Information Act Officer, Proviso Township High School 209, and Fred Franzwa (December 12, 2022). '3E-mail from Fred Franzwa, to Leah Bartelt, [Public Access Counselor, Office of the Attorney General] (December 19, 2022); E-mail from Fred Franzwa, to Leah Bartelt, [Public Access Counselor, Office of the Attorney General] (January 11, 2023). Mr. Frederick D. Franzwa Ms. Tiffany N. Jenkins January 12, 2023 Page 4 Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). Section 3(e) of FOIA (5 ILCS 140/3(e) (West 2020)) permits a public body to extend its response time by no more than five business days for any of seven enumerated reasons. Any additional extension requires a written agreement between the requester and the public body. 5 ILCS 140/3(e) (West 2020). The District did not respond to Mr. Franzwa's August 12, 2022, FOIA request within five business days after its receipt by either complying with his request, extending the time for its response pursuant to section 3(e) of FOIA, or denying the request in writing. The failure of the District to comply with the requisite response procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On August 12, 2022, Mr. Frederick D. Franzwa submitted a FOIA request to Proviso Township High School District 209 seeking copies of records relating to staffing levels for teachers in school year 2023. 2) On October 13, 2022, and 14, 2022, Mr. Franzwa submitted the documents required to file a Request for Review with the Public Access Counselor alleging that the District had not substantively responded to his FOJA request. He also provided a copy of an August 2022 FOIA Report to the District's Board of Education, in which the District acknowledged having received Mr. Franzwa's August 12, 2022, FOIA request and stated that \"information will be provided.\" Mr. Franzwa's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)). Mr. Frederick D. Franzwa Ms. Tiffany N. Jenkins January 12, 2023 Page 5 3) On October 21, 2022, the Public Access Bureau forwarded a copy of the Request for Review to the District along with a letter asking whether the District had responded to Mr. Franzwa's FOIA request. On November 15, 2022, the Public Access Bureau re-sent its October 21, 2022, to the District. The District did not respond to the October 21, 2022, letter or the November 15, 2022, e-mail. 4) On November 16, 2022, the Public Access sent a second letter to the FOIA Officer for the District, explaining that the Public Access Bureau had not received any indication that the District had responded to Mr. Franzwa's FOIA request. The District did not respond to the Public Access Bureau's November 16, 2022, letter. 5) On December 12, 2022, the Public Access Bureau extended the time in which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA (5 ILCS 140/9.5(£) (West 2020)). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 6) As of the date of the issuance of this binding opinion, this office has received no information indicating that the District has responded to Mr. Franzwa's August 12, 2022, FOIA request. Therefore, it is the opinion of the Attorney General that Proviso Township High School District 209 has violated section 3(d) of FOIA by failing, within the statutory time for responding to Mr. Franzwa's August 12, 2022, FOIA request, to provide him with copies of the requested records or to deny the request in writing in whole or in part. Accordingly, the District is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Franzwa with copies of all records responsive to his August 12, 2022, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2021 Supp.), as amended by Public Acts 102-791, effective May 13, 2022; 102-1055, effective June 10, 2022).'* If the District determines that any portion of the responsive records is exempt from disclosure under section 7, it is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2020)). Because the District did not comply with the statutory requirements for responding to Mr. Franzwa's FOIA request, the District is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d) (West 2020). Mr. Frederick D. Franzwa Ms. Tiffany N. Jenkins January 12, 2023 Page 6 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Franzwa as defendants. See 5 ILCS 140/11.5 (West 2020). Sincerely, KWAME RAOUL TORNEY GENERAL By: , id. Set Brent D. Stratton Chief Deputy Attorney General CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 23-001) upon: Mr. Frederick D. Franzwa 2422 West Martindale Drive Westchester, Illinois 60154 ffranzwa@hotmail.com Ms. Tiffany N. Jenkins Executive Assistant to Board of Education and Superintendent Proviso Township High School District 209 8601 West Roosevelt Road Forest Park, Illinois 60130 tyenkins@pths209.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on January 12, 2023. Pa Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Franzwa requested records from Proviso Township High School District 209 regarding teacher staffing, but the District never responded to his request. The Attorney General's office ruled that the District broke the law by ignoring the request entirely. The District is now required to provide a proper response to the requester.","card_headline":"Teacher staffing records and communications for 2023","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":162,"orig_master_id":19364,"dup_master_id":19136,"dup_sha256":"dc528706388be9ab2e6ffd9406d5cae16ace72a041d9767622ab2e89260675a1","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2022,"date_issued":"2022-11-22","case_number":"2022 PAC 73136","request_numbers":null,"title":"Evidentiary and Discovery Rules Do Not Exempt From Disclosure Private Attorney's Letter on Behalf of Clients","filename":"PUBLIC ACCESS OPINION 22-013 (Request for Review - 2022 PAC 73136).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 22-013 (Request for Review - 2022 PAC 73136).pdf","word_count":7506,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request made by Mr. Gregory Pratt of the Chicago Tribune, which was improperly denied by the City of Chicago Department of Law.","plain_summary":"The requester, a newspaper reporter, sought a letter a private attorney had sent a city department concerning a legal dispute, which the department withheld as protected by evidentiary and discovery rules governing settlement negotiations and as deliberative material. The Public Access Counselor held that court rules restricting the admissibility of settlement communications in litigation have no bearing on the public's right to records under FOIA, and that the letter, prepared by a third party with independent interests, was not exempt inter- or intra-agency deliberative material. The department was directed to disclose the letter.","holding":"The City of Chicago Department of Law must disclose the private attorney's letter as it does not fall under the exemptions claimed.","legal_question":"Whether the evidentiary and discovery rules exempt the disclosure of a private attorney's letter on behalf of clients under the Freedom of Information Act.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7(1)(a)"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"City of Chicago Department of Law","requesting_party":"Mr. Gregory Pratt, Chicago Tribune","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(a)","subject_description":"The City of Chicago withheld a letter from a private attorney sent to the Department of Law, citing federal and state rules of evidence and discovery.","ocr_status":"ok","ocr_quality":90.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2022-Binding-PAC-Opinions/22-013.pdf","sha256":"d20f9644ed18ff11f083fba519d987a3e351cf92384469ee8cadd7e72f7f77c7","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA","attorney letter","City of Chicago","exemption 7(1)(a)","public records"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS :\nKWAME RAOUL\nATTORNEY GENERAL\nNovember 22, 2022\nPUBLIC ACCESS OPINION 22-013\n(Request for Review 2022 PAC 73136)\nFREEDOM OF INFORMATION ACT:\nEvidentiary and Discovery Rules Do Not\nExempt From Disclosure Private Attorney's\nLetter on Behalf of Clients\nMr. Gregory Pratt\nChicago Tribune\n[street address redacted for site publication -- see original PDF]\nMs. Anna Lentsch\nFOIA Specialist\nDepartment of Law, City of Chicago\n2 North LaSalle Street, Suite 460\nChicago, Illinois 60602\nDear Mr. Pratt and Ms. Lentsch:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons discussed below, this\noffice concludes that the City of Chicago Department of Law (Department) improperly denied\nMr. Gregory Pratt's August 16, 2022, FOIA request.\nBACKGROUND\nOn October 26, 2021, Mr. Pratt, on behalf of the Chicago Tribune, submitted a\nFOIA request to the Department seeking copies of certain e-mails.' On November 9, 2021, the\nDepartment provided copies of records but withheld a letter from a private attorney on behalf of\n'E-mail from Gregory Pratt, Chicago Tribune, to LAWfoia@cityofchicago.org (October 26,\n2021).\n500 South Second Street, Springfield, Hlinois 62701 © (217) 782-1090 © ‘TTY: (877) 844-5461 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 ¢ (312) 814-3000 ¢ T’T’Y: (800) 964-3013 ¢ Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © ‘I’T'Y: (877) 675-9339 © Fax (618) 529-6416 On November 11, 2021, Mr. Pratt submitted a Request\nfor Review (2022 PAC 72362) contesting the denial of the letter. On July 22, 2022, the Public\nAccess Bureau issued a non-binding determination which concluded that the Department\nimproperly withheld the letter and requested that it provide Mr. Pratt with a copy. Ill. Att'y Gen.\nPAC Req. Rev. Ltr. 72362, issued July 22, 2022, at 5. On August 26, 2022, the Department\ninformed the Public Access Bureau that it would not comply with the determination because\n\"[p]roducing the materials requested would eviscerate the City's ability to litigate and negotiate\ncases and would not serve any public interest.\">\nMeanwhile, on August 16, 2022, Mr. Pratt had submitted another FOIA request to\nthe Department, this time seeking \"copies of all records the Attorney General's Office found to\nbe inappropriately withheld in 2022 PAC 72362.\"° On August 22, 2022, the Department again\ndenied the letter pursuant to section 7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (West 2021 Supp.), as\namended by Public Acts 102-791, effective May 13, 2022; 102-1055, effective June 10, 2022).’\nOn August 23, 2022, Mr. Pratt submitted a Request for Review disputing the denial of his\nrequest.® He asserted that \"[t]here is no federal or state law forbidding the release of this letter,\nand the city is attempting to inject courtroom rules of evidence that don't govern how FOIA\nworks and only govern courtroom rules of evidence.\"”\n*E-mail from Anna Lentsch, FOIA Specialist, Department of Law, City of Chicago, to Gregory\nPratt (November 9, 2021).\n3E-mail from Anna Lentsch, FOIA Specialist, Department of Law, City of Chicago, to Gregory\nPratt (November 9, 2021).\n‘E-mail from Gregory Pratt, Chicago Tribune, to Steve [Silverman] and PAC (November 11,\n2021).\n‘Letter from Matthew J. Walters, Chief Assistant Corporation Counsel, Department of Law, City\nof Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (undated;\ntransmitted via e-mail August 26, 2022), at 1.\n°E-mail from Gregory Pratt, Chicago Tribune, to LAWFOIA and Anna Lentsch (August 16,\n2022).\n7E-mail from Anna Lentsch, FOIA Specialist, Department of Law, City of Chicago, to Gregory\nPratt (August 22, 2022).\n8E-mail from Gregory Pratt, Chicago Tribune, to [Sarah] Pratt (August 23, 2022).\n°E-mail from Gregory Pratt, Chicago Tribune, to [Sarah] Pratt (August 23, 2022).\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 3\nOn August 26, 2022, this office sent a copy of the Request for Review to the\nDepartment and asked it to provide a detailed explanation of the factual and legal bases for the\napplicability of section 7(1)(a) to the letter, adding that it was not necessary to provide a copy of\nthe letter because the Public Access Bureau previously received a copy in connection with 2022\nPAC 72362.'° On September 9, 2022, the City submitted a response reiterating that the letter is\nexempt from disclosure pursuant to section 7(1)(a) as well as section 7(1)(f) (5 ILCS 140/7(1)(f)\n(West 2021 Supp.), as amended by Public Acts 102-791, effective May 13, 2022; 102-1055,\neffective June 10, 2022).'! On September 16, 2022, this office sent a copy of that response to\nMr. Pratt.!* He replied on September 27, 2022.3\nOn October 19, 2022, this office extended the time within which to issue a\nbinding opinion by 30 business days, to December 7, 2022.'4\nANALYSIS\nSection 1 of FOIA (5 ILCS 140/1 (West 2020)) declares that it is \"the public\npolicy of the State of Illinois that all persons are entitled to full and complete information\nregarding the affairs of government and the official acts and policies of those who represent them\nas public officials and public employees consistent with the terms of this Act.\" Under FOIA,\n\"{a]ll records in the custody or possession of a public body are presumed to be open to inspection\nor copying. Any public body that asserts that a record is exempt from disclosure has the burden\nof proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2020).\nThe Department's assertion of sections 7(1)(a) and 7(1)(f) is based on the premise\nthat the record in question documents privileged settlement negotiations. The record is a letter to\nthe Department from a law firm concerning a legal matter. Although the letter does request\ncertain actions, it does not propose or demand a settlement that would resolve the matter or\n‘Ol etter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Anna Lentsch, FOIA Specialist, Department of Law, City of Chicago (August 26, 2022).\n\"Letter from Matthew J. Walters, Chief Assistant Corporation Counsel, Department of Law, City\nof Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (undated;\ntransmitted via e-mail September 9, 2022).\n\"Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Gregory Pratt, Chicago Tribune (September 16, 2022).\n'3E-mail from Gregory Pratt to Steven Silverman (September 27, 2022).\n‘47 etter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Gregory Pratt, Chicago Tribune, and Anna Lentsch, FOIA Specialist, Department of Law, City of\nChicago (October 19, 2022).\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 4\nrequest that the City engage in negotiations concerning a possible settlement. Thus, as a\nthreshold matter, the City has not demonstrated that the record reflects settlement negotiations\nencompassed by the evidentiary and discovery rules that the City claims are applicable. Even if\nthe letter could be construed as a record reflecting settlement negotiations, it is not exempt from\ndisclosure under FOIA for the reasons discussed below.\nSection 7(1)(a) and Evidentiary Rules\nSection 7(1)(a) of FOIA exempts from disclosure \"[i]nformation specifically\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\" The Department based its assertion of section 7(1)(a) on a Federal court rule (Fed.\nR. Evid. 408) that restricts the admissibility of evidence of settlement negotiations in court\nproceedings:\n(a) Prohibited Uses. Evidence of the following is not\nadmissible—on behaolff any party—either to prove or disprove\nthe validity or amount of a disputed claim or to impeach by a prior\ninconsistent statement or a contradiction:\n(1) furnishing, promising, or offering—or\naccepting, promising to accept, or offering to accept—a\nvaluable consideration in compromising or attempting to\ncompromise the claim; and\n(2) conduct or a statement made during compromise\nnegotiations about the claim—except when offered in a\ncriminal case and when the negotiations related to a claim\nby a public office in the exercise of its regulatory,\ninvestigative, or enforcement authority.\n(b) Exceptions. The court may admit this evidence for\nanother purpose, such as proving a witness's bias or prejudice,\nnegating a contention of undue delay, or proving an effort to\nobstruct a criminal investigation or prosecution.\nThe Department also cited the Federal rule's State court corollary (Ill. R. Evid. 408, effective\nJanuary 1, 2011) to Federal Rule of Evidence 408:\n(a) Prohibited Uses. Evidence oft he following is not\nadmissible on behalf of any party, when offered to prove liability\nfor, invalidity of, or amount of a claim that was disputed as to\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 5\nvalidity or amount, or to impeach througha prior inconsistent\nstatement or contradiction:\n(1) furnishing or offering or promising to furnish—\nor accepting or offering or promising to accept—a\nvaluable consideration in compromising or attempting to\ncompromise the claim; and\n(2) conduct or statements made in compromise\nnegotiations regarding the claim.\n(b) Permitted Uses. This rule does not require the\nexclusion of any evidence otherwise discoverable merely because\nit is presented in the course of settlement negotiations. This rule\nalso does not require exclusion if the evidence is offered for\npurposes not prohibited by subdivision (a). Examples of\npermissible purposes include proving a witness' bias or prejudice;\nnegating an assertion of undue delay; establishing bad faith; and\nproving an effort to obstruct a criminal investigation or\nprosecution.\nIn addition, the Department pointed to Federal Rule of Evidence 501 (Fed. R. Evid. 501)'° and\nIllinois Rule of Evidence 501 (Ill. R. Evid. 501, effective January 1, 2011).'°'’ Citing Kibort v.\nWestrom, 371 Ill. App. 3d 247, 256 (2d Dist. 2007), and FBI v. Abramson, 456 U.S. 615, 621,\nFederal Rule of Evidence 501 provides:\nThe common law—as interpreted by United States courts in the light of\nreason and experience—governs a claim ofp rivilege unless any oft he following\nprovides otherwise:\n* the United States Constitution;\n* a federal statute; or\n* rules prescribed by the Supreme Court.\nBut in a civil case, state law governs privilege regarding a claim or\ndefense for which state law supplies the rule of decision.\n‘Illinois Rule of Evidence 501 provides: \"Except as otherwise required by the Constitution of the\nUnited States, the Constitution of Illinois, or provided by applicable statute or rule prescribed by the Supreme Court,\nthe privilege of a witness, person, government, state, or political subdivision thereof shall be governed by the\nprinciples of the common law as they may be interpreted by Illinois courts in the light of reason and experience.\"\n‘Letter from Matthew J. Walters, Chief Assistant Corporation Counsel, Department of Law, City\nof Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (undated;\ntransmitted via e-mail September 9, 2022), at 2.\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 6\n102 S. Ct. 2054, 2059 (1982), the Department contended that these evidentiary rules prohibit\ndisclosure of records pursuant to FOIA.'®\nIn Kibort, an Illinois Appellate Court case involving a FOIA request for ballots\nand other election materials, the court concluded that while the Election Code!® did not\nspecifically state that disclosure of ballots was prohibited, the Code \"unambiguously prohibited\"\ndisclosure by expressly directing election officials to seal the ballots and election materials in a\nspecific manner that would be inconsistent with allowing the public to access the records under\nFOIA. Kibort, 371 Ill. App. 3d at 252-53. The court construed the language of section 7(1)(a)\n\"to mean that records are exempt from disclosure under [FOIA] in instances where the plain\nlanguage contained in a State or federal statute reveals that public access to records was not\nintended.\" Kibort, 371 Ill. App. 3d at 256.\nFederal Rules of Evidence 408 and 501 and Illinois Rules of Evidence 408 and\n501 govern the admissibility of evidence in court—they do not address the use or accessibility of\ninformation outside of that context. Thus, the Department's reliance on Kibort is misplaced.\nSimilarly, the portion of the Supreme Court's decision in Abramson that the Department quoted\nin support of its argument that \"[d]ecades of cases stand for the proposition that there is an\nunderlying policy exempting materials from disclosure when ‘legitimate governmental and\nprivate interests could be harmed by release of certain types of information,'\" does not involve\nthe interplay between rules of evidence and FOIA. Taken in context, the Court was merely\nreferring to the existence of the enumerated Federal FOIA exemptions and analyzing one of\nthose exemptions that is not relevant to this matter:\nThe Freedom of Information Act sets forth a policy of broad\ndisclosure of Government documents in order \"to ensure an\ninformed citizenry, vital to the functioning of a democratic\nsociety.\" [Citation.] Yet Congress realized that legitimate\ngovernmental and private interests could be harmed by release of\ncertain types of information and provided nine specific exemptions\nunder which disclosure could be refused. Here we are concerned\nwith Exemption 7, which was intended to prevent premature\ndisclosure of investigatory materials which might be used in a law\nenforcement action. Abramson, 456 U.S. at 621, 102 S. Ct. at\n2059.\n'8L etter from Matthew J. Walters, Chief Assistant Corporation Counsel, Department of Law, City\nof Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (undated;\ntransmitted via e-mail September 9, 2022), at 2.\n'910 ILCS 5/1-1 et seg. (West 2004).\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 7\nThe Department's response to this office, nevertheless, asserted that \"[a]ll rules of\nevidence bar introduction of evidence of settlement negotiation outside of limited\ncircumstances[,]\" and \"[nJone of those circumstances exist with respect to this document.\"”’ The\nDepartment cited a federal appellate court decision for the proposition \"that a 'settlement\nprivilege’ exists barring any third-party production of the communications[ |\" concerning\nsettlement negotiations.”! In that case, a federal district court in Ohio had presided over\nsettlement negotiations and directed the parties to keep those discussions confidential. Goodyear\nTire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 978 (6th Cir. 2003). After the\nco-founder of one of the parties made statements in the press describing a settlement offer, a\nplaintiff who had filed suit against both parties in federal district court in Colorado intervened in\nthe Ohio case, petitioning the court to vacate or modify the confidentiality order and allow\ndiscovery of statements made during the settlement talks to try to bolster his claims in the\nColorado case. Goodyear Tire & Rubber Co., 332 F.3d at 979. The district court denied the\nmotion and the appellate court agreed, stating that \"[t]he public policy favoring secret\nnegotiations, combined with the inherent questionability of the truthfulness of any statements\nmade therein, leads us to conclude that a settlement privilege should exist, and that the district\ncourt did not abuse its discretion in refusing to allow discovery.\" (Emphasis added.) Goodyear\nTire & Rubber Co., 332 F.3d at 981.\nIn another case the Department cited, the court upheld an award of summary\njudgment, ruling that the trial judge did not err by refusing to take judicial notice of a settlement\nin a related lawsuit. The court stated that Federal Rule of Evidence 408 is intended to exclude\nsettlement negotiations that are irrelevant to the merits of a case, adding that \"[b]y preventing\nsettlement negotiations from being admitted as evidence, full and open disclosure is\nencouraged, thereby furthering the policy toward settlement.\" (Emphasis added.) United States\nv. Contra Costa County Water District, 678 F.2d 90, 92 (9th Cir. 1982). The court held that\nFederal Rule of Evidence 408 prevented the use of the settlement \"in this case.\" Contra Costa\nCounty Water District, 678 F.2d at 92.\nThe cases upon which the Department relies are inapposite to this matter because\nthey concern the use of settlement communications in the limited context of judicial proceedings.\nNone of the cases concern requests for information under FOIA or similar statutes governing the\npublic's right to access government records. The Department's reliance on evidentiary rules to\nLetter from Matthew J. Walters, Chief Assistant Corporation Counsel, Department of Law, City\nof Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (undated;\ntransmitted via e-mail September 9, 2022), at 2.\n“IL etter from Matthew J. Walters, Chief Assistant Corporation Counsel, Department of Law, City\nof Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (undated;\ntransmitted via e-mail September 9, 2022), at 2.\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 8\ndeny records under FOIA mischaracterizes the purpose of the rules. Evidentiary rules are\nintended to \"secure fairness in administration, elimination of unjustifiable expense and delay,\nand promotion of growth and development of the law of evidence to the end that the truth may be\nascertained and proceedings justly determined.\" III. R. Evid. 102, effective January 1, 2011.\nWith respect to Illinois Rule of Evidence 408 specifically, \"[t]he reason settlement offers and\nnegotiations are inadmissible is because their use as evidence may discourage litigants from\nmaking such offers in the first place, lest they be used against them at trial.\" (Emphasis added.)\nKing Koil Licensing Co. v. Harris, 2017 IL App (1st) 161019, 977, 84 N.E.3d 457, 472 (2017);\nsee also NAACP Legal Defense & Educational Fund, Inc. v. U.S. Dep't of Justice, 612 F. Supp.\n1143, 1146 (D.D.C. 1985) (\"Although the intent of [Federal Rule of Evidence] 408 is to foster\nsettlement negotiations, the sole means used to effectuate that end is a limitation on the\nadmission of evidence produced during settlement negotiations for the purpose of proving\nliability at trial. It was never intended to be a broad discovery privilege.\" (Emphasis added.)).\nTherefore, the rules the Department cited are intended to restrict a court or jury from considering\nevidence of settlement negotiations, or assertions made in the context of settlement negotiations,\nduring a trial.\nIn contrast, FOIA is intended to provide the general public with access to public\nrecords to promote \"the transparency and accountability of public bodies at all levels of\ngovernment|,]\" as \"[i]t is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with this Act.\" 5 ILCS\n140/1 (West 2020). Evidentiary rules that may prohibit a trier of fact from considering certain\nevidence in the context of a court proceeding have no relevance to whether a record of the\nevidence may be disseminated to the public pursuant to FOIA. The Department has not cited,\nand this office has not identified, any authority in which a court has held that rules restricting the\nadmissibility of evidence in court could be extended to provide a basis for denying records\npursuant to FOIA.\nSection 7(1)(a) and Discovery Rules\nThe Department's argument that discovery rules exempt the letter pursuant to\nsection 7(1)(a) of FOIA is similarly misplaced. The Department's response to this office noted\nthat Federal Rule of Civil Procedure 26(b)(1) provides that the scope of discovery generally is\nlimited to matters that are not privileged and relevant to the claims and defenses of a party.”\nThe Department cited Wyatt v. Security Inn Food & Beverage, Inc., 819 F.2d 69, 71 (4th Cir.\n1987). There, the appellate court held a trial judge had not improperly excluded, pursuant to\nFederal Rule of Evidence 408, details concerning settlements of prior lawsuits involving similar\n21 etter from Matthew J. Walters, Chief Assistant Corporation Counsel, Department of Law, City\nof Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (undated;\ntransmitted via e-mail September 9, 2022), at 2.\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 9\nunderlying allegations because the evidence \"was minimally if at all relevant,\" and potentially\ncould have confused the jury. Wyatt, 819 F.2d at 71. Based on Wyatt, the Department argued\nthat because settlement negotiations often involve accepting disputed facts as true for the limited\npurpose of reaching a settlement, the disclosure of those \"'facts'\" outside of the settlement\nnegotiation context would be \"highly misleading.\"*? As discussed above, to the extent that\ncourts have recognized a limited \"settlement privilege\" that renders settlement communications\ninadmissible as evidence in court, that privilege does not extend to FOIA to exempt records from\ndisclosure. Wyatt did not specifically address Federal Rule of Civil of Procedure 26(b)(1) and\nthe Department has not demonstrated how that rule provides a basis for denying the letter Mr.\nPratt requested.”4\nIndeed, federal courts have determined that the Federal FOIA statute”> and\ndiscovery are separate means for obtaining information with different standards and purposes.”6\nIn Hoover v. U.S. Dep't of the Interior, 611 F.2d 1132, 1137 (Sth Cir. 1980), a federal appeals\ncourt reversed the trial court's decision to dismiss a lawsuit challenging the denial of a request\nunder FOIA for a property appraisal report. Because the report related to a pending\ncondemnation lawsuit, the trial court had \"held that the request for the report should be\nconsidered in that action through normal discovery procedures.\" Hoover, 611 F.2d at 1136. The\nappeals court disagreed, emphasizing that the issue of whether the public has a right to access\nrecords under FOIA is distinct from whether a litigant may obtain records through discovery:\nThe question of discoverability presented in the\ncondemnation action is not related to the rights of general public\naccess under the FOIA to agency documents. * * * The appellant\nlandowner's right under the FOIA, where he is in effect asserting\nLetter from Matthew J. Walters, Chief Assistant Corporation Counsel, Department of Law, City\nof Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (undated;\ntransmitted via e-mail September 9, 2022), at 2.\n4The Wyatt court did not analyze whether Federal Rule of Evidence 408 is applicable to FOIA or\neven find that it is a blanket prohibition on disclosure of settlement communications in all court proceedings. The\ncourt stated that Federal Rule of Evidence 408 \"need not prevent a litigant from offering such evidence when he\ndoes not seek to show the validity or invalidity of the compromised claim.\" Wyatt, 819 F.2d at 71. Indeed, the plain\nlanguage of the rule only restricts the admissibility of evidence of settlement negotiations when it is offered \"to\nprove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a\ncontradiction[.]\"\n55 U.S.C. § 552 et seg. (2018).\n6Because IIlinois' FOIA statute is based on the Federal FOIA statute, decisions construing the\nlatter, while not controlling, may provide helpful and relevant precedents in construing the state Act. Margolis v.\nDirector, Ill. Dep't of Revenue, 180 Ill. App. 3d 1084, 1087 (ist Dist. 1989).\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 10\nthe rights of the public to obtain such appraisals, is inherently\ndifferent than his particularized status as the landowner in the\ncondemnation proceeding. He is entitled to vindicate his public\nrights in the instant FOIA suit in accordance with the requirements\nof the FOIA. Hoover, 611 F. 2d at 1137.\nSee also Playboy Enterprises, Inc. v. U.S. Dep't of Justice, 677 F.2d 931, 936 (D.C. Cir. 1982)\n(\"[T]he issues in discovery proceedings and the issues in the context of a FOIA action are quite\ndifferent. That for one reason or another a document may be exempt from discovery does not\nmean that it will be exempt from a demand under FOIA.\").\nThe Department also claimed disclosure of the letter is prohibited by Illinois\nSupreme Court Rule 201(b) (Ill. S. Ct. R. 201(b), effective July 1, 2014; corrected nunc pro tunc\nMay 29, 2014), which corresponds to Federal Rule of Civil Procedure 26(b)(1). Illinois Supreme\nCourt Rule 201(b) provides, in relevant part: \"Except as provided in these rules, a party may\nobtain by discovery full disclosure regarding any matter relevant to the subject matter involved\nin the pending action, whether it relates to the claim or defense of the party seeking disclosure or\nof any other party[.]|\"\nAs with Federal Rule of Civil Procedure 26(b)(1), Illinois Supreme Court Rule\n201(b) is inapplicable to the requirements of FOIA. The question of whether a record is relevant\nto the subject matter of a pending court proceeding has no bearing on whether the public or a\nmember of the media such as Mr. Pratt is entitled to obtain the same record under FOIA. See\nPlayboy Enterprises, Inc., 677 F.2d at 936. The Department has not identified any court decision\nor other authority that determined Illinois Supreme Court Rule 201(b) provides a valid basis for\ndenying a FOIA request. The Attorney General has issued a binding opinion, which concluded\nthat \"Illinois Supreme Court rules governing discovery do not restrict parties to litigation from\naccessing records through FOIA.\" Ill. Att'y Gen. Pub. Acc. Op. No. 13-017, issued November\n12, 2013, at 7. The binding opinion noted?’ that Supreme Court Rule 201(a) provided that\n\"[dJuplication of discovery methods to obtain the same information should be avoided.\"”8 The\ncommittee comments to the rule indicate that it was intended to prevent the use of redundant and\nunnecessary discovery methods:\n27111. Att'y Gen. Pub. Acc. Op. No. 13-017, at 7.\n8111. S. Ct. R. 201 (a), effective July 1, 2002. That sentence of the rule has since been amended to\nstate: \"Duplication of discovery methods to obtain the same information and discovery requests that are\ndisproportionate in terms of burden or expense should be avoided.\" Ill. S. Ct. R. 201(a), effective July 1, 2014;\ncorrected nunc pro tunc May 29, 2014.\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 11\nThe committee considered and discarded a provision requiring\nleave of court before a party could request by one discovery\nmethod information already obtained through another. The\ncommittee concluded that there are circumstances in which it is\njustifiable to require answers to the same or related questions by\ndifferent types of discovery procedures but felt strongly that the\nrules should discourage time-wasting repetition; hence the\nprovision that duplication should be avoided. Ill. S. Ct. R. 201(a),\nCommittee Comments (revised June 1, 1995).\nIllinois Supreme Court Rule 201(a) is not applicable to FOIA because \"[o]btaining public\ndocuments pursuant to FOIA is not among the specific ‘discovery methods' set out in Supreme\nCourt Rule 201(a).\" Ill. Att'y Gen. Pub. Acc. Op. No. 13-017, at 8.\nIn addition, it is notable that FOIA contains a specific and narrowly drawn\nexemption for certain records that are not subject to discovery. Section 7(1)(m) of FOIA”?\nexempts from disclosure:\nCommunications between a public body and an attorney or\nauditor representing the public body that would not be subject to\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body, and materials prepared or compiled with respect\nto internal audits of public bodies.\nThis exemption illustrates that the materials excluded from discovery that the General Assembly\nintended to permit public bodies to withhold under FOIA are limited to privileged\ncommunications with attorneys and auditors who represent public bodies, attorney work product,\nand records concerning internal audits. If the General Assembly had intended to permit public\nbodies to deny FOIA requests for settlement communications with third parties, it would have\ndone so expressly by including such communications in section 7(1)(m) or by creating a separate\nexemption. It did not, and FOIA cannot be read to include restrictions on disclosure based on\nevidentiary rules or discovery rules that have not been incorporated into the exemptions in\n295 ILCS 140/7(1)(m) (West 2021 Supp.), as amended by Public Acts 102-791, effective May 13,\n2022; 102-1055, effective June 10, 2022.\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 12\nsection 7 of the Act.” See Hayashi v. Illinois Dep't of Financial & Professional Regulation,\n2014 IL 116023, 416, 25 N.E.3d 570, 576 (2014) (\"Where the language\" of a statute \"is clear and\nunambiguous,\" a reviewing body \"may not depart from the plain language by reading into the\nstatute exceptions, limitations, or conditions that the legislature did not express.\").\nFor the reasons stated above, this office concludes that the Department has not\nsustained its burden of proving by clear and convincing that the letter Mr. Pratt requested is\nexempt from disclosure pursuant to section 7(1)(a) of FOIA based on the evidentiary rules and\ndiscovery rules the Department cited.\nSection 7(1)(f) of FOIA\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption is generally equivalent to the deliberative process exemption in the\nFederal FOIA.*! Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The\nexemption is \"intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\" (Emphasis added.)\nHarwood, 344 Ill. App. 3d at 248. \"In order to be exempt under this provision, the responsive\nmaterials must be both (1) inter or intra agency and (2) predecisional and deliberative.\" Fisher v.\nOffice of the Illinois Attorney General, 2021 IL App (1st) 200225, 919, 195 N.E.3d 719, __\n(2021).\n\"Inter\" is defined as \"[a]mong; between[,]\"°* while \"intra\" is defined as \"[i]n;\nnear; within.\"*? Thus, communications must be exchanged among or between public bodies or\noccur internally within a public body to meet the threshold requirement of section 7(1)(f). See\nDep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S. Ct. 1060, 1065\n(2001) (source of a record \"must be a Government agency| ]\" to be exempt under the deliberative\nprocess exemption in Federal FOIA). Records prepared by an outside consultant may be\n305 ILCS 140/7 (West 2021 Supp.), as amended by Public Acts 102-791, effective May 13, 2022;\n102-1055, effective June 10, 2022.\n315 U.S.C. §552(b)(5) (2018) (exempting from disclosure \"inter-agency or intra-agency\nmemorandums or letters that would not be available by law to a party other than an agency in litigation with the\nagency[.]\").\n32Black's Law Dictionary 728 (Sth ed. 1979).\nBlack's Law Dictionary 738 (Sth ed. 1979).\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 13\nconsidered \"intra-agency\" records if the consultant \"played essentially the same part in an\nagency's process of deliberation as documents prepared by agency personnel might have done[,]\"\nand \"the consultant does not represent an interest of its own, or the interest of any other client,\nwhen it advises the agency that hires it.\". Klamath Water Users Protective Ass'n, 532 U.S. at 10-\n11, 121 S. Ct. at 1066-67.\nCiting Murphy v. Tennessee Valley Authority, 571 F. Supp. 502, 506 (D.C. Cir.\n1983), the Department's response to this office contends section 7(1)(f) applies to the letter Mr.\nPratt is seeking because \"[c]ourts have consistently agreed that settlement negotiations should\ngenerally be exempt from disclosure to ‘favor compromise over confrontation.\"\"** In Murphy,\nthe court held that the deliberative process exemption in Federal FOIA applied to \"intra-agency\nmemoranda\" drafted by staff members and attorneys for a corporation owned by the Federal\ngovernment which contained \"evaluations, recommendations, proposals, and suggestions\nconcerning\" the process of reaching a settlement agreement. Murphy, 571 F. Supp. at 505. The\ncourt explained that the \"ability to function as an independent corporate entity, which inevitably\nincludes negotiating and settling contract claims, would be seriously undermined if the internal\ndocuments reflecting its employees' thought processes were subject to disclosure.\" (Emphasis\nadded.) Murphy, 571 F. Supp. at 506.\nThe records and reasoning in Murphy are readily distinguishable from this matter.\nThe letter that the Department withheld under section 7(1)(f) does not reveal the Department's\ninternal decision-making process or its employees' thought processes concerning a potential\nsettlement. It was submitted by a private attorney on behalf of his clients. Because the letter\nderives from a third party with independent interests, it is not an inter-agency or intra-agency\ncommunication, or pre-decisional deliberative material within the scope of section 7(1)(f).\nThe Department also maintains that the letter is exempt from disclosure under\nsection 7(1)(f) because the Federal FOIA deliberative process exemption \"is designed to\nincorporate virtually all civil discovery privileges in the FOIA context.\"*> In the case the\nDepartment cited for this proposition, Martin vy. Office of Special Counsel, Merit Systems\nProtection Board, 819 F.2d 1181, 1187 (D.C. Cir. 1987), the court ruled that witness statements\nprepared at the request of a government attorney and interview notes prepared by a government\nattorney were exempt under the plain language of the Federal FOIA deliberative process\n“Letter from Matthew J. Walters, Chief Assistant Corporation Counsel, Department of Law, City\nof Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (undated;\ntransmitted via e-mail September 9, 2022), at 3.\n*SLetter from Matthew J. Walters, Chief Assistant Corporation Counsel, Department of Law, City\nof Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (undated;\ntransmitted via e-mail September 9, 2022), at 2.\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 14\nexemption, even to the extent that they contained factual material rather than deliberative\nmaterial. Because the records were attorney work product that \"Would not 'normally' and\n'routinely' be released in civil discovery[,]\" the court held that they were exempt from disclosure\nunder FOIA. Martin, 819 F.2d at 1187.\nThe Department also cited two United States Supreme Court decisions for the\nassertion that section 7(1)(f) exempts all materials that could not be obtained in civil discovery,\nregardless of their origin. In FTC v. Grolier, Inc., 462 U.S. 19, 27, 103 S. Ct. 2209, 2214 (1983),\nthe Court held that records of attorney work product withheld by a Federal agency were \"not\n'routinely' or 'normally' available to parties in litigation and hence are exempt\" under the Federal\nFOIA deliberative process exemption. The Department pointed to a portion of a concurrence in\nwhich Justice Brennan stated that litigants, including government agencies, \"have an acute\ninterest in keeping private the manner in which they conduct and settle their recurring legal\ndisputes.\" Grolier, Inc., 462 U.S. at 31, 103 S. Ct. at 2216 (Brennan, J., concurring). Justice\nBrennan made this statement in the context of critiquing the notion that attorney work product no\nlonger merits protection after the litigation and any other relevant litigation has concluded.\nGrolier, Inc., 462 U.S. at 31, 103 S. Ct. at 2216 (Brennan, J., concurring). Justice Brennan\nfurther stated that \"[i]f a document is work product under [Federal] Rule [of Civil Procedure\n26(b)(3)], and if it is an 'inter-agency or intra-agency [memorandum] or [letter]' under the\nExemption, it is absolutely exempt.\" (Emphasis added.) Grolier, Inc., 462 U.S. at 32, 103 S. Ct.\nat 2217 (Brennan, J., concurring).\nThe other Supreme Court decision, United States v. Weber Aircraft Corp., 465\nU.S. 792, 798, 104 S. Ct. 1488, 1492 (1984), reversed an appellate court decision that\nconfidential statements made to government safety investigators for the United States Air Force\nwere not protected by the Federal FOIA deliberative process exemption because the legislative\nhistory of the exemption did not encompass \"the Machin civil discovery privilege®° for official\nGovernment information.\" Weber Aircraft Corp., 465 U.S. at 798, 104 S. Ct. at 1492. The\nCourt stated that \"respondents' contention that they can obtain through the FOIA material that is\nnormally privileged would create an anomaly in that the FOIA could be used to supplement civil\ndiscovery.\" Weber Aircraft Corp., 465 U.S. at 798, 104 S. Ct. at 1492. Still, the Court decided\nthe case based on the plain language of the exemption: \"The statements of the two witnesses are\nunquestionably 'intra-agency memorandums or letters' and, since the Machin privilege\nnormally protects them from discovery in civil litigation, they 'would not be available by law to a\nparty other than [the Air Force] in litigation with [the Air Force].'\"\" (Emphasis added.) Weber\nAircraft Corp., 465 U.S. at 798, 104 S. Ct. at 1492.\n*°The Machin privilege applies to information for investigations obtained from private parties\nthrough promises of confidentiality. Machin v. Zuckert, 316 F.2d 336, 339 (D.C. Cir. 1963), cert. denied, 375 U.S.\n896.\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 15\nAgain, the cases the Department cited are inapposite to this matter. The attorney\nwork product in Grolier and the witness statements provided to government agencies\nconfidentially in Weber Aircraft Corp., were determined to be \"intra-agency\" material and\ntherefore met the threshold requirement to qualify for the Federal FOIA deliberative process\nexemption. Contrary to the Department's apparent assertion that these cases establish that all\nmaterials that could not be obtained in civil discovery are exempt from disclosure under section\n7(1)(f) of FOIA, only inter-agency and intra-agency records fall within the scope of the\nexemption. Fisher, 2021 IL App (lst) 200225, 19, 195 N.E.3d at __; see also Klamath Water\nUsers Protective Ass'n, 532 U.S. at 8, 121 S. Ct. at 1066 (\"the first condition of [the Federal\nFOIA deliberative process exemption] is no less important than the second; the communication\nmust be ‘inter-agency or intra-agency.'\").\nThe letter Mr. Pratt requested was not prepared by the Department or by any other\npublic body. It was not submitted by a consultant for the Department. It does not consist of\ninformation that the Department obtained from a private party through a guarantee of\nconfidentiality. Instead, the letter was prepared by a private attorney on behalf of clients with\ninterests in the subject of the letter that are independent from the Department's interests. Because\nsuch a record is not an inter-agency or intra-agency communication that reveals the Department's\npre-decisional deliberative process, this office concludes that the Department has not sustained\nits burden of proving that the letter is exempt from disclosure pursuant to section 7(1)(f) of\nFOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On October 26, 2021, Mr. Pratt, on behalf of the Chicago Tribune, submitted a\nFOIA request to the City of Chicago Department of Law seeking copies of certain e-mails.\n2) On November 9, 2021, the Department provided copies of records but\nwithheld a letter submitted by a private attorney on behalf of clients pursuant to section 7(1)(a)\nof FOIA. The Department asserted that evidentiary rules prohibited disclosure of the record\nbecause it concerned settlement negotiations.\n3) On November 11, 2021, Mr. Pratt submitted a Request for Review contesting\nthe denial. The Public Access Bureau assigned that matter the file number 2022 PAC 72362.\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 16\n4) On July 22, 2022, the Public Access Bureau issued a non-binding\ndetermination which concluded that the Department improperly denied the letter and requested\nthat it provide Mr. Pratt with a copy.\n5) On August 26, 2022, the Department informed this office that it would not\ncomply with the Public Access Bureau's determination.\n6) Meanwhile, on August 16, 2022, Mr. Pratt had submitted another FOIA\nrequest to the Department, this time seeking copies of any records this office determined to have\nbeen improperly withheld in 2022 PAC 72362.\n7) On August 22, 2022, the Department again denied the letter at issue in 2022\nPAC 72362 pursuant to section 7(1)(a) of FOIA.\n8) On August 23, 2022, Mr. Pratt submitted this Request for Review (2022 PAC\n73136) disputing the denial of his request. The Request for Review was timely filed and\notherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West\n2020)).\n9) On August 26, 2022, this office sent a copy of the Request for Review to the\nDepartment and asked it to provide a detailed explanation of the factual and legal bases for the\napplicability of section 7(1)(a) to the letter.\n10) On September 9, 2022, the Department submitted a response asserting that\nthe record at issue is exempt from disclosure pursuant to section 7(1)(a) as well as section\n7).\n11) On September 16, 2022, this office sent a copy of that response to Mr. Pratt.\nHe replied on September 27, 2022.\n12) On October 19, 2022, this office extended the time within which to issue a\nbinding opinion by 30 business days, to December 7, 2022. Therefore, the Attorney General\nmay properly issue a binding opinion with respect to this matter.\n13) The Department's denial of Mr. Pratt's request is based on the premise that\nthe letter in question documents privileged settlement negotiations and is prohibited from being\ndisclosed by evidentiary and discovery rules. The letter, however, does not propose or demand a\nsettlement that would resolve the matter or request that the Department engage in negotiations\nconcerning a possible settlement. Thus, the Department has not demonstrated that the record\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 17\nreflects settlement negotiations encompassed by the evidentiary and discovery rules that the\nDepartment claims are applicable.\n14) Even if the letter could be construed to be part of a settlement negotiation, it\nis not exempt under the exemptions the Department asserted.\n15) Section 7(1)(a) of FOIA exempts from disclosure \"[i]nformation specifically\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\"\n16) Federal Rule of Evidence 408, Federal Rule of Evidence 501, Illinois Rule of\nEvidence 408, Illinois Rule of Evidence 501, Federal Rule of Civil Procedure 26(b), and Illinois\nSupreme Court Rule 201(b) are judicial rules governing discovery and the admission of evidence\nin court proceedings.\n17) Restrictions on the discovery of information and the admissibility of evidence\nin court proceedings are inapplicable to the public's statutory right to obtain information pursuant\nto FOIA. Such rules do not provide a basis for denying records under section 7(1)(a).\n18) Section 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\"\n19) To be exempt under section 7(1)(f), a record must be 1) intra-agency or inter-\nagency and 2) pre-decisional and deliberative.\n20) The letter that the Department withheld was prepared by a private attorney on\nbehalf of clients with interests that are independent from the Department's interests. Because the\nletter is not an intra-agency or inter-agency communication, or a predecisional and deliberative\nrecord, it is not exempt from disclosure pursuant to section 7(1)(f) of FOIA.\nTherefore, it is the opinion of the Attorney General that the City of Chicago\nDepartment of Law violated the requirements of FOIA by denying Mr. Gregory Pratt's August\n16, 2022, Freedom of Information Act request. Accordingly, the Department is hereby directed\nto take immediate and appropriate action to comply with this opinion by providing Mr. Pratt with\na copy of the responsive letter.\nMr. Gregory Pratt\nMs. Anna Lentsch\nNovember 22, 2022\nPage 18\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days of the date of this decision naming the Attorney General of Illinois, Mr. Gregory Pratt,\nand the Chicago Tribune as defendants. See 5 ILCS 140/11.5 (West 2020).\nSincerely,\nKWAME RAOUL\nATTORNEY GENERAL\nBrent D. Stratton\nChief Deputy Attorney General\ncc: Mr. Matthew J. Walters\nChief Assistant Corporation Counsel\nDepartment of Law, City of Chicago\n2 North LaSalle Street, Suite 460\nChicago, Illinois 60602\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 22-013) upon:\nMr. Gregory Pratt\nChicago Tribune\n160 North Stetson Avenue\nChicago, Illinois 60601\ngpratt@tribune.com\nMs. Anna Lentsch\nFOIA Specialist\nDepartment of Law, City of Chicago\n2 North LaSalle Street, Suite 460\nChicago, Illinois 60602\nLAWFOIA @cityofchicago.org\nMr. Matthew Walters\nChief Assistant Corporation Counsel\nDepartment of Law, City of Chicago\n2 North LaSalle Street, Suite 460\nChicago, Illinois 60602\nMatthew. walters@cityofchicago.org\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on November 22, 2022.\naa\nSteve Silverman\nBureau Chief\nSteve Silverman\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Chicago Tribune requested a letter sent to the City of Chicago by a private attorney, but the City refused to release it, claiming it was protected by legal rules regarding evidence and discovery. The Illinois Attorney General's office ruled that the City's reasoning was incorrect and that the letter must be made public. This means that government agencies cannot simply use general legal rules to hide documents that are otherwise subject to public disclosure laws.","card_headline":"A private attorney's letter to a city law department","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":163,"orig_master_id":19365,"dup_master_id":19137,"dup_sha256":"59f8512bf2174375f25ced4db28ccfc8c18ec34e68b7d68ee3afb036d48047d0","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-03-14","case_number":"2022 PAC 74768","request_numbers":null,"title":"Improper Private Meeting","filename":"PUBLIC ACCESS OPINION 23-003 (Request for Review - 2023 PAC 74768).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 23-003 (Request for Review - 2023 PAC 74768).pdf","word_count":3262,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a complaint about an improper private meeting held by the Board of Trustees for the Stickney-Forest View Public Library District.","plain_summary":"The requester, a library board trustee, alleged that a majority of a quorum of library district trustees held an undisclosed \"meet and greet\" with staff that amounted to a closed meeting without proper notice. The Public Access Counselor held that because the gathering involved an interactive, collective discussion of library business such as staffing and taxes, it constituted a \"meeting\" under the Open Meetings Act regardless of its informal label. The library board was directed to make the video recording of the gathering public and to approve written minutes for it.","holding":"The Board of Trustees violated the Open Meetings Act by holding an improper private meeting.","legal_question":"Did the Board of Trustees violate the Open Meetings Act by holding an improper private meeting?","disposition":"violation_found","primary_statute":["5 ILCS 120/1","5 ILCS 120/2"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Trustees for the Stickney-Forest View Public Library District","requesting_party":"Natasa Dzolic","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board held a private meeting on November 28, 2022, without providing public notice or following OMA requirements.","ocr_status":"ok","ocr_quality":90.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-003.pdf","sha256":"658e9f7b8a51fba4c8f3607cd0d2968378792c636bec6326e164c4f9a1997f7a","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["open meetings act","public notice","library board","private meeting"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nMarch 14, 2023\nPUBLIC ACCESS OPINION 23-003\n(Request for Review 2022 PAC 74768)\nOPEN MEETINGS ACT:\nImproper Private Meeting\nThe Honorable Natasa Dzolic\nTreasurer, Board of Trustees\nStickney-Forest View Public Library District\n[street address redacted for site publication -- see original PDF]\nThe Honorable Rosa Villanueva\nPresident, Board of Trustees\nStickney-Forest View Public Library District\n6800 West 43rd Street\nStickney, Illinois 60402\nDear Ms. Dzolic and Ms. Villanueva:\nThis binding opinion is issued by the Attorney General pursuant to section 3.5(e)\nof the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons discussed\nbelow, this office concludes that the Board of Trustees (Board) for the Stickney-Forest View\nPublic Library District (Library District) violated OMA by holding an improper private meeting\non November 28, 2022.\nBACKGROUND\nOn December 21, 2022, Ms. Natasa Dzolic, a Board trustee, submitted a Request\nfor Review to the Public Access Bureau alleging that the Board improperly held a meeting on\n500 South Second Street, Springfield, Illinois 62701 ©, (217) 782-1090 © ‘TTY: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 ¢ (312) 814-3000 ¢ TTY: (800) 964-3013 ¢ Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © TTY: (877) 675-9339 @ Fax (618) 529-6416 ©\nThe Honorable Natasa Dzolic\nThe Honorable Rosa Villanueva\nMarch 14, 2023\nPage 2\nNovember 28, 2022, without following the requirements of OMA.! In particular, she asserted\nthat no public notice was given for this gathering, and invitations to attend were e-mailed only to\nBoard members and Library District staff.2_ Ms. Dzolic stated that the Board President and two\nother trustees attended the gathering and \"discussed Library issues, salaries[ ], staff issues, etc.\"*\nOn January 3, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the Library District's interim director to forward to the Board. The Public Access\nBureau also sent a letter asking the Board to provide this office with copies of any notices,\nagendas, minutes, and recordings of the November 28, 2022, gathering for this office's\nconfidential review.’ The letter further asked the Board to respond in writing to the allegation\nthat the gathering constituted an improper private meeting and to explain the extent to which the\nBoard discussed public business.> On January 4, 2023, the Board submitted a written response, a\nlink to a video recording of the meeting, and copies of two e-mails pertaining to the gathering.®\nOn that same date, this office forwarded a copy of the Board's response to Ms. Dzolic;’ she\nreplied on January 10, 2023.8\n'E-mail from Natasa Dzolic, Treasurer, Stickney Forest View Public Library, to Public Access\n[Bureau, Office of the Attorney General] (December 21, 2022).\nE-mail from Natasa Dzolic, Treasurer, Stickney Forest View Public Library, to Public Access\n[Bureau, Office of the Attorney General] (December 21, 2022).\n3E-mail from Natasa Dzolic, Treasurer, Stickney Forest View Public Library, to Public Access\n[Bureau, Office of the Attorney General] (December 21, 2022).\n‘Letter from Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau,\nOffice of the Attorney General, to Danielle Taylor, Interim Library Director, Stickney-Forest View Library Public\nLibrary District (January 3, 2023).\n*Letter from Christina M. Lucente-McCullough, Assistant Attorney General, Public Access\nBureau, Office of the Attorney General, to Danielle Taylor, Interim Library Director, Stickney-Forest View Library\nPublic Library District (January 3, 2023).\n°E-mail from Danielle Taylor, Interim Director, Stickney-Forest View Public Library District, to\nChristina Lucente-McCullough (January 4, 2023).\n7Letter from Christina M. Lucente-McCullough, Assistant Attorney General, Public Access\nBureau, Office of the Attorney General, to The Honorable Natasa Dzolic, Trustee/Treasurer, Stickney Forest View\nPublic Library (January 4, 2023).\n8E-mail from Natasa Dzolic to Christina Lucente-McCullough (January 10, 2023).\nThe Honorable Natasa Dzolic\nThe Honorable Rosa Villanueva\nMarch 14, 2023\nPage 3\nOn February 16, 2023, the Public Access Bureau extended the time within which\nto issue a binding opinion by 21 business days, to March 21, 2023, pursuant to section 3.5(e) of\nOMA.?\nANALYSIS\n\"It is the public policy of this State that public bodies exist to aid in the conduct of\nthe people's business and that the people have a right to be informed as to the conduct of their\nbusiness.\" 5 ILCS 120/1 (West 2020). \"The Open Meetings Act provides that public agencies\nexist to aid in the conduct of the people's business and that the intent of the Act is to assure that\nagency actions be taken openly and that their deliberations be conducted openly.\" Gosnell v.\nHogan, 179 Ill. App. 3d 161, 171 (Sth Dist. 1989).\nFor the requirements of OMA to apply, a gathering must constitute a \"meeting\"\nas defined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2020)):\n\"Meeting\" means any gathering, whether in person or by\nvideo or audio conference, telephone call, electronic means (such\nas, without limitation, electronic mail, electronic chat, and instant\nmessaging), or other means of contemporaneous interactive\ncommunication, ofa majority of a quorum of the members of a\npublic body held for the purpose of discussing public business\nor, for a S-member public body, a quorum of the members of a\npublic body held for the purpose of discussing public business\n(Emphasis added).\nIf a gathering of public body members is determined to be a \"meeting,\" then the\nprocedural safeguards and requirements of OMA apply. Those measures include proper posting\nof notice and an agenda (5 ILCS 120/2.02 (West 2020)), holding the meeting at a specified time\nand place that is convenient and open to the public (5 ILCS 120/2.01 (West 2020)), keeping\nminutes (5 ILCS 120/2.06(a) (West 2020)), and allowing public comment (5 ILCS 120/2.06(g)\n(West 2020)).\nThe mere presence of a majority of a quorum of a public body's members at a\ngathering does not trigger the requirements of OMA. See University Professionals of Illinois v.\nStukel, 344 Ill. App. 3d 856, 868 (1st Dist. 2003) (acknowledging that OMA is not \"triggered\n°Letter from Christina M. Lucente-McCullough, Assistant Attorney General, Public Access\nBureau, Office of the Attorney General, to The Honorable Natasa Dzolic, Trustee/Treasurer, Stickney-Forest View\nPublic Library District, and Danielle Taylor, Interim Library Director, Stickney-Forest View Public Library District\n(February 16, 2023).\nThe Honorable Natasa Dzolic\nThe Honorable Rosa Villanueva\nMarch 14, 2023\nPage 4\nevery time public officials meet and converse\"). \"Rather, the Act is designed to prohibit secret\ndeliberation and action on business which properly should be discussed in a public forum due to\nits potential impact on the public.\" People ex rel. Difanis v. Barr, 83 Ill. 2d 191, 202 (1980). In\nNabhani v. Coglianese, 552 F. Supp. 657, 660-61 (N.D. Ill. 1982), the court elaborated:\nA \"meeting\" under the Act, has been variously described as a\ngathering \"designed to discuss or reach an accord with regard to\npublic business,\"[citation], or as \"collective discussion...and\nexchange of facts preliminary to the ultimate decision.'\" [Citation]\nWebster's Third New International Dictionary (1976) defines\n\"deliberate\" as follows: \"to ponder or think about with measured\ncareful consideration and often with formal discussion before\nreaching a decision or conclusion.\"\nAccording to the Library District's website, the full Board consists of seven\nmembers: the president and six trustees.!? Accordingly, four Board members constitute a\nquorum and three members constitute a majority of a quorum. Therefore, pursuant to the\ndefinition of \"meeting\" set forth above, if three members of the Board met on November 28,\n2022, for purposes of discussing public business, that gathering would be subject to the\nrequirements of OMA.\nThe Board's response to this office did not dispute that three trustees attended a\ngathering on November 28, 2022, but it denied that the gathering was a \"meeting\" of the Board.\nThe Board stated:\nOn November 28, our Board President, Rosa Villanueva,\ninvited all staff and Trustees to a Meet and Greet. This was not a\nmeeting of a public body, but more an informal gathering where all\nstaff and Trustees could meet, get to know each other and ask\nquestions or state concerns any staff had. The Meet and Greet was\nhosted in person and via Zoom to accommodate any staff member\nor Trustee that was not able to attend in person[.] !!!\nLibrary Board, Stickney-Forest View Public Library District, Library Board,\nhttps://www.sfvpld.org/Pages/Index/183355/library-board (last visited Feb. 15, 2023).\n\"Letter from Danielle Taylor, Interim Director, Stickney-Forest View Public Library, to\n[Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau] (January 4, 2023).\nThe Honorable Natasa Dzolic\nThe Honorable Rosa Villanueva\nMarch 14, 2023\nPage 5\nThe Board also provided a list of nine questions that staff members asked Board members during\nthis gathering:\n1. Do you guys realize we do serve the public even if we're not\nout at a front desk?\n2. Can you please speak to Geralyn's question about the sound\nand the approach when you're addressing each other at the\nBoard, civility, could you please speak to that a little slower so\nthat I can understand it?\n3. I understand things can get heated in meetings. How about\nalways coming back to getting control?\n4. Can you explain why we got rid of the Building &\nMaintenance Tax?\n5. Shouldn't we be supporting the Library?\n6. Did any taxpayers express concerns about it or to get rid of it\n[the Building & Maintenance Tax], like why was it even\nbrought up to get rid of?\n7. Lalso heard that you guys were going to stop putting the Board\nmeetings up on YouTube. Is that true?\n8. I’m asking for transparency and clarification on why these\ndecisions are being made.\n9. Why are they on the Board if they're not going to utilize the\nLibrary?!\nIn her reply, Ms. Dzolic disputed the Board's depiction of the November 28, 2022, meeting as an\ninformal gathering. She argued that the Board President and the Library District Interim\nDirector \"refer several times in the response letter as this being a meeting.\"!? She also\nemphasized that the trustees answered the list of questions posed by staff members in the Board's\nresponse. !*\nThis office's review of the video recording corroborated that three Board members\nphysically attended and participated in the November 28, 2022, gathering. Although the Board\nargued this was simply an informal \"meet and greet\" between staff and the Board, the recording\n\"Letter from Danielle Taylor, Interim Director, Stickney-Forest View Public Library, to\n[Christina] Lucente-McCullough (January 4, 2023).\n'3R-mail from Natasa Dzolic to Christina Lucente-McCullough (January 10, 2023).\n'4E-mail from Natasa Dzolic to Christina Lucente-McCullough, Assistant Attorney General,\nPublic Access Bureau (January 10, 2023).\nThe Honorable Natasa Dzolic\nThe Honorable Rosa Villanueva\nMarch 14, 2023\nPage 6\nreflects more than a social gathering. Rather than speaking informally with individual trustees\nfor purposes of getting to know them, staff members presented questions and concerns about\nsubstantive library issues. Although the Board president led much of the ensuing discussions,\nthe other two Board members did participate at times.\nThe Attorney General has concluded that \"informal sessions or conferences\ndesigned for the discussion of public business[ ]\" are meetings subject to the requirements of\nOMA. Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 5. That opinion cited with\napproval the California Appellate Court's ruling that a \"meeting\" under California's version of\nOMA! \"connotes not only collective discussion, but the collective acquisition and exchange of\nfacts preliminary to the ultimate decision.\" Sacramento Newspaper Guild v. Sacramento County\nBoard of Supervisors, 263 Cal. App. 2d 41, 47-48, 69 Cal. Rptr. 480, 485 (Cal. Ct. App. 1968).\nThe court further explained:\nAn informal conference or caucus permits crystallization of secret\ndecisions to a point just short of ceremonial acceptance. * * *.\nOnly by embracing the collective inquiry and discussion stages, as\nwell as the ultimate step of official action, can an open meeting\nregulation frustrate these evasive devices. (Emphasis added.)\nSacramento Newspaper Guild, 263 Cal. Ct. App. 2d at 50, 69 Cal.\nRptr. at 487.\nSee also Kamlet v. Board of Education, 399 N.Y.S.2d 366, 367 (N.Y. 1997) (rejecting school\nboard's characterization of planning sessions in which school employees and prospective\ncontractors provided oral reports as \"informal gatherings\" because \"the format and the\nsubstantive nature of\" the planning sessions compelled \"a determination that they are 'meetings\"\nsubject to the state's open meetings law); Acker v. Texas Water Commission, 790 S.W.2d 299,\n300 (Tex. 1990) (\"When a majority of a public decisionmaking body is considering a pending\nissue, there can be no 'informal' discussion. There is either formal consideration of a matter in\ncompliance with the Open Meetings Act or an illegal meeting.\").\nIn this matter, the Board President led a collective discussion on the staff\nquestions and concerns, and the other trustees commented or weighed in at times. The\ndiscussion directly concerned various matters of Library District business. Specifically, the three\nBoard members engaged in an interactive discussion with Library District staff about topics such\nas staff salaries, employment status, insurance benefits, the Building & Maintenance Tax, and\nhow Board members conducted themselves during meetings. While there is no indication that\nthe Board intended to reach an accord on any issues at the time of this discussion, a majority of a\nCal. Gov. Code § 54950-54960 (West 1966).\nThe Honorable Natasa Dzolic\nThe Honorable Rosa Villanueva\nMarch 14, 2023\nPage 7\nquorum of Board members nonetheless engaged in the collective inquiry phase of deliberations\nby gathering and exchanging information in anticipation of possibly taking future action.\nIndeed, the Board President repeatedly stated that the video recording would be shared with all\nBoard members so that the staff's questions and concerns could be addressed by the Board as a\nwhole. The requirements of OMA apply not only to those gatherings in which public bodies take\nformal actions, but also to discussions of public business for the purpose of collecting\ninformation. See 5 ILCS 120/1 (West 2020) (\"The General Assembly further declares it to be the\npublic policy of this State that its citizens shall be given advance notice of and the right to attend\nall meetings at which any business of a public body is discussed or acted upon in any way.\")\n(Emphasis added). Under these circumstances, this office concludes that the gathering of three\nBoard members on November 28, 2022, constituted a \"meeting\" subject to the requirements of\nOMA. Accordingly, because the Board did not provide advance public notice of the November\n28, 2022, meeting or otherwise follow OMA's procedures and requirements, the Board violated\nOMA on that date.\nFINDINGS AND CONCLUSIONS\nAfter full examination based on the evidence available, the Public Access\nCounselor's review, and the applicable law, the Attorney General finds that:\n1) On November 28, 2022, the Board of Trustees for the Stickney-Forest View\nPublic Library held a gathering that three Board members and Library District staff attended.\n2) On December 21, 2022, Trustee Natasa Dzolic submitted a Request for\nReview to the Public Access Bureau alleging that the Board violated OMA by holding a\ngathering in which library issues were discussed without adhering to the advance notice\nrequirements of OMA. Ms. Dzolic's Request for Review was timely filed and otherwise\ncomplies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)).\n3) On January 3, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the Library District's interim director to forward to the Board and asked the Board to\nprovide copies of any notices, agendas, minutes, and recordings from its November 28, 2022,\ngathering. This office also requested a written response to the allegation that this gathering\nconstituted an improper private meeting, including an explanation of the extent to which the\nBoard discussed the transaction of public business.\n4) On January 4, 2023, the Board furnished its written response and a copy of a\nvideo recording of the November 28, 2022, gathering. The same day, this office forwarded a\ncopy of the Board's response to Ms. Dzolic.\nThe Honorable Natasa Dzolic\nThe Honorable Rosa Villanueva\nMarch 14, 2023\nPage 8\n5) On January 10, 2023, Ms. Dzolic submitted a reply.\n6) Section 1.02 of OMA defines a \"meeting\" as \"any gathering * * * ofa majority\nof a quorum of the members of a public body held for the purpose of discussing public business\nor, for a 5-member public body, a quorum of the members of a public body held for the purpose\nof discussing public business[.]\" The full Board consists of seven members. Accordingly, four\nBoard members constitute a quorum and three members are a majority of a quorum.\n7) Ifa gathering of public body members is determined to be a \"meeting,\" then\nall the requirements of OMA apply, including proper posting of notice and an agenda, holding\nthe meeting at a specified time and place that is convenient and open to the public, keeping\nminutes, and allowing public comment. During the November 28, 2022, gathering, the three\nBoard members engaged in an interactive discussion with Library District staff about matters of\npublic business upon which the Board may take action in the future.\n8) Because discussions of public business for the purpose of collecting\ninformation are the collective inquiry of the deliberative process, the November 28, 2022,\ngathering constituted a \"meeting\" subject to the requirements of OMA.\nIn accordance with these findings of fact and conclusions of law, the Public\nAccess Bureau concludes that the Board violated OMA by holding a meeting on November 28,\n2022, without providing advance public notice or complying with the other requirements of\nOMA. The Board is directed to make the video recording of its November 28, 2022, gathering\npublicly available and to generate and approve written minutes for the meeting. The Board is\nalso directed to ensure that future gatherings in which three or more of its members engage in\ndeliberative discussions of public business are held in full compliance with the requirements of\nOMA.\nThe Honorable Natasa Dzolic\nThe Honorable Rosa Villanueva\nMarch 14, 2023\nPage 9\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Ms.\nNatasa Dzolic as defendants. See 5 ILCS 120/7.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBrent D. Stratton\nChief Deputy Attorney General\nCe: Ms. Danielle Taylor\nInterim Library Director\nStickney-Forest View Public Library District\n6800 West 43rd Street\nStickney, Illinois 60402\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 23-003) upon:\nThe Honorable Natasa Dzolic\nTreasurer, Board of Trustees\nStickney-Forest View Public Library District\n6800 West 43rd Street\nStickney, Illinois 60402\nNatasa_dz@yahoo.com\nThe Honorable Rosa Villanueva\nPresident, Board of Trustees\nStickney-Forest View Public Library District\n6800 West 43rd Street\nStickney, Illinois 60402\nrosav1419@yahoo.com\nMs. Danielle Taylor\nInterim Library Director\nStickney-Forest View Public Library District\n6800 West 43rd Street\nStickney, Illinois 60402\ntaylord@sfvpld.org\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on March 14, 2023.\n° STEVE SILVERMAN\nChief, Public Access Bureau\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street, 11th Floor\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Board of Trustees for the Stickney-Forest View Public Library District held a meeting on November 28, 2022, that was not open to the public and lacked proper notice. The Attorney General's office found that this gathering violated the Open Meetings Act, which requires public bodies to provide notice and allow public access to their meetings. This means the Board failed to follow state transparency laws when conducting official business.","card_headline":"A library board's unannounced private meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":164,"orig_master_id":19366,"dup_master_id":19138,"dup_sha256":"11b79653e8c47f0f9bd8cd32ef815769809c529a8ff5325fd875b781b6952f4c","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-01-26","case_number":"2022 PAC 73915","request_numbers":null,"title":"Employee Survey Results Used in Connection with Preparing a Performance Evaluation Are Exempt from Disclosure Pursuant to Section 7(1)(f)","filename":"PUBLIC ACCESS OPINION 23-002 (Request for Review - 2022 PAC 73915).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 23-002 (Request for Review - 2022 PAC 73915).pdf","word_count":5735,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request made by Dr. Lee W. Eysturlid for employee survey results at the Illinois Mathematics and Science Academy.","plain_summary":"The requester, a faculty member joined by several colleagues, sought the raw written responses to an employee engagement survey, which a state academy provided in aggregate but withheld the free-response answers as predecisional and deliberative. The Public Access Counselor held that the academy sustained its burden that the withheld comments were used in the president's evaluation of a principal and that disclosure could chill candor in future staff surveys. The academy's partial denial was upheld and no violation was found.","holding":"The Illinois Mathematics and Science Academy did not violate FOIA by partially denying Dr. Eysturlid's request.","legal_question":"Are employee survey results used in connection with preparing a performance evaluation exempt from disclosure under FOIA?","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Illinois Mathematics and Science Academy","requesting_party":"Dr. Lee W. Eysturlid","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought raw and interpreted written responses from an employee survey used by the Board.","ocr_status":"ok","ocr_quality":90.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-002.pdf","sha256":"7ac1d41103e20ec920eb6f6ccc3717de6db18be576b6e642c007516c1402e03d","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["employee survey","performance evaluation","personnel records","FOIA exemption"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nJanuary 26, 2023\nPUBLIC ACCESS OPINION 23-002\n(Request for Review 2022 PAC 73915)\nFREEDOM OF INFORMATION ACT:\nEmployee Survey Results Used in Connection with\nPreparing a Performance Evaluation Are\nExempt from Disclosure Pursuant to Section 7(1)(f)\nDr. Lee W. Eysturlid\nIllinois Mathematics and Science Academy\n[street address redacted for site publication -- see original PDF]\nMr. Richard Busby\nFOIA Officer\nIllinois Mathematics and Science Academy\n1500 Sullivan Road\nAurora, Illinois 60506-1000\nDear Dr. Eysturlid and Mr. Busby:\nThis binding opinion is issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons\ndiscussed below, this office concludes that the Illinois Mathematics and Science Academy\n(IMSA) did not violate the requirements of FOIA by partially denying Dr. Lee Eysturlid's FOIA\nrequest.\nBACKGROUND\nOn September 20, 2022, Dr. Eysturlid and seven other IMSA faculty members\nsubmitted a FOIA request to IMSA seeking: \"[t]he written replies/reaction from the most recent,\npast Gallop [sic] poll that was given at IMSA. I am asking for a) the 'raw' or unaltered written\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © TTY: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © TTY: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © ‘ITY: (877) 675-9339 © Fax (618) 529-6416 So\nDr. Lee W. Eysturlid\nMr. Richard Busby\nJanuary 26, 2023\nPage 2\nresponses as collected, and b) the written responses as ‘interpreted’ or used by the Board.\"! On\nSeptember 27, 2022, IMSA denied the portion of Dr. Eysturlid's request seeking \"written\nresponses\" pursuant to section 7(1)(f)* of FOIA.? IMSA also noted that \"[d]ata that has been\nshared with the Board include Gallup survey results for Academic Program and All Campus[,]\"\nand provided Dr. Eystrulid with copies of those results.4 On October 14, 2022, this office\nreceived Dr. Eysturlid's Request for Review challenging IMSA's partial denial.°\nOn October 21, 2022, the Public Access Bureau e-mailed a copy of the Request\nfor Review to IMSA.° Along with a copy of the Request for Review, the Public Access Bureau\nsent IMSAa letter requesting a copy of the records disclosed in response to the FOJA request\nand copies of the withheld records for this office's confidential review.’ This office also\nrequested a detailed written explanation of the legal and factual bases for IMSA's denial of Dr.\nEysturlid's request, including a description of who participated in the Gallup survey, the purpose\nof the survey, the deliberative process to which the survey related, if any, and the withheld\nsurvey results' role in that process.®\nOn November 1, 2022, IMSA, through its legal counsel, provided the Public\nAccess Bureau with copies of the requested records.” IMSA's submission to this office included\n'Letter from Lee W. Eysturlid, et a/., to Freedom of Information Officer, Illinois Mathematics and\nScience Academy (September 20, 2022).\n5 ILCS 140/7(1)(f) (West 2021 Supp.), as amended by Public Acts 102-791, effective May 13,\n2022; 102-1055, effective June 10, 2022.\n3E-mail from Richard Busby, FOIA Officer, to [Lee] Eysturlid (September 27, 2022).\n‘E-mail from Richard Busby, FOIA Officer, to [Lee] Eysturlid (September 27, 2022).\nE-mail from Lee W. Eysturlid to Public Access [Bureau, Office of the Attorney General]\n(October 14, 2022).\n°E-mail from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to [IMSA FOIA Officer] (October 21, 2022).\n7Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Richard Busby, FOIA Officer, Illinois Mathematics and Science Academy (October 21, 2022), at 2.\n’Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Richard Busby, FOIA Officer, Illinois Mathematics and Science Academy (October 21, 2022), at 2.\n°E-mails from Rachel E. Domash, Himes Petrarca & Fester, CHTD, to [Laura] Harter (November\n1, 2022).\nDr. Lee W. Eysturlid\nMr. Richard Busby\nJanuary 26, 2023\nPage 3\na written answer, five exhibits it designated as non-confidential, and one confidential exhibit\ncontaining the withheld records.' Later that day, this office sent an e-mail to IMSA's legal\ncounsel seeking additional information to clarify IMSA's response.'' On November 2, 2022,\nlegal counsel for IMSA provided the requested information and confirmed that IMSA did not\nconsider that additional information to be confidential.'?\nOn November 2, 2022, pursuant to section 9.5(d) of FOIA (5 ILCS 140/9.5(d)\n(West 2020)), this office forwarded a copy of IMSA's written answer and its November 2, 2022,\nclarifying e-mail to Dr. Eysturlid and notified him that he could reply.'? On November 6, 2022,\nDr. Eysturlid replied.'* In his reply, Dr. Eysturlid expressed an interest in reviewing the non-\nconfidential exhibits IMSA included with its written answer.'!> On November 10, 2022, IMSA,\nthrough legal counsel, responded to Dr. Eysturlid's reply.'© On November 15, 2022, this office\nforwarded IMSA's November 10, 2022, response to Dr. Eysturlid.'’ On November 17, 2022,\nIMSA provided Dr. Eysturlid with the non-confidential exhibits it submitted to this office in\nconnection with its November 1, 2022, answer.'* On November 18, 2022, Dr. Eysturlid\nsubmitted an e-mail to this office in reply to IMSA's November 10, 2022, response.'®\n'0F-mails from Rachel E. Domash, Himes Petrarca & Fester, CHTD, to [Laura] Harter (November\n1, 2022),\n\"E-mail from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to [Rachel] Domash (November 1, 2022).\n'2E-mails from Rachel E. Domash, Himes Petrarca & Fester, CHTD, to [Laura] Harter (November\n2, 2022).\n'SLetter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Lee W. Eysturlid (November 2, 2022).\n'4E-mail from Lee W. Eysturlid, IMSA, to [Laura] Harter (November 6, 2022).\n'5E-mail from Lee W. Eysturlid, IMSA, to [Laura] Harter (November 6, 2022).\n'SLetter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office oft he Illinois Attorney General (November 10, 2022).\n'7E-mail from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to [Lee] Eysturlid and [Rachel] Domash (November 15, 2022).\n'8E-mail from A. Lynn Himes, Himes Petrarca & Fester CHTD, to [Lee] Eystrulid (November 17,\n2022).\n'9F-mail from Lee W. Eysturlid to [Laura Harter] (November 18, 2022).\nDr. Lee W. Eysturlid\nMr. Richard Busby\nJanuary 26, 2023\nPage 4\nOn December 13, 2022, this office extended the time within which to issue a\nbinding opinion by 30 business days, to January 27, 2023, pursuant to section 9.5(f) of FOIA.”\nANALYSIS\nSection 1 of FOIA (5 ILCS 140/1 (West 2020)) declares that it is \"the public\npolicy of the State of Illinois that all persons are entitled to full and complete information\nregarding the affairs of government and the official acts and policies of those who represent them\nas public officials and public employees consistent with the terms of this Act.\" Under FOIA,\n\"[a]ll records in the custody or possession of a public body are presumed to be open to inspection\nor copying. Any public body that asserts that a record is exempt from disclosure has the burden\nof proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2020).\nSection 7(1)(f) of FOIA exempts from disclosure:\nPreliminary drafts, notes, recommendations, memoranda\nand other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant\nportion of a record shall not be exempt when the record is publicly\ncited and identified by the head of the public body. The exemption\nprovided in this paragraph (f) extends to all those records of\nofficers and agencies of the General Assembly that pertain to the\npreparation of legislative documents.\nSection 7(1)(f) is equivalent in most respects to the \"deliberative process\"\nexemption in the Federal FOIA,”! which applies to \"inter- and intra-agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). It is\nappropriate to consider interpretations of Federal FOIA when analyzing exemptions in the State\nversion of the statute because of the laws' similarities. State Journal-Register v. University of\nIllinois-Springfield, 2013 IL App (4th) 120881, §21, 994 N.E.2d 705, 712 (2013). Section\n7(1)(f) is \"intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App.\n3d at 248. \"While the deliberative process privilege serves a number of related purposes, its\n2° etter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Lee W. Eysturlid and Richard Busby, FOIA Officer, Illinois Mathematics and Science Academy\n(December 13, 2022).\n2!Federal FOIA Exemption 5 (5 U.S.C. § 552(b)(5) (2018)) applies to \"inter-agency or intra-\nagency memorandums or letters that would not be available by law to a party other than an agency in litigation with\nthe agency[.]\"\nDr. Lee W. Eysturlid\nMr. Richard Busby\nJanuary 26, 2023\nPage 5\n‘ultimate aim’ is to ‘prevent injury to the quality of agency decisions.'\" m Petroleum Information\nCorp. v. United States Dep't of Interior, 976 F.2d 1429, 1433-34 (D.C. Cir. 1992) (quoting NLRB\nv. Sears, Roebuck & Co., 421 U.S. 132, 151, 95 S. Ct. 1504, 1516 (1975)).\nTo be exempt from disclosure under section 7(1)(f), records \"must be both (1)\ninter or intra agency and (2) predecisional and deliberative.\" Fisher v. Office of the Illinois\nAttorney General, 2021 IL App (1st) 200225, 419, 195 N.E.3d 719, 726 (2021), appeal denied,\n175 N.E.3d 142 (Ill. 2021)). \"In order to qualify for the deliberative process exemption, a\ndocument must be both predecisional in the sense that it is actually antecedent to the adoption of\nan agency policy, and deliberative in the sense that it is actually related to the process by which\npolicies are formulated.\" Chicago Tribune Co. v. Cook County Assessor's Office, 2018 IL App\n(1st) 170455, 928, 109 N.E.3d 872, 880 (2018).\nNo Illinois reviewing courts have ruled whether employee survey results may be\nwithheld pursuant to section 7(1)(f) of FOIA, but Federal courts have examined the applicability\nof the corresponding Federal FOIA deliberative process exemption to survey results.\nIn Times Journal Co. v. Dep't of Air Force, 793 F. Supp. 1, 4 (1991), rev'd sub\nnom. Army Times Publishing Co. v. Dep't of Air Force, 998 F.2d 1067 (D.C. Cir 1993), the\nUnited States District Court for the District of Columbia concluded that the Air Force properly\nasserted the deliberative process privilege to withhold the aggregate survey results of employees'\nresponses to a series of questions about working conditions. The court explained that \"[b]ecause\nthe release of CATI survey results, whether in the form of subjective opinions or objective\nstatistics, is likely to hamper the flow of candid opinions from Air Force personnel to\npolicymakers, it will impair the policy formulation and decisionmaking processes.\" Times\nJournal Co., 793 F. Supp. at 4. However, on appeal, the United States Court of Appeals for the\nDistrict of Columbia reversed the lower court's decision that the survey results were exempt in\ntheir entireties. Army Times Publishing Co. v. Dep't of Air Force, 998 F.2d 1067, 1072 (D.C.\nCir. 1993). The appellate court emphasized that the Air Force had voluntarily disclosed selected\naggregate survey results prior to receiving the FOIA request, which \"suggests that other\ninformation in the surveys could also be released. By releasing certain poll results and\nwithholding others, the Air Force itself has demonstrated that all the surveys, taken together, are\nnot worthy of a blanket claim of privilege under Exemption 5.\" Army Times Publishing Co., 998\nF.2d at 1071. The court stated that it was possible that the withheld poll results contained\nsensitive information, the disclosure of which would interfere with the Air Force's deliberative\nprocess, but based on the case record, the Air Force had failed to distinguish \"between the\n'innocuous' material and that which is potentially harmful.\" Army Times Publishing Co., 998\nF.2d at 1071. The court remanded the case and explained that to sustain its burden, \"the Air\nForce must demonstrate that, unlike the released poll results, the withheld poll results would\nDr. Lee W. Eysturlid\nMr. Richard Busby\nJanuary 26, 2023\nPage 6\nactually inhibit candor in the decision-making process if made available to the public.\" Army\nTimes Publishing Co., 998 F.2d at 1072.\nIn Ludlam y. United States Peace Corps, 934 F. Supp. 2d 174, 190 (D.D.C. 2013),\nthe United States District Court for the District of Columbia held that the Peace Corps had not\nestablished that certain aggregated results from annual volunteer surveys were exempt\ndeliberative material. Specifically, the court concluded that the Peace Corps had not identified a\nspecific deliberative process associated with its use of the survey results. The court noted that\n\"[a]lthough the government need not pinpoint a specific decision or policy in connection with\nwhich predecisional material is prepared, the deliberative process must be capable of some\ndefinition.\" Ludlam, 934 F. Supp. 2d at 189. The court explained that the Peace Corps'\ndescription of its deliberative process was too vague, claiming to include\nthe agency's processes for ongoing, continuous appraisals and\nimprovements in all manner of agency activities, from strategic\nplanning, to program improvement, to assessment of agency\nperformance and beyond. [Citations.] To permit the Defendant to\nassert the deliberative process privilege for every piece of\ninformation which could be used, in some way or another, in the\ncontinuous process of improving the Agency would set virtually no\nlimit on the privilege. Exemption 5's protections do not reach\nnearly this far. Ludlam, 934 F. Supp. 2d at 189.\nLike the Army Times Publishing Co. court, the Ludlam court also highlighted the agency's failure\nto explain why disclosure of the withheld information would harm its deliberative process while\nthe agency's prior disclosure of other portions of the aggregate survey results would not.\nLudlam, 934 F. Supp. 2d at 189-190.\nIn Hardy v. Bureau of Alcohol, 243 F. Supp. 3d 155, 171-73 (D.D.C. 2017), the\ncourt used similar reasoning to conclude that the United States Department of Justice's Office of\nthe Inspector General (OIG) did not establish that certain aggregate and narrative survey\nresponses received from Bureau of Alcohol, Tobacco, and Firearms (ATF) inspectors were\nexempt from disclosure as deliberative material. The relevant surveys were solicited by the OIG\nin connection with the preparation of a published OIG report about the ATF's National Firearms\nRegistration and Transfer Record (NFRTR), a database containing records on weapons regulated\nby the National Firearms Act. Hardy, 243 F. Supp. 3d at 160. Citing Army Times Publishing\nCo., the Hardy court stated that because the OIG had previously disclosed in the public report\nsome of the aggregate survey data and direct quotations from some narrative responses, \"to\nwithhold the remaining survey results and data, OIG must explain how the withheld information\nis ‘different from those released in any relevant respect.\" Hardy, 243 F. Supp. 3d at 172\nDr. Lee W. Eysturlid\nMr. Richard Busby\nJanuary 26, 2023\nPage 7\n(quoting Army Times Publishing Co., 998 F.2d at 1068). The court also emphasized that many\nof the survey questions sought factual responses and concluded that the nature of the withheld\nsurvey results was \"quintessentially factual information that reveals little about an agency's\ndeliberative process.\" Hardy, 243 F. Supp. 3d at 171. The court concluded that the OIG did not\nestablish that the \"materials ...bear on the formulation or exercise of agency policy-oriented\njudgment{.]'\" (Emphasis in original.) Hardy, 243 F. Supp. 3d at 173 (quoting Petroleum\nInformation Corp., 976 F.2d at 1435). See also Ryan v. Department of Justice, 617 F.2d 781,\n791 (D.C. Cir. 1980) (noting that factual responses to some portions of a questionnaire would not\nreveal aspects of a deliberative process, while responses to other portions may contain the\nexpressions of personal views or recommendations and may be exempt from disclosure).\nBy contrast, the court in Heffernan y. Azar, 317 F. Supp. 3d 94, 131-32 (D.D.C.\n2018) distinguished the facts of Hardy and concluded that the United States Department of\nHealth and Human Services (HHS) established that withheld survey responses were exempt from\ndisclosure as pre-decisional deliberative material. The survey at issue was given to members of\nan intra-agency focus group assembled to assist the leadership of the National Institutes of\nHealth (NIH) in reorganizing the Department of Spiritual Care (SMD) and potentially altering\nthe scope of SMD's services. Heffernan, 317 F. Supp. 3d at 130. In reaching its conclusion, the\ncourt noted that HHS had not disclosed any part of the survey results. Heffernan, 317 F. Supp.\n3d at 132. It also explained that the results of the survey were not factual, but rather consisted of\nrecommendations and suggestions. The court concluded that disclosure of the survey results\n\"would certainly have a chilling effect on the SMD personnel freely exchanging advice,\nopinions, and recommendations on policy and departmental changes.\" Heffernan, 317 F. Supp.\nSadat 132.\nReturning to the survey results at issue in this matter, IMSA explained in its\nanswer to this office that on June 6, 2022, a representative from its Human Resources\nDepartment sent an e-mail to IMSA employees inviting them to participate in the Spring 2022\nEngagement Survey.” The e-mail included a link to the survey and explained that \"to be\nsuccessful, we must understand how you're feeling about your work and why you're feeling the\nway you do. As with last spring's engagement survey, once we have that data, not only will you\nsee the results, but you will have the opportunity to help us do something to bring about positive\noutcomes. This is your opportunity to BE HEARD.\"”> The e-mail noted that \"[s]urvey\n2Letter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office oft he Illinois Attorney General (November 1, 2022), at 2.\nLetter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office oft he Illinois Attorney General (November 1, 2022), Exhibit A, e-mail from\nJoseph Mastrocola, HR Generalist, IMSA, to IMSA Employees (June 6, 2022). (Emphasis in original.)\nDr. Lee W. Eysturlid\nMr. Richard Busby\nJanuary 26, 2023\nPage 8\nresponses are confidential. Gallup collects the survey results and will only allow us to report\ninformation on one of the demographic levels at a time (Operational Location, Years of Service,\nGender, or Race/Ethnicity). Individual responses can not be reported. So be honest...and BE\nHEARD!\"\nIMSA's answer further explained that the survey consisted of \"twelve 5-point\nscale questions, two Gallup Ladder questions, and three free response questions.\"”> It stated that\nGallup, Inc., \"a global analytics and advice firm,\" \"collected and anonymized\" the survey\nresults.”° \"Gallup analyzed the data from the scale and ladder questions and provided two data\nsummary documents to IMSA regarding results for Academic Programming and All Campus.\"?’\nIMSA provided the two data summary documents to Dr. Eysturlid in response to his FOIA\nrequest; it withheld the responses to the three free response questions.’® The three free response\nquestions sought answers to the following queries:\ne What are the best aspects of working at IMSA?\ne What are the biggest challenges of working at IMSA?\ne Is there anything additional you would like to share?!??!\nIn its response to this office, IMSA stated that the withheld survey responses were\nsolicited by and answered by IMSA staff and are therefore intra-agency records.” It also stated\nthat the withheld results were pre-decisional and deliberative because its president used the\n4Letter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office of the Illinois Attorney General (November 1, 2022), Exhibit A, e-mail from\nJoseph Mastrocola, HR Generalist, IMSA, to IMSA Employees (June 6, 2022). (Emphasis in original.)\n*5Letter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office of the Illinois Attorney General (November 1, 2022), at 1.\n6L etter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office oft he Illinois Attorney General (November 1, 2022), at 1.\n27Letter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office oft he Illinois Attorney General (November 1, 2022), at 1.\n81 etter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office oft he Illinois Attorney General (November 1, 2022), at 2.\n°Letter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office of the Illinois Attorney General (November 1, 2022), Exhibit B.\nLetter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office oft he Illinois Attorney General (November |, 2022), at 3.\nDr. Lee W. Eysturlid\nMr. Richard Busby\nJanuary 26, 2023\nPage 9\nresults of the free response questions \"to inform the performance component of\" the Principal\nand Chief Academic Officer's evaluation, but did not use the other survey results for this\npurpose.*! IMSA also noted that the survey results \"Were to help the school understand how its\nstaff was feeling about work and why so that it could improve in certain areas and engage better\nwith its staff. * * * It is clear that the purpose of soliciting IMSA employee[s'] written feedback\nwas to use it to determine what future policies IMSA needs and how to better the school.\"2”\nIMSA argued that \"withholding the written comments was nothing more than what was promised\nto IMSA's staff members\" in the June 6, 2022, survey invitation e-mail, which stated that\n\"[s]urvey responses are confidential.\"?3\nIn his reply, Dr. Eysturlid stated that IMSA did not inform the survey takers that\nthe purpose of the written survey responses would \"be part of the decision on the retention or\nconsideration of\" the principal.** He also challenged why only certain parts of the survey were\nused for the principal's evaluation and therefore withheld, while other portions of the survey\nwere not used as part of the evaluation process. He questioned whether that \"decision was made\nAFTER the fact when the answers were not what was wanted, and the materials shared in the\npast were now considered embarrassing[.]\">°> Dr. Eysturlid explained that in past years, under\ndifferent leadership, IMSA released all results of the employee surveys. He noted that this past\npractice \"set a precedent for and therefore an expectation of receiving both the numbered survey\nand the written responses.\"°° He questioned \"[h]ow can faculty/staff understand the disposition\nof their colleagues to leadership and the reality of the institution without knowing what it appears\nnow only senior leadership is allowed to know[,]\" adding that \"this breeds even further distrust\n3!Letter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office of the Illinois Attorney General (November 1, 2022), at 3-4; e-mail from\nRachel E. Domash, Himes Petrarca & Fester, CHTD, to [Laura] Harter (November 2, 2022).\nLetter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office oft he Illinois Attorney General (November 1, 2022), at 4.\nLetter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office oft he Illinois Attorney General (November 1, 2022), at 2.\nLetter from Lee W. Eysturlid to [Laura Harter, Deputy Bureau Chief, Public Access Bureau,\nOffice of the Illinois Attorney General] [(November 6, 2022)], at [1].\n>Letter from Lee W. Eysturlid to [Laura Harter, Deputy Bureau Chief, Public Access Bureau,\nOffice of the Illinois Attorney General] [(November 6, 2022)], at [1]. (Emphasis in original.)\nLetter from Lee W. Eysturlid to [Laura Harter, Deputy Bureau Chief, Public Access Bureau,\nOffice of the Illinois Attorney General] [(November 6, 2022)], at [2].\nDr. Lee W. Eysturlid\nMr. Richard Busby\nJanuary 26, 2023\nPage 10\nand a feeling that opinions only count if they say what those giving the survey want to hear.\"?’\nDr. Eysturlid also pointed to the last sentence in section 7(1)(f) of FOIA, which states \"[t]he\nexemption provided in this paragraph (f) extends to all those records of officers and agencies of\nthe General Assembly that pertain to the preparation of legislative documents[,]\" and questioned\nwhether the exemption applied to IMSA or only to the General Assembly.*®\nThis office's review of the withheld records confirmed that they reflect IMSA\nemployees’ anonymous opinions and recommendations, not factual information. IMSA\nexplained that the president used the results from the free response questions as part of the\nspecific pre-decisional deliberative process of evaluating the principal's performance. Although\nIMSA disclosed the results of the 5-point scale and ladder questions from the survey, it has\nexplained that the president did not use those results in his evaluation of the principal; therefore,\nthe disclosed results were not part of the deliberative process IMSA seeks to protect in this\nmatter. As Dr. Eysturlid noted, the June 6, 2022, e-mail announcing the survey did not state that\none of the uses of the survey would be to evaluate the principal's performance, making only the\ngeneral statement that the survey was intended to \"understand how you're feeling about your\nwork and why you're feeling the way you do.\"°? Although a public body that withholds records\nunder section 7(1)(f) must identify \"what deliberative process is involved, and the role played by\nthe documents at issue in the course of that process[,]\"*° the exemption does not require the\npublic body to provide advance notice of all possible uses of information it gathers before\nincorporating the information into its decision-making.\nIt is not clear under the circumstances of this matter whether withholding the\nanonymous free response survey results would be necessary to encourage candor from the survey\nparticipants. As Dr. Eysturlid explained, the participants may have expected their comments to\nbe disclosed based on IMSA's disclosures in prior years. Further, the e-mail that accompanied\nthe survey link did not promise that the results would never be released. To the contrary, it\nstated that employees would \"see the results\" and explained that the survey results could be\n37Letter from Lee W. Eysturlid to [Laura Harter, Deputy Bureau Chief, Public Access Bureau,\nOffice of the Illinois Attorney General] [(November 6, 2022)], at [2].\nLetter from Lee W. Eysturlid to [Laura Harter, Deputy Bureau Chief, Public Access Bureau,\nOffice of the Illinois Attorney General] [(November 6, 2022)], at [23\nLetter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office of the Illinois Attorney General (November |, 2022), Exhibit A, e-mail from\nJoseph Mastrocola, HR Generalist, IMSA, to IMSA Employees (June 6, 2022).\n“Coastal States Gas Corp. v. Dep't of Energy, 617 F. 2d 854, 868 (D.C. Cir. 1980).\nDr. Lee W. Eysturlid\nMr. Richard Busby\nJanuary 26, 2023\nPage 11\nreported on one demographic level at a time, presumably to protect anonymity.*! However, the\ndeliberative process analysis considers not only the implications of disclosure on the individuals\nproviding the opinions, but also the implications on the policy-makers who consider those\nopinions as part of their decision-making. See Heffernan, 317 F. Supp. 3d at 132 (disclosure of\nsuggestions and recommendations in survey results would result in an intrusion that \"would\ncertainly have a chilling effect\" on internal exchanges of \"advice, opinions, and\nrecommendations on policy and departmental changes.\" Disclosing the free response survey\nresults would make public the specific materials the president gathered and relied upon to\nevaluate the principal. See Harwood, 344 Ill. App. 3d at 247. This could be injurious to the\ndeliberative process by subjecting the president to second-guessing, for example by questioning\nwhether all comments were considered or whether certain survey comments carried more\nsignificance in the evaluation than others. Consequently, IMSA could be discouraged from\nsoliciting employees' opinions in the future on sensitive and substantive matters, which would\ndiminish the overall quality of the evaluation process because the president would no longer have\nthe valuable insight revealed by the employees’ perceptions of the school. Moreover, there is no\nindication that the president, as head of IMSA, has disclosed publicly the content of the freeform\nsurvey responses.\nFinally, although the last sentence of the section 7(1)(f) exemption states that it\n\"extends\" to \"records concerning the officers and agencies of the General Assembly that pertain\nto the preparation of legislative documents[,]\" the word \"extend\" means \"to increase the scope,\nmeaning, or application off.]'*? As such, the scope of section 7(1)(f) includes—but is not limited\nto—records of officers and agencies of the General Assembly that pertain to the preparation of\nlegislative documents. Thus, \"[p]reliminary drafts, notes, recommendations, memoranda and\nother records in which opinions are expressed, or policies or actions are formulated[ ]\" are\nexempt from disclosure under section 7(1)(f), regardless of their relationship to any legislative\nprocess.\nAccordingly, IMSA has sustained its burden of proving by clear and convincing\nevidence that the responsive records are exempt from disclosure under section 7(1)(f) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n“'Letter from A. Lynn Himes, Himes Petrarca & Fester, CHTD, to Laura S. Harter, Deputy Bureau\nChief, Public Access Bureau, Office oft he Illinois Attorney General (November 1, 2022), Exhibit A, e-mail from\nJoseph Mastrocola, HR Generalist, IMSA, to IMSA Employees (June 6, 2022).\n“Webster's Third New International Dictionary 804 (1993).\nDr. Lee W. Eysturlid\nMr. Richard Busby\nJanuary 26, 2023\nPage 12\n1) On September 20, 2022, Dr. Lee Eysturlid and seven other IMSA faculty\nmembers submitted a FOIA request to IMSA seeking copies of the written answers provided in\nresponse to the most recent Gallup survey administered at the school and the interpretation of the\nwritten responses used by IMSA's Board.\n2) On September 27, 2022, IMSA provided Dr. Eysturlid with summaries of the\nsurvey results shared with the Board, which included the results of the survey's 5-point scale\nquestions and Gallup ladder questions, but denied his request for the written responses to the\nsurvey's three free-response questions pursuant to section 7(1)(f) of FOIA.\n3) On October 14, 2022, Dr. Eysturlid submitted a Request for Review to the\nPublic Access Counselor disputing IMSA's partial denial. The Request for Review was timely\nfiled and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a)\n(West 2020)).\n4) On October 21, 2022, the Public Access Bureau sent a copy of the Request for\nReview to IMSA and requested copies of the disclosed and withheld records for this office's\nconfidential review and a detailed written explanation of the legal and factual bases for IMSA's\ndenial of the request.\n5) On November 1, 2022, this office received the requested materials from\nIMSA, including a written answer, five non-confidential exhibits, and one confidential exhibit.\n6) On November 2, 2022, the Public Access Bureau forwarded to Dr. Eysturlid a\ncopy of IMSA's written answer and notified him of his opportunity to reply. On November 6,\n2022, Dr. Eysturlid replied. On November 10, 2022, IMSA responded to Dr. Eysturlid's reply.\nOn November 15, 2022, this office forwarded to Dr. Eysturlid IMSA's November 10, 2022,\ncorrespondence. On November 17, 2022, IMSA provided Dr. Eysturlid with copies of the five\nnon-confidential exhibits it submitted to this office on November 1, 2022. On November 18,\n2022, Dr. Eysturlid submitted a response to IMSA's November 10, 2022, correspondence.\n7) On December 13, 2022, this office properly extended the time within which to\nissue a binding opinion by 30 business days, to January 27, 2023, pursuant to section 9.5(f) of\nFOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to\nthis matter.\n8) Section 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated[.]\" IMSA has demonstrated that employees' responses to survey\nquestions soliciting opinions were used in the pre-decisional, deliberative process of evaluating\nthe school's principal.\nDr. Lee W. Eysturlid\nMr. Richard Busby\nJanuary 26, 2023\nPage 13\n9) IMSA has sustained its burden of proving by clear and convincing evidence\nthat the responsive records qualify as pre-decisional, deliberative intra-agency communications\nthat are exempt from disclosure pursuant to section 7(1)(f) of FOIA.\nTherefore, it is the opinion of the Attorney General that the Illinois Mathematics\nand Science Academy did not violate the requirements of FOIA by partially denying Dr. Lee W.\nEysturlid's Freedom of Information Act request.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seg. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days of the date of this decision naming the Attorney General of I]linois and Illinois\nMathematics and Science Academy as defendants. See 5 ILCS 140/11.5 (West 2020).\nSincerely,\nKWAME RAOUL\nATTORNEY GENERAL\n7 [eat Sfat>—$§\nrent D. Stratton\nChief Deputy Attorney General\nren Ms. Rachel Domash\nMr. A. Lynn Himes\nHimes, Petrarca & Fester, CHTD\n180 North Stetson, Suite 3100\nChicago, Illinois 60601\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 23-002) upon:\nDr. Lee W. Eysturlid\nIllinois Mathematics and Science Academy\n1500 Sullivan Road\nAurora, Illinois 60506-1000\nleystur@imsa.edu\nMr. Richard Busby\nFOIA Officer\nIllinois Mathematics and Science Academy\n1500 Sullivan Road\nAurora, Illinois 60506-1000\nfoia@imsa.edu\nMs. Rachel Domash\nHimes, Petrarca & Fester, CHTD\n180 North Stetson, Suite 3100\nChicago, Illinois 60601\nrdomash@edlawyer.com\nMr. A. Lynn Himes\nHimes, Petrarca & Fester, CHTD\n180 North Stetson, Suite 3100\nChicago, Illinois 60601\nahimes@edlawyer.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on January 26, 2023.\ne\ntf\nSteve Silverman\nBureau Chief\nSteve Silverman\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Dr. Eysturlid requested raw and interpreted written responses from a Gallup employee survey at the Illinois Mathematics and Science Academy. The Attorney General's office concluded that the Academy did not violate FOIA by withholding those written responses, because they qualified as predecisional and deliberative records exempt under section 7(1)(f). The opinion's title states that the survey results were used in connection with preparing a performance evaluation, but the opinion does not state that all internal survey data is categorically exempt.","card_headline":"Employee survey responses for performance evaluations","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":165,"orig_master_id":19367,"dup_master_id":19139,"dup_sha256":"d89cd89e014488bd33997840dba9103c97e46f94db25d51d1142757c5cb80c1f","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-04-25","case_number":"2023 PAC 75460","request_numbers":null,"title":"Improper Closed Session Discussion of Various Topics Under the Exception for Setting the Price For Sale or Lease of Property","filename":"PUBLIC ACCESS OPINION 23-005 (Request for Review - 2023 PAC 75460).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 23-005 (Request for Review - 2023 PAC 75460).pdf","word_count":4084,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a violation of the Open Meetings Act by the Lyons Township High School District 204 Board of Education during a closed session discussion about property sale.","plain_summary":"The requester, a resident, alleged that a school board's closed-session discussions about selling district-owned property exceeded the narrow exception for setting a sale price. The Public Access Counselor held that the board's closed-session discussions about marketing strategy and next steps following possible bid rejection went beyond simply setting the price, exceeding the scope of the section 2(c)(6) exception. The board was directed to disclose the closed-session verbatim recordings and minutes of the meeting at issue.","holding":"The Board violated the Open Meetings Act by discussing matters outside the scope of the exception for closed sessions.","legal_question":"Did the Board violate the Open Meetings Act by discussing matters in closed session that were not authorized by the Act?","disposition":"violation_found","primary_statute":["5 ILCS 120/2(c)(6)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(6)"],"public_body":"Lyons Township High School District 204 Board of Education","requesting_party":"Ms. Melissa Grisoni","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board improperly discussed topics outside the scope of the closed session exception for setting the price for the sale or lease of property.","ocr_status":"ok","ocr_quality":90.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-005.pdf","sha256":"236564185ec2d6671c8543151728090f1e1982e80ffe21a506f74a83b57f9bfd","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","Open Meetings Act","property sale","school board"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nApril 25, 2023\nPUBLIC ACCESS OPINION 23-005\n(Request for Review 2023 PAC 75460)\nOPEN MEETINGS ACT:\nImproper Closed Session Discussion of Various\nTopics Under the Exception for Setting the Price\nFor Sale or Lease of Property\nMs. Melissa Grisoni\n[street address redacted for site publication -- see original PDF]\nThe Honorable Kari Dillon\nPresident\nBoard of Education\nLyons Township High School District 204\n100 South Brainard Avenue\nLaGrange, Illinois 60525\nDear Ms. Grisoni and Ms. Dillon:\nThis binding opinion is issued by the Attorney General pursuant to section 3.5(e)\nof the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons discussed\nbelow, this office concludes that the Lyons Township High School District 204 (District) Board\nof Education (Board) violated OMA at its January 23, 2023, regular meeting by discussing in\nclosed session matters outside the scope of the exception, to the general requirement that public\nbodies conduct public business openly, in section 2(c)(6) of the Act.!\n'5 ILCS 120/2(c)(6) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13,\n2022.\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © I’ l'Y: (877) 844-5461 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 ¢ (312) 814-3000 © ‘T’TY: (800) 964-3013 ¢ Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © I’LY: (877) 675-9339 © Fax (618) 529-6416 CLccie>>T ~«\nMs. Melissa Grisoni\nThe Honorable Kari Dillon\nApril 25, 2023\nPage 2\nBACKGROUND\nOn February 10, 2023, Ms. Melissa Grisoni submitted a Request for Review to\nthe Public Access Bureau alleging that the Board violated OMA between March 1, 2022, and\nFebruary 1, 2023, by holding a meeting or meetings closed to the public to discuss the sale of\nproperty owned by the District without publicly citing and voting on an exception that authorized\nthis discussion.” Ms. Grisoni also alleged that although the Board did cite the section 2(c)(6)\nexception as the basis for entering closed session twice during its January 23, 2023, meeting, that\nexception did not authorize the Board's closed session discussions.’ Finally, she alleged that the\nBoard had not reviewed the minutes of its closed meetings in the last six months. On February\n16, 2023, the Public Access Bureau forwarded a copy of the Request for Review to the Board\nand asked the Board to furnish this office with copies of its meeting agendas, open and closed\nsession minutes, and verbatim recordings of the closed session portions of Board meetings from\nMarch 1, 2022, to present.° The Public Access Bureau also asked the Board to provide a written\nresponse to the allegation it exceeded the scope of section 2(c)(6) of OMA during its closed\nmeeting on January 23, 2023.°\nOn March 8, 2023, the Public Access Bureau received the Board's written\nresponse’ and verbatim recordings of the closed sessions at issue.’ On that same date, the Public\nE-mail from Melissa Grisoni to Public Access [Bureau, Office of the Attorney General] (February\n10, 2023).\n3E-mail from Melissa Grisoni to Public Access [Bureau, Office of the Attorney General] (February\n10, 2023).\n‘E-mail from Melissa Grisoni to Public Access [Bureau, Office of the Attorney General] (February\n10, 2023).\nLetter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to the Honorable Kari Dillon, President, Board of Education, Lyons Township High School\nDistrict 204 (February 16, 2023), at 2.\nLetter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office oft he\nAttorney General, to the Honorable Kari Dillon, President, Board of Education, Lyons Township High School\nDistrict 204 (February 16, 2023), at 2.\n7Letter from Brian P. Crowley, Franczek, to Benjamin J. Silver, Assistant Attorney General,\nPublic Access Bureau, [Office of the Attorney General] (March 8, 2023).\n8E-mail from Brian P. Crowley, Partner, Franczek P.C., to Ben [Silver] (March 8, 2023).\nMs. Melissa Grisoni\nThe Honorable Kari Dillon\nApril 25, 2023\nPage 3\nAccess Bureau forwarded the Board's written response to Ms. Grisoni.? On March 14, 2023, Ms.\nGrisoni submitted her reply'® along with an e-mail stating she wished to limit the scope of her\nRequest for Review to the allegation that the Board exceeded the scope of section 2(c)(6) of\nOMA during the closed session portions of its January 23, 2023, meeting.'! On March 16, 2023,\nthe Public Access Bureau received a copy of the closed session minutes of the Board's January\n23, 2023 meeting'”.\nOn April 10, 2023, this office extended the time within which to issue a binding\nopinion by 21 business days, to May 10, 2023, pursuant to section 3.5(e) of OMA? (5 ILCS\n120/3.5(e) (West 2020)).\nANALYSIS\nOMA is intended \"to ensure that the actions of public bodies be taken openly and\nthat their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2020). Section 2(a) of\nOMA\" provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted\nin subsection (c) and closed in accordance with Section 2a.\" Such exceptions \"are in derogation\nof the requirement that public bodies meet in the open, and therefore, the exceptions are to be\nstrictly construed, extending only to subjects clearly within their scope.\" (Emphasis added.)\n5 ILCS 120/2(b) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13,\n2022. The section 2(c)(6) exception permits a public body to enter into closed session to discuss\nonly \"[t]he setting of a price for sale or lease of property owned by the public body.\"\nIn its response to this office, the Board argued that its two closed session\ndiscussions on January 23, 2023, fall within the scope of section 2(c)(6). The Board explained\nthat the discussions related to a roughly 70-acre parcel of vacant land in Willow Springs that the\n*Letter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office oft he\nAttorney General, to Melissa Grisoni (March 8, 2023).\nLetter from Melissa Grisoni to Benjamin J. Silver, Assistant Attorney General, Public Access\nBureau, [Office of the Attorney General] (March 14, 2023).\n''E-mail from Melissa Grisoni to [Ben] Silver and [Brian] Crowley (March 14, 2023).\n!2F-mail from Brian P. Crowley, Partner, Franczek P.C., to Ben [Silver] (March 16, 2023).\nLetter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office oft he\nAttorney General, to Melissa Grisoni, the Honorable Kari Dillon, President, Board of Education, Lyons Township\nHigh School District 204, and Brian P. Crowley, Partner, Franczek P.C. (April 10, 2023).\n'45 ILCS 120/2(a) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13,\n2022.\nMs. Melissa Grisoni\nThe Honorable Kari Dillon\nApril 25, 2023\nPage 4\nDistrict acquired through purchases and a donation.'> After receiving an unsolicited letter of\nintent to purchase the property, the Board approved at a December 22, 2022, open meeting \"a\nsealed bid process and terms and conditions of sale, which included a minimum sales price of\n$55 million along with other real estate terms.\"'° The Board's response to this office noted that,\nat the time of the January 23, 2023, meeting, it had not accepted a bid \"and was considering its\nvarious options, all of which directly impact price.\"!’ Because the Board had not accepted any\nbids, the response stated, the closed session discussions \"concerned next steps in marketing and\nselling the property at a price of no less than $55 million.\"'® The Board further argued:\nWhile the entire closed session discussion did not focus on\ndollar figures solely, the sale of a property of this magnitude\ncreates numerous issues for the Board to consider; all of which\ndirectly influence the price. The discussions during that evening's\nclosed session centered on that primary topic. Any ancillary\ndiscussions or discussions that did not pertain to the exact dollar\namount for the sale were so intertwined with the ultimate sale and\nprice of the property that it is not reasonable to separate from the\nprimary topic of price.!!*!\nIn support of its argument, the Board referenced a determination letter in which\nthe Public Access Bureau declined to determine that a school board had violated OMA when its\nclosed session discussion pursuant to the section 2(c)(5) exception”? \"veered into somewhat\nextraneous matters at times.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 30925, issued May 9, 2019, at\n4. Additionally, the Board cited a determination letter in which the Public Access Bureau\nconcluded that a school board did not exceed the scope of section 2(c)(6) when it \"discussed the\n'SLetter from Brian P. Crowley, Franczek, to Benjamin J. Silver, Assistant Attorney General,\nPublic Access Bureau, [Office of the Attorney General] (March 8, 2023), at 2.\n'6L etter from Brian P. Crowley, Franczek, to Benjamin J. Silver, Assistant Attorney General,\nPublic Access Bureau, [Office of the Attorney General] (March 8, 2023), at 2.\nLetter from Brian P. Crowley, Franczek, to Benjamin J. Silver, Assistant Attorney General,\nPublic Access Bureau, [Office of the Attorney General] (March 8, 2023), at 3.\n'8Letter from Brian P. Crowley, Franczek, to Benjamin J. Silver, Assistant Attorney General,\nPublic Access Bureau, [Office of the Attorney General] (March 8, 2023), at 3.\n'T etter from Brian P. Crowley, Franczek, to Benjamin J. Silver, Assistant Attorney General,\nPublic Access Bureau, [Office of the Attorney General] (March 8, 2023), at 4.\n205 ILCS 120/2(c)(5) (West 2014).\nMs. Melissa Grisoni\nThe Honorable Kari Dillon\nApril 25, 2023\nPage 5\nprice of the property and options for maintaining or adjusting the property's price.\" III. Att'y\nGen. PAC Req. Rev. Ltr. 63270, issued November 12, 2020.\nIn her reply, Ms. Grisoni argued that the scope of section 2(c)(6) is narrower than\nthe Board contends, and, given the Board's response and the context of the meeting, the Board's\ndiscussion during the closed portions of its January 23, 2023, meeting exceeded that scope. Ms.\nGrisoni argued that the instant dispute is similar to the situation in a previous binding opinion,\nIll. Att'y Gen. Pub. Acc. Op. No. 15-003, issued March 20, 2015, in which the Attorney General\n\"found that the board violated section 2(a) of OMA because the general discussion of the sale of\nland did not fall within the narrow exception of setting a sale price.\"”!\nLegislative intent is best evidenced by the language used in a statute, and if the\nstatutory language is clear and unambiguous, it must be given effect as written. Blum v. Koster,\n235 Ill. 2d. 21, 29 (2009). We may not read into the unambiguous language of a statute\nexceptions, limitations or conditions that the General Assembly did not express. Kraft, Inc. v.\nEdgar, 138 Ill. 2d 178, 189 (1990). The clear and unambiguous language of section 2(c)(6) of\nOMA, which must be strictly construed, does not allow a public body to discuss the sale or lease\nof public property in closed session other than to set a price. If the General Assembly had\nintended to allow closed meetings to discuss general issues concerning the sale or lease of public\nproperty, it would have written such an exception into OMA, as have other jurisdictions. See,\ne.g., section 551.072 of the Texas Open Meetings Act (Tex. Gov't Code Ann. § 551.072 (West\n2022)) (\"A governmental body may conduct a closed meeting to deliberate the purchase,\nexchange, lease, or value of real property if deliberation in an open meeting would have a\ndetrimental effect on the position of the governmental body in negotiations with a third\nperson.\")).\nIndeed, section 2(c)(5) of OMA, which allows a public body to enter closed\nsession to discuss \"[t]he purchase or lease of real property for the use of the public body,\nincluding meetings held for the purpose of discussing whether a particular parcel should be\nacquired[,]\" directly contrasts with the significantly narrower scope of section 2(c)(6). Section\n2(c)(5) of OMA allows closed session discussions concerning the relative merits of particular\nproperties to potentially purchase or lease for the use of the public body, the attributes of those\nproperties, and the terms of conditions of a potential sale or lease. III. Att'y Gen. Pub. Acc. Op.\n22-012, issued September 30, 2022, at 8-9. However, neither that provision, nor section 2(c)(6),\nauthorizes comparatively general discussions regarding the sale or lease of property already\nowned by a public body. See Ill. Att'y Gen. Pub. Acc. Op. No. 15-003, at 5 (section 2(c)(6) of\n*!Letter from Melissa Grisoni to Benjamin J. Silver, Assistant Attorney General, Public Access\nBureau, [Office of the Attorney General] (March 13, 2023), at 3.\nMs. Melissa Grisoni\nThe Honorable Kari Dillon\nApril 25, 2023\nPage 6\nOMA does \"not extend to the discussion of general issues concerning the disposal of publicly-\nowned property.\").\nThe General Assembly's intent to create a narrow exception for setting the price\nof property is further evidenced in the legislative history of House Bill No. 1332, which as Public\nAct 88-621, effective January 1, 1995, divided the previous OMA exception, which included\nboth acquisition of real property and selling price in a single exception, into the current section\n2(c)(5) and the significantly narrower section 2(c)(6).”* Public Act 88-621 (amending 5 ILCS\n120/2 (West 1994)). Public Act 88-621 also amended OMA to add the general requirement in\nsection 2(b) that \"exceptions are to be strictly construed, extending only to subjects clearly\nwithin their scope [ ]\" and mirrored that language as a statement of policy under section 1 of\nOMA: \"The provisions for exceptions to the open meeting requirements shall be strictly\nconstrued against closed meetings.\" See Public Act 88-621 (amending 5 ILCS 120/1, 2 (West\n1994)). In summarizing the amendments before the final vote in the Senate, Senator Berman\nstated, \"[w]e have clarified certain language to define better what the subject matters are that can\nbe held in closed session.\" Remarks of Sen. Berman, May 11, 1994, Senate Debate on House\nBill No. 1332, at 12.\nThis office's confidential review of the closed session minutes and each of the\nclosed session verbatim recordings confirmed that the Board exceeded the scope of section\n2(c)(6) by discussing myriad subjects beyond setting the price for sale of the subject property.\nThe Board's discussion is markedly more expansive than the school board discussion in the\nPublic Access Bureau determination analyzing section 2(c)(6) that the Board cited in its response\nto this office. In that matter, a school board that was in the process of negotiating a property sale\ndiscussed in closed session \"the setting of the price of the property in light of financial\ncircumstances involving the Village of Lisle.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 63270, at 3.\nThe Public Access Bureau determined that \"discussions concerning the village are intertwined\nwith the property's price and related directly to the Board's consideration of ways to keep the set\nprice for the buyer.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 63270, at 3. Accordingly, the Public\nAccess Bureau concluded the Board did not exceed the scope of section 2(c)(6) of OMA because\n\"[i]t appears from the context of the Board's discussion that the circumstances involving the\n2Before Public Act 88-621 amended OMA, the exception that permitted public bodies to enter\nclosed session to discuss real estate transactions applied to \"meetings where the acquisition of real property is being\nconsidered or where the selling price ofr eal estate is being considered[.]\" 5 ILCS 120/2(c) (West 1992).\nMs. Melissa Grisoni\nThe Honorable Kari Dillon\nApril 25, 2023\nPage 7\nvillage could not have been considered in isolation because they directly bore upon the setting of\nthe price for sale of the property.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 63270, at 3.73\nIn this matter, the closed session verbatim recording shows that members of the\nBoard made clear at numerous times that the minimum price of the subject property was already\nset and that the Board had no imminent plans for changing the price. After the Board returned to\nopen session to consider bids, the President of the Board confirmed that the minimum price was\nunchanged:\nIf the board votes to reject the bids tonight, the property\nwill remain for sale at the minimum $55 million and the board will\ncontinue to accept offers, communicate and negotiate with\npotential buyers in the coming weeks in order to achieve our\noverall goal of selling the property.“\nPortions of the two closed sessions touch on the price of the property in relation to\ncurrent bids and the actions the Board may take following acceptance or rejection of the bids.\nHowever, while the discussions contained brief comments contemplating that it may be\nnecessary to change the price in the future, the Board did not actively consider setting another\nprice. Rather, the Board's discussions focused on various topics related to a property sale such as\nprocesses concerning the marketing and selling of the property that might play out upon rejection\nof the current bids. Although each of the topics discussed by the Board related to the potential\nsale of the property, they were not intertwined with the topic of setting the price for the property\nto the extent that they could not be discussed separately, as the Board argued. Thus, the\ndiscussion cannot be accurately described as \"setting the price\" for a sale of property when that\nterm is narrowly construed in accordance with the General Assembly's clear intent.\n3The other determination cited by the Board, III. Att'y Gen. PAC Req. Rev. Ltr. 30925, concerned\na closed session discussion under section 2(c)(5) rather than section 2(c)(6) of OMA. Based on its review oft he\nverbatim closed session recording, the Public Access Bureau determined that the \"discussion continually returned to\nthe topic of purchasing property, though the discussion veered into somewhat extraneous matters at times[,]\" and\nthat \"the portions of the discussion that could potentially be considered to exceed the scope of the exception are\nsubstantially intertwined with the portions oft he discussion that fall within the scope of the exception.\" III. Att'y\nGen. PAC Req. Rev. Ltr. 30925, at 4. This office did not, however, determine that the entire discussion was\npermissible under OMA. Instead, the Public Access Bureau observed that if any portion did exceed the scope oft he\nsection 2(c)(5) exception, there would be no further remedy because the public body had already publicly disclosed\nand made available the closed session verbatim recording. Ill. Att'y Gen. PAC Req. Rev. Ltr. 30925, at 4. Because\nthe determination did not address section 2(c)(6) or conclude that a public body is permitted to discuss in closed\nsession topics that are pertinent to but not within the scope of an exception in section 2(a) of OMA, it is not relevant\nto this matter.\n41 yons Township High School District 204 Board of Education, Regular Meeting, January 23,\n2023, Minutes 7.\nMs. Melissa Grisoni\nThe Honorable Kari Dillon\nApril 25, 2023\nPage 8\nAccordingly, this office concludes that the Board's closed session discussions\nwere not authorized by section 2(c)(6) of OMA and therefore violated section 2(a) of OMA.\nFINDINGS AND CONCLUSIONS\nAfter full review and giving due consideration to the arguments of the parties, the\nPublic Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On February 10, 2023, the Public Access Bureau received a Request for\nReview from Ms. Melissa Grisoni alleging that the Lyons Township High School District 204\nBoard of Trustees violated OMA on multiple occasions, including by exceeding the scope of the\nexception that it cited to enter closed session twice at its January 23, 2023, meeting. Ms.\nGrisoni's Request for Review was timely filed and otherwise complies with the requirements of\nsection 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2020)).\n2) On February 16, 2023, the Public Access Bureau sent a copy of the Request\nfor Review to the Board and asked the Board to provide copies of its meeting agendas, open and\nclosed session minutes, and verbatim recordings of Board meetings from March 1, 2022, to\npresent. The Public Access Bureau also asked the Board to provide a written response to the\nallegation that it exceeded the scope of section 2(c)(6) of OMA during the closed session portion\nof its meeting on January 23, 2023.\n3) On March 8, 2023, the Public Access Bureau received the Board's written\nresponse. On that same date, the Public Access Bureau forwarded the Board's written response\nto Ms. Grisoni. On March 9, 2023, the Public Access Bureau received a verbatim recording of\nthe Board's January 23, 2023, meeting.\n4) On March 14, 2023, Ms. Grisoni submitted her reply to the Board's written\nresponse and limited the scope of her Request for Review to her allegation that the Board\nexceeded the scope of section 2(c)(6) of OMA during closed sessions at its January 23, 2023,\nmeeting.\n5) On April 10, 2023, this office extended the time within which to issue a\nbinding opinion by 21 business days, to May 10, 2023. Accordingly, the Attorney General may\nproperly issue a binding opinion with respect to this matter.\n6) Section 2(a) of OMA requires that all meetings of public bodies be open to the\npublic unless the subject of the meeting is covered by one of the limited exceptions enumerated\nin section 2(c). Section 2(c)(6) permits a public body to close a portion of a meeting to discuss\n\"t]he setting of a price for sale or lease of property owned by the public body.\"\nMs. Melissa Grisoni\nThe Honorable Kari Dillon\nApril 25, 2023\nPage 9\n7) On January 23, 2023, the Board closed two portions of its meeting to the\npublic to discuss what the Board's response to this office characterized as the next steps in\nmarketing and selling a parcel of property. The Board also discussed in closed session additional\ntopics related to the potential sale of the property, but it did not discuss setting the price of the\nproperty.\n8) The section 2(c)(6) exception did not authorize the Board to enter closed\nsession to discuss marketing and selling the property when the discussion did not directly pertain\nto setting the price for sale of the property. The Board's closed session discussions considered\npossible courses of action and scenarios that might occur following the Board's potential\nrejection of bids, which do not fall within the scope of section 2(c)(6) of OMA, or any other\nexception to the general requirement that public bodies conduct public business openly.\nTherefore, this office concludes that the Board's discussions violated section 2(a) of OMA.\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to remedy this violation by disclosing to Ms. Grisoni and making publicly available the\nclosed session verbatim recordings and closed session minutes of its January 23, 2023, meeting.\nAs required by section 3.5(e) of OMA, the Board shall either take necessary action as soon as\npractical to comply with the directives of this opinion or shall initiate administrative review\nunder section 7.5 of OMA. 5 ILCS 120/7.5 (West 2020).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Ms.\nMelissa Grisoni as defendants. See 5 ILCS 120/7.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nrent D. Stratton\nChief Deputy Attorney General\nMs. Melissa Grisoni\nThe Honorable Kari Dillon\nApril 25, 2023\nPage 10\nee Mr. Brian P. Crowley\nPartner\nFranezek P.C.\n300 South Wacker Drive, Suite 3400\nChicago, Illinois 60606\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 23-005) upon:\nMs. Melissa Grisoni\n11508 Burr Oak Lane\nBurr Ridge, Illinois 60527\nmelissagrisoni@gmail.com\nThe Honorable Kari Dillon\nPresident\nBoard of Education\nLyons Township High School District 204\n100 South Brainard Avenue\nLaGrange, Illinois 60525\nboe@lths.net\nMr. Brian P. Crowley\nPartner\nFranczek P.C.\n300 South Wacker Drive, Suite 3400\nChicago, Illinois 60606\nbpc@franezek.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on April 25, 2023.\na“\nre\nSteve Silverman\nBureau Chief\nSteve Silverman\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Lyons Township High School District 204 Board of Education held a closed-door meeting to discuss the sale of property. The Illinois Attorney General found that the Board went beyond the legal rules for closed meetings by discussing topics that did not qualify for the property-sale exception. This means the Board failed to conduct public business in an open and transparent manner as required by law.","card_headline":"Closed-session discussion of property sale or lease pricing","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":166,"orig_master_id":19369,"dup_master_id":19140,"dup_sha256":"01fd4f1b4e2678cf0f16971341c1f81d276ad7987d5628e4d9010aa645f07a5f","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-05-03","case_number":"2023 PAC 75510","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 23-006 (Request for Review - 2023 PAC 75510).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 23-006 (Request for Review - 2023 PAC 75510).pdf","word_count":2757,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act (FOIA) request submitted by Mr. Brian Slodysko to the Chicago Public Library. It concludes that the Library violated FOIA by failing to appropriately respond to the request.","plain_summary":"The requester, a reporter for the Associated Press, sought correspondence between a public library and a Supreme Court Justice's staff about a scheduled appearance, and the library repeatedly failed to substantively respond despite extending its deadline and promising updates. The Public Access Counselor held that the library violated section 3(d) of FOIA by failing to comply with, deny, or properly respond to the request within the statutory period. The library was directed to disclose all records responsive to the request, subject only to permissible redactions.","holding":"The Chicago Public Library violated section 3(d) of FOIA by failing to comply with the FOIA request.","legal_question":"Did the Chicago Public Library violate the Freedom of Information Act by failing to respond to a FOIA request?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Public Library","requesting_party":"Mr. Brian Slodysko","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"duty to respond","subject_description":"The request sought email correspondence related to Supreme Court Justice Sonia Sotomayor's 2018 appearance at a Chicago Public Library event.","ocr_status":"ok","ocr_quality":89.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-006.pdf","sha256":"bb4617dcd86db867f380fa2e1c58f8ef2335bdfc73d7fb408d8619663c8ca09a","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA deadline","duty to respond","email correspondence","public library records"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nMay 3, 2023\nPUBLIC ACCESS OPINION 23-006\n(Request for Review 2023 PAC 75510)\nFREEDOM OF INFORMATION ACT:\nDuty to Respond to FOIA Requests\nMr. Brian Slodysko\nNational Political Reporter\nAssociated Press\n1100 13th Street N.W.\nWashington, District of Columbia 20005\nMr. Patrick Molloy\nDirector of Government & Public Affairs\nChicago Public Library\n[street address redacted for site publication -- see original PDF]\nDear Mr. Slodysko and Mr. Molloy:\nThis binding opinion is issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons\ndiscussed below, this office concludes that the Chicago Public Library (Library) violated section\n3(d) of FOIA (5 ILCS 140/3(d) (West 2020)) by failing to comply with, deny in whole or in part,\nor otherwise appropriately respond to a FOJA request submitted by Mr. Brian Slodysko.\nBACKGROUND\nOn December 13, 2022, Mr. Slodysko, on behalf of the Associated Press,\nsubmitted a FOIA request to the Library seeking copies of certain correspondence related to\nSupreme Court Justice Sonia Sotomayor's appearance at an October 12, 2018, Library event.' In\nparticular, Mr. Slodysko sought e-mail correspondence from April 1, 2018, through November 1,\n'E-mail from CPL Webmaster to CPL FOIA (December 13, 2022).\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © ‘I’ l’Y: (877) 844-5461 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © T’T'Y: (800) 964-3013 ¢ Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © ‘I’ PY: (877) 675-9339 © Fax (618) 529-6416 = ECCI):\nMr. Brian Slodysko\nMr. Patrick Molloy\nMay 3, 2023\nPage 2\n2018, between the Library and Justice Sotomayor or her staff concerning the justice's visit.2_ On\nDecember 14, 2022, the Library's Director of Marketing and Communications sent Mr. Slodysko\nan e-mail acknowledging receipt of his FOIA request and notifying him that the Library was\nextending its time to respond by up to five business days. The Library stated that it would\nrespond to Mr. Slodysko's request by December 27, 2022.7 On February 1, 2023, Mr. Slodysko\nsent an e-mail to the Library noting that he had not received a response and asking for a\ntimeframe in which the Library would provide the requested records.‘\nOn February 15, 2023, Mr. Slodysko submitted a Request for Review to the\nPublic Access Counselor alleging that the Library had failed to provide a substantive response to\nhis FOIA request.> On February 21, 2023, the Public Access Bureau forwarded a copy of the\nRequest for Review to the Library and asked whether the Library had provided a substantive\nresponse to Mr. Slodysko's FOIA request.® The February 21, 2023, letter also requested that if\nthe Library had not yet responded to Mr. Slodysko, it do so and provide this office with a copy of\nits response.’\nOn March 3, 2023, Mr. Patrick Molloy, the Library's Director of Government &\nPublic Affairs, e-mailed Mr. Slodysko, and copied this office, to provide an update on the\nLibrary's response. Mr. Molloy stated that the Library planned to expand its search for\nresponsive records by including certain e-mail addresses in its search and would \"respond with\nrecords responsive to the entire FOIA as soon as possible.\"® On March 14, 2023, this office\nreplied to Mr. Molloy's e-mail to ask whether the Library had completed its response to Mr.\n?E-mail from CPL Webmaster to CPL FOIA (December 13, 2022).\n3E-mail from Shamil Clay, M.A., Director of Marketing & Communications, Chicago Public\nLibrary, to Brian Slodysko, [National Political Reporter, Associated Press] (December 14, 2022).\n‘E-mail from Brian Slodysko, National Political Reporter, Associated Press, to Shamil [Clay,\nDirector of Marketing & Communications, Chicago Public Library] (February 1, 2023).\nE-mail from Brian Slodysko, National Political Reporter, Associated Press, to Public Access\n[Bureau, Office of the Attorney General] (February 15, 2023).\nSLetter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Shamil Clay, Director of Marketing and Communications, Chicago Public Library (February 21, 2023).\nLetter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Shamil Clay, Director of Marketing and Communications, Chicago Public Library (February 21, 2023).\n8E-mail from Patrick Molloy, Director of Government & Public Affairs, Chicago Public Library,\nto Brian [Slodysko, National Political Reporter, Associated Press] (March 3, 2023).\nMr. Brian Slodysko\nMr. Patrick Molloy\nMay 3, 2023\nPage 3\nSlodysko's FOIA request.’ This office did not receive a response to its March 14, 2023, e-mail.\nOn March 17, 2023, Mr. Slodysko informed this office that he had not yet received a substantive\nresponse to his FOIA request despite exchanging e-mails with Mr. Molloy to set parameters for a\nsearch of its records.'° This office then e-mailed the Library to ask for an estimate as to when it\nwould respond to Mr. Slodysko.!' This office did not receive a response to its March 17, 2023,\ne-mail.\nOn March 24, 2023, the Public Access Bureau e-mailed Mr. Molloy a letter\nexplaining that the Public Access Bureau had not received any indication that the Library had\nsubstantively responded to Mr. Slodysko's FOIA request.'? This office also attached to the e-\nmail copies of our March 17, 2023, correspondence to the Library and Mr. Slodysko's Request\nfor Review.'? On April 12, 2023, Mr. Slodysko e-mailed Mr. Molloy, copying this office,\nseeking a status update on the Library's response: \"Can you provide a sense of timeline for\nproviding the documents we requested? I understand this is a time consuming task and we want\nto be accommodating. At the same time, this matter has been pending since December and we\nare eager to get the documents we seek.\"'* Neither Mr. Slodysko nor this office received a\nresponse to their correspondence.!>\n°E-mail from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to [Patrick] Molloy, [Director of Government & Public Affairs, Chicago Public Library] (March 14, 2023).\n'0F-mail from Brian [Slodysko, National Political Reporter, Associated Press] to Laura [Harter,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General] (March 17, 2023).\n''E-mail from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office oft he\nAttorney General, to [Patrick] Molloy, Director of Government & Public Affairs, Chicago Public Library] (March\n17, 2023).\nE-mail from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to [Patrick Molloy, Director of Government & Public Affairs, Chicago Public Library] (March\n24, 2023).\n'3Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Patrick Molloy, Director of Government & Public Affairs, Chicago Public Library (March 24, 2023).\n'4E-mail from Brian Slodysko, National Political Reporter, Associated Press, to Patrick [Molloy,\nDirector of Government & Public Affairs, Chicago Public Library] (April 12, 2023).\n'5E-mail from Brian [Slodysko, National Political Reporter, Associated Press] to Laura [Harter,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General] (April 24, 2023).\nMr. Brian Slodysko\nMr. Patrick Molloy\nMay 3, 2023\nPage 4\nOn April 17, 2023, this office extended the time within which to issue a binding\nopinion by 30 business days, to May 30, 2023, pursuant to section 9.5(f) of FOIA.'!® On April\n24, 2023, Mr. Slodysko confirmed for this office that he had not received a response to his\nDecember 13, 2023, FOIA request.!”\nAs of the date of the issuance of this binding opinion, this office has not received\nconfirmation from the Library or Mr. Slodysko that the Library has responded to the FOIA\nrequest at issue in this matter.\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS\n140/1 (West 2020). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2020)), \"[a]ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"\nSection 3(a) of FOIA (5 ILCS 140/3(a) (West 2020)) provides that \"[e]ach public body shall\nmake available to any person for inspection or copying all public records, except as otherwise\nprovided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides:\nEach public body shall, promptly, either comply with or\ndeny a request for public records within 5 business days after its\nreceipt of the request, unless the time for response is properly\nextended under subsection (e) of this Section. Denial shall be in\nwriting as provided in Section 9 of this Act. Failure to comply\nwith a written request, extend the time for response, or deny a\nrequest within 5 business days after its receipt shall be considered\na denial of the request. A public body that fails to respond to a\nrequest within the requisite periods in this Section but thereafter\nprovides the requester with copies of the requested public records\nmay not impose a fee for such copies. A public body that fails to\nrespond to a request received may not treat the request as unduly\nburdensome under subsection (g).\nSection 3(e) of FOIA (5 ILCS 140/3(e) (West 2020)) permits a public body to extend its\nresponse time by no more than five business days for any of seven enumerated reasons. Any\n'6] etter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Brian Slodysko, National Political Reporter, Associated Press, and Patrick Molloy, Director of\nGovernment & Public Affairs, Chicago Public Library (April 17, 2023).\n“E-mail from Brian [Slodysko, National Political Reporter, Associated Press] to Laura [Harter,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General] (April 24, 2023).\nMr. Brian Slodysko\nMr. Patrick Molloy\nMay 3, 2023\nPage 5\nadditional extension requires a written agreement between the requester and the public body. 5\nILCS 140/3(e) (West 2020).\nOn December 14, 2022, the Library extended its time to respond to Mr.\nSlodysko's FOIA request by five business days, referencing language in section 3(e) of FOIA\nthat permits such an extension when \"the requested records are stored in whole or in part at other\nlocations than the office having charge of the requested records;\" \"the request requires the\ncollection of a substantial number of specified records;\" \"the request is couched in categorical\nterms and requires an extensive search for the records responsive to it;\" and \"the request for\nrecords cannot be complied with by the public body within the time limits prescribed by\nsubsection (d) of this Section without unduly burdening or interfering with the operations of the\npublic body[.]\" 5 ILCS 140/3(e)(i), (e)(ii), (e)(iii), (e)(vi) (West 2020).'® However, the Library\nneither complied with the request nor denied the request in writing within the extended response\nperiod or thereafter. Further, Mr. Slodysko did not agree in writing to extend the response period\nbeyond five business days. The failure of the Library to comply with the requisite response\nprocedures violated section 3(d) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On December 13, 2022, Mr. Brian Slodysko, on behalf of the Associated\nPress, submitted a FOIA request to the Chicago Public Library seeking copies of e-mail\ncorrespondence concerning Supreme Court Justice Sonia Sotomayor's appearance at an October\n12, 2018, Library event. On December 14, 2022, the Library acknowledged receiving Mr.\nSlodysko's FOIA request and extended its time to respond by five business days.\n2) On February 15, 2023, Mr. Slodysko submitted a Request for Review to the\nPublic Access Counselor alleging that the Library had failed to respond to his FOIA request. Mr.\nSlodysko's Request for Review was timely filed and otherwise complies with the requirements of\nsection 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)).\n3) On February 21, 2023, the Public Access Bureau forwarded a copy of the\nRequest for Review to the Library and asked whether the Library had provided a substantive\nresponse to Mr. Slodysko's FOIA request. The February 21, 2023, letter also requested that if\nthe Library had not yet responded to Mr. Slodysko, it do so and provide this office with a copy of\nits response.\n'8E-mail from Shamil Clay, Director of Marketing & Communications, Chicago Public Library, to\n[Brian Slodysko, National Political Reporter, Associated Press] (December 14, 2023).\nMr. Brian Slodysko\nMr. Patrick Molloy\nMay 3, 2023\nPage 6\n4) The Library did not directly respond to that letter but, on March 3, 2023, the\nLibrary's Director of Government and Public Affairs copied this office on an e-mail to Mr.\nSlodysko which stated that the Library planned to expand its search for responsive records and\nwould respond as soon as possible.\n5) On March 17, 2023, Mr. Slodysko informed this office that the Library still\nhad not substantively responded to his request.\n6) On March 24, 2023, the Public Access Bureau sent a second letter and copies\nof its previous correspondence to the Library's Director of Government and Public Affairs,\nexplaining that the Public Access Bureau had not received any indication that the Library had\nprovided a substantive response to Mr. Slodysko's FOIA request. The Library did not respond to\nthat letter.\n7) On April 17, 2023, the Public Access Bureau extended the time in which to\nissue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA (5 ILCS\n140/9.5(f) (West 2020)). Therefore, the Attorney General may properly issue a binding opinion\nwith respect to this matter.\n8) As of the date of the issuance of this binding opinion, this office has received\nno information indicating that the Library has provided a substantive response to Mr. Slodysko's\nDecember 13, 2022, FOIA request.\nTherefore, it is the opinion of the Attorney General that the Chicago Public\nLibrary has violated section 3(d) of FOIA by failing, within the statutory time for responding to\nMr. Slodysko's December 13, 2022, FOIA request, to provide him with copies of the requested\nrecords or to deny the request in writing in whole or in part. Accordingly, the Library is hereby\ndirected to take immediate and appropriate action to comply with this opinion by providing Mr.\nSlodysko with copies of all records responsive to his December 13, 2022, request, subject only to\npermissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2021 Supp.), as\namended by Public Acts 102-752, effective January 1, 2023; 102-753, effective January 1, 2023;\n102-776, effective January 1, 2023; 102-791, effective May 13, 2022; 102-1055, effective June\n10, 2022).'° If the Library determines that any portion of the responsive records is exempt from\ndisclosure under section 7, it is directed to issue a written denial that fully complies with the\nrequirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2020)).\n‘Because the Library did not comply with the statutory requirements for responding to Mr.\nSlodysko's FOIA request, the Library is precluded from treating the request as unduly burdensome or imposing\ncopying fees for the responsive records. 5 ILCS 140/3(d) (West 2020).\nMr. Brian Slodysko\nMr. Patrick Molloy\nMay 3, 2023\nPage 7\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seg. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision naming the Attorney General of Illinois and Mr.\nSlodysko as defendants. See 5 ILCS 140/11.5 (West 2020).\nSincerely,\nKWAME RAOUL\nATTORNEY GENERAL\n) ‘5\nBy:\nBrent D. Stratton\nChief Deputy Attorney General\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 23-006) upon:\nMr. Brian Slodysko\nNational Political Reporter\nAssociated Press\n1100 13th Street N.W.\nWashington, District of Columbia 20005\nbslodysko@ap.org\nMr. Patrick Molloy\nDirector of Government & Public Affairs\nChicago Public Library\n400 South State Street\nChicago, Illinois 60605\npmolloy@chipublib.org\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on May 3, 2023.\nSteve Silverman\nBureau Chief\nSteve Silverman\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under FOIA, a public body must comply with, deny in whole or in part, or otherwise respond to a request within the statutory timeframe; silence or inaction is not a permissible option. Here, the decisive fact was that the Library simply failed to issue any timely, substantive response to the request for correspondence about a public event, leaving the requester without a compliant answer or denial. Because the statute requires an affirmative response of some kind, mere non-response constitutes a per se violation regardless of the underlying merits of withholding any records, and this reasoning applies equally to any FOIA request left unanswered by a public body.","card_headline":"Emails about a Supreme Court justice's library event","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":167,"orig_master_id":19368,"dup_master_id":19141,"dup_sha256":"15adddd798a79149a963d4c60af242427088d75bedc31696dcb02b633d90b054","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-03-27","case_number":"2023 PAC 74927","request_numbers":null,"title":"Requirement to Provide General Subject Matter of Personnel Transactions on Meeting Agenda","filename":"PUBLIC ACCESS OPINION 23-004 (Request for Review - 2023 PAC 74927).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 23-004 (Request for Review - 2023 PAC 74927).pdf","word_count":6622,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a violation of the Open Meetings Act by the Board of Education of Township High School District 214 for not providing the general subject matter of a personnel transaction on their meeting agenda.","plain_summary":"The requester, a member of the public, alleged that a school board approved a $183,000 severance agreement with an administrator under a vaguely labeled \"Personnel Transaction Report\" without disclosing the general subject matter on its meeting agenda. The Public Access Counselor held that an agenda item referencing only a personnel exception, without identifying even the general type of employee or transaction involved, failed to satisfy the Open Meetings Act's requirement to disclose the general subject matter of anticipated final action. The board was directed to re-vote the severance agreement under a properly detailed agenda item and to identify the type of employee and transaction on future agendas.","holding":"The Board of Education violated section 2.02(c) of the Open Meetings Act.","legal_question":"Did the Board of Education violate the Open Meetings Act by failing to provide the general subject matter of a personnel transaction on the meeting agenda?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.02(c)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Board of Education of Township High School District 214","requesting_party":"Mr. Tim Burns","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"Approval of a severance agreement with an assistant superintendent that was not properly described on the meeting agenda.","ocr_status":"ok","ocr_quality":89.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-004.pdf","sha256":"84415e969a546ab966fc37d67f1b5ef619ca05c47f2c41bfeae0d1003700ca23","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["meeting agenda","personnel transaction","severance agreement","general subject matter","open meetings"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nMarch 27, 2023\nPUBLIC ACCESS OPINION 23-004\n(Request for Review 2023 PAC 74927)\nOPEN MEETINGS ACT:\nRequirement to Provide General\nSubject Matter of Personnel\nTransactions on Meeting Agenda\nMr. Tim Burns\n[street address redacted for site publication -- see original PDF]\nThe Honorable William (Bill) Dussling\nPresident, Board of Education\nTownship High School District 214\n2121 South Goebbert Road\nArlington Heights, Illinois 60005\nDear Mr. Burns and Mr. Dussling:\nThis binding opinion is issued by the Attorney General pursuant to section 3.5(e)\nof the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons discussed\nbelow, this office concludes that the Board of Education (Board) of Township High School\nDistrict 214 (District) violated section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2020)) during\nits September 15, 2022, meeting by taking final action to approve a severance agreement with an\nassistant superintendent without setting forth the general subject matter of that vote on the posted\nmeeting agenda.\nBACKGROUND\nOn January 5, 2023, Mr. Tim Burns submitted a Request for Review to the Public\nAccess Bureau alleging that the Board violated OMA during its September 15, 2022, meeting by\nvoting to approve \"an elaborate multi-page severance agreement\" involving a payout of $183,274\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © TTY: (877) 844-5461 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 ¢ (312) 814-3000 © TTY: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 (618) 529-6400 ¢ T’TY: (877) 675-9339 © Fax (618) 529-6416 -€&6ccneT >>»\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 2\nto an assistant superintendent without setting forth the general subject matter of that final action\non the agenda.' He stated that he became aware of the alleged violation from two news articles\npublished by the Daily Herald on December 2, 2022,” and December 22, 2022,? and argued that\nthe relevant facts were not reasonably knowable by the public until that time because the\nseverance agreement was neither announced publicly at nor listed in the minutes of the\nSeptember 15, 2022, meeting.* The agenda items in question provided:\n10. Closed session\nFor the purpose of discussing\n* The appointment, employment, compensation, discipline,\nperformance, or dismissal of specific employees of the public\nbody 5 ILCS 120/2(c)(1), amended by P.A. 101- 459.\nImmediately following closed session, action may take place as\na result of closed session discussion.\n11. Reconvene in open session\n¢ The appointment, employment, compensation,\ndiscipline, performance, or dismissal of specific employees\nof the public body 5 ILCS 120/2(c)(1), amended by P.A. 101-\n459\nImmediately following closed session, action may take place as\na result of closed session discussion.'!\nOn January 9, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the School Board President, Mr. William (Bill) Dussling. The Public Access Bureau\n‘Letter from Tim Burns to Public Access Counselor, Office of the Attorney General (January 5,\n2023), at 1-2.\nChristopher Placek, Superintendent's departure isn't only administrative turnover in District 214,\nDAILY HERALD (Dec. 2, 2022, 4:55 p.m.), https://www.dailyherald.com/news/2022 1202/superintendents-departure-\nisnt-only-administrative-turnover-in-district1-42 (last visited January 30, 2022).\nChristopher Placek, Ex-District 214 business chiefp aid $183,000 as part of mysterious\ndeparture, DAILY HERALD (Dec. 22, 2022, 6:52 p.m.), https://www.dailyherald.com/news/2022 1222/ex-district-2 14-\nbusiness-chief-paid-183000-as-part-of-mysterious-departure (last visited January 30, 2022).\n‘Letter from Tim Burns to Public Access Counselor, Office of the Attorney General (January 5,\n2023), at 1-2.\n°Township High School District 214 Board of Education, Agenda Item 10, Closed Session\n(September 15, 2022).\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 3\nalso sent Mr. Dussling a letter asking for copies of any notices, agendas, minutes, and recordings\nof the Board's September 15, 2022, open session meeting for this office's review.® This office\nalso asked the Board to respond in writing to the allegation that it improperly took final action on\nthe severance agreement because it omitted the general subject matter of the agreement from the\nagenda.’\nOn January 18, 2023, counsel for the Board provided the Public Access Bureau\nwith copies of the agenda and open session minutes, and a written response denying that the\nBoard violated OMA.® The Board's attorney also argued that Mr. Burns' complaint should be\ndismissed as untimely.” On January 18, 2023, this office forwarded a copy of the Board's\nresponse letter to Mr. Burns.!° On January 27, 2023, he submitted a reply.!!\nOn March 3, 2023, this office extended the time within which to issue a binding\nopinion by 21 business days, to April 4, 2023.'2\nANALYSIS\n\"The Open Meetings Act provides that public agencies exist to aid in the conduct\nof the people's business, and that the intent of the Act is to assure that agency actions be taken\nSLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to The Honorable William (Bill) Dussling, President, Board of Education, Township High School District\n214 (January 9, 2023), at 1.\nLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to The Honorable William (Bill) Dussling, President, Board of Education, Township High School District\n214 (January 9, 2023), at 1.\n8Letter from Elizabeth Kelly, On behaolff District 214, Kriha Boucek, to Joshua M. Jones, Deputy\nBureau Chief, PAC, Office of the Attorney General (January 18, 2023).\n*Letter from Elizabeth Kelly, On behalf of District 214, Kriha Boucek, to Joshua M. Jones, Deputy\nBureau Chief, PAC, Office of the Attorney General (January 18, 2023), at 7-9.\n'0T etter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Tim Burns (January 18, 2023).\n\"Letter from Tim Burns to Public Access Counselor, Office of the Attorney General (January 27,\n2023).\nLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Tim Burns and Elizabeth Kelly, Kriha Boucek (March 3, 2023).\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 4\nopenly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d\n161, 171 (Sth Dist. 1989).\nAuthority for Review\nAs an initial matter, the Board argued that Mr. Burns' Request for Review\n\"was not timely and, therefore, should be dismissed.\"'? Section 3.5(a) of OMA (5 ILCS\n120/3.5(a) (West 2020)) provides, in relevant part:\nA person who believes that a violation of this Act by a\npublic body has occurred may file a request for review with the\nPublic Access Counselor established in the Office of the Attorney\nGeneral not later than 60 days after the alleged violation. If facts\nconcerning the violation are not discovered within the 60-day\nperiod, but are discovered at a later date, not exceeding 2 years\nafter the alleged violation, by a person utilizing reasonable\ndiligence, the request for review may be made within 60 days\nof the discovery of the alleged violation. (Emphasis added.)\nThe Board argued that the Public Access Counselor lacks the authority to review\nMr. Burns' allegations because:\n[O]n September 15, 2022, the Board publicly recited its vote on\nPersonnel Transaction Report II. This action was done publicly in\nfront of anyone in attendance at the meeting that evening, as well\nas virtually before any person electing to live-stream the Board's\nmeeting that night. Moreover, following the Board's public action\non Personnel Transaction Report II that evening, a copy of the\nReport was available for public inspection. Further, had a member\nof the public not been able to attend the September 15, 2022,\nmeeting or live-stream it, they could have reviewed the minutes\nfrom that evening's meeting after they were approved on October\n20, 2022, and posted online on October 25, 2022. In those minutes,\nit specifically states that the Board approved Personnel Report\n‘Letter from Elizabeth Kelly, On behaolff District 214, Kriha Boucek, to Joshua M. Jones,\nDeputy Bureau Chief, PAC, Office of the Attorney General (January 18, 2023), at 7.\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 5\nTransaction II. This was all done more than 60 days prior to Mr.\nBurns' Request for Review.!'41\nThe Board added that a recording of the meeting was available for anyone to review on the\nDistrict's website from September 21, 2022, to date, and that \"Personnel Transaction Report II\"\ncould have been requested after the meeting pursuant to the Freedom of Information Act (FOIA)\n(5 ILCS 140/1 et seg. (West 2020)). The Board claimed that Mr. Burns did not exercise\nreasonable diligence in relation to the alleged violation because:\nA reasonable person seeking to stay present on Board actions\nwould have either attended the meeting, watched the live-stream of\nthe meeting, reviewed the meeting minutes, or watched the\nrecorded meeting to learn that action was taken on September 15,\n2022, concerning a personnel matter outlined on Personnel\nTransaction Report II.!!5]\nIn reply, Mr. Burns argued that a person using reasonable diligence would not\nhave realized that the Board was considering approving a severance agreement for a District\nadministrator during its September 15, 2022, meeting because several other local school districts\nhad posted sufficiently informative agenda items when considering similar personnel moves.!°\nNoting that the agenda included a separate agenda item for \"[a]pproval of Personnel Transaction\nReport\"!’ that the Board acted on earlier in the meeting,!* he contended: \"When the public first\nheard of the passing of 'Personnel Transaction Report 2' it believed that Personnel Transaction\nReport 2 was something miniscule or routine as 'Personnel Transaction Report 1' which had a\nvery similar title [and] was very much routine and featured general personnel matters.\"!”\n'4Letter from Elizabeth Kelly, On behalf of District 214, Kriha Boucek, to Joshua M. Jones,\nDeputy Bureau Chief, PAC, Office of the Attorney General (January 18, 2023), at 8.\n'SLetter from Elizabeth Kelly, On behalf of District 214, Kriha Boucek, to Joshua M. Jones,\nDeputy Bureau Chief, PAC, Office of the Attorney General (January 18, 2023), at 8.\n'SLetter from Tim Burns to Public Access Counselor, Office of the Attorney General (January 27,\n2023), at 1-2.\n\"Township High School District 214 Board of Education, Agenda Item 8.2, Closed Session\n(September 15, 2022).\n'8Township High School District 214 Board of Education, Meeting, September 15, 2022, Minutes\n[2].\n‘ST etter from Tim Burns to Public Access Counselor, Office of the Attorney General (January 27,\n2023), at 7-8.\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 6\nThe minutes of the September 15, 2022, meeting and the Board's public recital\nduring the meeting do not mention the action the Board took to approve a severance agreement.\nA member of the public who attended the September 15, 2022, Board meeting and subsequently\nobtained the minutes upon their approval on October 25, 2022, would still have had no\nunderstanding that the Board approved the severance agreement by adopting \"Personnel\nTransaction Report II.\" As discussed further below, the Board did not describe any contents of\n\"Personnel Transaction Report IJ\" during open session on September 15, 2022, and the minutes\nsimilarly refer only to \"Approval of Personnel Transaction Report II\" rather than the Board's vote\nto approve the severance agreement.”° Moreover, the Board did not claim that it posted the\nexecuted severance agreement on its website, but instead claimed that the public could have\nrequested it under FOIA. Nevertheless, the Board did not demonstrate that \"utilizing reasonable\ndiligence\" requires submitting a FOIA request when an agenda item, open session discussion,\nand minutes are too generic for the public to ascertain the final action taken.\nOMA does not define \"reasonable diligence,\" and there are no published cases in\nwhich an Illinois reviewing court has interpreted that term. \"When presented with an issue of\nstatutory construction, [a court's] primary objective is to ascertain and give effect to the intent of\nthe legislature.\" Better Government Ass'n v. Ill. High School Ass'n, 2017 IL 121124, 422, 89\nN.E.3d 376, 383 (2017). \"Where the meaning of a statute is unclear from a reading of its\nlanguage, courts may look beyond the statutory language and consider the purpose of the law,\nthe evils it was intended to remedy, and the legislative history of the statute.\" Johnston vy. Weil,\n241 Ill. 2d 169, 175-76 (2011).\nThe General Assembly added the \"reasonable diligence\" provision to section\n3.5(a) of OMA to fix the problem of secret meetings going undiscovered during the 60-day\nwindow for submitting Requests for Review. Representative David McSweeney, House sponsor\nof the bill that, as Public Act 99-402, effective August 19, 2015, added the \"reasonable\ndiligence\" exception to the statute, explained during the House floor debate:\nHouse Bill 175 would simply reform the Open Meetings Act by\nallowing problems with any violations to be reported 60 days after\ndiscovery instead of 60 days after the date of the meeting. In my\narea, there was a power plant that was being built within 300 yards\nof a school. There were secret meetings and there was no recourse.\n* * * We placed a two-year limit on it.!7!!\n°Township High School District 214 Board of Education, Meeting, September 15, 2022, Minutes\n[3].\n21Remarks of Rep. McSweeney, March 5, 2015, House Debate on House Bill No. 175, at 11.\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 7\nLocal news media reported the context behind the bill:\nMcSweeney filed the legislation in response to what was\npotentially an illegal July 2013 meeting by the Oakwood Hills\nVillage Board in which it discussed in closed-session the monetary\nwindfall that would come from the building of a 430-megawatt,\n$450-million power plant in the small town. The Open Meetings\nAct, which among other things limits what governments can debate\nbehind closed doors, does not have an exemption that covers such\na conversation.\nBut the meeting was not public knowledge until a year\nlater, in July 2014, when it was discovered by the attorney hired by\nvillage residents who were opposed to the project. (Hyperlinks\nomitted. )!??]\nThe legislative history reflects that the purpose of the amended section 3.5(a) is to\nenable members of the public to submit complaints about alleged violations of OMA when the\nunderlying facts were not reasonably knowable within 60 days of their occurrence. Section\n3.5(a) now recognizes that by nature certain OMA violations—particularly improper closed\nsession discussions or private meetings—may not be contemporaneously evident to reasonably\nattentive members of the public. Submitting a FOIA request is a measure that extends beyond\nusing reasonable diligence, as it goes further than simply keeping up with the activities of local\ngovernment through attending or viewing open meetings and reviewing the minutes from those\nmeetings. Reasonably diligent members of the public are generally reliant on news media to\nreport details about governmental affairs that are not otherwise apparent. The reporting on the\nseverance agreement described how the relevant facts were not evident to the public or press on\nor about the time of the September 15, 2022, Board meeting:\nJohnson's departure wasn't announced publicly at the Sept.\n15 school board meeting when the pact was approved. Instead, the\nboard's formal vote and acceptance of her resignation was\ndisguised as a nondescript \"personnel transaction.\"\nPat Mogge, the district's director of community\nengagement and outreach, confirmed Johnson's resignation was\nlisted on Personnel Transaction Report Two that the board\nKevin P, State Rep. David McSweeney's Open Meetings Act reform bill clears committee, Shaw\nLocal News Network (February 19, 2015, 3:15 p.m.), https://www.shawlocal.com/2015/02/19/state-rep-david-\nmcsweeneys-open-meetings-act-reform-bill-clears-committee/atppbmf/.\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 8\ndiscussed in closed session, then unanimously voted to approve in\nopen session.\nIn recent months, board members at their meetings haven't\nspecifically announced the personnel items they're voting on after\nclosed session, and their meeting minutes released sometimes a\nmonth later do not provide further description -- a change from\npast practice.\nIt was only at a meeting more than two months after\nJohnson's resignation, on Nov. 17, that the public formally learned\nof the administrative turnover. On that date, the board came out of\nclosed session and voted on a modified job description for a new\nassociate superintendent for business services/chief school\nbusiness officia7l.!\nBecause Mr. Burns submitted this Request for Review within 60 days after the facts of the\nalleged violation became reasonably publicly available from the first Daily Herald article, this\noffice has the authority to review whether the Board provided sufficient advance notice of the\naction taken on the severance agreement at issue in his allegations.\nNotice of Final Action\nSection 2.02(c) of OMA requires that \"[a]ny agenda required under this Section\nshall set forth the general subject matter of any resolution or ordinance that will be the subject of\nfinal action at the meeting.\" OMA does not define the term \"general subject matter[.]\"\n\"General\" is defined, as \"[r]Jelating to, concerned with, or applicable to the whole or every\nmember of a class or category[,]\" and \"[iJnvolving only the main features of something rather\nthan details or particulars.\" The American Heritage Dictionary 552 (2d coll. ed. 1982). \"Subject\nmatter\" is defined as \"[t]he issue presented for consideration; the thing in which a right or duty\nhas been asserted; the thing in dispute.\" Black's Law Dictionary (11th ed. 2019), available at\nWestlaw BLACKS. The commonly understood meanings of this term do little to clarify the\namount of information section 2.02(a) requires a public body to provide on its meeting agenda\nfor topics upon which it anticipates taking final action. Although the modifier \"general\" signifies\nthat an agenda item may identify a broad subject matter, the word is inherently ambiguous.\n*3Christopher Placek, Ex-District 214 business chiefp aid $183,000 as part of mysterious\ndeparture, DAILY HERALD (Dec. 22, 2022, 6:52 p.m.), https://www.dailyherald.com/news/2022 1222/ex-district-2 14-\nbusiness-chief-paid-183000-as-part-of-mysterious-departure (last visited January 30, 2022).\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 9\nHowever, the Senate debate on House Bill No. 4687, which, as Public Act 97-\n827, effective January 1, 2013, added section 2.02(c) of OMA, indicates that the General\nAssembly intended this provision to ensure that agendas provide sufficiently descriptive advance\nnotice of the matters upon which a public body anticipates taking final action:\n[T]here was just no real requirement as to how specific they\nneeded to be to the public of what they were going to discuss that\nwould be final action. And this just says that you have to have a\n* * * general notice if you're going to have and take final action, as\nto generally what's going to be discussed so that — that people who\nfollow their units of local government know what they're going to\nbe acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate\nDebate on House Bill No. 4687, at 47.\nIn its answer to this office, the Board denied that the agenda failed to set forth the\ngeneral subject matter of the Board's vote to approve the severance agreement with the assistant\nsuperintendent. The Board noted that the agenda listed a closed session under section 2(c)(1) of\nOMA,” which allows a public body to go behind closed doors to discuss \"[t]he appointment,\nemployment, compensation, discipline, performance, or dismissal of specific employees[.]'”>\nThe Board further noted that the agenda \"apprised the public that, following its [closed session]\ndiscussion, action on the matter would be taken.\"*° According to the Board's attorney:\nFollowing a discussion during closed session, the Board\nproperly returned to open session and, consistent with its agenda,\ntook action on a Personnel Transaction Report II — the item\ndiscussed during closed session. As part of this action, the public\nrecital of the action clearly notified the public that it was taking\naction to approve the \"Personnel Transaction Report II,\" which\nwas available for public inspection, if requested. This is consistent\n45 ILCS 120/2(c)(1) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13,\n2022.\nLetter from Elizabeth Kelly, On behalf of District 214, Kriha Boucek, to Joshua M. Jones,\nDeputy Bureau Chief, PAC, Office of the Attorney General (January 18, 2023), at 5.\n6L etter from Elizabeth Kelly, On behalf of District 214, Kriha Boucek, to Joshua M. Jones,\nDeputy Bureau Chief, PAC, Office of the Attorney General (January 18, 2023), at 5.\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 10\nwith how all such District personnel matters are acted on at the\nmeetin?g7,!\nSeizing on Sen. Dillard's remarks during legislative debate about \"people who follow their units\nof local government|[,]\" the Board's attorney argued that members of the public who have paid\nattention to the Board's activities should know that the Board typically handles final action on\nclosed session discussion items the same way. The Board's attorney stated that the Board \"has a\nlong-standing practice of informing the public of its intent to take action on specific closed\nmeeting discussions in the same manner it did on the September 15, 2022, agenda.\"** Thus, the\nBoard's attorney asserted, \"anyone following District business would have understood from the\ninformation provided on the September 15, 2022, agenda that the Board intended to consider and\npossibly take action on a confidential personnel matter following a discussion on the matter in\nclosed session.\"*? The Board's attorney argued that this matter is distinguishable from a binding\nopinion (Ill. Att'y Gen. Pub. Acc. Op. No. 19-012, issued November 13, 2019) in which the\nAttorney General concluded that a public body improperly took final action under section 2.02(c)\nbecause the agenda item at issue was inconsistent with the other agenda items because it did not\ncontain a general subject matter.>°\nMr. Burns replied by arguing that Sen. Dillard's comment cannot be construed to\nmean that a public body may satisfy section 2.02(c) of OMA by having a pattern or practice of\ntaking final action after closed session pursuant to agenda items that merely cite a section 2(c)\nexception and indicate that unspecified action may follow. That interpretation, Mr. Burns\nargued, would mean that new residents would be left without a means of understanding what\ntheir government was up to.>! Indeed, it would negate the addition of section 2.02(c) to OMA if\nthat provision was construed to mean that a public body may continue to vaguely indicate that it\nmight take action after closed session in relation to a section 2(c) exception simply because that\nis how the public body has operated in the past. Such an interpretation must be avoided. See,\n?7Letter from Elizabeth Kelly, On behalf of District 214, Kriha Boucek, to Joshua M. Jones,\nDeputy Bureau Chief, PAC, Office of the Attorney General (January 18, 2023), at 2.\n*8Letter from Elizabeth Kelly, On behalf of District 214, Kriha Boucek, to Joshua M. Jones,\nDeputy Bureau Chief, PAC, Office of the Attorney General (January 18, 2023), at 3.\n°Letter from Elizabeth Kelly, On behalf of District 214, Kriha Boucek, to Joshua M. Jones,\nDeputy Bureau Chief, PAC, Office of the Attorney General (January 18, 2023), at 3.\nLetter from Elizabeth Kelly, On behaolff District 214, Kriha Boucek, to Joshua M. Jones,\nDeputy Bureau Chief, PAC, Office of the Attorney General (January 18, 2023), at 4.\n3'Letter from Tim Burns to Public Access Counselor, Office of the Attorney General (January 27,\n2023), at 5.\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 11\ne.g., Dynak y. Board of Education, 2020 IL 125062, 924, 164 N.E.3d 1226, 1233 (2020) (a\nreviewing body construing a statute must \"presume that the legislature did not intend absurdity,\ninconvenience, or injustice.\"). Rather, the very purpose of adding section 2.02(c) to OMA was\nto ensure that sufficient notice be provided to the public when a public body wishes to take final\naction. In context, Sen. Dillard's remark about \"people who follow their units of local\ngovernment\" refers to members of the public reviewing the agenda before a meeting, not people\nwith some sort of advanced level of knowledge about the public body's policies and practices.\nThus, the Board's citation of Binding Opinion 19-012 is misplaced. There, the fault was not\ninconsistency itself, but the fact that three action items on the agenda set forth a general subject\nmatter while the one that raised application fees for permits from $100 to $500 did not. Ill. Att'y\nGen. Pub. Acc. Op. No. 19-012, at 6. Had the other three action items contained the same lack\nof a general subject matter, all four items would have been improper despite being consistent\nwith each other.\nThe Board's attorney also argued that the agenda item for the severance agreement\nneeded to be stated in more general terms than the agenda items that do not concern closed\nsession discussion topics because of the public policy in favor of allowing public bodies to\ndiscuss certain sensitive matters in closed session.*” The Board's attorney contended that \"[t]o\nprovide more specific detail on the agenda about the general subject matter of the Board's actions\nfollowing a closed session discussion on the same would disrupt the intent of the Act and render\nthe appropriate use of closed discussion moot.\"*? In reply, Mr. Burns disputed that an agenda\nitem setting forth the general subject matter of approval of the severance agreement would have\ninfringed on the candor of the closed session. He argued that the Board knew that it would be\napproving the severance agreement after the closed session because the text of the severance\nagreement included the approval date of September 15, 2022, and other records related to the\nseverance agreement such as Ms. Johnson's signed resignation letter also bear the same date.*4\nSection 2.02(c) requires a public body to list on its agenda \"the general subject\nmatter of any resolution or ordinance that will be the subject of final action at the meeting.\"\n(Emphasis added.) The plain language of that provision applies to all items on which a public\nbody takes final action, and there is no indication in section 2.02(c), or elsewhere in OMA, that\nthe General Assembly intended that items discussed in a closed session meeting could be\nLetter from Elizabeth Kelly, On behalf of District 214, Kriha Boucek, to Joshua M. Jones,\nDeputy Bureau Chief, PAC, Office of the Attorney General (January 18, 2023), at 5.\nLetter from Elizabeth Kelly, On behalf of District 214, Kriha Boucek, to Joshua M. Jones,\nDeputy Bureau Chief, PAC, Office of the Attorney General (January 18, 2023), at 6.\nLetter from Tim Burns to Public Access Counselor, Office of the Attorney General (January 27,\n2023), at 5.\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 12\ndescribed more generally that items discussed in open session. The closed session exceptions in\nOMA permit a public body to have candid deliberative discussions of the matters within the\nscope of those provisions. The requirement that a public body set forth on its agenda only the\n\"general subject matter\" of any closed session items on which it intends to take action does not\nrisk revelation of the content of those detailed, and often lengthy, deliberations.\nAdditionally, the Board's attorney argued that a requirement to include any\nadditional information in the agenda item would make the public recital requirement of section\n2(e) of OMA* redundant:\nIf Section 2.02(c) of the OMA were read to require more\nspecific information than notice that the Board intended to enter\nclosed session to discuss a personnel matter and then planned to\ntake action on that discussion item after returning from its\ndeliberation, the public recital requirement under the OMA would\nbe rendered superfluous.\nThis office's review of the video recording of the Board's September 15, 2022,\nmeeting revealed that after returning from closed session, Board President Bill Dussling asked\nfor a motion \"to approve Personnel Transaction Report II.\"3’ The motion was made and\nseconded, and Mr. Dussling asked: \"Any comments by the Board members? Any comments by\nthe public?\" Hearing nothing, Mr. Dussling asked the Clerk to call the roll, and the motion\npassed. Thus, the Board's public recital for purposes of section 2(e) still gave no indication of\nthe business the Board was conducting beyond making one or more personnel decisions—a\nbroad category that could include matters such as hirings, firings, raises, disciplinary actions, and\nseverance agreements. Moreover, the Board did not identify the category or categories of\nemployee(s) at issue on the agenda or during its public recital prior to its vote on the matter.\nBecause the public recital merely referenced a personnel transaction report without indicating the\n35Section 2(e) of OMA (5 ILCS 120/2(e) (West 2021 Supp.), as amended by Public Act 102-813,\neffective May 13, 2022) provides, in pertinent part: \"Final action shall be preceded by a public recital of the nature\nof the matter being considered and other information that will inform the public of the business being conducted.\"\nLetter from Elizabeth Kelly, On behalf of District 214, Kriha Boucek, to Joshua M. Jones,\nDeputy Bureau Chief, PAC, Office of the Attorney General (January 18, 2023), at 7.\n37Township High School District 214 Board of Education, Meeting, September 15, 2022, Video\nRecording, at 1:57:04, available at https://vimeo.com/7497 18402/46082d1323.\n38Township High School District 214 Board of Education, Meeting, September 15, 2022, Video\nRecording, at 1:57:11, available at https://vimeo.com/7497 18402/46082d 1323.\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 13\nBoard was taking final action on a severance agreement, it is erroneous for the Board to assert\nthat it \"Was not required at the time of the posting [of the agenda] to provide more specific detail\n— that would come during the public recital of the action during the meeting.\"*?\nSignificantly, the requirements of section 2.02(c) and 2(e) of OMA have two\ndistinct purposes. Section 2.02(c) is intended to provide the public with advance notice of the\ntypes of actions that may be taken at meetings. Without such advance notice, members of the\npublic would be deprived of information needed to identify those meetings that they wish to\nattend and possibly address public officials*? because a public body may take action ona\nparticular topic of interest. In contrast, the plain language of section 2(e) indicates that the public\nrecital requirement is intended to ensure those in attendance are informed \"of the business being\nconducted[ ]\" during the meeting. Because section 2(e) requires a greater degree of detail\"! than\nthe posting of an agenda item for a potential final action, it is not a redundant requirement.\nBoard of Education of Springfield School District No. 186 v. Attorney General of Illinois, 2017\nIL 120343, 946, 77 N.E.3d 625, 632 (2017) (\"[B]ecause the statute must be read so that no part\nof it is rendered superfluous,\" section 2.02(c) and section 2(e) must be interpreted as imposing\nseparate obligations on public bodies.).\nA member of the public who read the Board's September 15, 2022, meeting\nagenda would have had no indication that the Board would vote on a severance agreement with a\nhigh-level administrator such as an assistant superintendent. The final action was significant and\nplainly distinguishable from the more routine personnel transactions that the Board approved\nearlier in the meeting, as Ms. Johnson had been the District's \"associate superintendent for\nfinance and operations since 2013[,]\" and her payout totaled $183,274.” Section 2.02(c) of\nOMA exists to apprise the public in advance of the general subject matter of such decisions on\nthe agenda, to uphold the public policy that \"the people have a right to be informed as to the\nconduct of their business.\" 5 ILCS 120/1 (West 2020). At a minimum, section 2.02(c) required\nLetter from Elizabeth Kelly, On behalf of District 214, Kriha Boucek, to Joshua M. Jones,\nDeputy Bureau Chief, PAC, Office of the Attorney General (January 18, 2023), at 7.\n“Section 2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2020)) provides that \"[a]ny person shall be\npermitted an opportunity to address public officials under the rules established and recorded by the public body.\"\n“Section 2(e) of OMA requires the public body to \"state the essence of the matter under\nconsideration, its character or its identity[ ]\" and \"to inform the public oft he specific item of business (the purpose\nof the loan, the subject of the contract, the type of property being purchased, the title of the policy, or the purpose of\nthe resolution).\" Board of Education of Springfield School District No. 186 v. Attorney General of Illinois, 2017 IL\n120343, 9]46, 50, 77 N.E.3d 625, 634 (2017).\n“Christopher Placek, Ex-District 214 business chiefp aid $183,000 as part of mysterious\ndeparture, DAILY HERALD (Dee. 22, 2022, 6:52 p.m.), https://www.dailyherald.com/news/2022 1222/ex-district-\n214-business-chief-paid-183000-as-part-of-mysterious-departure (last visited January 30, 2022).\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 14\nthe Board's agenda to have notified the public of the general category of employee (for example,\nadministrators, teachers, or bus drivers) and general type of personnel transaction at issue.\nAlthough section 2.02(c) does not require the agenda to identify the subject of possible final\nemployment action by name, an agenda that merely notified the public that the Board would\nconsider some kind of action related to appointment, employment, compensation, discipline,\nperformance, or dismissal of unspecified employees does not set forth the general subject matter\nof the severance agreement with the assistant superintendent that the Board approved at its\nSeptember 15, 2022, meeting. The Board therefore violated section 2.02(c) of OMA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments presented,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On January 5, 2023, Mr. Tim Burns submitted a Request for Review to the\nPublic Access Bureau alleging that the Board violated OMA on September 15, 2022, by voting\nto approve a severance agreement involving a payout of more than $183,000 to an assistant\nsuperintendent without setting forth the general subject matter of that final action on the agenda.\nHe stated that he became aware of the alleged violation from two news articles published by the\nDaily Herald on December 2, 2022, and December 22, 2022, and argued that the relevant facts\nwere not reasonably knowable by the public until that time. Mr. Burns' Request for Review was\ntimely filed and otherwise complies with the requirements of section 3.5(a) of OMA.\n2) On January 9, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the School Board President, Mr. William (Bill) Dussling. The Public Access Bureau\nalso sent Mr. Dussling a letter asking for copies of any notices, agendas, minutes, and recordings\nof the Board's September 15, 2022, open session meeting for this office's review, and a written\nresponse to the allegation that the Board improperly took final action on the severance agreement\nbecause it had not listed the general subject matter of that vote on the agenda.\n3) On January 18, 2023, counsel for the Board provided the Public Access\nBureau with copies of the agenda and open session minutes, and a written response denying that\nthe Board violated OMA.\n4) On January 18, 2023, this office sent a copy of School Board's answer to Mr.\nBurns. On January 27, 2023, he submitted a reply.\n5) On March 3, 2023, the Public Access Bureau properly extended the time\nwithin which to issue a binding opinion by 21 business days, to April 4, 2023, pursuant to section\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 15\n3.5(e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with\nrespect to this matter.\n6) Section 3.5(a) of OMA grants the Public Access Counselor the authority to\nreview the Board's September 15, 2022, meeting because Mr. Burns submitted his allegations\nwithin 60 days after discovering the alleged violation, and the facts of the alleged violation\nwould not have been evident sooner to a person using reasonable diligence. In particular, the\nBoard's public recital during the September 15, 2022, meeting gave no indication of what\npersonnel transaction the Board was approving by adopting \"Personnel Transaction Report II.\"\nA person who attended the meeting and read the minutes still would have had no notion of the\nsubstance of the Board's vote beyond the generalized category of a personnel matter.\n7) Section 2.02(c) of OMA provides that \"[a]ny agenda required under this\nSection shall set forth the general subject matter of any resolution or ordinance that will be the\nsubject of final action at the meeting.\"\n8) The Board's September 15, 2022, meeting agenda indicated that the Board\nwould adjourn to closed session to discuss \"[t]he appointment, employment, compensation,\ndiscipline, performance, or dismissal of specific employees of the public body[,]\" and that\n\"action may take place as a result of closed session discussion.\"\n9) During the meeting, the Board held a closed session discussion and then voted\nto approve \"Personnel Transaction Report II\", which consisted of a severance agreement with the\nDistrict's assistant superintendent.\n10) The agenda items in question did not set forth the general subject matter of\nthe Board's vote to approve the severance agreement with the assistant superintendent. The\nagenda items neither identified the type of employee at issue nor the type of personnel\ntransaction to be considered. Because a member of the public who read the agenda before the\nmeeting would not have known what the Board would be acting upon, the Board failed to\nprovide sufficient advance notice for the severance agreement as required by section 2.02(c).\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to remedy this violation by re-voting the severance agreement pursuant to a sufficiently\ndetailed agenda item at a properly-noticed open meeting. The Board is also directed to identify\non future meeting agendas the general type of employee and general type of personnel\ntransaction to be contemplated when it wishes to approve a personnel transaction. As required\nby section 3.5(e) of OMA, the Board shall either take necessary action as soon as practical to\ncomply with the directives of this opinion or shall initiate administrative review under section\n7.5 of OMA. 5 ILCS 120/7.5 (West 2020).\nMr. Tim Burns\nThe Honorable William (Bill) Dussling\nMarch 27, 2023\nPage 16\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Tim\nBurns as defendants. See 5 ILCS 120/7.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBy: th\n=\nBrent D. Stratton\nChief Deputy Attorney General\ncc: Ms. Elizabeth Kelly\nKriha Boucek\n2 TransAm Plaza Drive, Suite 450\nOakbrook Terrace, Illinois 60181\nCERTIFICATE OF SERVICE\nEdie Steinberg, Senior Assistant Attorney General, Public Access Bureau, hereby\ncertifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 23-\n004) upon:\nMr. Tim Burns\n227 Banbury Avenue\nElk Grove Village, Illinois 60007\nprestmb@sbcglobal.net\nThe Honorable William (Bill) Dussling\nPresident, Board of Education\nTownship High School District 214\n2121 South Goebbert Road\nArlington Heights, Illinois 60005\nc/o patrick. mogge@d214.org\nMs. Elizabeth Kelly\nKriha Boucek\n2 TransAm Plaza Drive, Suite 450\nOakbrook Terrace, Illinois 60181\nelizabeth@krihaboucek.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on March 27, 2023.\nMA\nEDIE STEINBERG\nSenior Assistant Attorney General\nPublic Access Bureau\nEDIE STEINBERG\nSenior Assistant Attorney General\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street, 11th Floor\nChicago, Illinois 60601\n(312) 814-5201","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under the Open Meetings Act, public bodies must include the general subject matter of any final action item on their meeting agenda; this requirement applies even to personnel transactions that may be discussed in closed session. Here, the Board voted on a specific severance agreement for an assistant superintendent—including detailed terms and a payout amount—but the agenda only listed 'Personnel & Employment Matters – [Assistant Superintendent]' without any reference to the severance agreement. Because the agenda did not provide enough detail to inform the public that final action would be taken on a severance agreement, the Board violated the Act. The reasoning emphasizes that broad or generic agenda descriptions do not satisfy OMA's transparency requirement when the final action involves a discrete, substantive decision.","card_headline":"Approval of a severance agreement on a school board agenda","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":168,"orig_master_id":19370,"dup_master_id":19142,"dup_sha256":"bd2964f6637df6836717cf617e23ff168d560125225c788b69cfd8dcc194b554","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-05-26","case_number":"2023 PAC 75559","request_numbers":null,"title":"Improper Denial of a Request as Unduly Burdensome","filename":"PUBLIC ACCESS OPINION 23-007 (Request for Review - 2023 PAC 75559).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 23-007 (Request for Review - 2023 PAC 75559).pdf","word_count":4827,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request made by Mr. Hugh Devlin, which was improperly denied by the City of Chicago's Department of Planning and Development as unduly burdensome.","plain_summary":"The requester sought city emails about a proposed sale of a former library building, which a city department denied in full as unduly burdensome because he had not supplied specific employee names or email addresses to search. The Public Access Counselor held that a requester need not identify specific employees to reasonably describe records, and that the department failed to specify how compliance would be unduly burdensome or to attempt to identify likely custodians itself. The department was directed to search for and disclose the responsive emails, subject only to permissible redactions.","holding":"The City of Chicago Department of Planning and Development violated FOIA by improperly denying the request.","legal_question":"Did the City of Chicago Department of Planning and Development improperly deny a FOIA request as unduly burdensome?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Chicago Department of Planning and Development","requesting_party":"Mr. Hugh Devlin","pac_outcome":"Improperly denied request as unduly burdensome","pac_law_type":null,"subject_category":"unduly burdensome denial","subject_description":"Emails regarding a specific city-owned property (former library branch) requested from the Department of Planning and Development.","ocr_status":"ok","ocr_quality":90.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-007.pdf","sha256":"56b87cf84cefe27d5725c1f48e0505c9de4e06ef6b3d316cda418b9e74866b65","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["unduly burdensome","FOIA denial","opportunity to narrow","public records","Chicago"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nMay 26, 2023\nPUBLIC ACCESS OPINION 23-007\n(Request for Review 2023 PAC 75559)\nFREEDOM OF INFORMATION ACT:\nImproper Denial of a Request\nas Unduly Burdensome\nMr. Hugh Devlin\n[street address redacted for site publication -- see original PDF]\nMs. LaShonda Morgan\nFOIA Officer\nCity of Chicago Department\nof Planning and Development\n121 North LaSalle Street, Room 1000\nChicago, Illinois 60602\nDear Mr. Devlin and Ms. Morgan:\nThis binding opinion is issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons\ndiscussed below, this office concludes that the City of Chicago (City) Department of Planning\nand Development (Department) violated the requirements of FOIA by improperly denying Mr.\nHugh Devlin's February 16, 2023, FOIA request as unduly burdensome.\nBACKGROUND\nOn February 16, 2023, Mr. Devlin submitted a FOIA request to the Department\nseeking the following records:\nAll emails, sent or received by the Department of Planning\nand Development (\"the Department\"), or circulated internally to\nthe Department, in calendar year 2021, emails all or in part\n500 South Second Street, Springfield, Illinois 62701 ¢ (217) 782-1090 © T’V’Y: (877) 844-5461 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 ¢ ‘T’PY: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 @ ‘T’'Y: (877) 675-9339 ¢ Fax (618) 529-6416 KEccABDTy\nMr. Hugh Devlin\nMs. LaShonda Morgan\nMay 26, 2023\nPage 2\nregarding the City-owned property at 6435-6445 N California Ave,\ncommonly known as the former Northtown branch of the Chicago\nPublic Library, and all emails containing any of the following\nkeywords:\n\"6435-6445 N California\" or\n\"6435 N California\" or\n\"6445 N California\" or\n\"6435-6445 California’ or\n\"6435 California\" or\n\"6445 California\" or\n\"Northtown library\" or\n\"Northtown branch.\" ]\nWithin an hour, the Department sent Mr. Devlin notification through its public records center\nstating:\nBelow are the things that we need in order to perform email\nsearches:\n1) the name and/or email address of the City of Chicago\nCustodian/Employee;\n2) the timeframe for the search;\n3) any specific search terms, correspondence, or criteria for the\nsearch.\nPlease, remember that use words such [as] \"ALL\" may lead to your\nrequest being unduly burdensome.!!\nLater that afternoon, Mr. Devlin informed the Department:\n1. Please see the attach[ed] determination letter \"Re: FOIA\nRequest for Review-2022 PAC 71720; City FOIA No.: 0021799\"\nsent to you on July 20, 2022 from the Illinois Attorney General\nPublic Access Bureau, in which you were informed: \"A requester\ngenerally is not required to identify specific employees in order to\n'FOIA request from Hugh Devlin, transmitted through the City of Chicago GovQA public records\ncenter, to the City of Chicago Department of Planning and Development (February 16, 2023, 11:54:48 a.m.). For\ntracking purposes, the City informed Mr. Devlin that his reference number for his request is O040500-021623.\n>Message from [City of Chicago Department of Planning and Development], transmitted through\nthe City of Chicago GovQA public records center, to [Hugh Devlin] (February 16, 2023, 12:46:48 p.m.).\nMr. Hugh Devlin\nMs. LaShonda Morgan\nMay 26, 2023\nPage 3\nreasonably describe e-mails concerning a particular subject\nmatter.\"\n2. Time frame is specified in the request, please see.\n3. Search terms are included in the request, please see.\nPlease reply with all responsive records.!*!\nShortly thereafter, the Department denied Mr. Devlin's FOIA request as unduly burdensome\npursuant to section 3(g) of FOIA (5 ILCS 140/3(g) (West 2020)), informing him:\nIn order to effectively run an email search, Department of Planning\nand Development needs the following search parameters: (1) the\ne-mail address(es) or employee name(s) of the account(s) you wish\nsearched; (2) key words you wish to search for; and (3) the time\nframe to be searched. Without search parameters, Department of\nPlanning and Development would need to review all department\nemails to determine whether any are responsive to your request.\nSuch an undertaking would pose an immense burden on the\nDepartment of Planning and Development.\"\nThe Department also informed Mr. Devlin that if he agreed to narrow his request, he \"must\nsubmit a revised written request to my attention. Department of Planning and Development will\ntake no further action or send you any further correspondence unless and until your request is\nnarrowed in writing.\"°\nOn February 16, 2023, Mr. Devlin submitted a Request for Review with the\nPublic Access Counselor (PAC), in which he contested the Department's denial of his FOIA\nrequest as unduly burdensome.® On February 17, 2023, Mr. Devlin furnished the documents\nrequired to complete his submission.’\n3Message from [Hugh Devlin], transmitted through the City of Chicago GovQA public records\ncenter, to [City of Chicago Department of Planning and Development (February 16, 2023, 4:01:17 p.m.), quoting III.\nAtt'y Gen. PAC Req. Rev. Ltr. 71720, issued July 20, 2022, at 3.\n‘Message transmitted through the City of Chicago GovQA public records center from LaShonda\nMorgan, Staff Assistant- FOIA Officer, Department of Planning and Development, to Hugh Devlin (February 16,\n2023, 4:43:59 p.m.).\n°Message transmitted through the City of Chicago GovQA public records center from LaShonda\nMorgan, Staff Assistant- FOIA Officer, Department of Planning and Development, to Hugh Devlin (February 16,\n2023, 4:43:59 p.m.).\nE-mail from Hugh Devlin to Public Access [Bureau, Office of the Attorney General] (February\n16, 2023).\nMr. Hugh Devlin\nMs. LaShonda Morgan\nMay 26, 2023\nPage 4\nOn March 3, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the Department along with a letter asking it to provide a detailed written response\nexplaining the factual and legal bases for the assertion that compliance with Mr. Devlin's request\nwould be unduly burdensome, and describing any Department efforts to search for responsive e-\nmails.’ The Department did not respond to the Public Access Bureau's March 3, 2023,\ncorrespondence. On March 20, 2023, an Assistant Attorney General (AAG) in the Public Access\nBureau telephoned the Department's FOIA Officer, Ms. LaShonda Morgan. During the\ntelephone conversation, Ms. Morgan confirmed that the Department received the Public Access\nBureau's March 3, 2023, letter, and stated that the Department would respond by March 27,\n2023.° The Department, however, did not respond. On March 29, 2023, the Public Access\nBureau sent a second letter to the Department stating that this office had not received a response\nto its March 3, 2023, letter, attaching a copy of that letter, and requesting a response to that\nletter.!° The Department did not respond to the Public Access Bureau's March 29, 2023, letter.\nOn April 18, 2023, this office extended the time within which to issue a binding\nopinion by 30 business days, to May 31, 2023, pursuant to section 9.5(f) of FOIA (5 ILCS\n140/9.5(f£) (West 2020)).\"!\nAs of the date of the issuance of this binding opinion, this office has not received\na response from the Department.\n7E-mail from Hugh Devlin to Public Access [Bureau, Office of the Attorney General] (February\n17, 2023).\nSLetter from Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, Office of\nthe Attorney General, to LaShonda Morgan, FOIA Officer, City of Chicago Department of Planning and\nDevelopment (March 3, 2023).\n°Telephone conversation between LaShonda Morgan, FOIA Officer, City of Chicago Department\nof Planning and Development, and Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, Office\nof the Attorney General (March 20, 2023).\n‘Ol etter from Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, Office of\nthe Attorney General, to LaShonda Morgan, FOIA Officer, City of Chicago Department of Planning and\nDevelopment (March 29, 2023).\n\"Letter from Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, Office of\nthe Attorney General, to Hugh Devlin and LaShonda Morgan, FOIA Officer, City of Chicago Department of\nPlanning and Development (April 18, 2023).\nMr. Hugh Devlin\nMs. LaShonda Morgan\nMay 26, 2023\nPage 5\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with [FOJA].\" 5 ILCS\n140/1 (West 2020). \"All records in the custody or possession of a public body are presumed to\nbe open to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2020). FOIA is liberally construed in favor of disclosure, while the exemptions\nare narrowly construed. Southern Illinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390,\n416 (2006); Rushton v. Dep't of Corrections, 2019 IL 124552, 415, 160 N.E.3d 929, 934 (2019).\nSection 9.5(c) of FOIA\nAs an initial matter, section 9.5(c) of FOIA (5 ILCS 140/9.5(c) (West 2020))\nprovides that that each public body \"shall provide copies of records requested and shall\notherwise fully cooperate with the Public Access Counselor.\" The Department failed to\ncooperate with the PAC by providing the basic information this office requested to determine if\nthe Department met its burden of proving that Mr. Devlin's FOIA request was unduly\nburdensome. Accordingly, the Department's lack of cooperation hampered this office's review of\nthis matter. Nevertheless, this office will address the applicability of section 3(g) of FOIA\nbecause Mr. Devlin still is seeking the records and because the Department's rationale for\ndenying the request as unduly burdensome raises a significant legal issue that requires\nclarification.\nSection 3(g) of FOIA\nSection 3(g) of FOIA provides, in pertinent part:\nRequests calling for all records falling within a category\nshall be complied with unless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information. Before invoking\nthis exemption, the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions. If any public body\nresponds to a categorical request by stating that compliance would\nunduly burden its operation and the conditions described above are\nmet, it shall do so in writing, specifying the reasons why it would\nbe unduly burdensome and the extent to which compliance will\nso burden the operations of the public body. Such a response\nMr. Hugh Devlin\nMs. LaShonda Morgan\nMay 26, 2023\nPage 6\nshall be treated as a denial of the request for information.\n(Emphasis added.)\n\"A request that is overly broad and requires the public body to locate, review, redact and arrange\nfor inspection a vast quantity of material that is largely unnecessary to the [requester's] purpose\nconstitutes an undue burden.\" National Ass'n of Criminal Defense Lawyers v. Chicago Police\nDepartment, 399 Ill. App. 3d 1, 17 (1st Dist. 2010). \"[A] public body asserting a section 3(g)\nexemption must make a clear and convincing showing that the burden of compliance outweighs\npublic interest in the disclosure of the requested records.\" Sargent Shriver National Center on\nPoverty Law, Inc. v. Board of Education, 2018 IL App (Ist) 171846, 938, 122 N.E.3d 729, 738\n(2018). \"What constitutes a clear and convincing showing of undue burden will likely vary from\ncase to case, depending on the broadness of the request, the level of detail provided in the public\nbody's response, and the nature of the parties' exchange.\" Sargent Shriver National Center on\nPoverty Law, Inc, 2018 IL App (1st) 171846, 938, 122 N.E.3d at 738.\nMr. Devlin's original request identified (1) the subject matter of the records he\nsought: City-owned property at 6435-6445 North California Avenue, commonly known as the\nformer Northtown branch of the Chicago Public Library; (2) eight keywords to be used by the\nDepartment to conduct its search, and (3) a one-year time frame for the search: the calendar year\n2021. After the Department notified him that in order for it to conduct a search, he needed to\nprovide keywords to search for the e-mails, the time frame to be searched, and the e-mail\naddresses or employee names of the accounts that he wanted searched, Mr. Devlin responded\nthat his FOIA request set forth the keywords and time frame, and asserted that he need not\nidentify names to use in the search. The Department then denied his request as unduly\nburdensome, explicitly asking him to narrow the request by providing a time frame, which he\nhad already identified as the calendar year 2021, by providing keywords to be searched, which\nwere already specified in the FOIA request, and by providing the e-mail addresses or employee\nnames associated with the accounts that he wanted searched. Mr. Devlin was unwilling to\nsubmit names or e-mail addresses.\nFOIA requires that a request \"reasonably identify a public record[.]\" Chicago\nTribune Co. v. Department of Financial and Professional Regulation, 2014 IL App (4th)\n130427, 933, 8 N. E. 3d 11, 19 (2014). A request that identifies the documents sought based\nupon a description of their contents constitutes a proper FOIA request. Bocock v. Will County\nSheriff, 2018 IL App (3d) 170330, 950, 100 N.E.3d 649, 658 (2018) (request seeking documents\nshowing which detainees had purchased stamps in a given time period constituted a proper FOIA\nrequest).\nIn Gun Owners of America, Inc., v. F.B.I., 594 F. Supp. 3d 37, 40-41 (D.D.C.\n2022), a federal district court considered whether a requester reasonably described records by\nrequesting all communications over a period of almost six years between the Virginia\nMr. Hugh Devlin\nMs. LaShonda Morgan\nMay 26, 2023\nPage 7\nDepartment of State Police and the F.B.I. involving certain voluntary background checks or\nspecial permits for voluntary background checks or firearm related permits. The F.B.I. asserted\nthat the request did \"not contain enough descriptive information to permit a search\" of its\nrecords partly because it did not identify members of the Virginia Department of State Police\nthat communicated with the F.B.I. Gun Owners of America, Inc., 594 F. Supp. 3d at 46. The\ncourt rejected that argument:\n[D]etermining whether the communication was with the Virginia\nState Police is a straightforward inquiry with clear and obvious\ncriteria. A FOIA request is not deficient just because it does not\nprovide the name or email address of every individual whose\ncommunications are sought—the request's description need only be\n\"reasonable\" to implicate the agency's obligations under the\nstatute. Gun Owners of America, Inc., 594 F. Supp. 3d at 46.\nThe court added that \"an agency may not refuse even to begin searching for documents just\nbecause the requester did not spell out its requested search parameters.\" Gun Owners of\nAmerica, Inc., 594 F. Supp. 3d at 49.\"\nRequests for records, particularly e-mails about particular matters, frequently\nrequire public bodies to make judgment calls about the appropriate personnel to consult and the\nmanner in which to conduct its search. When a request for e-mails is not expressly limited to\nspecific employees or e-mail accounts, FOIA does not require the public body to search every\naccount; instead, the public body may conduct an adequate search by identifying the employees\nwhose e-mail accounts are reasonably likely to contain responsive records, and taking measures\nreasonably calculated to locate such records. See Better Gov't Ass'n v. City of Chicago, 2020 IL\nApp (lst) 190038, 431, 169 N.E.3d 1066, 1076 (2020) (whether a particular search is reasonable\ndepends on the specific facts and is judged on a case-by-case basis; the crucial issue is whether\nthe search was reasonably calculated to locate the requested documents); Campbell v. U.S. Dep't\nof Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) (\"FOIA demands only a reasonable search tailored to\nthe nature of a particular request. When a request does not specify the locations in which an\nagency should search, the agency has discretion to confine its inquiry to a central filing system if\nadditional searches are unlikely to produce any marginal return[.]\"). Further, public employees\nand officials who are knowledgeable about the operations of their public body are in a better\n!2 Although Mr. Devlin's request did include keywords for the Department to use in its search,\nFOIA generally does not require a requester to provide keywords. Gov't Accountability Project v. U.S. Dep't of\nHomeland Security, 335 F. Supp. 3d 7, 12 (D.D.C. 2018) (\"FOIA requests are not a game of Battleship. The\nrequester should not have to score a direct hit on the records sought based on the precise phrasing of his request.\nRather, the agency must liberally interpret the request and frame its search accordingly\"). Public bodies are\nobligated to devise reasonable search terms. Coffey v. BLM, 249 F. Supp. 3d 488, 498 (D.D.C. 2017).\nMr. Hugh Devlin\nMs. LaShonda Morgan\nMay 26, 2023\nPage 8\nposition than members of the public to know which employees and officials are likely to have\nsent or received e-mails about particular subjects.\nIn this office's March 3, 2023, letter to the Department, the Public Access Bureau\nasked the Department to explain whether it took any steps to ascertain which employee e-mail\naccounts were reasonably likely to contain responsive records. The Department did not respond\nto this office. The Department's response to Mr. Devlin implies that no search was conducted, as\nthe Department indicated that it needed Mr. Devlin needed to provide \"the e-mail address(es) or\nemployee name(s) of the account(s)\"!? in order for the Department to perform a search.'* In\naddition to a public body generally being in a better position than members of the public to\nidentify which employees would likely have responsive e-mails, identifying relevant employees\nappears especially feasible in this matter because the Department touted the proposed sale of the\nformer library branch in a June 22, 2022, press release. The Department stated:\nOwned by the City of Chicago, the 11,400-square foot\nbuilding at 6435 N. California Ave. would be sold for $962,786 to\nthe nonprofit Forging Opportunities for Refugees in America\n(FORA).\nFORA, a privately funded organization that provides\neducational services to refugees in Chicago, would relocate from\nnearby offices and expand its literacy programs within the former\nlibrary.\nFORA's offer to purchase the building was the highest of\nthree bids received by the City this spring. A 2021 appraisal placed\nthe property's \"as is\" value at $630,000.\"\nAccordingly, if the Department determined that it needed particular names of employees to\nconduct its search, it should have ascertained which Department employees worked on the\n'3Message transmitted through the City of Chicago GovQA public records center from LaShonda\nMorgan, Staff Assistant- FOIA Officer, Department of Planning and Development, to Hugh Devlin (February 16,\n2023, 4:43:59 p.m.).\n'4Message from [City of Chicago Department of Planning and Development], transmitted through\nthe City of Chicago GovQA public records center, to [Hugh Devlin] (February 16, 2023, 12:46:48 p.m.).\n'SPress Release, Chicago, Planning and Development, Former Northtown Branch Library\nProposed for Sale to Refugee Education Nonprofit (June 22, 2022), available at\nhttps://www.chicago.gov/city/en/depts/dcd/provdrs/ec_dev/news/2022/june/former-northtown-branch-library-\nproposed-for-sale-to-refugee-edu.html\nMr. Hugh Devlin\nMs. LaShonda Morgan\nMay 26, 2023\nPage 9\nproject regarding the former Northtown branch of the Chicago Public Library and either asked\nthose employees to search their e-mails for the specified keyword terms for the year 2021 or\narranged for the City's information technology department to perform such a search.\nInstead, the Department unreasonably insisted that Mr. Devlin provide the names\nor e-mail addresses of employees who may have sent or received responsive e-mails. The\nDepartment failed to acknowledge that Mr. Devlin provided a time frame for the search as well\nas keywords for the Department to conduct a search. The absence of employee names or e-mail\naddresses from the request does not render the request unduly burdensome on its face. The\nDepartment's denial of the request failed to specify \"the reasons why it would be unduly\nburdensome and the extent to which compliance will so burden the operations of the public\nbody.\" 5 ILCS 140/3(g) (West 2020). Nor has the Department demonstrated that the burden of\ncomplying with the request outweighs the public interest in disclosure of the requested records.!°\nAccordingly, this office concludes that the Department failed to meet its burden of proving that\nMr. Devlin's FOIA request was unduly burdensome pursuant to section 3(g) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On February 16, 2023, Mr. Hugh Devlin submitted a FOIA request to the City\nof Chicago Department of Planning and Development seeking copies of e-mails regarding City-\nowned property located at 6435-6445 North California Avenue, commonly known as the former\nNorthtown branch of the Chicago Public Library, for the calendar year 2021. Mr. Devlin\nprovided the Department eight keywords to use in conducting its search.\n2) Within an hour, the Department sent Mr. Devlin notification that to conduct a\nsearch, it needed a timeframe for the search, search terms for the search, and the name or e-mail\naddress of the employee who possessed the records.\n3) Later that afternoon, Mr. Devlin informed the Department that his request\nprovided the timeframe and keywords, and that he was not required to provide the names or e-\nmail addresses of employees who possessed responsive records.\n‘News media articles suggest that a proposed sale oft his property garnered significant public\ninterest. See Joe Ward, Proposed Sale Of West Ridge Library Stalls After Neighbors Protest Lack Of Transparency,\nAlderman's Ties To Plan, BLOCK CLUB CHICAGO (March 17, 2022, 7:40 p.m.),\nhttps://blockclubchicago.org/2022/03/17/proposed-sale-of-west-ridge-library-stalls-after-neighbors-protest-lack-of-\ntransparency-aldermans-ties-to-plan/; Joe Ward, Afier West Ridge Library Sale Slammed For Lack Of Transparency,\nNew Bidder More Than Doubles Original Sale Price, BLOCK CLUB CHICAGO (May 26, 2022, 12:30 p.m.),\nhttps://blockclubchicago.org/2022/05/26/after-west-ridge-library-sale-slammed-for-lack-of-transparency-new-\nbidder-more-than-doubles-original-sale-price/.\nMr. Hugh Devlin\nMs. LaShonda Morgan\nMay 26, 2023\nPage 10\n4) Shortly thereafter, on February 16, 2023, the Department denied Mr. Devlin's\nrequest as unduly burdensome under section 3(g) of FOIA. In its denial letter, the Department\ninformed Mr. Devlin that the request was unduly burdensome because it could not conduct an\neffective search without a timeframe for the search, search terms, and names of employees or e-\nmail addresses of the accounts that Mr. Devlin wanted the Department to search.\n5) On February 16, 2023, and February 17, 2023, Mr. Devlin submitted the\ndocuments required to file a Request for Review with the Public Access Counselor contesting the\nDepartment's denial of his request as unduly burdensome. Mr. Devlin's Request for Review was\ntimely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS\n140/9.5(a) (West 2020)).\n6) On March 3, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the Department along with a letter asking it to provide a written response explaining\nthe factual and legal bases for the assertion that compliance with Mr. Devlin's request would be\nunduly burdensome. The letter also asked the Department to describe its efforts to search for the\ne-mails, including any steps taken to ascertain which employees are reasonably likely to maintain\nresponsive e-mail records, and to explain why the burden of compliance outweighs the public\ninterest in disclosure of this information. The Department did not respond.\n7) On March 20, 2023, the Department's FOIA officer informed an Assistant\nAttorney General in the Public Access Bureau that the Department received the Public Access\nBureau's March 3, 2023, letter, and stated that the Department would respond to the letter by\nMarch 27, 2023. The Department, however, did not respond. On March 29, 2023, the Public\nAccess Bureau sent a letter to the Department stating that this office had not received a response\nto its March 3, 2023, letter, attaching a copy of that letter, and requesting a response to that letter.\nThe Department did not respond to the Public Access Bureau's March 29, 2023, letter.\n8) On April 18, 2023, this office extended the time within which to issue a\nbinding opinion by 30 business days pursuant to section 9.5(f) of FOIA. Therefore, the Attorney\nGeneral may properly issue a binding opinion with respect to this matter.\n9) Section 9.5(c) of FOIA (5 ILCS 140/9.5(c) (West 2020)) provides that each\npublic body \"shall provide copies of records requested and shall otherwise fully cooperate with\nthe Public Access Counselor.\" The Department's failure to cooperate with the Public Access\nCounselor hampered the review of this matter.\n10) Section 3(g) of FOIA provides that \"[r]equests calling for all records falling\nwithin a category shall be complied with unless compliance with the request would be unduly\nburdensome for the complying public body and there is no way to narrow the request and the\nburden on the public body outweighs the public interest in the information.\" Section 3(g) of\nMr. Hugh Devlin\nMs. LaShonda Morgan\nMay 26, 2023\nPage 11\nFOIA also provides that if a public body responds to a request by stating that compliance would\nunduly burden its operations, \"it shall do so in writing, specifying the reasons why it would be\nunduly burdensome and the extent to which compliance will so burden the operations of the\npublic body.\"\n11) Mr. Devlin's FOIA request identified the type of records he wanted searched,\ne-mails, and the subject of the request, City-owned property at 6435-6445 North California Ave,\ncommonly known as the former Northtown branch of the Chicago Public Library. The request\nalso specified eight keywords to be used by the Department to conduct its search, and limited the\ntime frame for the search to calendar year 2021.\n12) The Department's denial of the request inaccurately stated that Mr. Devlin\ndid not provide a time frame and keywords for the search.\n13) The Department also denied the request as unduly burdensome because Mr.\nDevlin did not provide employee names or e-mail addresses that he wanted searched. Because a\npublic body rather than a member of the public is typically in a better position to know the names\nand e-mail addresses of public employees who would maintain records pertaining to specific\ntopics, a requester is not required to identify specific employees or employee e-mail addresses in\norder to reasonably describe e-mails concerning a particular subject matter. The failure to\nprovide such information does not render a FOIA request unduly burdensome.\n14) The Department failed to fulfill its obligation to specify in writing the reasons\nwhy complying with Mr. Devlin's request would be unduly burdensome and the extent to which\ncompliance would burden its operations.\n15) The Department did not demonstrate that complying with Mr. Devlin's FOIA\nrequest would be unduly burdensome.\nTherefore, it is the opinion of the Attorney General that the Department's denial\nof Mr. Devlin's request violated the requirements of FOIA. Accordingly, the Department is\nhereby directed to take immediate and appropriate action to comply with this opinion by either\nconducting a search of its e-mail system for the calendar year 2021 for the eight keywords Mr.\nDevlin provided, or by ascertaining which employees are likely to have sent or received e-mails\nregarding the specified City property and arranging for searches of their e-mails for the calendar\nyear 2021 which contain the eight keywords Mr. Devlin provided. The Department is directed to\nprovide Mr. Devlin with copies of the responsive e-mails, subject only to permissible redactions,\nif any, under section 7 of FOIA (5 ILCS 140/7 (West 2021 Supp.), as amended by Public Acts\n102-752, effective January 1, 2023; 102-753, effective January 1, 2023; 102-776, effective\nJanuary 1, 2023; 102-791, effective May 13, 2022; 102-1055, effective June 10, 2022). Ifthe\nDepartment determines that any portion of the responsive records is exempt from disclosure\nMr. Hugh Devlin\nMs. LaShonda Morgan\nMay 26, 2023\nPage 12\nunder section 7, it is directed to issue a written denial that fully complies with the requirements\nof section 9(a) of FOIA (5 ILCS 140/9(a) (West 2020)).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Hugh\nDevlin as defendants. See 5 ILCS 120/7.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\n{2S\nBrent D. Stratton\nChief Deputy Attorney General\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 23-007) upon:\nMr. Hugh Devlin\n2322 West Estes Avenue\nChicago, Illinois 60645\nhdevlin@ameritech.net\nMs. LaShonda Morgan\nFOIA Officer\nCity of Chicago Department\nof Planning and Development\n121 North LaSalle Street, Room 1000\nChicago, Illinois 60602\nDPDFOIA @cityofchicago.org\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on May 26, 2023.\nSteve Silverman\nBureau Chief\nSteve Silverman\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under FOIA, a public body may deny a request as unduly burdensome only after first providing the requester with an opportunity to narrow the scope of the request and specifying the reasons why the request is burdensome. The Department failed to engage in this required process, instead summarily denying the request without any attempt to negotiate a narrower request. Therefore, the denial violated FOIA.","card_headline":"Emails about a former library branch property","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":169,"orig_master_id":19371,"dup_master_id":19143,"dup_sha256":"463a3423525d9523c0f9981a5c951717f70201557c689b2da63eafb40d7bb9b0","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-05-26","case_number":"2023 PAC 76033","request_numbers":null,"title":"Improper Treatment of FOIA Request as Request for Commercial Purpose and Improper Assessment of Fee","filename":"PUBLIC ACCESS OPINION 23-008 (Request for Review - 2023 PAC 76033).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 23-008 (Request for Review - 2023 PAC 76033).pdf","word_count":3602,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request submitted by the Natural Resources Defense Council, Inc., which was improperly treated as a commercial request by St. Clair County.","plain_summary":"The requester, an attorney for a nonprofit environmental organization, sought records about a flood-related home buyout program and was charged search-and-review fees applicable only to commercial requests, after a county treated the request as having a commercial purpose. The Public Access Counselor held that the nonprofit's stated purpose of assisting vulnerable communities with public research and education did not meet the definition of a commercial purpose, so the county improperly imposed those fees. The county was directed to provide the responsive records subject only to permissible copying fees.","holding":"St. Clair County violated FOIA by improperly treating the FOIA request as a commercial request.","legal_question":"Did St. Clair County improperly treat the FOIA request as a commercial request?","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/6"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"St. Clair County","requesting_party":"Natural Resources Defense Council, Inc. (Mr. Ihab Mikati)","pac_outcome":"Improperly treated as commercial request","pac_law_type":null,"subject_category":"fees","subject_description":"The request sought records related to flood-related home buyout programs.","ocr_status":"ok","ocr_quality":89.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-008.pdf","sha256":"28b2be21cae365df77b448c849618f7eaa28fe3af0f58340b454cff22fb6219c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["commercial request","fee waiver","public interest","FOIA fees"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nMay 26, 2023\nPUBLIC ACCESS OPINION 23-008\n(Request for Review 2023 PAC 76033)\nFREEDOM OF INFORMATION ACT:\nImproper Treatment of FOIA Request as\nRequest for Commercial Purpose and\nImproper Assessment of Fee\nMr. Ihab Mikati\nEnvironmental Justice Attorney\nNatural Resources Defense Council, Inc.\nEnvironment, Equity & Justice Center\n[street address redacted for site publication -- see original PDF]\nMr. Alex Starnes\nAssistant State's Attorney\nSt. Clair County State's Attorney's Office\n10 Public Square\nBelleville, Illinois 62220\nDear Mr. Mikati and Mr. Starnes:\nThis binding opinion is issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons\ndiscussed below, this office concludes that St. Clair County (County) violated FOIA by\nimproperly treating a FOIA request submitted by the Natural Resources Defense Council, Inc.,\n(Council) as a commercial request.\n500 South Second Street, Springfield, Illinois 62701 ¢ (217) 782-1090 © I’TY: (877) 844-5461 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 ¢ ‘T’TY: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 ¢ TTY: (877) 675-9339 @ Fax (618) 529-6416 EBD~\nMr. Ihab Mikati\nMr. Alex Starnes\nMay 26, 2023\nPage 2\nBACKGROUND\nOn February 15, 2023, Mr. Ihab Mikati, on behalf of the Council, submitted a\nFOIA request to the County seeking records regarding flood-related home buyout programs.!\nMr. Mikati requested a fee waiver pursuant to section 6(c) of FOIA (5 ILCS 140/6(c) (West\n2020)). In support of the fee waiver request, he stated that the purpose of the FOIA request was\nin the public interest, that the request was not for personal or commercial benefit, and that the\nCouncil is a non-profit organization.” More specifically, Mr. Mikati stated that \"[t]his request is\nbeing made by [the Council's] Environment, Equity & Justice Center in order to procure\ninformation that will assist vulnerable communities in decision-making concerning their\nparticipation in the FHM [Flood Hazard Mitigation] program and analogous programs.\"*> On\nFebruary 22, 2023, the County informed Mr. Mikati that the responsive records consist of\napproximately 650 pages of e-mails and applications subject to redaction. The County\nestimated $90 in copying fees at a rate of 15 cents per page after the first 50 pages, and $130 for\nreviewing the records at a rate of $10 per hour, for a total fee of $220.5 On that same date, Mr.\nMikati asked the County to clarify whether it had determined that his request was ineligible for a\nfee waiver and reiterated that the request was in the public interest.© On March 6, 2023, Mr.\nMikati informed the County that he would pay the $220 fee \"under protest in order to avoid\nany further delay.\"’ (Emphasis in original.)\n‘Letter from Ihab Mikati, Environmental Justice Attorney, Natural Resources Defense Council,\nInc., Environment, Equity & Justice Center to Benjamin Henning, St. Clair County FOIA Officer, and Bryan\nWhitaker, St. Clair County Emergency Management Agency (February 15, 2023), at 1-3.\n*Letter from Ihab Mikati, Environmental Justice Attorney, Natural Resources Defense Council,\nInc., Environment, Equity & Justice Center to Benjamin Henning, St. Clair County FOIA Officer (February 15,\n2023), at 3-4.\n3Letter from Ihab Mikati, Environmental Justice Attorney, Natural Resources Defense Council,\nInc., Environment, Equity & Justice Center to Benjamin Henning, St. Clair County FOIA Officer (February 15,\n2023), at 3.\n‘E-mail from Alex Starnes, Assistant States Attorney, St. Clair State's Attorney's Office to Meleah\nGeertsma, [Director, Environmental Justice Policy, Natural Resources Defense Council, Inc., Environment, Equity\n& Justice Center] (February 22, 2023).\nE-mail from Alex Starnes, Assistant States Attorney, St. Clair State's Attorney's Office to Meleah\nGeertsma, [Director, Environmental Justice Policy, Natural Resources Defense Council, Inc., Environment, Equity\n& Justice Center] (February 22, 2023).\nE-mail from Ihab Mikati, Esq., Environmental Justice Attorney, Natural Resources Defense\nCouncil, Environment, Equity & Justice Center to [Alex] Starnes (February 22, 2023).\nMr. Ihab Mikati\nMr. Alex Starnes\nMay 26, 2023\nPage 3\nOn March 28, 2023, Mr. Mikati submitted a Request for Review to the Public\nAccess Counselor stating that on March 13, 2023, he received a voicemail from an Assistant\nState's Attorney which indicated that more than 3,000 pages of responsive records had been\nprinted and that the estimated fee was $1,000—$400 for copies at a rate of 15 cents per page and\n$600 for 60 hours of reviewing the records at a rate of $10 per hour.’ On March 15, 2023, Mr.\nMikati responded to the Assistant State's Attorney via e-mail by declining to pay the fee and\nrequesting an opportunity to discuss the matter.? Mr. Mikati stated that he did not receive a\nreply.!° Among other things, his Request for Review asserted that the FOIA request does not\nhave a commercial purpose and that the County's \"fees include hundreds of dollars for search and\nreview costs which are authorized only for commercial purpose requests.\"!!\nOn April 3, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the County along with a letter asking it to provide a written response (1) specifying\nthe amount of the fee assessed to Mr. Mikati; (2) explaining the County's legal and factual bases\nfor assessing that fee, and (3) clarifying the extent to which any records responsive to Mr.\nMikati's request are maintained in electronic format.'!? On April 6, 2023, the County provided a\nresponse to the Public Access Bureau.'? On April 7, 2023, this office forwarded a copy of the\n7E-mail from Ihab Mikati, Environmental Justice Attorney, Natural Resources Defense Council,\nInc., Environment, Equity & Justice Center to [Alex] Starnes, [St. Clair County FOIA Officer] (March 6, 2023).\n8Letter from Ihab Mikati, Environmental Justice Attorney, Natural Resources Defense Council,\nInc., Environment, Equity & Justice Center to Leah Bartelt, Public Access Counselor, Office of the Attorney\nGeneral (March 28, 2023), at 4.\n°E-mail from Ihab Mikati, Esq., Environmental Justice Attorney, Natural Resources Defense\nCouncil, Environment, Equity & Justice Center, to [Alex] Starnes (March 15, 2023).\n‘01 etter from Ihab Mikati, Environmental Justice Attorney, Natural Resources Defense Council,\nInc., Environment, Equity & Justice Center to Leah Bartelt, Public Access Counselor, Office of the Attorney\nGeneral (March 28, 2023), at 4.\n\"Letter from Ihab Mikati, Environmental Justice Attorney, Natural Resources Defense Council,\nInc., Environment, Equity & Justice Center to Leah Bartelt, Public Access Counselor, Office of the Attorney\nGeneral (March 28, 2023), at 2.\n\"Letter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office oft he\nAttorney General, to Alex Starnes, Assistant State's Attorney, St. Clair County State's Attorney's Office (April 3,\n2023), at 1.\nLetter from Alex Starnes, Assistant State's Attorney/FOIA Officer, St. Clair County State's\nAttorney's Office, to Benjamin J. Silver, [Assistant Attorney General], Public Access Counselor, Office of the\nAttorney General, and Ihab Mikati Esquire, Natural Resource Defense Council, Inc., Environment, Equity & Justice\nCenter (April 6, 2023).\nMr. Ihab Mikati\nMr. Alex Starnes\nMay 26, 2023\nPage 4\nCounty's response to Mr. Mikati and notified him of his opportunity to reply.'* On April 12,\n2023, Mr. Mikati submitted a reply.!>\nANALYSIS\nThe County's response to this office'® stated that it assessed Mr. Mikati fees of\n$400 pursuant to section 6(b) of FOIA!” and $600 pursuant to section 6(f) of FOIA.'® Section\n6(b) of FOIA provides, in pertinent part:\nNo fees shall be charged for the first 50 pages of black and white,\nletter or legal sized copies requested by a requester. The fee for\nblack and white, letter or legal sized copies shall not exceed 15\ncents per page. * * * a public body shall not include the costs of\nany search for and review of the records or other personnel\ncosts associated with reproducing the records, except for\ncommercial requests as provided in subsection (f) of this\nSection.\" (Emphasis added.)\nSection 6(f) of FOIA authorizes a public body to charge a requester with a commercial purpose\n\"up to $10 for each hour spent by personnel in searching for and retrieving a requested record or\nexamining the record for necessary redactions. No fees shall be charged for the first 8 hours\nspent by personnel in searching for or retrieving a requested record.\" Based on its plain\nlanguage, however, this provision applies \"only to commercial requests.\" 5 ILCS 140/6(f) (West\n2020).\n‘47 etter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to Ihab Mikati, Environmental Justice Attorney, Natural Resources Defense Council, Inc.,\nEnvironment, Equity & Justice Center (April 7, 2023).\n'SLetter from Ihab Mikati, Environmental Justice Attorney, Natural Resources Defense Council,\nInc., Environment, Equity & Justice Center, to Benjamin J. Silver, Assistant Attorney General, Public Access\nBureau, Office of the Attorney General (April 12, 2023).\n'6] etter from Alex Starnes, Assistant State's Attorney/FOIA Officer, St. Clair County State's\nAttorney's Office, to Benjamin J. Silver, [Assistant Attorney General], Public Access Counselor, Office of the\nAttorney General, and Ihab Mikati Esquire, Natural Resource Defense Council, Inc., Environment, Equity & Justice\nCenter (April 6, 2023), at 1.\n175 ILCS 140/6(b) (West 2020).\n185 ILCS 140/6(f) (West 2020).\nMr. Ihab Mikati\nMr. Alex Starnes\nMay 26, 2023\nPage 5\nBecause the County cited section 6(f) of FOIA as its basis for charging Mr.\nMikati $600 to review responsive records, it is apparent that the County treated his request as a\nrequest with a commercial purpose. Section 9.5(b) of FOIA provides that \"[a] person whose\nrequest to inspect or copy a public record was treated by the public body as a request for a\ncommercial purpose under Section 3.1 of this Act may file a request for review with the Public\nAccess Counselor for the limited purpose of reviewing whether the public body properly\ndetermined that the request was made for a commercial purpose.\"\nSection 2(c-10) of FOIA (5 ILCS 140/2(c-10) (West 2020)) defines \"commercial\npurpose\" as:\nthe use of any part of a public record or records, or information\nderived from public records, in any form for sale, resale, or\nsolicitation or advertisement for sales or services. For purposes of\nthis definition, requests made by news media and non-profit,\nscientific, or academic organizations shall not be considered to be\nmade for a \"commercial purpose\" when the principal purpose of\nthe request is (i) to access and disseminate information concerning\nnews and current or passing events, (11) for articles of opinion or\nfeatures of interest to the public, or (iii) for the purpose of\nacademic, scientific, or public research or education.\nIn its response to the Public Access Bureau, the County asserted that \"the\ndocuments must be reviewed by our office for all appropriate redactions[ |\" and that section 6(f)\nof FOIA \"states that a public body may charge for labor costs for commercial requests of up to\n$10 per hour (after the first 8 hours)[.]\"!° Despite this office's request for a detailed explanation\nof the factual and legal bases for its fee, the County did not explain why it believes Mr. Mikati's\nrequest has a commercial purpose or otherwise address how fees for commercial requests set\nLetter from Alex Starnes, Assistant State's Attorney/FOIA Officer, St. Clair County State's\nAttorney's Office, to Benjamin J. Silver, [Assistant Attorney General], Public Access Counselor, Office oft he\nAttorney General, and Ihab Mikati Esquire, Natural Resource Defense Council, Inc., Environment, Equity & Justice\nCenter (April 6, 2023), at 1.\nMr. Ihab Mikati\nMr. Alex Starnes\nMay 26, 2023\nPage 6\nforth in section 6(f) of FOIA are applicable to Mr. Mikati's request.”° In his reply, Mr. Mikati\ndenied that the Council is seeking the records for sale, re-sale, or solicitation or advertisement for\nsales or services.”! He emphasized that the Council is \"a nonprofit organization[ ]\" and that his\nFOIA request \"(1) stated the specific purpose of the request (‘to procure information that will\nassist vulnerable communities in decision-making' regarding a program designed to relocate\nthem from their homes), and (2) indicated how 'a fee waiver would be in the public interest\nbecause furnishing the requested documents primarily benefits the general public.'\"’” The reply\nalso provided an internet link to a Council report on flood-related home buyout programs which\nrecommends changes in the current system and advocates new approaches.”?\nThe materials provided to this office provide no support for the County's\ndetermination that Mr. Makati submitted a request for a commercial purpose that is subject to the\nfee provisions of section 6(f) of FOIA. The Council is registered as a not-for-profit corporation\nwith the Office of the Illinois Secretary of State.24 Mr. Mikati's description of the expected use\nof the records appears to indicate that they are being sought \"for the purpose of academic,\nscientific, or public research or education.\" 5 ILCS 140/2(c-10)(iii) (West 2020). The plain\nlanguage of section 2(c-10) provides that a request with such a \"principal purpose\" made by a\nnon-profit organization \"shall not be considered to be made for a ‘commercial purpose[.]'\" Even\nif the exclusion in section 2(c-10)(iii) did not apply to the Council's request, there is no\nindication that the Council intends to use the records \"for sale, resale, or solicitation or\nInstead, the County asserted to this office that the FOIA request does not qualify for a fee waiver\nand that the County \"is under no statutory duty to waive fees based upon the Requestor's objection to said fee.\"\nLetter from Alex Starnes, Assistant State's Attorney/FOIA Officer, St. Clair County State's Attorney's Office, to\nBenjamin J. Silver, [Assistant Attorney General], Public Access Counselor, Office of the Attorney General, and Ihab\nMikati Esquire, Natural Resource Defense Council, Inc., Environment, Equity & Justice Center (April 6, 2023), at 2.\nHowever, the issue presented is not whether the County has an obligation to grant a request for a fee waiver, but\nwhether the County properly treated the request as having a commercial purpose and imposing a fee applicable only\nto such requests.\n*ILetter from Ihab Mikati, Environmental Justice Attorney, Natural Resources Defense Council,\nInc., Environment, Equity & Justice Center to Benjamin J. Silver, Assistant Attorney General, Public Access\nBureau, Office of the Attorney General (April 12, 2023), at 1.\nLetter from Ihab Mikati, Environmental Justice Attorney, Natural Resources Defense Council,\nInc., Environment, Equity & Justice Center to Benjamin J. Silver, Assistant Attorney General, Public Access\nBureau, Office of the Attorney General (April 12, 2023), at 1-2.\n?3Anna Weber and Rob Moore, Going Under: Long Wait Times for Post-Flood Buyouts Leave\nHomeowners Underwater, NATIONAL RESOURCES DEFENSE COUNCIL (September 2019),\nhttps://www.nrdc.org/sites/default/files/going-under-post-flood-buyouts-report.pdf\n4Office of the Illinois Secretary of State, Corporation File Detail Report, Natural Resources\nDefense Council, Inc. (on file with author).\nMr. Ihab Mikati\nMr. Alex Starnes\nMay 26, 2023\nPage 7\nadvertisement for sales or services.\" Therefore, this office concludes that the County improperly\ntreated Mr. Mikati's February 15, 2023, as a request made for a commercial purpose.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On February 15, 2023, Mr. Ihab Mikati, on behalf of the Natural Resources\nDefense Council, Inc. (Council), submitted a FOIA request to the County seeking records\nregarding flood-related home buyout programs. The Council is registered as a non-profit\ncorporation with the Office of the Illinois Secretary of State.\n2) On February 22, 2023, the County informed the Council that there were\napproximately 650 pages of responsive records. The County estimated that the fee for those\nrecords would be $220, consisting of $90 in copying fees at a rate of 15 cents per page and $130\nfor reviewing the records at a rate of $10 per hour.\n3) On March 13, 2023, the County provided an updated estimate of more than\n3,000 pages of responsive records and a fee consisting of (1) $400 for copies at a rate of 15 cents\nper page and (2) $600 for 60 hours of reviewing the records at a rate of $10 per hour.\n4) On March 28, 2023, Mr. Mikati submitted a Request for Review asserting that\nthe County improperly assessed fees that only are applicable to commercial requests; he denied\nthat his request had a commercial purpose. The Request for Review was timely filed and\notherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West\n2020)). Therefore, the Attorney General may properly issue a binding opinion with respect to\nthis matter.\n5) On April 3, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the County and requested a detailed explanation of the County's legal and factual\nbases for the fee it assessed to Mr. Mikati.\n6) On April 6, 2023, this office received the County's written response. The\nresponse indicated that the County assessed a copying fee of 15 cents per page pursuant to\nsection 6(b) of FOIA, and additional fees for reviewing records pursuant to section 6(f) of FOIA.\nThe County's response stated that \"the documents must be reviewed by our office for all\nappropriate redactions[ ]\" and that section 6(f) of FOIA provides \"a public body may charge for\nlabor costs for commercial requests of up to $10 per hour (after the first 8 hours)[.]\"\nMr. Ihab Mikati\nMr. Alex Starnes\nMay 26, 2023\nPage 8\n7) On April 7, 2023, the Public Access Bureau forwarded the County's response\nto Mr. Mikati and notified him of his opportunity to reply. On April 12, 2023, Mr. Mikati\nreplied.\n8) Section 9.5(b) of FOIA authorizes the Public Access Counselor to review a\npublic body's determination that a FOIA request was made for a commercial purpose.\n9) Section 6(b) of FOIA provides \"a public body shall not include the costs of\nany search for and review of the records or other personnel costs associated with reproducing the\nrecords, except for commercial requests as provided in subsection (f) of this Section.\" Section\n6(f) of FOIA provides a public body may charge a requester with a commercial purpose \"up to\n$10 for each hour spent by personnel in searching for and retrieving a requested record or\nexamining the record for necessary redactions. No fees shall be charged for the first 8 hours\nspent by personnel in searching for or retrieving a requested record.\" That provision expressly\napplies \"only to commercial requests.\" 5 ILCS 140/6(f) (West 2020).\n10) Section 2(c-10) of FOIA defines \"commercial purpose\" as \"the use of any\npart of a public record or records, or information derived from public records, in any form for\nsale, resale, or solicitation or advertisement for sales or services.\" Section 2(c-10) also provides\nthat \"requests made by news media and non-profit, scientific, or academic organizations shall not\nbe considered to be made for a \"commercial purpose\" when the principal purpose of the request\nis * * * (iii) for the purpose of academic, scientific, or public research or education.\"\n11) The information provided to this office is devoid of any facts indicating that\nMr. Mikati would use any part of the records responsive to his FOIA request \"for sale, resale, or\nsolicitation or advertisement for sales or services.\" Instead, the available information indicates\nthat the Council, a non-profit organization, sought the records for the purpose of public research\nand education.\nTherefore, it is the opinion of the Attorney General that the County improperly\ntreated Mr. Mikati's February 15, 2023, FOIA request as a request made for a commercial\npurpose and assessed Mr. Mikati an improper fee for responsive records. Accordingly, the\nCounty is hereby directed to take immediate and appropriate action to comply with this opinion\nby providing Mr. Mikati with copies of the responsive records, subject only to permissible fees\nfor copying under section 6(a) (5 ILCS 140/6(a) (West 2020)) or 6(b) of FOIA.?°\n>5Pursuant to section 6(a) of FOIA, \"[w]hen a person requests a copy of a record maintained in an\nelectronic format, the public body shall furnish it in the electronic format specified by the requester, if feasible. * * *\n[S]tatutory fees applicable to copies of public records when furnished in a paper format shall not be applicable to\nthose records when furnished in an electronic format.\"\nMr. Ihab Mikati\nMr. Alex Starnes\nMay 26, 2023\nPage 9\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days of the date of this decision naming the Attorney General of Illinois and Mr. Ihab Mikati\nof the Natural Resources Defense Council, Inc., as defendants. See 5 ILCS 140/11.5 (West\n2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBrent D. Stratton\nChief Deputy Attorney General\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 23-008) upon:\nMr. Ihab Mikati\nEnvironmental Justice Attorney\nNatural Resources Defense Council, Inc.\nEnvironment, Equity & Justice Center\n20 North Wacker Drive, Suite 1600\nChicago, Illinois 60606\nimikati@nrdc.org\nMr. Alex Starnes\nAssistant State's Attorney\nSt. Clair County State's Attorney's Office\n10 Public Square\nBelleville, Illinois 62220\njames.starnes@co.st-clair.us\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on May 26, 2023.\nSteve Silverman\nBureau Chief\nSteve Silverman\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Natural Resources Defense Council (NRDC) requested public records from St. Clair County regarding flood-related home buyout programs and asked for a fee waiver because the request was in the public interest. The County denied the waiver and treated the request as 'commercial,' which allows for higher fees. The Attorney General ruled that the County did not have a valid basis to classify the NRDC's request as commercial, meaning the County must process the request without those improper commercial fees.","card_headline":"Records of flood-related home buyout programs","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":170,"orig_master_id":19144,"dup_master_id":19375,"dup_sha256":"006cf197c2c695fcfa7b85cf7b4ddfa722ee5a15b64076bb46c4685d95fa57fa","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-09-05","case_number":"2023 PAC 76732","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 23-012 (Request for Review - 2023 PAC 76732).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 23-012 (Request for Review - 2023 PAC 76732).pdf","word_count":1894,"summary":"A binding opinion was issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) A City of Chicago Department of Transportation failed to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Rony Islam . Mr. Islam alleged that the Department had failed to respond to his FOIA request .","plain_summary":"The requester sought email metadata containing specified keywords from department employees over a several-month period, and the department never substantively responded despite repeated follow-up from this office. The Public Access Counselor held that the department violated section 3(d) of FOIA by failing to comply with, deny, or properly respond to the request within the statutory period. The department was directed to disclose all records responsive to the request, subject only to permissible redactions.","holding":"The Chicago Department of Transportation violated section 3(d) of FOIA by failing to respond to the requester's FOIA request.","legal_question":"Whether a public body violates section 3(d) of FOIA by failing to respond to a request, and what the consequences are for such a failure regarding fees and burden claims.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Chicago Department of Transportation","requesting_party":"Islam and Ms. Schroeder","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"duty to respond","subject_description":"The request sought email metadata from specific Department employees containing certain keywords over a defined date range.","ocr_status":"ok","ocr_quality":90.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-012.pdf","sha256":"843d22057c3dc227bc3d8756562f0954d3a8caa389e0fff7fedffa52d55889db","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","email metadata","statutory deadline"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL September 5, 2023 PUBLIC ACCESS OPINION 23-012 (Request for Review 2023 PAC 76732) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Rony Islam 2315 West Eastwood Avenue Apartment #2E Chicago, Illinois 60657 Ms. Erica Schroeder FOIA Officer Chicago Department of Transportation 2 North LaSalle Street, Suite 1110 Chicago, Illinois 60602 Dear Mr. Islam and Ms. Schroeder: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons discussed below, this office concludes that the City of Chicago Department of Transportation (Department) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2022)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Rony Islam. BACKGROUND On April 25, 2023, Mr. Islam submitted a FOIA request to the Department seeking copies of e-mail metadata from specified Department employees containing specified keywords from January 1, 2023, to April 24, 2023.' On May 25, 2023, Mr. Islam submitted a 'FOIA portal message from City of Chicago Department of Transportation confirming receipt of FOIA request submitted by Rony Islam (April 25, 2023). 500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © ‘T’’Y: (877) 844-5461 ¢ Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 ¢ (312) 814-3000 ¢ T’L'Y: (800) 964-3013 ¢ Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 ¢ TTY: (877) 675-9339 ¢ Fax (618) 529-6416 °KeecnsT > Mr. Rony Islam Ms. Erica Schroeder September 5, 2023 Page 2 Request for Review to the Public Access Counselor, in which he alleged that the Department had failed to respond to his FOIA request.” On June 1, 2023, the Public Access Bureau e-mailed? a FOIA Officer for the Department a copy of the Request for Review and a letter asking whether the Department had received and responded to Mr. Islam's FOIA request. The June 1, 2023, letter also requested that if the Department had not yet responded to Mr. Islam, it do so and provide this office with a copy of its response.* The Department did not respond to the Public Access Bureau's June 1, 2023, correspondence. On June 16, 2023, the Public Access Bureau sent the same FOIA Officer an additional copy of the Request for Review and another letter stating that this office had not received a response to its June 1, 2023, letter and reiterating the request for a response.° The Department did not respond to the Public Access Bureau's June 16, 2023, letter. On July 24, 2023, this office extended the time for issuing a binding opinion by 30 business days, pursuant to section 9.5(f) of FOIA (5 ILCS 140/9.5(f) (West 2022)).° The Public Access Bureau e-mailed’ copies of this letter to the Mr. Islam and the same FOIA Officer as well as to the e-mail address® listed on the Department's website for FOIA.” E-mail from Rony Islam to Public Access [Bureau, Office of the Attorney General] (May 25, 2023). 3E-mail from Ben Silver, Assistant Attorney General, Public Access Bureau to [Erica] Schroeder, [FOIA Officer, Chicago Department of Transportation] (June 1, 2023). ‘Letter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Erica Schroeder, FOIA Officer, Chicago Department of Transportation (June 1, 2023), at [1]. Letter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office oft he Attorney General, to Erica Schroeder, FOIA Officer, Chicago Department of Transportation (June 16, 2023). °Letter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Rony Islam and Erica Schroeder, FOIA Officer, Chicago Department of Transportation (July 24, 2023). 7E-mail from Ben Silver, Assistant Attorney General, Public Access Bureau, to [Rony] Islam and [Erica] Schroeder [FOIA Officer, Chicago Department of Transportation] (June 24, 2023). SCDOTf oia@cityofchicago.org. *File a Transportation FOIA Request, Chicago, available at https://www.chicago.gov/city/en/depts/cdot/supp_info/cdot_foia.html (last visited August 25, 2023). Mr. Rony Islam Ms. Erica Schroeder September 5, 2023 Page 3 On August 29, 2023, the Public Access Bureau sent an e-mail to Mr. Islam asking if he had received a response from the Department.!? On that same date, Mr. Islam informed this office he still had not received a response from the Department.!! As of the date of the issuance of this binding opinion, this office has not received any response from the Department, nor has it received any indication that the Department has responded to Mr. Islam's April 25, 2023, FOIA request. ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2022). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2022)), \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2022)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). Section 3(e) of FOIA (5 ILCS 140/3(e) (West 2022)) permits a public body to extend its response time by no more than five business days from the original due date for any of seven enumerated reasons. Any additional extension requires a written agreement between the requester and the public body. 5 ILCS 140/3(e) (West 2022). '0F-mail from Ben Silver, Assistant Attorney General, Public Access Bureau, to [Rony] Islam (August 29, 2023). \"E-mail from Rony Islam to Benjamin Silver (August 29, 2023). Mr. Rony Islam Ms. Erica Schroeder September 5, 2023 Page 4 It is undisputed that the Department did not respond to Mr. Islam's April 25, 2023, FOIA request within five business days after its receipt by either complying with his request, extending the time for its response pursuant to section 3(e) of FOIA, or denying the request in writing. The failure of the Department to comply with the requisite response procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On April 25, 2023, Mr. Rony Islam submitted a FOIA request to the City of Chicago Department of Transportation seeking copies of specified e-mail metadata between January 1, 2023, and April 24, 2023. 2) On May 25, 2023, Mr. Islam submitted the documents required to file a Request for Review with the Public Access Counselor alleging that the Department had not responded to his FOIA request. Mr. Islam's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2022)). 3) On June 1, 2023, the Public Access Bureau forwarded a copy of the Request for Review to the Department along with a letter asking whether the Department had responded to Mr. Islam's FOIA request. The Department did not respond. 4) On June 16, 2023, the Public Access Bureau sent a second copy of the letter and Request for Review to the Department explaining that the Public Access Bureau had not received any indication that the Department had responded to Mr. Islam's FOIA request. The Department did not respond. 5) On July 24, 2023, the Public Access Bureau extended the time in which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA (5 ILCS 140/9.5(f) (West 2022)). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 8) As of the date of the issuance of this binding opinion, this office has received no information indicating that the Department has responded to Mr. Islam's April 25, 2023, FOIA request. Therefore, it is the opinion of the Attorney General that the City of Chicago Department of Transportation has violated section 3(d) of FOIA by failing, within the statutory time for responding to Mr. Islam's April 25, 2023, FOIA request, to provide him with copies of Mr. Rony Islam Ms. Erica Schroeder September 5, 2023 Page 5 the requested records or to deny the request in writing in whole or in part. Accordingly, the Department is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Islam with copies of all records responsive to his April 25, 2023, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2022)).'? If the Department determines that any portions of the responsive records are exempt from disclosure under section 7, it is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2022)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seg. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Islam as defendants. See 5 ILCS 140/11.5 (West 2022). Sincerely, KWAME RAOUL ATTORNEY GENERAL By: Brent D. Stratton ' Chief Deputy Attorney General \"Because the Department did not comply with the statutory requirements for responding to Mr. Islam's FOIA request, the Department is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d) (West 2022). CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 23-012) upon: Mr. Rony Islam 2315 West Eastwood Avenue Apartment #2E Chicago, Illinois 60657 Rony.islam1295@gmail.com Ms. Erica Schroeder FOIA Officer Chicago Department of Transportation 2 North LaSalle Street, Suite 1110 Chicago, Illinois 60602 Erica.schroeder@cityofchicago.org CDOT foia@cityofchicago.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on September 5, 2023. Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Islam requested email metadata from the Chicago Department of Transportation, but the Department never provided a response. The Attorney General's office ruled that the Department broke the law by ignoring the request. Because they failed to respond on time, the Department is now legally barred from claiming the request is too burdensome or charging the requester for copies of the records.","card_headline":"Email metadata from a transportation department","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":171,"orig_master_id":19372,"dup_master_id":19145,"dup_sha256":"3332a214ed83c9c3af570dd5761ec598d4489bc723999628d98dc429a5006eb3","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-06-16","case_number":"2023 PAC 76309","request_numbers":null,"title":"Police Reports Concerning Public Employee Arrested and Charged with Crimes Against a Minor are Not Exempt from Disclosure in their Entireties under the Personal Privacy Exemption","filename":"PUBLIC ACCESS OPINION 23-009 (Request for Review - 2023 PAC 76309).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 23-009 (Request for Review - 2023 PAC 76309).pdf","word_count":4973,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request for police reports related to a public school teacher arrested for crimes against a minor. It concludes that the South Beloit Police Department violated FOIA by denying the request in its entirety.","plain_summary":"The requester, a television news producer, sought police records about a former teacher's arrest and prosecution for offenses against a student, which a police department withheld in full as an unwarranted invasion of the minor victim's privacy. The Public Access Counselor held that although the victim's privacy interest in graphic details was substantial, most of the records could be disclosed with the victim's identity and any explicit details redacted, given the significant public interest in how the teacher's misconduct and plea were handled. The department was directed to disclose the records, subject to redaction of the victim's identifying information and any graphic details of the offense.","holding":"The City of South Beloit Police Department violated FOIA by denying the FOIA request.","legal_question":"Are police reports concerning a public employee arrested for crimes against a minor exempt from disclosure under the Personal Privacy Exemption of FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"South Beloit Police Department","requesting_party":"Ms. Katy Smyser (NBCS Chicago and Telemundo Chicago)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought police reports concerning a public school teacher arrested for criminal offenses against a minor student.","ocr_status":"ok","ocr_quality":88.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-009.pdf","sha256":"cae0deebdf13971326684726280a06401805d1623a304db83b4780132d356343","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","public employee","privacy exemption","FOIA request"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL |\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nJune 16, 2023\nPUBLIC ACCESS OPINION 23-009\n(Request for Review 2023 PAC 76309)\nFREEDOM OF INFORMATION ACT:\nPolice Reports Concerning Public Employee\nArrested and Charged with Crimes\nAgainst a Minor are Not Exempt from\nDisclosure in their Entireties under\nthe Personal Privacy Exemption\nMs. Katy Smyser\nSenior Producer, Investigations\nNBCS Chicago and Telemundo Chicago\n[street address redacted for site publication -- see original PDF]\nMs. Joanna Harris\nAdministrative Records Clerk/FOIA Officer\nSouth Beloit Police Department\n519 Blackhawk Boulevard\nSouth Beloit, Illinois 61080\nDear Ms. Smyser and Ms. Harris:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons discussed below, this\noffice concludes that the City of South Beloit (City) Police Department (Department) violated\nthe requirements of FOIA by denying in its entirety Ms. Katy Smyser's FOIA request for police\nreports concerning a public school teacher who was arrested and charged with criminal offenses\nagainst a minor student.\n500 South Second Street, Springfield, Ilinois 62701 © (217) 782-1090 © ‘I’TY: (877) 844-5461 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Hlinois 60601 © (312) 814-3000 © T’TY: (800) 964-3013 ¢ Fax: (312) 814-3806 _\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © TTY: (877) 675-9339 © Fax (618) 529-6416 » eect ><\nMs. Katy Smyser\nMs. Joanna Harris\nJune 16, 2023\nPage 2\nBACKGROUND\nOn March 22, 2023, Ms. Smyser submitted a FOIA request to the Department, on\nbehalf of NBCS Chicago and Telemundo Chicago, stating:\nPlease provide me with all documents you have concerning\nKevin D. Thompson, DOB approximately 11/1981, a former\nteacher and coach at South Beloit Junior High School who was\ncharged in approximately September or October of 2009 with\nindecent solicitation, criminal sexual assault, and battery involving\na student. I am requesting arrest reports, supplementary reports,\ninvestigative reports, witness interviews, suspect interviews and\ndocumentation of any evidence gathered in the case. I am also\nrequesting similar documents for any other incidents in which the\nSouth Beloit Police Department arrested Mr. Thompson!\"\nIn a letter dated March 29, 2023? that was transmitted via e-mail on March 28,\n2023,° the Department denied the request in its entirety pursuant to section 7(1)(c) of FOIA.*\nThe Department asserted that \"[d]ue to the status of the victim as a juvenile at the time of the\noffense, and due to the nature of the offense, disclosure would constitute a clearly unwarranted\ninvasion of personal privacy.\"> The Department additionally stated that \"[t]here were no other\nrecorded incidents involving Kevin D. Thompson within the South Beloit Police Department.\"®\n'E-mail from Katy Smyser, Senior Producer, Investigations, NBCS5 Investigates; Telemundo\nChicago Investiga; NBC5 Responds; Telemundo Chicago Responde, NBC5 Chicago and Telemundo Chicago, to\nAdam Truman, Chieoff Police and Tracy Patrick, City Clerk, City of South Beloit (March 22, 2023).\nLetter from Joanna Harris, Administrative Records Clerk/FOIA Officer, South Beloit Police\nDepartment, to Katherine Smyser, Senior Producer, Investigations (March 29, 2023), at [1].\n3E-mail from Kim McKee, Administrative Records Clerk, [South Beloit Police Department], to\n[Katy] Smyser (March 28, 2023).\n“5 ILCS 140/7(1)(c) (West 2021 Supp.), as amended by Public Acts 102-752, effective January 1,\n2023; 102-753, effective January 1, 2023; 102-776, effective January 1, 2023; 102-791, effective May 13, 2022;\n102-1055, effective June 10, 2022.\nLetter from Joanna Harris, Administrative Records Clerk/FOIA Officer, South Beloit Police\nDepartment, to Katherine Smyser, Senior Producer, Investigations (March 29, 2023), at [1].\n°E-mail from Kim McKee, Administrative Records Clerk, [South Beloit Police Department], to\n[Katy] Smyser (March 28, 2023).\nMs. Katy Smyser\nMs. Joanna Harris\nJune 16, 2023\nPage 3\nOn April 7, 2023, Ms. Smyser replied to the Department, disputing its denial by\ncontending that it \"has not shown how the victim in this case can be identified, even after the\njuvenile victim's name and any other identifying information have been redacted.\"’ She argued\nthat \"[t]he public is entitled to the remaining information,\" as it was public knowledge that Mr.\nThompson had been convicted and sentenced for his crimes.® On April 11, 2023, the City's\noutside counsel responded by maintaining that the denial was proper. He stated: \"My review of\nthe requested police reports reveal that the reports contain detailed, sensitive and extremely\npersonal statements regarding assault and battery of a sexual nature against a juvenile.\"? The\nattorney argued that the denial is supported by an Illinois Appellate Court decision, McGee v.\nKelley, 2017 IL App (3d) 160324, 95 N.E.3d 1179 (2017).\nOn April 19, 2023, Ms. Smyser submitted a Request for Review contesting the\ndenial of her request. She stated that she did \"not believe that South Beloit has demonstrated\nhow the nature of the crime — and the police department's investigations — would disclose the\nidentity of the victim when the names and other identifying information are redacted.\"!° Ms.\nSmyser also explained:\nThese records are important, because the individual\narrested in the case — Kevin D. Thompson — was originally charged\nwith a total of nine criminal counts, including two counts of\nindecent solicitation/criminal sexual assault; two counts of\nindecent solicitation/aggravated criminal sexual abuse; one count\nof indecent solicitation of a child through the internet, and four\ncounts of battery/making physical contact.\nI am seeking to understand how Thompson — through an\nAlford Plea -- was ultimately able to plead down to two non-sex-\nrelated crimes (one count of misdemeanor battery in a public place\nand one count of misdemeanor harassment by electronic\ncommunication), for which he was sentenced to only two days in\njail, plus 18 months' probation. The South Beloit Police\n7E-mail from Katy Smyser to South Beloit Police Department (April 7, 2023).\n8E-mail from Katy Smyser to South Beloit Police Department (April 7, 2023).\n°E-mail from Clayton Zamudio, Associate Attorney, Sosnowski Szeto, LLP, to [Katy] Smyser\n(April 11, 2023).\n'0R-mail from Katy Smyser, Senior Producer, Investigations, NBC5 Investigates; Telemundo\nChicago Investiga; NBC5 Responds; Telemundo Chicago Responde, NBCS5 Chicago and Telemundo Chicago, to\nLeah Bartelt, Acting Public Access Counselor, Office oft he Illinois Attorney General (April 19, 2023).\nMs. Katy Smyser\nMs. Joanna Harris\nJune 16, 2023\nPage 4\nDepartment's narrative and other documentation concerning the\ndetails and nature of the criminal allegations and charges,\nincluding the department's investigative material, are key to my\nunderstanding this conviction and sentencing on these lesser\ncharges, !!!\nOn April 24, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the City's attorney. Along with a copy of the Request for Review, the Public Access\nBureau also sent the City's attorney a letter requesting unredacted copies of any withheld records\nfor this office's confidential review, together with a detailed explanation of the legal and factual\nbases for the applicability of the section 7(1)(c) exemption'?.\nOn May 3, 2023, the City's attorney provided this office with a response letter!?\nthat was transmitted via e-mail!’ along with copies of the requested records. On that same date,\nthis office forwarded a copy of the Department's answer to Ms. Smyser and notified her of her\nopportunity to reply to that answer.'> On May 12, 2023, Ms. Smyser notified this office by e-\nmail that she would stand on her original complaint.'°\nANALYSIS\nSection 1 of FOIA (5 ILCS 140/1 (West 2020)) declares that it is \"the public\npolicy of the State of Illinois that all persons are entitled to full and complete information\nregarding the affairs of government and the official acts and policies of those who represent them\n''E-mail from Katy Smyser, Senior Producer, Investigations, NBC5 Investigates; Telemundo\nChicago Investiga; NBC5 Responds; Telemundo Chicago Responde, NBC5 Chicago and Telemundo Chicago, to\nLeah Bartelt, Acting Public Access Counselor, Office oft he Illinois Attorney General (April 19, 2023).\n\"Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Clayton Zamudio, Associate Attorney, Sosnowski Szeto, LLP (April 24, 2023), at 2.\nLetter from Clayton L. Zamudio, Sosnowski Szeto LLP, to Illinois Attorney General's Office,\nAttn: Joshua M. Jones (May 3, 202[3]).\n'4E-mail from Megan Reff, Paralegal, Sosnowski Szeto, LLP, to [Joshua] Jones [Deputy Bureau\nChief, Public Access Bureau, Office of the Attorney General] (May 3, 2023).\n'SLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Katy Smyser, Senior Producer, Investigations, NBCS Chicago and Telemundo Chicago (May\n3, 2023).\n'6F-mail from Katherine Smyser (NBCUniversal) to Joshua Jones [Deputy Bureau Chief, Public\nAccess Bureau, Office of the Attorney General] (May 12, 2023).\nMs. Katy Smyser\nMs. Joanna Harris\nJune 16, 2023\nPage 5\nas public officials and public employees consistent with the terms of this Act.\" Under FOIA,\n\"{a]ll records in the custody or possession of a public body are presumed to be open to inspection\nor copying. Any public body that asserts that a record is exempt from disclosure has the burden\nof proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2020). If\na requested record \"contains information that is exempt from disclosure under this Section, but\nalso contains information that is not exempt from disclosure, the public body may elect to redact\nthe information that is exempt. The public body shall make the remaining information available\nfor inspection and copying.\"!”\nSection 7(1)(c) of FOIA\nSection 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)(c) defines \"unwarranted invasion of personal privacy\"\nas \"the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject's right to privacy outweighs any legitimate public interest in obtaining\nthe information.\" Section 7(1)(c) contains an exception which provides that \"[t]he disclosure of\ninformation that bears on the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy.\"\nA public body's assertion that the release of information would constitute a clearly\nunwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers' Local Union 130 vy. Dep't of Public Health, 327 Ill. App. 3d 192, 196 (1st\nDist. 2001). The language of the phrase \"clearly unwarranted invasion of personal privacy\"\nevinces a strict standard to claim the exemption. Schessler v. Dep't of Conservation, 256 Ill.\nApp. 3d 198, 202 (4th Dist. 1994). Illinois courts consider the following factors in determining\nwhether disclosure of information would constitute an unwarranted invasion of personal privacy:\n\"(1) the plaintiff's interest in disclosure, (2) the public interest in disclosure, (3) the degree of\ninvasion of personal privacy, and (4) the availability of alternative means of obtaining the\nrequested information.\" National Ass'n of Criminal Defense Lawyers v. Chicago Police Dep't,\n399 Ill. App. 3d 1, 13 (1st Dist. 2010).\nIn its answer to this office, the Department relied heavily on McGee to support its\nwithholding of the records at issue in their entireties under section 7(1)(c). In McGee, a sheriff's\noffice denied the plaintiff's request for \"any and all documents prepared in connection with his\nindictment that led to his conviction of aggravated criminal sexual assault[.|\" McGee, 2017 IL\n'75 ILCS 140/7(1) (West 2021 Supp.), as amended by Public Acts 102-752, effective January 1,\n2023; 102-753, effective January 1, 2023; 102-776, effective January 1, 2023; 102-791, effective May 13, 2022;\n102-1055, effective June 10, 2022.\nMs. Katy Smyser\nMs. Joanna Harris\nJune 16, 2023\nPage 6\nApp (3d) 160324, 93, 95 N.E.3d at 1180. The Illinois Appellate Court affirmed the trial court's\nruling that disclosure would constitute a clearly unwarranted invasion of personal privacy.\nMcGee, 2017 IL App (3d) 160324, 920, 95 N.E.3d at 1183. The City emphasized the following\nportion of the McGee decision:\nThe plaintiff fails to address the court's finding that disclosure of\nthe police reports would result in an unwarranted invasion of\npersonal privacy of the victim of sexual assault. Instead, he relies\non his blanket statement that only identifying and personal\ninformation of the witnesses could be redacted from the reports.\nConsequently, this leaves us to speculate as to what his interest is\nin the disclosure. [Citation.] (Emphasis omitted.)\"®!\nThe City then sought to apply McGee to Ms. Smyser's FOIA request as follows:\nThe issue with Ms. Smyser's request is the same as the\nissue the 3rd District Court of Appeals addressed in McGee,\nnamely, she fails to address the City's position that disclosure of\nthe police reports would result in an unwarranted invasion of\npersonal privacy of the victim of sexual assault and grooming\nbecause even redacting the juvenile's name would still leave the\ndetails of the offenses/encounters and would allowa reader to\nidentify the juvenile involved with minimal effort or investigation.\nOur review of the unredacted records reveals that the police\nreports contain detailed, sensitive, and extremely personal\nstatements regarding the sexual assault and battery, just as in\nMcGee. The degree of invasion of personal privacy of the juvenile\nvictim is substantial. The City acknowledges that there are\ninstances where details of a police report may be redacted to\nprotect the privacy interests of private individuals without a risk of\nrevealing that person's identity. This is not one of those situations.\nThe report here contains such detailed information that a party\ncould discern the juvenile's identity by relatively limited inquiry.\nDisclosure of such a report would fail to adequately protect privacy\ninterests as intended by the FOIA. Release of the records here\n'8] etter from Clayton L. Zamudio, Sosnowski Szeto, LLP, to Illinois Attorney General's Office\nAttn: Joshua M. Jones, [Deputy Bureau Chief, Public Access Bureau] (May 3, 202[3]), at [2] (quoting McGee, 2017\nIL App (3d) 160324, 918, 95 N.E.3d. at 1183).\nMs. Katy Smyser\nMs. Joanna Harris\nJune 16, 2023\nPage 7\nMcGee. Accordingly, the degree of personal privacy of a juvenile\nvictim of grooming and sexual assault outweighs any public\ninterest in disclosure.!!?!\nThe City's reliance on McGee is misplaced, because the facts and circumstances\nof that case are starkly different from the facts and circumstances here. As noted above, the\nrequester in McGee sought copies of records concerning his own conviction for aggravated\ncriminal sexual assault and aggravated battery. McGee, 2017 IL App (3d) 160324, 93, 95 N.E.3d\nat 1180. The court found the requester's personal interest to be \"minimal\" because he \"already\nreceived the substance of the information contained in the police reports by other means, as the\nvictim testified at his jury trial [citation].\" McGee, 2017 IL App (3d) 160324, 918, 95 N.E.3d at\n1183. The court also found the public interest in disclosure to be \"slight[,]\" stating: \"The public\nhas an interest in monitoring law enforcement to ensure it is acting in the public's interest.\nHowever, it is doubtful that the public has any interest in the actual details of the victim's sexual\nassault and battery.\" McGee, 2017 IL App (3d) 160324, 418, 95 N.E.3d at 1183. In contrast, the\nvictim's personal privacy interests were substantial, as the records contained \"detailed, sensitive,\nand extremely personal statements regarding the sexual assault and battery.\" McGee, 2017 IL\nApp (3d) 160324, 419, 95 N.E.3d at 1183. The court agreed with the defendant's argument that:\n\"A victim's right to be treated with fairness and respect for their\ndignity and privacy precludes their attacker from obtaining police\nreports containing the violations perpetrated against the victim.\nThis respect for the victim's dignity or privacy prevents the\n[p]laintiff from sharing with [his] fellow inmates the details of the\nassault, reliving the thrill of [his] attack on the victim or any other\ndissemination of the details of the attack.\" McGee, 2017 IL App\n(3d) 160324, 919, 95 N.E.3d at 1183 (quoting defendant's brief).\nThe court thus concluded that disclosure of the records would constitute a clearly unwarranted\ninvasion oft he victim's personal privacy. McGee, 2017 IL App (3d) 160324, §20, 95 N.E.3d at\n1183.\nTurning to the records at issue in this matter, the victim similarly has a substantial\npersonal privacy interest in the unredacted records, which include both general descriptions and\nexplicit details of the conduct that led to Mr. Thompson being arrested for indecent solicitation\nof a child and battery. As the City explained, the victim was thirteen years old at the time of the\nincident, and the records identify the victim and the victim's relatives by name.\n‘Letter from Clayton L. Zamudio, Sosnowski Szeto, LLP, to Illinois Attorney General's Office\nAttn: Joshua M. Jones, [Deputy Bureau Chief, Public Access Bureau] (May 3, 202[3]), at [2-3].\nMs. Katy Smyser\nMs. Joanna Harris\nJune 16, 2023\nPage 8\nHowever, the City failed to support its claim that redactions could not suffice to\nshield the identity of the victim. Unlike in McGee, where the requester clearly knew the identity\nof his victim, there is no indication that the victim's identity from this 2009 case is public\nknowledge, and neither Ms. Smyser's FOIA request nor her submissions to this office contain\nany identifying information about the victim. To the contrary, Ms. Smyser expressly asked that\nthe City/Department \"provide the records with the redactions to the juvenile victim's name and\nother identifying information.\"”’ The City's argument that the police reports contain such\ndetailed information that redactions could not suffice to protect the victim's identity is\ngeneralized and conclusory. This office's review of the records found that although they contain\ncertain identifying details about the victim, most portions of the records either do not contain\nidentifying information or the identifying details are amenable to discrete redactions in a manner\nthat would protect the victim's privacy while revealing meaningful information about the\noffending teacher, the school district's handling of the matter, and the police investigation.\nDisclosure of a de-identified record generally does not constitute an unwarranted invasion of the\npersonal privacy of the subject of the record. See Bowie v. Evanston Community Consolidated\nSchool District No. 65, 128 Ill. 2d 373, 381 (1989) (analyzing the applicability of a prior version\nof the section 7(1)(c) exemption?! to student test score data and holding \"where, as here,\nindividual identifying information can be redacted and the record scrambled, preventing a clearly\nunwarranted invasion of personal privacy, the record must be disclosed.\").\nMost of the information in the reports at issue describes the arrestee's alleged\nconduct and the interactions between the arrestee and the victim in general terms, and several of\nthe reports contain no description of the underlying incidents. The existence of some explicit\ndetails of the encounters between the victim and the arrestee in the requested records does not\njustify a complete denial of those records. See, for example, University of Kentucky. v. Kernel\nPress, Inc., 2021 Ky. LEXIS 126, *37, 620 S.W.3d 43, 60 (Ky. 2021) (\"[V]ictims of sexual\nassault at the hands of a public university professor have more than a de minimis interest in the\nconfidentiality of the personally identifiable information they provide to enable the university to\ninvestigate the alleged misconduct. While this privacy interest must be recognized and protected,\nit cannot be the basis for wholesale shielding of public records.\"). Based on this office's review,\nthe limited instances in which explicit details are recited could be redacted, allowing for\ndisclosure of the general descriptions of Mr. Thompson's conduct and information about the\npolice investigation.\n20F-mail from Katy Smyser to South Beloit Police Department (April 7, 2023).\n“ITI1, Rev. Stat. 1985, ch. 116, par. 207(b) (exempting from disclosure \"[i]nformation which, if\ndisclosed, would constitute a clearly unwarranted invasion of personal privacy, unless such disclosure is consented\nto by the individual subjects of such information.\"\nMs. Katy Smyser\nMs. Joanna Harris\nJune 16, 2023\nPage 9\nWith respect to the public and private interests at issue, unlike the requester\nseeking the details of the aggravated criminal sexual assault and aggravated battery for which he\nwas convicted, Ms. Smyser is a Senior Producer for television news outlets. She explained that\nher personal interest in the responsive records is to understand why a public school teacher was\nable to plead down to lesser offenses given the gravity of the charges against him. Unlike in\nMcGee, where the victim testified at trial, there was no trial here because Mr. Thompson took a\nplea agreement.”* Therefore, Ms. Smyser's interest in disclosure was not ameliorated by the\nlimited information made available during the judicial proceedings. Moreover, Ms. Smyser's\nnews-gathering purpose aligns with the public interest in disclosure. The responsive police\nreports shed light on the actions of the offending teacher as well as public employees and\nofficials of both the school district and the Department. There is a legitimate public interest in\ndisclosure of police records concerning the arrest of and criminal charges against a public school\nteacher for offenses against one or more students. See, for example, Brouillet v. Cowles Pub.\nCo., 114 Wash. 2d 788, 798, 791 P.2d 526, 532 (Wash. 1990) (\"Sexual abuse of students is a\nproper matter of public concern because the public must decide what can be done about it. The\npublic requires information about the extent of known sexual misconduct in the schools, its\nnature, and the way the school system responds in order to address the problem.\").\nTo be sure, as the court in McGee indicated, there is not an apparent public\ninterest in disclosure of any graphic and salacious details of an alleged sexual offense. See State\nJournal-Register v. University of Illinois. Springfield, 2013 IL App (4th) 120881, {[46-58, 994\nN.E.2d 705, 716-19 (2013) (where newspaper had already published numerous articles setting\nforth the salient facts of sexual misconduct committed by public university athletic coaches,\nwitness statements depicting the sexual misconduct in explicit detail were exempt under section\n7(1)(c), but coaches' statements describing the preceding events were subject to disclosure).\nWhen the victim is a minor, the public interest in detailed descriptions of sexual offenses is at its\nlowest. Ill. Att'y Gen. Pub. Acc. Op. No. 21-002, issued February 17, 2021, at 8 (minimal public\ninterest in disclosure of details of alleged sexual offense against a minor where no arrests were\nmade or charges filed and alleged offender was a private citizen). As discussed above, however,\nthe records contain significant information that is not graphic or salacious. The arrestee's\nconduct is primarily described in general terms throughout the vast majority of the reports, and\ndisclosure of this information would shed light on the interests described by Ms. Smyser even\nwith graphic and salacious details redacted.\nAs to the fourth factor, the City did not argue or demonstrate that Ms. Smyser has\nalternative means of obtaining the police reports or the information contained therein.\n2 Jeff Kolkey, List of Winnebago County teachers charged with sex crimes swells, ROCKFORD\nREGISTER STAR (September 26, 2012, 9:14 a.m.), https://www.rrstar.com/story/lifestyle/public-\nsafety/2012/09/26/list-winnebago-county-teachers-charged/42661346007/.\nMs. Katy Smyser\nMs. Joanna Harris\nJune 16, 2023\nPage 10\nThe results of the four-factor balancing test clearly demonstrate that the\nresponsive police reports are not exempt from disclosure in their entireties under section 7(1)(c).\nThere is a compelling public interest in disclosure of information reflecting the nature of a public\nschool teacher's criminal misconduct involving a student and how the matter was handled by\nauthorities. The victim's right to privacy may be protected by redacting the victim's personally-\nidentifying information and any graphic or salacious details of a sexual offense. Therefore, the\nDepartment failed to sustain its burden of proving by clear and convincing evidence that the\nresponsive records are exempt from disclosure in their entireties under section 7(1)(c) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On March 22, 2023, Ms. Katy Smyser submitted a FOIA request to the City of\nSouth Beloit Police Department, on behalf of NBC5 Chicago and Telemundo Chicago, seeking\ncopies of police reports concerning a public school teacher who was arrested and charged with\nseveral criminal offenses involving a student in 2009.\n2) Ina letter dated March 29, 2023, that was transmitted via e-mail on March 28,\n2023, the Department denied the request in its entirety pursuant to section 7(1)(c) of FOIA.\n3) On April 19, 2023, Ms. Smyser submitted a Request for Review contesting the\nDepartment's denial. The Request for Review was timely filed and otherwise complies with the\nrequirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)).\n4) On April 24, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the Department and requested unredacted copies of the withheld records for this\noffice's confidential review, and a detailed written explanation of the legal and factual bases for\nthe applicability of the section 7(1)(c) exemption.\n5) On May 3, 2023, the attorney for the City provided this office with the\nrequested materials.\n6) On that same date, this office forwarded a copy of the City's answer to Ms.\nSmyser and notified her of her opportunity to reply. On May 12, 2023, Ms. Smyser notified this\noffice that she wished to stand on her original complaint.\n7) Section 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\nMs. Katy Smyser\nMs. Joanna Harris\nJune 16, 2023\nPage 11\ninvasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal\nprivacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\"\n8) There is a legitimate public interest in disclosure of information concerning\ncriminal offenses committed by a public school teacher against a minor student. The student's\nprivacy interests may be protected by redacting the student's identifying information and graphic\nor salacious details of any sexual offense. The Department failed to sustain its burden of proving\nby clear and convincing evidence that the responsive records are exempt from disclosure in their\nentireties under section 7(1)(c).\nTherefore, it is the opinion of the Attorney General that the South Beloit Police\nDepartment violated the requirements of FOIA by denying Ms. Katy Smyser's Freedom of\nInformation Act request in its entirety. Accordingly, the Department is hereby directed to take\nimmediate and appropriate action to comply with this opinion by providing Ms. Smyser with\ncopies of the responsive records, subject to the redaction of the victim's identifying information\nand limited graphic details under section 7(1)(c) as outlined above. Under separate cover, this\noffice will provide the Department with a copy of the records which identifies the graphic details\nthat would constitute a clearly unwarranted invasion of personal privacy if disclosed. The\nDepartment may also redact (1) information that meets the plain language of the definition of\n\"private information\"? under section 7(1)(b) of FOIA,” and (2) information that would\nSection 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2020)) defines \"private information\" as:\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\nfinancial information, passwords or other access codes, medical records, home\nor personal telephone numbers, and personal email addresses. Private\ninformation also includes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of attribution to\nany person.\n45 ILCS 140/7(1)(b) (West 2021 Supp.), as amended by Public Acts 102-752, effective January 1,\n2023; 102-753, effective January 1, 2023; 102-776, effective January 1, 2023; 102-791, effective May 13, 2022;\n102-1055, effective June 10, 2022 (exempting from disclosure \"[p]rivate information, unless disclosure is required\nby another provision of this Act, a State or federal law, or a court order.\").\nMs. Katy Smyser\nMs. Joanna Harris\nJune 16, 2023\nPage 12\nunavoidably identify members of the public who provided the Department with information\nrelating to the investigation under section 7(1)(d)(iv) of FOIA.?°\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seg. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days of the date of this decision naming the Attorney General of Illinois, Ms. Katy Smyser,\nNBCS Chicago, and Telemundo Chicago as defendants. See 5 ILCS 140/11.5 (West 2020).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBy: stc h~\nBrent D. Stratton\nChief Deputy Attorney General\ncc; Mr. Clayton Zamudio\nAssociate Attorney\nSosnowski Szeto, LLP\n6735 Vistagreen Way, Suite 300\nRockford, Illinois 61107\n255 ILCS 140/7(1)(d)(iv) (West 2021 Supp.), as amended by Public Acts 102-752, effective\nJanuary 1, 2023; 102-753, effective January 1, 2023; 102-776, effective January 1, 2023; 102-791, effective May 13,\n2022; 102-1055, effective June 10, 2022 (exempting from disclosure information that would \"unavoidably disclose\nthe identity of a confidential source, confidential information furnished only by the confidential source, or persons\nwho file complaints with or provide information to administrative, investigative, law enforcement, or penal\nagencies[.]\").\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 23-009) upon:\nMs. Katy Smyser\nSenior Producer, Investigations\nNBCS Chicago and Telemundo Chicago\n454 North Columbus Drive\nChicago, Illinois 60611-5555\nKaty.smyser@nbcuni.com\nMs. Joanna Harris\nAdministrative Records Clerk/FOIA Officer\nSouth Beloit Police Department\n519 Blackhawk Boulevard\nSouth Beloit, Illinois 61080\nSBPDRecords@southbeloit.org\nMr. Clayton Zamudio\nAssociate Attorney\nSosnowski Szeto, LLP\n6735 Vistagreen Way, Suite 300\nRockford, Illinois 61107\nclayton@sosnowskiszeto.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on June 16, 2023.\nSTEVE SILVERMAN\nChief, Public Access Bureau\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street, 11th Floor\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A news organization requested police records regarding a teacher arrested for crimes against a student, but the police department denied the request entirely, claiming personal privacy. The Attorney General ruled that the department violated the law because these records are not exempt from disclosure in their entirety. This means the public has a right to access police reports involving public employees accused of serious crimes, subject to limited redactions.","card_headline":"Police reports of a teacher's arrest for crimes against a student","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":172,"orig_master_id":19374,"dup_master_id":19146,"dup_sha256":"7eb1f46d7913a876e4797ff0b02aa612acd0e3321a3c34d7c63edab294dd9f07","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-07-12","case_number":"2023 PAC 76670","request_numbers":null,"title":"Police Reports Concerning Both a Juvenile Offender and Adult Offender are Exempt from Disclosure under the Juvenile Court Act of 1987","filename":"PUBLIC ACCESS OPINION 23-010 (Request for Review - 2023 PAC 76670).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 23-010 (Request for Review - 2023 PAC 76670).pdf","word_count":5003,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request for police reports involving a juvenile and an adult offender. It concludes that the Village of La Grange did not violate FOIA by withholding these reports.","plain_summary":"The requester, a newspaper reporter, sought police reports about an altercation at a high school in which both an adult and a minor were arrested, and a village disclosed only the adult's basic arrest information under FOIA's police-blotter provision while withholding the police reports themselves. The Public Access Counselor held that because the reports also concerned the investigation and arrest of a minor, the Juvenile Court Act barred their disclosure in their entirety, even as to the portions involving the adult, and the village had properly disclosed the required arrest information about the adult separately. No violation was found.","holding":"The Village of La Grange did not violate FOIA by withholding police reports.","legal_question":"Whether the Village of La Grange violated FOIA by withholding police reports concerning a juvenile and adult offender.","disposition":"no_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7(1)(a)"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Village of La Grange","requesting_party":"Mr. Bob Skolnik (Riverside-Brookfield Landmark)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought police reports concerning an incident at a high school involving both a juvenile and an adult offender.","ocr_status":"ok","ocr_quality":89.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-010.pdf","sha256":"961ffc65af1542ef53ee6cccbccead2e6effb0a93a15ee965ea9acfa51f74f56","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","juvenile records","FOIA request","confidentiality"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nJuly 12, 2023\nPUBLIC ACCESS OPINION 23-010\n(Request for Review 2023 PAC 76670)\nFREEDOM OF INFORMATION ACT:\nPolice Reports Concerning Both a\nJuvenile Offender and Adult Offender\nare Exempt from Disclosure under\nthe Juvenile Court Act of 1987\nMr. Bob Skolnik\nRiverside-Brookfield Landmark\n[street address redacted for site publication -- see original PDF]\nMs. Maureen Rush\nManagement Analyst\nVillage of La Grange\n53 South La Grange Road\nLa Grange, Illinois 60525\nDear Mr. Skolnik and Ms. Rush:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons discussed below, this\noffice concludes that the Village of La Grange (Village) did not violate the requirements of\nFOIA by withholding police reports involving both an adult arrestee and a minor arrestee in\nresponse to Mr. Bob Skolnik's FOIA request.\nBACKGROUND\nOn May 3, 2023, Mr. Skolnik submitted a FOIA request to the Village on behalf\nof the Riverside-Brookfield Landmark newspaper seeking:\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © T’l'Y: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © I’T’Y: (800) 964-3013 ¢ Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © T’ LY: (877) 675-9339 © Fax (618) 529-6416 — °Geccn~a~\nMr. Bob Skolnik\nMs. Maureen Rush\nJuly 12, 2023\nPage 2\ncopies of any and all police reports in possession of the police\ndepartment of the Village of LaGrange that pertain to any and all\nincidents that occurred on May 1, 2023 at or in the vicinity of the\nLyons Township High School North Campus which is located at\n100 S. Brainard Ave. LaGrange, Illinois. This includes any initial\nincident reports and any follow [up] reports completed on or after\nMay 1, 2023. This includes any [reports] pertaining to any and all\nfights, altercations and/or attacks involving a student or students\nwho are currently enrolled at Lyons Township High School.\"\nOn May 12, 2023, the Village responded? by providing copies of an \"Arrest\nInformation Sheet,\"> an \"Arrest Card,\"* and a \"CABS Mugshot Report\"® for an 18-year-old\narrestee, but denied the remaining records pursuant to sections 7(1)(a), 7(1)(b), 7(1)(c),\n7(1)(d)(iv), and 7.5(bb) of FOIA.® On May 19, 2023, Mr. Skolnik submitted a Request for\nReview to the Public Access Counselor via e-mail contesting the partial denial.’ He stated:\nI am requesting a review of the partial denial of my request\nfor police incident reports of an altercation that resulted in the\nsignificant injury to a student at Lyons Township High School\nlocated in LaGrange, Illinois on May 1, 2023.\nThis incident is a matter of much public interest, [citation],\nand the only record that was provided to me was a mug shot and an\narrest card. While I understand that the names of juveniles are not\n'E-mail from Bob Skolnik, Riverside Brookfield Landmark Newspaper, to Paul Saladino\nVillage Clerk, Village of LaGrange (May 3, 2023).\n*Letter from [Maureen Rush], FOIA Officer, Village of La Grange, to Bob Skolnik,\nRiverside Brookfield Landmark Newspaper (May 11, 2023).\n3Arrest Information Sheet, La Grange Police Department, Officer Cassiberry, Case No. 2023-\n00006601, May 3, 2023, 2:09 p.m.\n“Arrest Card, Arresting Agency: IL0165700, Case No. 2023-6601, May 3, 2023.\n°CABS Mugshot Report, Arresting Agency: La Grange, Case No. 2023-6601, May 5, 2023.\n°5 ILCS 140/7(1)(a), (1)(b), (1)(c), (1)(d)(iv) (West 2022); 5 ILCS 140/7.5(bb) (West 2022).\n7E-mail from Bob Skolnik, Riverside Brookfield Landmark Newspaper, to Public Access\nCounselor, Illinois Attorney General (dated May 12, 2023; transmitted May 19, 2023).\nMr. Bob Skolnik\nMs. Maureen Rush\nJuly 12, 2023\nPage 3\ntypically released I would like you to review the refusal to release\nthe incident report without names.'®!\nIn this submission, Mr. Skolnik cited a news article he wrote, dated May 11, 2023.’ The article\nstated that \"[a] juvenile was arrested on May 10 and charged with attempted first-degree murder\nin connection with an attack on a Lyons Township High School student last week that left victim\nseverely injured.\"!° The article also noted that there was an adult arrestee charged with\nmisdemeanor battery—the 18-year-old whose arrest information he received in response to his\nFOIA request—and, according to a Village press release, \"'[t]he incident involved an altercation\ninvolving several juveniles and an adult, which resulted in the injury of two juveniles, one of\nwhom was injured severely[.]'\"!!\nOn May 25, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the Village. Along with a copy of the Request for Review, the Public Access Bureau\nsent the Village a letter requesting unredacted copies of the withheld records for this office's\nconfidential review, and a detailed written explanation of the legal and factual bases for the\nasserted exemptions.!* The letter also asked the Village to \"please address the extent to which\nthe information about the adult arrestee is segregable from any information concerning the\ninvestigation of, arrest of, or charges against a minor.\"\nE-mail from Bob Skolnik, Riverside Brookfield Landmark Newspaper, to Public Access\nCounselor, Illinois Attorney General (dated May 12, 2023; transmitted May 19, 2023).\n°Bob Skolnik, Juvenile charged with attempted murder in LTHS attack, RIVERSIDE-BROOKFIELD\nLANDMARK (May 11, 2023), https://www.rblandmark.com/2023/05/1 1/juvenile-charged-with-attempted-murder-\ncharge-in-Iths-attack/.\n‘Bob Skolnik, Juvenile charged with attempted murder in LTHS attack, RIVERSIDE-BROOKFIELD\nLANDMARK (May 11, 2023), https://www.rblandmark.com/2023/05/1 1/juvenile-charged-with-attempted-murder-\ncharge-in-Iths-attack/.\n\"Bob Skolnik, Juvenile charged with attempted murder in LTHS attack, RIVERSIDE-BROOKFIELD\nLANDMARK (May 11, 2023), https://www.rblandmark.com/2023/05/1 1/juvenile-charged-with-attempted-murder-\ncharge-in-Iths-attack/ (citing Press Release, Village of La Grange, Arrest Made in Case Regarding Altercation at\nLTHS North Campus (May 11, 2023), available at\nhttps://www. villageoflagranlergts.aesp.xc? oAIDm=94/0C&AiRvC=i2c46A3 (last visited June 20, 2023)).\n1 etter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Maureen Rush, Management Analyst, Village of La Grange (May 25, 2023), at 2.\nLetter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General, to Maureen Rush, Management Analyst, Village of La Grange (May 25, 2023), at 2.\nMr. Bob Skolnik\nMs. Maureen Rush\nJuly 12, 2023\nPage 4\nOn June 2, 2023, the Village's outside counsel provided this office with those\nmaterials'*, including both a complete version of the Village's written answer for this office's\nconfidential review and a redacted version for forwarding to Mr. Skolnik.'> The Village\nmaintained that its partial denial was proper under sections 1-7(A), 1-7(C), and 5-905 of the\nJuvenile Court Act of 1987 (JCA),'° among other reasons. In particular, the Village argued that\nthe JCA prohibits disclosure of the reports in their entireties because they concern a juvenile\narrestee and juvenile suspects, even though the reports also contain information concerning the\ninvestigation and arrest of an adult who cannot be subject to juvenile court proceedings.'’ On\nJune 5, 2023, this office forwarded a copy of the Village's answer to Mr. Skolnik and notified\nhim of his opportunity to reply to that answer.'® On June 14, 2023, Mr. Skolnik replied, arguing:\n[T]he Village of LaGrange should be able to provide any * * *\npolice reports about the incident while redacting the names of any\njuveniles involved. Just releasing a mug shot and arrest card tells\nthe public little about what happened. A police report would reveal\nmuch more information about a matter that is of considerable\npublic interest. There is assuredly an extensive police report about\nthe incident. The LaGrange Patch and the Riverside Brookfield\nLandmark have reported about this incident but few to no details\nhave been released by the LaGrange Police Department or Lyons\nTownship High School. The public has a right to know what\nhappened, to the extent possible.!'?!\n'4Letters from Benjamin L. Schuster, Elrod Friedman LLP, to Joshua M. Jones, Deputy Bureau\nChief, Public Access Bureau, [Office of the Attorney General] (June 2, 2023).\n'SSee 5 ILCS 140/9.5(d) (West 2022) (\"The Public Access Counselor shall forward a copy of the\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy.\").\n16705 ILCS 405/1-7(A), (C) (West 2022); 705 ILCS 405/5-905 (West 2022).\n\"Letter from Benjamin L. Schuster, Elrod Friedman LLP, to Joshua M. Jones, Deputy Bureau\nChief, Public Access Bureau, [Office of the Attorney General] (June 2, 2023), at 3-4.\n'8L etter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office oft he\nAttorney General, to Bob Skolnik, Riverside Brookfield Landmark Newspaper (June 5, 2023).\n'9E-mail from Bob Skolnik, Landmark Newspaper, to [Joshua] Jones [Deputy Bureau Chief,\nPublic Access Bureau, Office of the Attorney General] (June 14, 2023).\nMr. Bob Skolnik\nMs. Maureen Rush\nJuly 12, 2023\nPage 5\nANALYSIS\nSection 1 of FOIA (5 ILCS 140/1 (West 2022)) declares that \"it is the public\npolicy of the State of Illinois that access by all persons to public records promotes the\ntransparency and accountability of public bodies at all levels of government.\" Under FOIA,\n\"[a]ll records in the custody or possession of a public body are presumed to be open to inspection\nor copying. Any public body that asserts that a record is exempt from disclosure has the burden\nof proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2022).\nSection 7.5(bb) of FOIA exempts from disclosure \"[i]nformation which is or was\nprohibited from disclosure by the Juvenile Court Act of 1987.\" Subsection 1-7(A) of the JCA\nrestricts the disclosure of \"juvenile law enforcement records\" as follows:\nAll juvenile law enforcement records which have not\nbeen expunged are confidential and may never be disclosed to the\ngeneral public or otherwise made widely available. Juvenile law\nenforcement records may be obtained only under this Section and\nSection 1-8 and Part 9 of Article V of this Act, when their use is\nneeded for good cause and with an order from the juvenile court,\nas required by those not authorized to retain them. Inspection,\ncopying, and disclosure of juvenile law enforcement records\nmaintained by law enforcement agencies or records of municipal\nordinance violations maintained by any State, local, or municipal\nagency that relate to a minor who has been investigated, arrested,\nor taken into custody before his or her 18th birthday shall be\nrestricted to the following[.] (Emphasis added.)\nThe parties authorized to access juvenile law enforcement records, such as a parent, guardian, or\ncounsel for the minor who is the subject of the juvenile law enforcement record, and court, law\nenforcement, and school officials,”° are then enumerated. Those authorized parties do not\n20705 ILCS 405/1-7(A)(0.05) (0.10), (A)(1), (A)(2), (A)(3), (A)(8) (West 2022).\nMr. Bob Skolnik\nMs. Maureen Rush\nJuly 12, 2023\nPage 6\ninclude members of the media or otherwise encompass Mr. Skolnik.?! Subsection 1-3(8.2) of the\nJCA” defines \"juvenile law enforcement record\" to include:\nrecords of arrest, station adjustments, fingerprints, probation\nadjustments, the issuance of a notice to appear, or any other\nrecords or documents maintained by any law enforcement agency\nrelating to a minor suspected of committing an offense, and\nrecords maintained by a law enforcement agency that identifies a\njuvenile as a suspect in committing an offense, but does not\ninclude records identifying a juvenile as a victim, witness, or\nmissing juvenile and any records created, maintained, or used for\npurposes of referral to programs relating to diversion as defined in\nsubsection (6) of Section 5-105.\nSubsection 1-7(I) of the JCA”? adds that \"[w]illful violation of this Section is a Class C\nmisdemeanor and each violation is subject to a fine of $1,000.\" As to \"delinquent minors\"\n(minors who before their 18th birthday have violated or attempted to violate any federal, State,\ncounty or municipal law or ordinance),”* section 5-905(1) of the JCA is similar to section 1-7(A)\nin providing that \"[i]nspection and copying of law enforcement records maintained by law\nenforcement agencies that relate to a minor who has been investigated, arrested, or taken into\ncustody before his or her 1 8th birthday shall be restricted to the following and when necessary\nfor the discharge of their official duties[.]\" Again, the enumerated authorized parties do not\ninclude members of the media, or otherwise apply to Mr. Skolnik.\nAt the outset of its non-confidential answer in this matter, the Village noted that it\n\"provided the Requester with the arrest information sheet, arrest card, and mug shot report of the\nAdult Offender[,]\" as \"[t]hese documents do not contain any information related to the Juvenile\n2ISubsection 1-7(C), which the Village also cited, provides, in relevant part:\nThe records of law enforcement officers, or of an independent agency\ncreated by ordinance and charged by a unit of local government with the duty of\ninvestigating the conduct of law enforcement officers, concerning all minors\nunder 18 years of age must be maintained separate from the records of arrests\nand may not be open to public inspection or their contents disclosed to the\npublic.\n22705 ILCS 405/1-3(8.2) (West 2022).\n23705 ILCS 405/1-7(1) (West 2022).\n24705 ILCS 405/5-105(3) (West 2022).\nMr. Bob Skolnik\nMs. Maureen Rush\nJuly 12, 2023\nPage 7\nOffender and include the information the Village is generally required to provide the public\nunder Section 2.15 of FOIA about adult offenders (the police blotter information).\"”> Indeed,\nsection 2.15 of FOIA” provides, in relevant part:\n(a) Arrest reports. The following chronologically\nmaintained arrest and criminal history information maintained by\nState or local criminal justice agencies shall be furnished as soon\nas practical, but in no event later than 72 hours after the arrest,\nnotwithstanding the time limits otherwise provided for in Section 3\nof this Act: (i) information that identifies the individual, including\nthe name, age, address, and photograph, when and if available; (ii)\ninformation detailing any charges relating to the arrest; (ili) the\ntime and location of the arrest; (iv) the name of the investigating or\narresting law enforcement agency; (v) (blank); and (vi) if the\nindividual is incarcerated, the time and date that the individual was\nreceived into, discharged from, or transferred from the arresting\nagency's custody.\n(c) Information described in items (iii) through (vi) of\nsubsection (a) may be withheld if it is determined that disclosure\nwould: (i) interfere with pending or actually and reasonably\ncontemplated law enforcement proceedings conducted by any law\nenforcement agency; (ii) endanger the life or physical safety of law\nenforcement or correctional personnel or any other person; or (iii)\ncompromise the security of any correctional facility.\n(d) The provisions of this Section do not supersede the\nconfidentiality provisions for law enforcement-or arrest records of\nthe Juvenile Court Act of 1987.\nUnder the plain language of section 2.15, criminal justice agencies must disclose certain\ninformation about the arrests of adults, but not minors.\n5Letter from Benjamin L. Schuster, Elrod Friedman LLP, to Joshua M. Jones, Deputy Bureau\nChief, Public Access Bureau, [Office of the Attorney General] (June 2, 2023), at 1.\n65 ILCS 140/2.15 (West 2022).\nMr. Bob Skolnik\nMs. Maureen Rush\nJuly 12, 2023\nPage 8\nThe Village argued that, in contrast to the arrest information that exclusively\npertains to the adult suspect, it properly withheld the police reports because they are \"juvenile\nlaw enforcement records\" subject to the protections of the JCA. Specifically, the Village stated,\n\"[t]he Police Report is a record that is maintained by the Village's police department and\ndocuments an investigation and arrest of a minor that is suspected of committing an offense.\"27\nThe Village's attorney confirmed to this office that the minor is not being charged as an adult.78\nThe Village asserted that it cannot disclose the police reports to Mr. Skolnik, with or without\nredactions, unless he obtains an order from the juvenile court authorizing disclosure.\nEmphasizing that \"the definition of ‘juvenile law enforcement record' does not exclude police\nreports that document an investigation into both a minor and an adult[,]\" the Village argued that\nconstruing the JCA to permit disclosure of portions of police reports about adult arrestees would\ncontravene the plain language of the statute.”?\nThe Village, citing two non-binding determination letters issued by the Public\nAccess Bureau*” and the \"Public Access Counselor's FOIA Guide for Law Enforcement,\"?!\nfurther stated:\nIn the past, the PAC has taken the position that, in\nsituations where a single police report documents the investigation\nof both minor suspects and an adult, the law enforcement agency is\nnot permitted to withhold the entire police report under the JCA.\n[Citations.] Rather, the PAC has determined that a law\nenforcement agency must redact the information about the minor\nand provide the remainder of the record to the requester.\n*7Letter from Benjamin L. Schuster, Elrod Friedman LLP, to Joshua M. Jones, Deputy Bureau\nChief, Public Access Bureau, [Office of the Attorney General] (June 2, 2023), at 3.\n8Teleconference between Benjamin L. Schuster, Elrod Friedman LLP, and Joshua M. Jones,\nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General (May 26, 2023).\n°Letter from Benjamin L. Schuster, Elrod Friedman LLP, to Joshua M. Jones, Deputy Bureau\nChief, Public Access Bureau, [Office of the Attorney General] (June 2, 2023), at 3.\n30711. Att'y Gen. PAC Req. Rev. Ltr. 74799, issued April 13, 2023; Ill. Att'y Gen. PAC Req. Rev. —\nLtr. 45410, issued March 15, 2017.\n31FOIA Guide for Law Enforcement, pgs. 23-24 (last revised June 2017),\nhttps://foiapac.ilag.gov/content/pdf/lawenfguide/FOIA_Guide_for_Law_Enforcement.pdf (\"If a record such as\na police report contains information about both adults and minors investigated or charged with crimes, the\ninformation relating to the adults may not be withheld under the JCA.\" (citing Ill. Att'y Gen. PAC Req. Rev. Ltr.\n31178, issued March 19, 2015, at 4)).\nMr. Bob Skolnik\nMs. Maureen Rush\nJuly 12, 2023\nPage 9\n[Citations.] We respectfully request that the PAC reconsider its\nprior interpretations[.]°7!\nThe Village contended that these prior determinations have placed law enforcement agencies in\nthe \"untenable position\" of facing potential criminal and civil liability under the JCA for\nimproperly disclosing juvenile law enforcement records, or, \"if public bodies ignore the PAC's\naenbiniing determinations,\" undergoing an \"increased risk of litigation for potentially violating\nFOIA.\"\nIn the two non-binding determination letters the Village cited, neither public body\ndisclosed arrest reports or similar documents for the adult arrestees,*“ despite the requirements of\nsection 2.15 of FOIA and in stark contrast with the Village's disclosure of such records in this\nmatter. In the other non-binding determination letters this office issued concerning police reports\nabout both adult and minor alleged offenders, the public bodies did not disclose the adults' arrest\ndocumentation either. Ill. Att'y Gen. PAC Req. Rev. Ltr. 28463, issued December 28, 2018, at 1,\n3; Ill. Att'y Gen. PAC Req. Rev. Ltr. 31178, issued March 19, 2015, at 4; Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 37903, issued October 25, 2017, at 7-8. Nonetheless, these determination letters\nwent beyond asking public bodies to disclose adult arrestees' arrest reports; they also requested\nthat the public bodies disclose the segregable portions of police reports that solely concern\nadults. In contrast, in the one previous Request for Review involving both a minor arrestee and\nan adult arrestee in which the public body did disclose the items enumerated in section 2.15(a) of\nFOIA about the adult arrestee, this office concluded that the public body was not required to\ndisclose the police reports with redactions, though that determination also rested on the fact that\nthe request named the involved minors and thus disclosure of the reports would have\nunavoidably revealed information about the minors. Ill. Att'y Gen. PAC Req. Rev. Ltr. 45781,\nissued March 20, 2017, at 3.\nDuring the timeframe of these non-binding determination letters, the General\nAssembly strengthened the already robust protections in the JCA for records involving the\ninvestigation, arrest, or charging of minors. Public Act 100-285, which took effect January 1,\n2018, added the first two sentences to section 1-7(A) of the JCA about the sealing of juvenile law\nenforcement records and added the criminal penalty for unlawful disclosure under section 1-7(I),\nLetter from Benjamin L. Schuster, Elrod Friedman LLP, to Joshua M. Jones, Deputy Bureau\nChief, Public Access Bureau, [Office of the Attorney General] (June 2, 2023), at 2.\nLetter from Benjamin L. Schuster, Elrod Friedman LLP, to Joshua M. Jones, Deputy Bureau\nChief, Public Access Bureau, [Office of the Attorney General] (June 2, 2023), at 3.\n3411]. Att'y Gen. PAC Req. Rev. Ltr. 74799, issued April 14, 2023, at 7-8; Ill. Att'y Gen. PAC Req.\nRev. Ltr. 45410, issued March 15, 2017, at 1, 4.\nMr. Bob Skolnik\nMs. Maureen Rush\nJuly 12, 2023\nPage 10\namong other confidentiality enhancements. Additionally, Public Act 100-1162, which took\neffect December 20, 2018, added the definition of \"juvenile law enforcement record\" quoted\nabove as part of a package of reforms facilitating the expungement of juvenile records. The\nJCA, however, has remained silent on police reports that concern both an adult arrestee and one\nor more minors who were investigated, arrested, or charged with an offense. It is not evident that\ndisclosure of portions of police reports that solely concern adult arrestees would offend the JCA's\nrehabilitative purpose of securing for a minor subject \"such care and guidance * * * as will serve\nthe safety and moral, emotional, mental, and physical welfare of the minor and the best interests\nof the community[.]\">°\nNonetheless, in Calloway v. Chicago Police Dep't, 2022 IL App (lst) 210090,\n202 N.E.3d 1050 (2022), the Illinois Appellate Court found the language of sections 1-7(A) and\n5-905(1) of the JCA prohibit disclosure of records that meet the definition of \"juvenile law\nenforcement record,\" regardless of whether withholding the specific record at issue is necessary\nto further the JCA's stated rehabilitative goals. Just as \"[nJone of [the JCA's] privacy provisions\ncontain any language explicitly or implicitly limiting the scope of these protections where the\nrecords at issue involve a minor that is deceased,\" Calloway, 2022 IL App (1st) 210090, 425, 202\nN.E.3d at 1058 (emphasis in original), the JCA contains no language limiting the scope of its\nprotections for police reports that include both juvenile and adult arrestees. See also, e.g., People\nex rel. Ryan v. Agpro, Inc., 214 Ill. 2d 222, 234 (2005) (court could not consider policy\narguments because statutory language was clear and unambiguous). Notably, a requester such as\nMr. Skolnik may seek disclosure of juvenile law enforcement records and juvenile court records\nby petitioning the juvenile court, as expressly provided in sections 1-7(A) and 1-8(A) of the\nJCA.*® As the Village stated in its response to this office, \"while this routine and statutorily\nmandated process may place an extra burden on a FOIA requester, it is, nevertheless, the law and\navsilable to the Requester if he believes that there is good cause for him to obtain the Police\nReport.\"3”\nThis office's review of the withheld police reports confirmed that they are all\n\"juvenile law enforcement records\" as defined in the JCA because they concern the investigation\nof multiple minors and the arrest and charging of one of the minors. Therefore, the JCA\nprohibits the Village from disclosing the police reports to Mr. Skolnik, and those records are\n35705 ILCS 405/1-2 (West 2022).\n36705 ILCS 405/1-8(A) (West 2022) (\"Sealed juvenile court records may be obtained only under\nthis Section and Section 1-7 and Part 9 of Article V of this Act, when their use is needed for good cause and with an\norder from the juvenile court.\").\n37Letter from Benjamin L. Schuster, Elrod Friedman LLP, to Joshua M. Jones, Deputy Bureau\nChief, Public Access Bureau, [Office of the Attorney General] (June 2, 2023), at 8.\nMr. Bob Skolnik\nMs. Maureen Rush\nJuly 12, 2023\nPage 11\nexempt from disclosure in their entireties under section 7.5(bb) of FOIA. Although Mr. Skolnik\nargued that the public interest in the incident warrants disclosure, the section 7.5(bb) exemption\ndoes not take the public interest in disclosure into consideration as certain other FOIA provisions\ndo;*8 the JCA prohibits disclosure of juvenile law enforcement records in whole or in part\nregardless of the reasons why an unauthorized party such as a member of the media seeks them.\nWhen a single police report concerns both an adult arrestee and a minor arrestee or suspect, the\nplain language of the JCA does not permit disclosure of any portion of the police report to an\nunauthorized party, regardless of the extent to which a portion of the report focuses on an adult\narrestee. Nevertheless, section 2.15 of FOIA requires a public body that withholds such a report\nto disclose the adult arrestee's arrest report and/or similar records that solely concern the arrest of\nthe adult. The Village's disclosure of the adult arrestee's \"Arrest Information Sheet,\" \"Arrest\nCard,\" and \"CABS Mugshot Report,\" and its withholding of the police reports, complied with the\nrequirements of both section 2.15 of FOIA and the JCA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On May 3, 2023, Mr. Bob Skolnik submitted a FOIA request to the Village of\nLa Grange on behalf of the Riverside-Brookfield Landmark newspaper seeking copies of police\nreports from two days earlier on May 1, 2023, concerning fights, altercations, and/or attacks\ninvolving one or more Lyons Township High School students.\n2) On May 12, 2023, the Village responded by providing copies of an \"Arrest\nInformation Sheet,\" an \"Arrest Card,\" and a \"CABS Mugshot Report\" for an 18-year-old arrestee\nwho was charged with battery, but denied the police reports pursuant to sections 7(1)(a), 7(1)(b),\n7(1)(c), 7(1)(d)(iv), and 7.5(bb) of FOIA.\n3) In an e-mail transmitted on May 19, 2023, Mr. Skolnik submitted a Request\nfor Review contesting the Village's denial of the police reports. The Request for Review was\ntimely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS\n140/9.5(a) (West 2022)).\n4) On May 25, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the Village and requested unredacted copies of the withheld records for this office's\n38See 5 ILCS 140/3(g) (West 2022) (records denied as unduly burdensome subject to disclosure if\nthe public interest in disclosure outweighs the public body's burden of compliance with the request); 5 ILCS\n140/7(1)(c) (West 2022) (records denied on the basis that disclosure would constitute a clearly unwarranted invasion\nof personal privacy are not exempt if the public interest in disclosure outweighs the subjects' right to privacy).\nMr. Bob Skolnik\nMs. Maureen Rush\nJuly 12, 2023\nPage 12\nconfidential review, and a detailed written explanation of the legal and factual bases for the\nasserted exemptions.\n5) On June 2, 2023, the attorney for the Village provided this office with the\nrequested materials, including both a complete version of its written answer for this office's\nconfidential review and a redacted version for forwarding to Mr. Skolnik.\n6) On June 5, 2023, this office forwarded a copy of the Village's non-confidential\nanswer to Mr. Skolnik and notified him of his opportunity to reply. On June 14, 2023, Mr.\nSkolnik submitted a reply.\n7) Section 7.5(bb) of FOIA exempts from disclosure \"[i]nformation which is or\nwas prohibited from disclosure by the Juvenile Court Act of 1987.\" Sections 1-7(A) and 5-\n905(1) of the Juvenile Court Act (JCA) prohibit disclosure of law enforcement records\nmaintained by law enforcement agencies that relate to a minor who has been investigated,\narrested, or taken into custody before his or her 18th birthday, except to certain authorized\nparties. The authorized parties do not include members of the media and do not otherwise\nencompass Mr. Skolnik.\n8) The withheld police reports concern an adult arrestee, a minor arrestee, and\none or more other juveniles investigated for potential offenses. None of the withheld police\nreports solely concerns the adult arrestee.\n9) The JCA clearly and unambiguously requires that a police report in which a\nminor is investigated, arrested, or charged with an offense be kept confidential. Although an\nadult cannot be subject to a juvenile court proceeding, the plain language of the JCA does not\npermit disclosure, to an unauthorized individual, of the parts of a police report that concern an\nadult arrestee when the police report also concerns a minor suspect.\n10) The Village properly disclosed the adult arrestee's arrest records in\naccordance with section 2.15 of FOIA.\nTherefore, it is the opinion of the Attorney General that the Village of La Grange\ndid not violate the requirements of FOIA by denying disclosure of the police reports responsive\nto Mr. Bob Skolnik's Freedom of Information Act request.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\nMr. Bob Skolnik\nMs. Maureen Rush\nJuly 12, 2023\nPage 13\n35 days of the date of this decision naming the Attorney General of Illinois and Village of La\nGrange as defendants. See 5 ILCS 140/11.5 (West 2022).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBrent D. Stratton\nChief Deputy Attorney General\nee Mr. Benjamin L. Schuster\nElrod Friedman LLP\n325 North LaSalle Street, Suite 450\nChicago, Illinois 60654\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 23-010) upon:\nMr. Bob Skolnik\nRiverside-Brookfield Landmark\n141 South Oak Park Avenue\nOak Park, Illinois 60302\nbobskolnik@aol.com\nMs. Maureen Rush\nManagement Analyst\nVillage of La Grange\n53 South La Grange Road\nLa Grange, Illinois 60525\nmrush@lagrangeil.gov\nMr. Benjamin L. Schuster\nElrod Friedman LLP\n325 North LaSalle Street, Suite 450\nChicago, Illinois 60654\nBenjamin.Schuster@ElrodFriedman.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on July 12, 2023.\nA\nPo\nSteve Silverman\nBureau Chief\nSteve Silverman\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested police reports from the Village of La Grange regarding an incident at a high school involving both a juvenile and an adult. The Attorney General ruled that the Village was correct to withhold the records because the Juvenile Court Act of 1987 protects the confidentiality of records involving minors. This means that even if an adult is involved in the same incident, the presence of a juvenile allows the police to keep the reports private.","card_headline":"Police reports of an incident at a high school","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":173,"orig_master_id":19373,"dup_master_id":19147,"dup_sha256":"671d32c6aff652d59a6adf9e4b7d6746f5221c7fef417d31766d4268a5aec9f9","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-07-12","case_number":"2023 PAC 76017","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 23-011 (Request for Review - 2023 PAC 76017).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 23-011 (Request for Review - 2023 PAC 76017).pdf","word_count":3511,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a Freedom of Information Act (FOIA) request submitted by Ms. Ellen P. Brewin to Proviso Township High School District 209, which was found to have violated FOIA by failing to respond appropriately.","plain_summary":"The requester, a member of the public, sought records relating to legal settlements reached by a school district over a roughly two-and-a-half-year period, and the district failed to substantively respond despite months of follow-up and a change in FOIA officers. The Public Access Counselor held that the district violated section 3(d) of FOIA by failing to comply with, deny, or properly respond to the request within the statutory period. The district was directed to disclose all records responsive to the request, subject only to permissible redactions.","holding":"Proviso Township High School District 209 violated section 3(d) of FOIA by failing to respond to Ms. Brewin's FOIA request.","legal_question":"Did Proviso Township High School District 209 comply with the requirements of the Freedom of Information Act regarding the FOIA request submitted by Ms. Brewin?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Proviso Township High School District 209","requesting_party":"Ms. Ellen P. Brewin","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"duty to respond","subject_description":"The requester sought records related to legal or other settlements reached by the school district or its employees.","ocr_status":"ok","ocr_quality":90.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-011.pdf","sha256":"edb77a2ae81868c4cca6bde70dd47ef5a6580edcf333b53888ff59b2852d5e54","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","school district","settlement records","FOIA request"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nJuly 12, 2023\nPUBLIC ACCESS OPINION 23-011\n(Request for Review 2023 PAC 76017)\nFREEDOM OF INFORMATION ACT:\nDuty to Respond to FOIA Requests\nMs. Ellen P. Brewin\n[street address redacted for site publication -- see original PDF]\nDr. James L. Henderson\nSuperintendent\nProviso Township High School District 209\n8601 West Roosevelt Road\nForest Park, Illinois 60130\nDear Ms. Brewin and Dr. Henderson:\nThis binding opinion is issued by the Attorney General pursuant to section 9.5(f)\nof the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons\ndiscussed below, this office concludes that Proviso Township High School District 209 (District)\nviolated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2022)) by failing to comply with, deny in\nwhole or in part, or otherwise appropriately respond to a FOIA request submitted by Ms. Ellen P.\nBrewin.\nBACKGROUND\nOn March 15, 2023, Ms. Brewin submitted by e-mail! a FOIA request to the\nDistrict dated March 16, 2023, seeking copies \"of any and all records * * * related to legal or\nother kinds of settlements reached by the district or any of its employees from June 30, 2020 to\n'E-mail from Ellen P. Brewin to Proviso FOIA Compliance Officer and/or [Kristi] Vanden[B]roek\n(March 15, 2023).\n500 South Second Street, Springfield, Ilinois 62701 © (217) 782-1090 © ‘I’: (877) 844-5461 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 ¢ (312) 814-3000 © TTY: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 ¢ TTY: (877) 675-9339 © Fax (618) 529-6416 °€eesns D>»\nMs. Ellen P. Brewin\nDr. James L. Henderson\nJuly 12, 2023\nPage 2\nFebruary 28, 2023.\"” On March 27, 2023, Ms. Brewin submitted a Request for Review with the\nPublic Access Counselor, in which she alleged that the District had failed to respond to her FOIA\nrequest.>\nOn March 31, 2023, the Public Access Bureau e-mailed the FOIA Officer for the\nDistrict a copy of the Request for Review and a letter asking whether the District had received\nand responded to Ms. Brewin's FOIA request.’ This office sent the e-mail to the e-mail address\nidentified on the District's website as the designated address for FOIA requests.> The March 31,\n2023, letter also requested that if the District had not yet responded to Ms. Brewin, it do so and\nprovide this office with a copy of its response.° The District did not respond to the Public\nAccess Bureau's March 31, 2023, correspondence.\nOn April 27, 2023, the Public Access Bureau sent a letter via U.S. Postal Mail to\nDr. James Henderson, the District's Superintendent,’ stating that this office had not received a\nresponse to its March 31, 2023, letter and reiterating the request for a response.® This office\nattached to the letter a copy of the March 31, 2023, letter and Ms. Brewin's Request for Review.\nOn the same day, this office also sent via e-mail copies of the letter to Dr. Henderson, the FOIA\nOfficer, and Ms. Tiffany Jenkins, Executive Assistant to the Board of Education and\n*PTHS District 209 Request to Inspect Records form signed by Ellen P. Brewin (March 16, 2023).\n3FOIA — Request for Review by Public Access Counselor (PAC) form signed by Ellen P. Brewin\n(March 27, 2023).\n‘E-mail from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to [FOIA Officer, Proviso Township High School District 209] (March 31, 2023).\nProviso Township High School D209, Public and Community Relations,\nhttps://www.pths209.org/Pag1e3/92 (last visited July 5, 2023).\n‘Letter from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to FOIA Officer, Proviso Township High School District 209 (March 31, 2023), at [1].\n’This office designated the Superintendent as the recipient of this office's correspondence pursuant\nto the District's Board of Education policy 2:250, which states, in relevant part: \"The Superintendent or designee\nshall respond to requests made under the Illinois Freedom of Information Act[.]\" Proviso Township High School\nDistrict 209 Board of Education Policy Manual, section 2:250,\nhttps://www.pths209.org/cms/lib/IL50000037/Centricity/Domain/3325//PDFs/PTHSBoardPolicyAccesstoPublicRec\nords.pdf (last visited July 5, 2023).\n8Letter from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to James L. Henderson, Superintendent, Proviso Township High School District 209 (April 27,\n2023).\nMs. Ellen P. Brewin\nDr. James L. Henderson\nJuly 12,2023\nPage 3\nSuperintendent.’ The District did not respond to the Public Access Bureau's April 27, 2023,\nletter. Later the same day, Ms. Brewin e-mailed this office'® a copy of an April 19, 2023, letter\nfrom the District's FOIA Officer stating that the District was extending its time to respond to the\nMarch 15, 2023, FOIA request and would do so by April 30, 2023.\"!\nOn May 2, 2023, the Public Access Bureau sent an e-mail to Ms. Brewin asking if\nshe had received a response from the District.'2, The same day, Ms. Brewin informed this office\nshe had not received any further correspondence from the District.'3 In a May 4, 2023, telephone\ncall with an Assistant Attorney General (AAG) in the Public Access Bureau, the District's FOIA\nofficer, Ms. Janessa Salgado, informed this office that she had recently taken over as the FOIA\nofficer and was trying to catch up on requests.'* She confirmed that the District had received\nMs. Brewin's FOIA request and indicated that she was waiting for a response from the District's\nattorney.'> She noted that the District's Board of Education was meeting that week,!° and\nindicated that she may receive a response from the District's attorney afterwards.'? On May 16,\n2023, the Public Access Bureau sent an e-mail to Ms. Salgado asking if she had provided Ms.\n°E-mail from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office oft he\nAttorney General, to Superintendent209@pths209.org, foia@pths209.org, tjenkins@pths209.org,\n217park@gmail.com (April 27, 2023).\n!0F-mail from Ellen P. Brewin to [Victoria Frazier, Assistant Attorney General, Public Access\nBureau, Office of the Attorney General] (April 27, 2023).\n\"Letter from Janessa Salgado, FOIA Compliance Officer, Proviso Township High School District\n209, to Ellen P. Brewin (April 19, 2023).\nE-mail from Victoria Frazier, [Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General] to [Ellen] Brewin (May 2, 2023).\nE-mail from Ellen Brewin to [Victoria Frazier, Assistant Attorney General, Public Access\nBureau, Office of the Attorney General] (May 2, 2023).\n'4Telephone conversation between Janessa Salgado and Victoria Frazier, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General (May 4, 2023).\n'STelephone conversation between Janessa Salgado and Victoria Frazier, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General (May 4, 2023).\n'©This office notes that the FOIA Report in the agenda for the District's Board of Education\nRegular Meeting on April 11, 2023, which lists FOIA requests received by the District for the prior month, included\nMs. Brewin's March 15, 2023, FOIA request. Board of Education of Proviso Township High School District 209,\nRegular Meeting, Agenda Item 15 (April 11, 2023),\nhttps://meetings.boardbook.org/Pugbelnicda/A/1 79 1 ?meeting=5774 10 (last visited July 3, 2023).\nTelephone conversation between Janessa Salgado and Victoria Frazier, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General (May 4, 2023).\nMs. Ellen P. Brewin\nDr. James L. Henderson\nJuly 12, 2023\nPage 4\nBrewin with a response and requesting a copy of the response, if it had been provided.'® The\nDistrict did not respond.\nIn a May 18, 2023, telephone call with Ms. Salgado, an AAG asked if she had\nreceived this office's most recent e-mail and asked for an update on a response to Ms. Brewin's\nrequest.!? Ms. Salgado asked if the e-mail had been sent on Wednesday, May 17, 2023, and if\nso, stated she was waiting for approval to send the response.*? On May 19, 2023, after reviewing\nthis office's files and confirming that no correspondence had been sent to the District on May 17,\n2023, the AAG left a voicemail message for Ms. Salgado, asking her to return the call to clarify\nthe status of the responses to the outstanding Requests for Review. In a May 25, 2023, telephone\ncall with Ms. Salgado, the AAG noted that there were two pending Requests for Review”! filed\nby Ms. Brewin alleging that the District had failed to respond to her FOIA requests. The AAG\nasked Ms. Salgado whether the District had provided a response to either of those two FOIA\nrequests.”* Ms. Salgado indicated that information for a response for Ms. Brewin's March 15,\n2023, FOIA request would likely come from the District's attorney and information for the other\nFOIA request would likely come from the District's business office.”? Additionally, Ms. Salgado\ninformed the AAG that Ms. Kristi VandenBroek was now the District's FOIA Officer and would\nbe able to provide more information.”* Ms. Salgado then transferred the AAG to Ms.\nVandenBroek's telephone line; the AAG left a voicemail asking Ms. VandenBroek to return her\ncall.\n'8E-mail from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office oft he\nAttorney General to [Janessa] Salgado, [FOIA Compliance Officer, Proviso Township High School District 209]\n(May 16, 2023).\nTelephone conversation between Janessa Salgado and Victoria Frazier, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General (May 18, 2023).\n0Telephone conversation between Janessa Salgado and Victoria Frazier, Assistant Attorney\nGeneral, Office of the Attorney General (May 18, 2023).\n21In addition to the Request for Review at issue in this matter, Ms. Brewin alleged that the District\nfailed to respond to the FOIA request that underlies Request for Review 2023 PAC 75733.\n2Telephone conversation between Janessa Salgado and Victoria Frazier, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General (May 25, 2023).\n3Telephone conversation between Janessa Salgado and Victoria Frazier, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General (May 25, 2023).\n4Telephone conversation between Janessa Salgado and Victoria Frazier, Assistant Attorney\nGeneral, Office of the Attorney General (May 25, 2023).\nMs. Ellen P. Brewin\nDr. James L. Henderson\nJuly 12, 2023\nPage 5\nOn May 26, 2023, this office extended the time for issuing a binding opinion for\n30 business days, pursuant to section 9.5(f) of FOIA (5 ILCS 140/9.5(f) (West 2022)).”°\nOn June 8, 2023, an AAG called the District's main phone number seeking to\nidentify the District's FOIA officer. The AAG was routed to Ms. Salgado, who reiterated that\nMs. VandenBroek was the FOIA officer, but she was not in the office.*° Ms. Salgado provided\nthe AAG with Ms. VandenBroek's direct telephone number.””? On June 14, 2023, and June 22,\n2023, the AAG left messages on Ms. VandenBroek's voicemail asking for her to contact this\noffice to discuss the outstanding Requests for Review. Ms. VandenBroek has not returned this\noffice's messages.\nOn July 3, 2023, the Public Access Bureau sent an e-mail to Ms. Brewin asking if\nshe had received a response to her March 15, 2023, FOIA request.® In a subsequent telephone\ncall that day with an AAG, Ms. Brewin confirmed that she has not received a response to her\nMarch 15, 2023, FOIA request. Also on July 3, 2023, the Public Access Bureau sent an e-mail\nto Ms. VandenBroek explaining that this office has received neither a response to its voicemail\nmessages nor any indication that Ms. Brewin's FOIA request has been addressed. This office\nrequested a response as to when the District would respond to Ms. Brewin's March 15, 2023,\nFOIA request.”? On July 10, 2023, Ms. VandenBroek replied via e-mail by indicating that she\nwould work with the Superintendent on a response to Ms. Brewin's March 15, 2023, FOIA\nrequest.°*° As of the date of the issuance of this binding opinion, this office has not received a\nfurther response from the District, nor has it received any indication that the District has\nresponded to Ms. Brewin's March 15, 2023, FOIA request.\nLetter from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office oft he\nAttorney General, to James Henderson, Superintendent, Proviso Township High School District 209, and Ellen\nBrewin (May 26, 2023).\n6Telephone conversation between Janessa Salgado and Victoria Frazier, Assistant Attorney\nGeneral, Public Access Bureau, Office of the Attorney General (June 8, 2023).\n27Telephone conversation between Janessa Salgado and Victoria Frazier, Assistant Attorney\nGeneral, Office of the Attorney General (June 8, 2023).\n28E-mail from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the\nAttorney General, to [Ellen] Brewin (July 3, 2023).\n°F-mail from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office oft he\nAttorney General, to [Kristi VandenBroek, Director of Public Communications Relations, Proviso Township High\nSchool District 209] (July 3, 2023).\n3°E-mail from Kristin VandenBroek, Director of Public & Community Relations, Proviso\nTownship High School District 209, to [Peggy] Frazier (July 10, 2023).\nMs. Ellen P. Brewin\nDr. James L. Henderson\nJuly 12, 2023\nPage 6\nANALYSIS\n\"It is a fundamental obligation of government to operate openly and provide\npublic records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS\n140/1 (West 2022). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2022)), \"[a]ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"\nSection 3(a) of FOIA (5 ILCS 140/3(a) (West 2022)) provides that \"[e]ach public body shall\nmake available to any person for inspection or copying all public records, except as otherwise\nprovided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides:\nEach public body shall, promptly, either comply with or\ndeny a request for public records within 5 business days after its\nreceipt of the request, unless the time for response is properly\nextended under subsection (e) of this Section. Denial shall be in\nwriting as provided in Section 9 of this Act. Failure to comply\nwith a written request, extend the time for response, or deny a\nrequest within 5 business days after its receipt shall be considered\na denial of the request. A public body that fails to respond to a\nrequest within the requisite periods in this Section but thereafter\nprovides the requester with copies of the requested public records\nmay not impose a fee for such copies. A public body that fails to\nrespond to a request received may not treat the request as unduly\nburdensome under subsection (g).\nSection 3(e) of FOIA (5 ILCS 140/3(e) (West 2022)) permits a public body to extend its\nresponse time by no more than five business days from the original due date for any of seven\nenumerated reasons. Any additional extension requires a written agreement between the\nrequester and the public body. 5 ILCS 140/3(e) (West 2022).\nIt is undisputed that the District did not respond to Ms. Brewin's March 15, 2023,\nFOIA request within five business days after its receipt by either complying with her request,\nextending the time for its response pursuant to section 3(e) of FOIA, or denying the request in\nwriting. The failure of the District to comply with the requisite response procedures violated\nsection 3(d) of FOIA.\nMs. Ellen P. Brewin\nDr. James L. Henderson\nJuly 12, 2023\nPage 7\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On March 15, 2023, Ms. Ellen P. Brewin submitted a FOIA request to Proviso\nTownship High School District 209 seeking copies of records relating to settlement agreements\nbetween June 30, 2020, and February 28, 2023.\n2) On March 27, 2023, Ms. Brewin submitted the documents required to file a\nRequest for Review with the Public Access Counselor alleging that the District had not\nresponded to her FOIA request. Ms. Brewin's Request for Review was timely filed and\notherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West\n2022)).\n3) On March 31, 2023, the Public Access Bureau forwarded a copy of the\nRequest for Review to the District along with a letter asking whether the District had responded\nto Ms. Brewin's FOIA request. The District did not respond.\n4) On April 27, 2023, the Public Access Bureau sent a second copy of the letter\nand Request for Review to the District, including the District's Superintendent and his assistant,\nexplaining that the Public Access Bureau had not received any indication that the District had\nresponded to Ms. Brewin's FOIA request. The District did not respond. On April 27, 2023, Ms.\nBrewin provided this office a copy of an April 19, 2023, letter from the District indicating she\nwould receive a response to her FOIA request on April 30, 2023. On May 2, 2023, Ms. Brewin\nconfirmed she had not received a response or other correspondence from the District.\n5) On May 4, 2023, in a telephone call, Ms. Janessa Salgado, the District's FOIA\nofficer at the time, confirmed receipt of Ms. Brewin's March 15, 2023, FOIA request and\nindicated that the District was working on its response. On May 16, 2023, the Public Access\nBureau re-sent its April 27, 2023, letter to the FOIA Officer and asked for an update. The\nDistrict did not respond to the Public Access Bureau's May 16, 2023, e-mail. In a May 25, 2023,\ntelephone call, Ms. Salgado informed the Public Access Bureau that she was no longer the\nDistrict's FOIA officer.\n6) On May 26, 2023, the Public Access Bureau extended the time in which to\nissue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA (5 ILCS\n140/9.5(f) (West 2022)). Therefore, the Attorney General may properly issue a binding opinion\nwith respect to this matter.\nMs. Ellen P. Brewin\nDr. James L. Henderson\nJuly 12, 2023\nPage 8\n7) On May 25, 2023, June 14, 2023, and June 22, 2023, the Public Access Bureau\nleft voicemail messages for Ms. Kristi VandenBroek, the designated FOIA officer for the\nDistrict, asking her to contact this office to discuss Ms. Brewin's Request for Review. The\nPublic Access Bureau has received no response.\n8) On July 3, 2023, the Public Access Bureau e-mailed Ms. VandenBroek asking\nfor an update as to when the District would respond to Ms. Brewin's March 15, 2023, FOIA\nrequest. On July 10, 2023, Ms. VandenBroek replied via e-mail by indicating that she would\nwork with the Superintendent on a response to the request. As of the date of the issuance of this\nbinding opinion, this office has received no information indicating that the District has responded\nto Ms. Brewin's March 15, 2023, FOIA request.\nTherefore, it is the opinion of the Attorney General that Proviso Township High\nSchool District 209 has violated section 3(d) of FOIA by failing, within the statutory time for\nresponding to Ms. Brewin's March 15, 2023, FOIA request, to provide her with copies of the\nrequested records or to deny the request in writing in whole or in part. Accordingly, the District\nis hereby directed to take immediate and appropriate action to comply with this opinion by\nproviding Ms. Brewin with copies of all records responsive to her March 15, 2023, request,\nsubject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West\n2022)).3! If the District determines that any portion of the responsive records is exempt from\ndisclosure under section 7, it is directed to issue a written denial that fully complies with the\nrequirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2022)).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision naming the Attorney General of Illinois and Ms.\nBrewin as defendants. See 5 ILCS 140/11.5 (West 2022).\nSincerely,\nKWAME RAOUL\nTORNEY GENERAL\n> Delo Sat\nBrent D. Stratton\nChief Deputy Attorney General\n31Because the District did not comply with the statutory requirements for responding to Ms.\nBrewin's FOIA request, the District is precluded from treating the request as unduly burdensome or imposing\ncopying fees for the responsive records. 5 ILCS 140/3(d) (West 2022).\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 23-011) upon:\nMs. Ellen P. Brewin\n11441 Prescott Lane\nWestchester, Illinois 60154\n217park@gmail.com\nDr. James L. Henderson\nSuperintendent\nProviso Township High School District 209\n8601 West Roosevelt Road\nForest Park, Illinois 60130\njhenderson@pths209.org\nKristi VandenBroek\nDirector of Public & Community Relations\nProviso Township High School District 209\n8601 West Roosevelt Road\nForest Park, Illinois 60130\nkvandenbroek@pths209.org\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on July 12, 2023.\nSteve Silverman\nBureau Chief\nSteve Silverman\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Ms. Brewin requested records regarding legal settlements from Proviso Township High School District 209, but the District failed to provide a timely response or denial. The Attorney General's office determined that the District violated section 3(d) of FOIA by failing to respond to the request. The opinion does not state any specific remedy or order regarding the records or fees.","card_headline":"Settlement records of a school district","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":174,"orig_master_id":19376,"dup_master_id":19148,"dup_sha256":"d9f796a404ea7f08a57fed38923763f64de17171d83a83272bfc3297e92f4839","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-12-01","case_number":"2023 PAC 78444","request_numbers":null,"title":"Taking Final Action in Closed Session","filename":"PUBLIC ACCESS OPINION 23-014 (Request for Review - 2023 PAC 78444).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 23-014 (Request for Review - 2023 PAC 78444).pdf","word_count":3007,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a violation of the Open Meetings Act by the Village of Skokie Board of Trustees for taking final action during a closed session.","plain_summary":"The requester, a village trustee, alleged that a village board voted to approve closed-session minutes from an earlier meeting while still in closed session. The Public Access Counselor held that although a board may discuss closed-session minutes in closed session, the Open Meetings Act's exception does not permit final approval of those minutes to occur there, and the board's vote was a completed, non-tentative action rather than a preliminary poll. The board was directed to place the approval of those minutes on a future open-session agenda and provide an adequate public recital before voting.","holding":"The Village of Skokie Board of Trustees violated section 2(e) of the Open Meetings Act.","legal_question":"Did the Village of Skokie Board of Trustees violate the Open Meetings Act by taking final action in a closed session?","disposition":"violation_found","primary_statute":["5 ILCS 120/2(e)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Skokie Board of Trustees","requesting_party":"James Johnson","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board of Trustees took a final vote to approve closed session minutes during a closed session meeting.","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-014.pdf","sha256":"1aa6bf42707f6bfb0ba4500f075ec40fbbb32d81d25a80d42bf26ecc20a19a51","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","final action","meeting minutes","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nDecember 1, 2023\nPUBLIC ACCESS OPINION 23-014\n(Request for Review 2023 PAC 78444)\nOPEN MEETINGS ACT:\nTaking Final Action in Closed Session\nThe Honorable James Johnson\nTrustee\nVillage of Skokie\n[street address redacted for site publication -- see original PDF]\nThe Honorable George Van Dusen\nMayor\nVillage of Skokie\n5127 Oakton Street\nSkokie, Illinois 60077\nDear Mr. Johnson and Mr. Van Dusen:\nThis binding opinion is issued by the Attorney General pursuant to section 3.5(e)\nof the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2022)). For the reasons discussed -\nbelow, this office concludes that the Village of Skokie (Village) Board of Trustees (Board)\nviolated section 2(e) of OMA! by taking final action during the closed session portion of its\nOctober 2, 2023, meeting.\nBACKGROUND\nOn October 4, 2023, Board Trustee James Johnson submitted a Request for\nReview to the Public Access Bureau alleging that the Board improperly voted to approve the\n'5 ILCS 120/2(e) (West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n500 South Second Street, Springfield, Illinois 62701 ¢ (217) 782-1090 © ‘T’T'Y: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © TTY: (800) 964-3013 ¢ Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL, 62901 © (618) 529-6400 © TTY: (877) 675-9339 ¢ Fax (618) 529-6416 Roe\nThe Honorable James Johnson\nThe Honorable George Van Dusen\nDecember 1, 2023\nPage 2\nclosed session minutes of its June 5, 2023, meeting during the closed session portion of its\nOctober 2, 2023, meeting.”\nOn October 13, 2023, the Public Access Bureau sent a copy of the Request for\nReview to Mayor George Van Dusen, in his capacity as the head of the Board. The Public\nAccess Bureau also sent the Board a letter requesting a written response to Trustee Johnson's\nallegations, together with copies of the notice, agenda, minutes (both open and closed), and\nclosed session verbatim recording for the October 2, 2023, meeting.’ In a letter dated October\n19, 2023, the Mayor provided this office with copies of the requested materials, including a\nredacted written answer‘ and an unredacted written answer for this office's confidential review.°\nOn November 1, 2023, the Public Access Bureau forwarded a copy of the Board's\nredacted written answer to Trustee Johnson and notified him of his opportunity to reply.° Later\nthat same day, Trustee Johnson submitted a reply.’\nANALYSIS\nSection 2(a) of OMA® requires public bodies to conduct public business openly\nunless considering a subject that is among the enumerated exceptions to that requirement in\nsection 2(c) of the Act.? One of those exceptions authorizes public bodies to hold a closed\nmeeting or close a portion of a meeting for the purpose of \"[d]iscussion of minutes of meetings\nE-mail from James Johnson to Leah Bartelt, Public Access Counselor, Office of the Attorney\nGeneral (October 4, 2023).\n3Letter from Christopher R. Boggs, Deputy Public Access Counselor, Public Access Bureau,\nOffice of the Attorney General, to The Honorable George Van Dusen, Mayor, Village of Skokie (October 13, 2023).\n‘Section 3.5(c) of OMA (5 ILCS 120/3.5(c) (West 2022)) provides that \"the public body may * * *\nfurnish the Public Access Counselor with a redacted copy of the answer excluding specific references to any matters\nat issue.\"\n>Letter from Mayor George Van Dusen, Village of Skokie, to Christopher Boggs, Deputy Public\nAccess Counselor, Public Access Bureau, [Office of the Attorney General] (October 19, 2023).\n°Letter from Christopher R. Boggs, Deputy Public Access Counselor, Public Access Bureau,\nOffice of the Attorney General, to The Honorable James Johnson, Trustee, Village of Skokie (November 1, 2023).\n7E-mail from James Johnson to Christopher Boggs (November 1, 2023).\n85 ILCS 120/2(a) (West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n°5 ILCS 120/2(c) (West 2022), as amended by Public Act 103-311, effective July 28, 2023.\nThe Honorable James Johnson\nThe Honorable George Van Dusen\nDecember 1, 2023\nPage 3\nlawfully closed under this Act, whether for purposes of approval by the body of the minutes or\nsemi-annual review of the minutes as mandated by Section 2.06.\"'° Section 2(e) of OMA,\nhowever, provides that \"[n]o final action may be taken at a closed meeting[ ]\" and that \"[f]inal\naction shall be preceded by a public recital of the nature of the matter being considered and other\ninformation that will inform the public of the business being conducted.\"\nThe non-confidential portion of the Board's answer denied that the Board\nviolated OMA during the closed session portion of its October 2, 2023 meeting,'! but the entirety\nof its reasoning in support of that assertion was provided confidentially. This office has\nreviewed the allegations in Trustee Johnson's Request for Review, the minutes of both the open\nand closed portions of the October 2, 2023, meeting, as well as the entirety of the verbatim\nrecording of the October 2, 2023, closed session. The October 2, 2023, open session meeting\nminutes’? reflect that the Board adjourned its open session at 8:10 p.m. to convene in closed\nsession for the review and discussion of pending litigation under section 2(c)(11) of OMA.\nThe closed session verbatim recording confirms the allegations in Trustee Johnson's Request for\nReview, which stated that during the relevant portion of the closed session meeting, the Board\napproved the June 5, 2023, closed session minutes, with Trustee Johnson abstaining'4.\nFollowing additional closed session discussion that is not at issue in this matter, the Board\nadjourned its closed session at 8:20 p.m.'> The October 2, 2023, open session meeting minutes\ndo not indicate that the Board took any vote in open session with regards to the approval of the\nJune 5, 2023, closed session minutes or otherwise reconvened in open session following the\nadjournment of the closed session.\n105 ILCS 120/2(c)(21) (West 2022), as amended by Public Act 103-311, effective July 28, 2023.\n\"Letter from Mayor George Van Dusen, Village of Skokie, to Christopher Boggs, Deputy Public\nAccess Counselor, Public Access Bureau (October 19, 2023), at 2.\nVillage of Skokie Board of Trustees, Regular Meeting, October 2, 2023, Minutes 3.\n'355 ILCS 120/2(c)(11) (West 2022), as amended by Public Act 103-311, effective July 28, 2023).\nAlthough not alleged as a violation in Trustee Johnson's Request for Review, the meeting minutes do not also cite\nthe section 2(c)(21) exception as a basis for the Board's closed session discussion. Section 2a of OMA (5 ILCS\n120/2a (West 2022)) requires public bodies to publicly cite \"the specific exception contained in Section 2 oft his Act\nwhich authorizes the closing of the meeting to the public\" before voting to enter closed session, and to record and\nenter that exception in the meeting minutes.\nVillage of Skokie Board of Trustees, Closed Session, October 2, 2023, MP3 Audio File, at\n00:03:45 (on file with the Public Access Bureau).\n'SVillage of Skokie Board of Trustees, Regular Meeting, October 2, 2023, Minutes 3.\nThe Honorable James Johnson\nThe Honorable George Van Dusen\nDecember 1, 2023\nPage 4\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n(2006). \"The most reliable indicator of legislative intent is the statutory language, given its plain\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, 4 56. Ifthe language of a statute is clear and unambiguous, a reviewing body \"may\nnot depart from the plain language by reading into the statute exceptions, limitations, or\nconditions that the legislature did not express.\" Hayashi v. Illinois Department of Financial &\nProfessional Regulation, 2014 IL 116023, § 16. \"[L]ikewise, [a reviewing body] may not add\nprovisions under the guise of interpretation.\" Glynn v. Dep't of Corrections, 2023 IL App (lst)\n211657, 427. \"[D]ifferent sections of the same statute should be read together and construed\nharmoniously.\" Collinsville Community Unit School District No. 10 v. Regional Board of School\nTrustees of St. Clair County, 218 Ill. 2d 175, 185-86 (2006).\nAs discussed above, section 2(e) of OMA expressly provides that \"[n]o final\naction may be taken at a closed meeting. Final action shall be preceded by a public recital of\nthe nature of the matter being considered and other information that will inform the public of the\nbusiness being conducted.\" (Emphasis added.) The requirement that public bodies take final\naction openly and the prohibition against taking final action in closed session could not be more\nclearly stated and do not contain an exception for final action on approving closed session\nminutes. Although section 2(c)(21) of OMA provides that closed session minutes may be\ndiscussed in closed session \"for purposes of approval by the body,\" the plain language of the\nexception does not state that the approval itself may occur in closed session. Sections 2(c)(21)\nand 2(e) of OMA may be read together and construed harmoniously to mean public bodies may\nenter closed session to discuss whether to approve closed session minutes before returning to\nopen session to take final action on the approval of those minutes. Such a construction is\nconsistent with the plain language of each provision and gives effect to both of them.\nFurther, taking action openly to approve closed session minutes does not\ncompromise a public body's ability to maintain the confidentiality of the substance of closed\nsession discussions. The Illinois Supreme Court has ruled that the public recital required by\nsection 2(e) of OMA before a public body takes final action must \"announce the nature of the\nmatter under consideration, with sufficient detail to identify the particular transaction or issue,\nbut need not provide an explanation of its terms or its significance.\" Board of Education of\nSpringfield School District No. 186 y. Attorney General of Illinois, 2017 IL 120343, 9 64. A\npublic body may satisfy that requirement by simply making a motion to approve closed session\nminutes of a meeting held on particular date, without revealing details of the underlying matters\nThe Honorable James Johnson\nThe Honorable George Van Dusen\nDecember 1, 2023\nPage 5\ndiscussed in closed session.!°\nOMA does permit a public body to take a preliminary vote in closed session\nfollowed by a final vote in open session. Board of Education of Springfield School District No.,\n2017 IL 120343, 4 73 (\"[T]he statute contains no bar to a public body's taking a preliminary vote\nat a closed meeting.\"); see also Jewell v. Board of Education, Du Quoin Community Unit\nSchools, District No. 300, 19 Ill. App. 3d 1091, 1095 (\"The statute does not prohibit the Board\nfrom polling its members at a closed session. Thus the fact that there were two votes taken, one\nat the closed and one at the open session, should not be considered a violation of the open\nmeeting law. The crucial fact is that the final vote was taken at an open session.\"). In this matter,\nhowever, there was nothing tentative about the Board's vote to approve closed session minutes\nduring the closed session portion of its October 2, 2023, meeting, and the Board did not return to\nopen session to take final action to approve the closed session minutes.\nFinally, a vote to approve closed session minutes is final action despite the fact\nthat public bodies are also obligated to review closed session minutes every six months, as\nrequired by section 2.06(d) of OMA,!’ to determine whether they continue to require confidential\ntreatment. As noted above, section 2(c)(21) permits closed session discussion of closed session\nminutes \"for purposes of approval by the body of the minutes or semi-annual review of the\nminutes as mandated by Section 2.06.\" (Emphasis added.) The Board's future compliance with\nsection 2.06(d) is therefore a separate and distinct final action from its approval of the minutes\nthemselves.\nAccordingly, this office concludes that the Board violated section 2(e) of OMA\nby taking final action to approve closed session minutes during the closed session portion of its\nOctober 2, 2023, meeting.\n'6This office also notes that the agenda of the Board's October 2, 2023, meeting did not contain an\nagenda item concerning the approval of closed session minutes as required by section 2.02(c) of OMA (5 ILCS\n120/2.02(c) (West 2022)), which provides that \"[a]ny agenda required under this Section shall set forth the general\nsubject matter of any resolution or ordinance that will be the subject of final action at the meeting.\" Including the\ngeneral subject matter of the approval of closed session minutes on the October 2, 2023, meeting agenda, in\naccordance with section 2.02(c) of OMA, would not have required the Board to reveal the substance of any\nconfidential matters discussed in closed session.\n\"5 ILCS 120/2.06(d) (West 2022) (requiring public bodies to review closed session minutes\n\"every 6 months, or as soon thereafter as is practicable, taking into account the nature and meeting schedule of the\npublic body[,] and to report \"in an open session that (1) the need for confidentiality still exists as to all or part of\nthose minutes or (2) that the minutes or portions thereof no longer require confidential treatment and are available\nfor public inspection.\").\nThe Honorable James Johnson\nThe Honorable George Van Dusen\nDecember 1, 2023\nPage 6\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments presented,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On October 4, 2023, Board Trustee James Johnson submitted a Request for\nReview to the Public Access Bureau alleging that the Board improperly voted to approve the\nclosed session minutes of its June 5, 2023, meeting during the closed session portion of its\nOctober 2, 2023, meeting. Trustee Johnson's Request for Review was timely filed and otherwise\ncomplies with the requirements of section 3.5(a) of OMA.\n2) On October 13, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the Board. The Public Access Bureau also sent the Board a letter requesting a written\nresponse to Trustee Johnson's allegations, together with copies of the notice, agenda, minutes\n(both open and closed), and closed session verbatim recording for the October 2, 2023, meeting.\n3) Ina letter dated October 19, 2023, Mayor George Van Dusen, on behalf of the\nBoard, provided this office with copies of the requested materials, including a redacted written\nanswer and an unredacted written answer for this office's confidential review\n4) On November 1, 2023, the Public Access Bureau forwarded a copy of the\nBoard's redacted written answer to Trustee Johnson and notified him of his opportunity to reply.\nLater that same day, Trustee Johnson submitted a reply.\n5) Section 2(c)(21) of OMA allows a public body to hold a closed meeting or\nclose a portion of a meeting for the purpose of \"[d]iscussion of minutes of meetings lawfully\nclosed under this Act, whether for purposes of approval by the body of the minutes or semi-\nannual review of the minutes as mandated by Section 2.06.\"\n6) Section 2(e) of OMA provides that \"[n]o final action may be taken at a closed\nmeeting\" and that \"[fJinal action shall be preceded by a public recital of the nature of the matter\nbeing considered and other information that will inform the public of the business being\nconducted.\" Section 2(e) does not contain an exception that permits a public body to take final\naction to approve closed session meeting minutes during the closed session portion of a meeting.\n7) The Board voted to approve the closed session minutes of its June 5, 2023,\nmeeting during the closed session portion of its October 2, 2023, meeting. That vote was not a\npreliminary poll or a tentative consensus; the Board did not ratify the approval of the closed\nsession minutes during the open session of its October 2, 2023, meeting.\nThe Honorable James Johnson\nThe Honorable George Van Dusen\nDecember 1, 2023\nPage 7\n8) Accordingly, the Attorney General concludes that the Board violated section\n2(e) of OMA by taking final action during the closed session portion of its October 2, 2023,\nmeeting.\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to include the approval of the June 5, 2023, closed session minutes on the agenda of its\nnext regular meeting, and provide the public with an adequate public recital before any vote on\nthe approval of those minutes. As required by section 3.5(e) of OMA, the Board shall either take\nnecessary action as soon as practical to comply with the directives of this opinion or shall initiate\nadministrative review under section 7.5 of OMA. 5 ILCS 120/7.5 (West 2022).\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Mr.\nJames Johnson as defendants. See 5 ILCS 120/7.5 (West 2022).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBy: [9-6\nBrent Stratton\n* Chief Deputy Attorney General\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 23-014) upon:\nThe Honorable James Johnson\nTrustee\nVillage of Skokie\n5127 Oakton Street\nSkokie, Illinois 60077\njamesforskokie@gmail.com\nThe Honorable George Van Dusen\nMayor\nVillage of Skokie\n5127 Oakton Street\nSkokie, Illinois 60077\nGeorge. VanDusen@skokie.org\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on December 1, 2023.\n—_ —\nZoa\nSTEVE SILVERMAN\nChief, Public Access Bureau\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street, 11th Floor\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Village of Skokie Board of Trustees held a private, closed-door meeting where they took a formal vote to approve minutes from a previous meeting. The Illinois Attorney General ruled that this was illegal because the Open Meetings Act requires all final actions, including the approval of minutes, to be taken during an open, public meeting. This means the Board must ensure that all official decisions are made in front of the public rather than behind closed doors.","card_headline":"A board's final vote on closed session minutes","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":175,"orig_master_id":19378,"dup_master_id":19149,"dup_sha256":"e10d2a4bc7cefb590a8a6c601c142e8e12db46070f57152fc1161a0f1c511ad9","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-12-12","case_number":"2023 PAC 77982","request_numbers":null,"title":"Non-disclosure Agreement Concerning Planned Commercial Development Project That Has Been Publicly Announced is Not Exempt Under Section 7(1)(g) of FOIA","filename":"PUBLIC ACCESS OPINION 23-015 (Request for Review - 2023 PAC 77982).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 23-015 (Request for Review - 2023 PAC 77982).pdf","word_count":3482,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request made by Ms. Megann Horstead for a non-disclosure agreement related to a commercial development project in DeKalb.","plain_summary":"The requester, a newspaper reporter, sought a non-disclosure agreement between a city and a company concerning a development project, which the city withheld as confidential commercial information. The Public Access Counselor held that although the agreement was commercial and treated as confidential, neither the city nor the company demonstrated that disclosure would cause competitive harm as the exemption requires, particularly given that the project's existence had already been publicly announced. The city was directed to disclose the agreement.","holding":"The City of DeKalb violated FOIA by denying the request for the non-disclosure agreement.","legal_question":"Is a non-disclosure agreement concerning a publicly announced development project exempt under Section 7(1)(g) of FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(g)"],"public_body":"City of DeKalb","requesting_party":"Ms. Megann Horstead","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(g)","subject_description":"The request concerned a non-disclosure agreement between the City of DeKalb and Kraft-Heinz regarding a commercial development project.","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-015.pdf","sha256":"7594a4c80e0115162227f9d10768874ea22cfe56ceb3fc197d37c03225726781","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["non-disclosure agreement","commercial development","FOIA exemption","public records"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nDecember 12, 2023\nPUBLIC ACCESS OPINION 23-015\n(Request for Review 2023 PAC 77982)\nFREEDOM OF INFORMATION ACT:\nNon-disclosure Agreement Concerning\nPlanned Commercial Development Project\nThat Has Been Publicly Announced is Not\nExempt Under Section 7(1)(g) of FOIA\nMs. Megann Horstead\nNews Reporter\nDaily Chronicle\n[street address redacted for site publication -- see original PDF]\nMr. Scott Zak\nFOIA Officer\nCity of DeKalb\n164 East Lincoln Highway\nDeKalb, Illinois 60115\nDear Ms. Horstead and Mr. Zak:\nThis binding opinion is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons discussed below, this\noffice concludes that the City of DeKalb (City) violated the requirements of FOIA by denying\nMs. Megann Horstead's request for a non-disclosure agreement (NDA) concerning a\ndevelopment project.\nBACKGROUND\nOn July 26, 2023, Ms. Horstead, on behalf of the Daily Chronicle, submitted a\nFOIA request to the City seeking \"[a]ny non-disclosure agreement between the city of DeKalb\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © TTY: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © TTY: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © TTY: (877) 675-9339 © Fax (618) 529-6416 »GeceiaT ><\nMs. Megann Horstead\nMr. Scott Zak\nDecember 12, 2023\nPage 2\nand Kraft-Heinz concerning the development of what was known as Supernova.\"! On August 3,\n2023, the City extended the time for responding to the request by five business days pursuant to\nsection 3(e)(v) of FOIA (5 ILCS 140/3(e)(v) (West 2022)).2 On August 10, 2023, the City\ndenied the request pursuant to section 7(1)(g) of FOIA (5 ILCS 140/7(1)(g) (West 2022), as\namended by Public Acts 103-154, effective June 30, 2023; 103-462, effective August 4, 2023;\n103-446, effective August 4, 2023).? The City quoted the language of the exemption without\nsetting forth facts as to how or why it applies. On August 31, 2023, Ms. Horstead submitted a\nRequest for Review disputing the City's denial of her request.°\nOn September 8, 2023, the Public Access Bureau sent a copy of the Request for\nReview to the City. Along with a copy of the Request for Review, this office sent the City a\nletter requesting an unredacted copy of the NDA that was withheld for this office's confidential\nreview, and a detailed written explanation of the legal and factual bases for the applicability of\nthe section 7(1)(g) exemption.® On September 19, 2023, counsel for the City furnished via e-\nmail’ a copy of the NDA along with a confidential letter, which this office is precluded from\ndisclosing,*® from Kraft Heinz in support of the City's assertion of section 7(1)(g). On the same\n'FOIA request submitted by Megann Horstead to City of DeKalb FOIA portal (July 26, 2023).\nFOIA portal message from Scott Zak, FOIA Officer, City of DeKalb, to Megann Horstead\n(August 3, 2023).\n3FOIA portal message from Scott Zak, FOIA Officer, City of DeKalb, to Megann Horstead\n(August 10, 2023).\n‘FOIA portal message from Scott Zak, FOIA Officer, City of DeKalb, to Megann Horstead\n(August 10, 2023).\nE-mail from Megann Horstead, Daily Chronicle news reporter, to Public Access Office (August\n31, 2023).\nSLetter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Scott Zak, FOIA Officer, City of DeKalb (September 8, 2023), at 1.\n7E-mail from Matthew D. Rose, Donahue & Rose, PC, to Assistant Attorney General Silverman\n(September 19, 2023).\n85 ILCS 140/9.5(d) (West 2022) (\"The Public Access Counselor shall forward a copy of the\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy.\").\nMs. Megann Horstead\nMr. Scott Zak\nDecember 12, 2023\nPage 3\ndate, counsel for the City separately e-mailed a non-confidential response,’ a copy of which this\noffice forwarded to Ms. Horstead on September 26, 2023;!° she did not reply to that response.\nOn October 20, 2023, this office extended the time within which to issue a\nbinding opinion by 30 business days,'! to December 13, 2023, pursuant to section 9.5(f) of\nFOIA.\nANALYSIS\nSection 1 of FOIA (5 ILCS 140/1 (West 2022)) declares that \"it is the public\npolicy of the State of Illinois that access by all persons to public records promotes the\ntransparency and accountability of public bodies at all levels of government.\" Under FOIA,\n\"[a]ll records in the custody or possession of a public body are presumed to be open to inspection\nor copying. Any public body that asserts that a record is exempt from disclosure has the burden\nof proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2022).\nIn relevant part, section 7(1)(g) of FOIA exempts from disclosure:\nTrade secrets and commercial or financial information\nobtained from a person or business where the trade secrets or\ncommercial or financial information are furnished under a claim\nthat they are proprietary, privileged, or confidential, and that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness, and only insofar as the claim directly applies to the\nrecords requested.\nThe City's non-confidential response to this office asserted that disclosure of the\nNDA \"would cause a chilling effect that would deter private businesses from entering into\n°E-mail from Matthew D. Rose, Donahue & Rose, PC, to Assistant Attorney General Silverman\n(September 19, 2023).\n'°l_ etter from Steve Silverman, Bureau Chief, Public Access Bureau, Office oft he Attorney\nGeneral, to Megann Horstead, News Reporter, Daily Chronicle (September 26, 2023).\n''Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, to Megann Horstead, News Reporter, Daily Chronicle, and Matthew D. Rose, Donahue & Rose, PC\n(October 20, 2023), at 1.\nMs. Megann Horstead\nMr. Scott Zak\nDecember 12, 2023\nPage 4\npotential future developments and public-private partnerships.\"!* The response cited Roulette v.\nDepartment of Central Management Services, 141 Ill. App. 3d 394, 399-400 (1986), in which the\nIllinois Appellate Court stated that the General Assembly \"intended the term trade secret would\nbe construed broadly[,]\" so as not \"to discourage private parties from doing business with the\nState.\" The court observed: \"Federal law indicates that a trade secret includes information that\nwould either inflict substantial competitive harm or make it more difficult for the agency to\ninduce people to submit similar information in the future.\" (Emphasis added.) Roulette, 141 IIL.\nApp. 3d at 400. Because disclosure of a psychological evaluation of an applicant for\nemployment \"would have a chilling effect upon [a State agency's] ability to receive similar\ninformation in the future,\" the court held that the evaluation was exempt from disclosure\npursuant to section 7(1)(g) without considering the potential for competitive harm. Roulette,\n141 Ill. App. 3d at 400.\nThe Roulette court reviewed a prior version of section 7(1)(g) of FOIA. At the\ntime of Roulette, section 7(1)(g) exempted from disclosure \"[t]rade secrets and commercial\nor financial information obtained from a person or business where such trade secrets or\ninformation are proprietary, privileged or confidential.\" Ill. Rev. Stat., 1984 Supp., ch. 116,\npar. 207(g). That version of the exemption encompassed information that entities might be\ndiscouraged from providing to the government if it was subject to disclosure under FOIA,\nregardless of whether or not disclosure would result in competitive harm. Roulette, 141 Tl.\nApp. 3d at 400. In 2010, however, the General Assembly amended section 7(1)(g) to\nspecifically require that disclosure of records \"would cause competitive harm\" in order for\nthe exemption to apply.'? Accordingly, to be exempt from disclosure pursuant to section\n7(1)(g):\n[T]he document must contain (1) a trade secret, commercial, or\nfinancial information, (2) that was obtained from a person or\nbusiness where the trade secrets or commercial or financial\ninformation are furnished under a claim that they are either (a)\nproprietary, (b) privileged, or (c) confidential, and (3) that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness. (Emphasis in original.) (Emphasis added.) City of\nChicago v. Janssen Pharmaceuticals, Inc., 2017 IL App (1st)\n150870, § 27.\nE-mail from Matthew D. Rose, Donahue & Rose, PC, to Assistant Attorney General Silverman\n(September 19, 2023).\n'3See Public Act 96-542, effective January 1, 2010.\nMs. Megann Horstead\nMr. Scott Zak\nDecember 12, 2023\nPage 5\nIn addition to expressly including \"competitive harm\" as an element of section 7(1)(g), the use of\n\"would\" by the General Assembly in section 7(1)(g), rather than the language \"could reasonably\nbe expected to,\" which is used in other FOIA exemptions,\" signifies a narrower scope and more\nonerous standard to demonstrate records are exempt from disclosure under FOIA. Chicago Sun-\nTimes v. Chicago Transit Authority, 2021 IL App (1st) 192028, § 43 (noting that \"[t]he General\nAssembly knew the difference between the use of the term could instead of would[ |\" in rejecting\nargument that the section 7(1)(v) exemption for records that \"could reasonably be expected to\njeopardize the effectiveness of\" certain security measures applies only if disclosure “would\njeopardize them.\") (Emphasis in original.). Thus, a public body that fails to demonstrate that the\ndisclosure of records would cause competitive harm cannot sustain its burden of proving that the\nrecords are exempt pursuant to section 7(1)(g) of FOIA. Janssen Pharmaceuticals, Inc., 2017 IL\nApp (Ist) 150870, 4 29.\nThe City's non-confidential response to this office cited a line of federal court\ndecisions construing the trade secret exemption in the Federal FOIA statute,!> which exempts\nfrom disclosure \"trade secrets and commercial or financial information obtained from a person\nand privileged or confidential[.]\" In Food Marketing Institute v. Argus Leader Media, 588 U.S.\n__,__, 139 S. Ct. 2356, 2366 (2019), the U.S. Supreme Court held: \"At least where\ncommercial or financial information is both customarily and actually treated as private by its\nowner and provided to the government under an assurance of privacy, the information is\n‘confidential’ within the meaning of\" the Federal FOIA exemption. The City's non-confidential\nresponse stated that the text of the NDA provides that its very existence is confidential, and that\n\"Kraft Heinz customarily and actually treats the NDA as private and confidential.\"'°\nThis office has reviewed the NDA and confirmed that it satisfies the first two\nelements of the section 7(1)(g) exemption: the agreement is commercial information as it relates\nto a commercial project, and it contains a clause providing that the existence of the agreement is\nconfidential. But customarily and actually treating commercial information as private and\nconfidential does not provide an independent basis for withholding it under section 7(1)(g) of\nFOIA. The Federal FOIA exemption for trade secrets does not require showing a likelihood of\ncompetitive harm and therefore is significantly broader than section 7(1)(g). See Food\n'4See 5 ILCS 140/7(1)(i), (1)(v) (West 2022), as amended by Public Acts 103-154, effective June\n30, 2023; 103-462, effective August 4, 2023; 103-446, effective August 4, 2023.\n155 U.S.C § 552(b)(4) (2018).\n'°E-mail from Matthew D. Rose, Donahue & Rose, PC, to Assistant Attorney General Silverman\n(September 19, 2023).\nMs. Megann Horstead\nMr. Scott Zak\nDecember 12, 2023\nPage 6\nMarketing Institute, 588 U.S. at___, 139 S. Ct. at 2361 (finding lower court decision that\ndisclosure of information must be likely to cause competitive harm to be exempt was\n\"inconsistent with the terms of the statute[.]\"). As discussed above, a public body must\ndemonstrate disclosure would cause competitive harm to sustain its burden of demonstrating\nrecords are exempt pursuant to section 7(1)(g) of FOIA.\nOther cases cited by the City held that the Federal FOIA version of section 7(1)(g)\npermitted agencies to withhold pricing and rate information in contracts,'’ royalty rates and\nrevenues'®, and a loan agreement and progress reports concerning a related construction\nproject.'? The City also cited a case in which a federal appellate court vacated and remanded for\nfurther consideration a lower court decision that salary survey data was not exempt.”? All of\nthose cases are factually distinguishable from the NDA in this matter, which does not reveal any\nspecific information about Kraft Heinz's prices, expenditures, or financial condition, or the status\nof the development project.\nThe City's non-confidential response also generally asserted that businesses would\nbe deterred from pursuing development projects \"if the existence of the potential development is\npublicly disclosed because competitors would use that information to either obtain the\nconfidential information for their competitive purposes or cut a better deal with respect to the\npotential\" incentives and approvals required for such projects.7! Yet, the non-confidential\nresponse appeared to acknowledge that the potential for competitive harm on that basis is not\npresent in this matter because \"Kraft Heinz publicly announced this specific development{.]\"?\nIndeed, on July 17, 2023, Ms. Horstead reported that Kraft Heinz had issued a press release\nannouncing that it expected to open a distribution facility in the City in 2025.7? Because that\n'7?Canadian Commercial Corp. v. Dep't of Air Force, 514 F.3d 37, 43 (D.C. Cir. 2008);\nAirline Pilots Ass'n, International v. U.S. Postal Service, 2004 U.S. Dist. LEXIS 26067 at **16-17 (D.D.C 2004).\n'8Public Citizen Health Research Group v. National Institutes of Health, 209 F. Supp. 2d 37, 54-\n55 (D.D.C. 2002).\n\"Comstock International, Inc., v. Export-Import Bank of the United States, 464 F. Supp. 804, 810\n(D.D.C. 1979).\n299 to 5 Organization for Women Office Workers v. Board of Governors of Federal Reserve\nSystem, 721 F.2d 1, 11 (1st Cir. 1983).\n21E-mail from Matthew D. Rose, Donahue & Rose, PC, to Assistant Attorney General Silverman\n(September 19, 2023).\n“E-mail from Matthew D. Rose, Donahue & Rose, PC, to Assistant Attorney General Silverman\n(September 19, 2023).\nMs. Megann Horstead\nMr. Scott Zak\nDecember 12, 2023\nPage 7\narticle was published nine days before Ms. Horstead submitted her FOIA request,”* the City\nwould not have revealed the existence of the development project by disclosing the NDA.\nThe confidential response submitted by Kraft Heinz did provide a separate\nexplanation for the assertion that it would sustain competitive harm from disclosure of the NDA.\nAlthough Kraft Heinz undoubtedly faces competition as a distributor, the confidential response\nprovides only vague and conclusory assertions that disclosure of the NDA would cause\ncompetitive harm. Kraft Heinz has not set forth specific facts or evidence establishing that any\nharm to a competitive position could reasonably be expected to result from disclosure of the\ninformation in the NDA, much less that it would. The agreement primarily consists of\nboilerplate text setting forth the parameters for confidentiality and other terms and conditions\ntypically found in such agreements. The NDA does not reveal Kraft Heinz's information about\nsensitive matters such as business strategies, expenses, or revenues, or details concerning plans\nfor the distribution center. While the NDA may serve to protect certain confidential or\nproprietary information that potentially could be exploited for competitive gain by another\ndistributor, it is unclear how disclosure of any information in the NDA itself could result in such\nharm. Accordingly, this office concludes that the City has not sustained its burden of proving by\nclear and convincing evidence that the NDA is exempt from disclosure pursuant to section\n7(1)(g) of FOIA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On July 26, 2023, Ms. Megann Horstead, on behalf of the Daily Chronicle,\nsubmitted a FOIA request to the City of DeKalb seeking a copy of the non-disclosure agreement\nbetween the City and Kraft Heinz concerning the development of a distribution facility. Ms.\nHorstead's Request for Review was timely filed and otherwise complies with the requirements of\nsection 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2022)).\n2) On August 10, 2023, the City denied the request pursuant to section 7(1)(g) of\nFOIA.\n*3Megann Horstead, New distribution facility for Kraft Heinz coming to DeKalb by 2025, Daily\nChronicle (July 17, 2023, 5:00 a.m.), https://www.shawlocal.com/shaw-local-newsletter/2023/07/17/new-\ndistribution-facility-for-kraft-heinz-coming-to-dekalb-by-2025/\n*4FOIA request submitted by Megann Horstead to City of DeKalb FOIA portal (July 26, 2023).\nMs. Megann Horstead\nMr. Scott Zak\nDecember 12, 2023\nPage 8\n3) On August 31, 2023, Ms. Horstead submitted a Request for Review disputing\nthe denial of her request.\n4) On September 8, 2023, the Public Access Bureau sent a copy of the Request\nfor Review to the City and requested an unredacted copy of the NDA for this office's\nconfidential review, and a detailed written explanation of the legal and factual bases for the\napplicability of the section 7(1)(g) exemption.\n5) On September 19, 2023, the attorney for the City provided this office with the\nrequested materials, including both a confidential letter from Kraft Heinz in support of the City's\ndenial of the NDA and a non-confidential response from the City for forwarding to Ms.\nHorstead.\n6) On September 26, 2023, this office forwarded a copy of the City's non-\nconfidential answer to Ms. Horstead and notified her of the opportunity to reply; she did not\nsubmit a reply.\n7) On October 20, 2023, the Public Access Bureau extended the time within\nwhich to issue a binding opinion by 30 business days, to December 13, 2023, pursuant to section\n9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with\nrespect to this matter.\n8) Section 7(1)(g) of FOIA exempts from disclosure, in relevant part: \"Trade\nsecrets and commercial or financial information obtained from a person or business where the\ntrade secrets or commercial or financial information are furnished under a claim that they are\nproprietary, privileged, or confidential, and that disclosure of the trade secrets or commercial or\nfinancial information would cause competitive harm to the person or business, and only insofar\nas the claim directly applies to the records requested.\"\n9) Under the current language of section 7(1)(g), a public body that withholds a\nrecord pursuant to this exemption must demonstrate that: (1) it contains a trade secret,\ncommercial, or financial information; (2) it was obtained from a person or business where the\ntrade secrets or commercial or financial information are furnished under a claim that they are\neither proprietary, privileged, or confidential; and (3) disclosure of the trade secrets or\ncommercial or financial information would cause competitive harm to that person or business.\n10) Although it is undisputed that Kraft Heinz faces competition as a distributor,\nneither the confidential letter submitted by Kraft Heinz nor the City's non-confidential response\nsets forth clear and convincing evidence to support the assertion that competitive harm to a\nperson or business would result from disclosure of the information in the NDA. The NDA may\nMs. Megann Horstead\nMr. Scott Zak\nDecember 12, 2023\nPage 9\nbe intended to protect confidential and proprietary information about matters such as business\nstrategies and expenses related to the development project, but the City has not demonstrated\nhow any information in the agreement itself could be exploited by a competitor to gain an\nadvantage.\nTherefore, it is the opinion of the Attorney General that the City of DeKalb\nviolated the requirements of FOIA by denying the NDA responsive to Ms. Megann Horstead's\nFreedom of Information Act request. The City is hereby directed to take immediate and\nappropriate action to comply with this opinion by providing Ms. Horstead with a copy of the\nNDA.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days of the date of this decision naming the Attorney General of Illinois and Megann\nHorstead as defendants. See 5 ILCS 140/11.5 (West 2022).\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nBrent D. Stratton\nChief Deputy Attorney General\ncc: Mr. Matthew D. Rose\nDonahue & Rose, P.C.\n9501 West Devon Avenue, Suite 702\nRosemont, Illinois 60018\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 23-015) upon:\nMs. Megann Horstead\nNews Reporter\nDaily Chronicle\n121 West Lincoln Highway\nDeKalb, Illinois 60115\nMr. Scott Zak\nFOIA Officer\nCity of DeKalb\n164 East Lincoln Highway\nDeKalb, Illinois 60115\nScott.zak@cityofdekalb.com\nMr. Matthew D. Rose\nDonahue & Rose, P.C.\n9501 West Devon Avenue, Suite 702\nRosemont, Illinois 60018\nmrose@drlawpc.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on December 12, 2023.\nSTEVE SILVERMAN\nChief, Public Access Bureau\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street, 11th Floor\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested a non-disclosure agreement between the City of DeKalb and Kraft-Heinz concerning a development project. The City denied the request, claiming the agreement was exempt under FOIA's trade secret exemption. The Attorney General's office ruled that the City failed to prove that disclosure would cause competitive harm, as required by the exemption, and therefore violated FOIA by withholding the agreement.","card_headline":"A non-disclosure agreement for a commercial development project","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":176,"orig_master_id":19377,"dup_master_id":19150,"dup_sha256":"71c3319973e2d62af7b507fba67bf68c0a3cbb8d80eb0c071c7f543768dfca1b","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-09-13","case_number":"2023 PAC 76977","request_numbers":null,"title":"Restriction of Public Comment is Limited to Established and Recorded Rules Governing Public Comment","filename":"PUBLIC ACCESS OPINION 23-013 (Request for Review - 2023 PAC 76732).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 23-013 (Request for Review - 2023 PAC 76732).pdf","word_count":4181,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a complaint about the Wheaton Warrenville Community Unit School District No. 200's violation of the Open Meetings Act during a public comment period.","plain_summary":"The requester, a resident, alleged that a school board improperly cut off her public comment about hiring policies because the board president believed she intended to discuss a personnel matter. The Public Access Counselor held that because the board's formal, recorded public-comment policy contained no rule restricting comment on personnel matters, enforcing an unwritten restriction violated the Open Meetings Act's requirement that public comment rules be established and recorded. The board was directed to refrain from applying unestablished, unrecorded restrictions on public comment at future meetings.","holding":"The Board of Education violated section 2.06(g) of the Open Meetings Act by imposing an unauthorized restriction on public comment.","legal_question":"Did the Board of Education violate the Open Meetings Act by restricting public comment in a manner not authorized by its established rules?","disposition":"violation_found","primary_statute":["5 ILCS 120/2.06(g)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Wheaton Warrenville Community Unit School District No. 200 Board of Education","requesting_party":"Ms. Elisabeth Aikins","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"public comment","subject_description":"The restriction of a citizen's ability to address the school board during a public meeting.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-013.pdf","sha256":"4744ab60fe123634f82b257a1773830f01cea34b09d194dda0e2788a79ae9be7","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["public comment","school board","Open Meetings Act","meeting rules"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nSeptember 13, 2023\nPUBLIC ACCESS OPINION 23-013\n(Request for Review 2023 PAC 76977)\nOPEN MEETINGS ACT:\nRestriction of Public Comment is\nLimited to Established and Recorded Rules\nGoverning Public Comment\nMs. Elisabeth Aikins\n[street address redacted for site publication -- see original PDF]\nThe Honorable Rob Hanlon\nPresident, Board of Education\nWheaton Warrenville Community Unit School District No. 200\n130 West Park Avenue\nWheaton, Illinois 60189\nDear Ms. Aikins and Mr. Hanlon:\nThis binding opinion is issued by the Attorney General pursuant to section 3.5(e)\nof the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2022)). For the reasons discussed\nbelow, this office concludes that the Board of Education (Board) of Wheaton Warrenville\nCommunity Unit School District No. 200 (District) violated section 2.06(g) of OMA! at its June\n14, 2023, meeting by imposing a restriction on public comment that was not authorized by its\nestablished and recorded rules.\n15 ILCS 120/2.06(g) (West 2022).\n500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © ‘I’ l’Y: (877) 844-5461 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © T’L'Y: (800) 964-3013 © Fax: (312) 814-3806\n601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © T’T'Y: (877) 675-9339 © Fax (618) 529-6416 »CECCNBT ><\nMs. Elisabeth Aikins\nThe Honorable Rob Hanlon\nSeptember 13, 2023\nPage 2\nBACKGROUND\nOn June 16, 2023, Ms. Elisabeth Aikins submitted a Request for Review to the\nPublic Access Bureau alleging that the Board violated OMA during its June 14, 2023, meeting\nby restricting her ability to address members of the Board.” Specifically, Ms. Aikins alleged that\nwhile she was addressing the Board during the period for public comment, the Board President\ninterrupted her after she referenced a District hiring policy. Ms. Aikens stated that the Board\nPresident said she \"could not discuss personnel issues[ ]\" and would not permit her to continue\naddressing the Board.? Ms. Aikins asserted that she intended to comment on \"Board Policy, not\na personal staff issue[ ]\" and alleged that the Board purposely terminated her comment because\nshe had \"been emailing Dr. [Jeff] Schuler* and the Board regarding my concerns related to\nmandated reporters in the district failing to report sexual misconduct against minors.\"°\nOn June 23, 2023, the Public Access Bureau sent a copy of the Request for\nReview to Mr. Rob Hanlon in his capacity as Board President. The Public Access Bureau also\nsent Mr. Hanlon a letter requesting a written response to Ms. Aikins' allegations and, for this\noffice's confidential review, copies of any rules the Board had established and recorded\nconcerning public comment, the agenda, open session meeting minutes, and any recording from\nthe open session portion of the meeting in question.® On June 27, 2023, Mr. Hanlon, on behalf\nof the Board, provided this office with a written answer, copies of Board of Education Policy\n2:230 \"Public Participation at Board of Education Meetings and Petitions to the Board[,]\" the\nJune 14, 2023, meeting agenda and draft minutes, as well as copies of what appear to be versions\n7E-mail from Elisabeth Aikins to Public Access Counselors, [Office of the Attorney General]\n(June 16, 2023). Ms. Aikins' e-mail to this office initially stated that the meeting in question occurred on May 14,\n2023, but she subsequently clarified in her reply that the relevant meeting took place on June 14, 2023.\n3E-mail from Elisabeth Aikins to Public Access Counselors, [Office of the Attorney General]\n(June 16, 2023).\n“According to the District's website, Dr. Jeff Schuler is the District's Superintendent of Schools.\nCommunity Unit School District 200, https://www.cusd200.org/page/superintendent (last visited July 27, 2023).\n°E-mail from Elisabeth Aikins to Public Access Counselors, [Office of the Attorney General]\n(June 16, 2023).\n°Letter from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office\nof the Attorney General, to The Honorable Rob Hanlon, President, Board of Education, Wheaton Warrenville\nCommunity Unit School District No. 200 (June 23, 2023).\nMs. Elisabeth Aikins\nThe Honorable Rob Hanlon\nSeptember 13, 2023\nPage 3\nof the April 12, 2023, and June 14, 2023, meeting agendas annotated as scripts for use by the\npresiding officer at those meetings.’\nOn June 27, 2023, the Public Access Bureau forwarded a copy of the Board's\nwritten answer to Ms, Aikins and notified her of her opportunity to reply.* Later that day, Ms.\nAikins submitted her reply.’\nOn August 11, 2023, the Public Access Bureau properly extended the time within\nwhich to issue a binding opinion by 21 business days, to September 14, 2023, pursuant to section\n3.5(e) of OMA!°.\nANALYSIS\nOMA declares that \"it is the intent of this Act to ensure that the actions of public\nbodies be taken openly and that their deliberations be conducted openly.\" 5 ILCS 120/1 (West\n2022). Section 2.06(g) of OMA provides that \"[a]ny person shall be permitted an opportunity to\naddress public officials under the rules established and recorded by the public body.\"\nThis office has issued several binding opinions concluding that section 2.06(g)\ngenerally precludes a public body from imposing restrictions on public comment that are not set\nout in its established and recorded rules. Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, issued\nSeptember 4, 2014, at 6-7; Ill. Att'y Gen. Pub. Acc. Op. No. 19-002, issued January 9, 2019, at 5-\n7; Ill. Att'y Gen. Pub. Acc. Op. No. 19-009, issued October 1, 2019, at 5; Ill. Att'y Gen. Pub.\nAcc. Op. No. 21-009, issued September 21, 2021, at 5-6. Although OMA does not specifically\naddress the nature of rules that a public body may enforce during the public comment portion of\nan open meeting, the first amendment to the United States Constitution ordinarily only permits in\nsuch a designated public forum \"reasonable time, place and manner restrictions[ ]'\" that are\n7Letter from Rob Hanlon, CUSD200 School Board President, Community Unit School District\n200, to Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, [Office of the Attorney\nGeneral] (June 27, 2023). Mr. Hanlon's letter references a May 14, 2023, meeting, but it is clear from the other\nrecords the Board submitted to this office that the letter pertains to the Board's June 14, 2023, meeting.\n’Letter from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office\nof the Attorney General, to Elisabeth Aikins (June 27, 2023).\n°E-mail from Elisabeth Aikins to [Shannon] Barnaby (June 27, 2023).\n'°Letter from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office\nof the Attorney General, to Elisabeth Aikins and The Honorable Rob Hanlon, President, Board of Education,\nWheaton Warrenville Community Unit School District No. 200 (August 11, 2023).\nMs. Elisabeth Aikins\nThe Honorable Rob Hanlon\nSeptember 13, 2023\nPage 4\ncontent-neutral. 1.4. Rana Enterprises, Inc. v. City of Aurora, 630 F. Supp. 2d 912, 922-23 (N.D.\nIll. 2009) (quoting Heffron v. Int'l Society for Krishna Consciousness, 452 U.S. 640, 647, 101 S.\nCt. 2559, 2564 (1981)) (examining whether the application of city council's rules for public\ncomment violated plaintiff's first amendment rights). Such rules must be reasonably necessary to\nprotect a significant governmental interest and must tend to accommodate, rather than to\nunreasonably restrict, the right to address public officials. See Ill. Att'y Gen. Pub. Acc. Op. No.\n14-012, issued September 30, 2014, at 6-7 (rule requiring submission of a request to address a\npublic body at least five working days in advance of a meeting was unreasonable under section\n2.06(g)).\nThe section of the Board's policy manual governing public comment provides:\n2:230 Public Participation at Board of Education\nMeetings and Petitions to the Board\nThe Board will allocate up to 30 minutes during each\nregular and special open meeting of the Board during which any\nperson may comment to or ask questions of the Board regarding\nagenda or non-agenda items, subject to the reasonable constraints\nestablished and recorded in this policy's guidelines below. During\npublic participation, public comment on any one subject may be\nlimited to 20 minutes. It shall be the Board's practice not to\ndirectly engage in discussion or ask questions with the persons\naddressing the Board during Public Comments. Responses to\ncomments to or questions of the Board are most often managed\nthrough policy 3:30, Chain of Command.\nTo preserve sufficient time for the Board to conduct its\nbusiness, any person appearing before the Board is expected to\nfollow these guidelines:\n1. Sign in on the designated public comments form, stating\nname, address, and topic.\n2. Address the Board only at the appropriate time as\nindicated on the agenda and when recognized by the\nBoard President. This includes following the directives\nof the Board President to maintain order and decorum\nfor all.\n3. Identify oneself and be brief. Ordinarily, the time for\nany one person to address the Board during public\nMs. Elisabeth Aikins\nThe Honorable Rob Hanlon\nSeptember 13, 2023\nPage 5\nparticipation shall be limited to three minutes. In\nunusual circumstances, and when an individual has\nmade a request to speak for a longer period of time, the\nBoard President may allow a person to speak for more\nthan three minutes. If multiple individuals wish to\naddress the Board on the same subject, the group is\nencouraged to appoint a spokesperson.\n4. Observe, when necessary and appropriate, the Board\nPresident's authority to:\na. Shorten the time for each person to address the\nBoard during public participation to conserve\ntime and give the maximum number of people an\nopportunity to speak;\nb. Expand the overall 30-minute time allocation for\npublic participation and/or the 20-minute\nallocation for any one subject; and/or\nc. Determine procedural matters regarding public\nparticipation not otherwise covered in Board\npolicy.\n5. Conduct oneself with respect and civility toward others\nand otherwise abide by Board policy 8:30, Visitors to\nand Conduct on School Property. (Emphasis in\noriginal.)!!\"]\nThis office has reviewed the recording of the open session of the Board's June 14,\n2023, meeting. During the public comment portion of that meeting, Ms. Aikins addressed the\nBoard about the District's plan to eliminate class sections.'* After approximately one minute and\nthirty seconds, Ms. Aikins transitioned to speaking about District hiring policies, stating \"I also\nwant to address hiring policies in the District and strongly encourage District 200 to change their\nhandbook to state that no adult with any conviction against—[.]\"'>_ At that point, the Board\n''Wheaton Warrenville Community Unit School District No. 200, Board of Education Policy\nManual, §2:230 (adopted August 24, 2022), available at https://www.boardpolicyonline.com/?b=wheaton-\nwarrenville_cusd_200&s=672279.\n\"Wheaton Warrenville Community Unit School District No. 200, Board of Education, Open\nMeeting, YouTube (June 14, 2023), https://www.youtube.com/watch?v=F-\nZyQA2rsG4&list=PLEv2Kc9ticB3vHY OFJ-OH9nRTVoqT4r_R&index=3, at 20:27-22:05.\n'3Wheaton Warrenville Community Unit School District No. 200, Board of Education, Open\nMeeting, YouTube (June 14, 2023), https://www.youtube.com/watch?v=F-\nZyQA2rsG4&list=PLEv2Kc9ticB3 vHYOFJ-OH9nRTVoqT4r_R&index=3, at 22:05-22:11.\nMs. Elisabeth Aikins\nThe Honorable Rob Hanlon\nSeptember 13, 2023\nPage 6\nPresident interrupted Ms. Aikins, stating \"[e]xcuse me ma'am you're not going to be able to\ncomment on that, we're not [discussing] any personnel matters. You can deal directly with the\nBoard[.] We'll be glad to take your name and information and talk to you one-on-one\nspecifically about that but not at a public Board meeting. Thank you for understanding.\"!* Ms.\nAikins stopped speaking and as she begins to leave the podium she said something else to the\nBoard, which is inaudible on the recording. The Board President then reiterated that the Board\nrequires members of the public who wish to address the Board about personnel matters to do so\nprivately outside of a public meeting.'° Ms. Aikins did not complete her statement.\nIn its answer to this office, the Board acknowledged that it interrupted Ms. Aikins.\nThe Board stated that based on the Board and the District's previous interactions with Ms.\nAikins, Mr. Hanlon believed that the nature of her comments concerned a \"matter under open\ninvestigation by the Department of Children and Family Services.\"'® Mr. Hanlon stated that\nthose interactions \"accelerate[d] my decision to interrupt\" Ms. Aikins.!7\nThe Board's response to this office did not specify which provision of Board\nPolicy 2:230 provides for a restriction on comments concerning personnel matters. The Board\nimplied, however, that the restriction was authorized by other guidance it has offered for public\ncomments, noting that the Board \"should have respectfully reminded Ms. Aik[i]ns to adhere to\nthe Board's guidance on public comment read prior to the section of the meeting agenda.\"!*® The\nJune 14, 2023, annotated agenda that appears to be a meeting script provides, among other\nthings, that \"[t]o maintain confidentiality, the Board asks that any matters concerning personnel\n'4Wheaton Warrenville Community Unit School District No. 200, Board of Education, Open\nMeeting, June 14, 2023, available at https://www.youtube.com/watch?v=F-\nZyQA2rsG4 &list=PLvVHEY OvFJ-2OH9KnRTcVo9qT4tr_i Rc&inBdex3=3, at 22:12-22:25.\n'SWheaton Warrenville Community Unit School District No. 200, Board of Education, Open\nMeeting, June 14, 2023, available at https://www.youtube.com/watch?v=F-\nZyQA2rsG4&listvV=HY -OPFJ-LOHE9nvRT2VoKqTc4r9_Rt&iincdBex=33, at 22:25-22:35.\n‘Letter from Rob Hanlon, CUSD200 School Board President, Community Unit School District\n200, to Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, [Office of the Attorney\nGeneral] (June 27, 2023), at [1].\n\"Letter from Rob Hanlon, CUSD200 School Board President, Community Unit School District\n200, to Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, [Office of the Attorney\nGeneral] (June 27, 2023), at [1].\n'8Letter from Rob Hanlon, CUSD200 School Board President, [Wheaton Warrenville Community\nUnit School District No. 200], to Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau,\n[Office of the Attorney General] (June 27, 2023), at [1].\nMs. Elisabeth Aikins\nThe Honorable Rob Hanlon\nSeptember 13, 2023\nPage 7\nor students be communicated to the Board privately.\"!° This office's review of the June 14,\n2023, meeting recording confirmed that the Board President read a \"preamble\" before the period\nfor public comment that was consistent with some of the language in the annotated agenda.”°\nNotably, however, the Board President's statement did not include the portion of the annotated\nagenda restricting comment on personnel matters, nor did he otherwise state the Board's\npreference that personnel matters be communicated privately.”!_ The Board's response to this\noffice did not explain how the language in the annotated agenda was made available to the\npublic; the annotated agenda does not appear on the District's website.*” The agenda that is\nposted states: \"Public comments are important to the Board. However, it is the Board's policy\nnot to take action on items until time has been taken to gather information and discuss all\noptions. Lack of action does not imply lack of interest in the issues.\"”°\nThe plain language of section 2.06(g) requires that the rules governing public\ncomment not only be \"established\" but also \"recorded\" by the public body. When construing the\nmeaning of a statutory provision, the primary objective is to ascertain the intent of the\nlegislature. DeLuna y. Burciaga, 223 Ill. 2d 49, 59 (2006). \"The plain language of the statute is\nthe best indication of that intent, and if that language is clear and unambiguous, it must be given\neffect.\" People v. Rinehart, 2012 IL 111719, §24, 962 N.E. 2d 444, 452 (2012). Because OMA\ndoes not define either \"established\" or \"recorded,\" the terms must be given their ordinary and\npopularly understood meaning. See Skaperdas v. Country Casualty Insurance Co., 2015 IL\n117021, 915, 28 N.E.3d 747, 751 (2015). The dictionary can be used as a resource to ascertain\n'9Wheaton Warrenville Community Unit School District No. 200, Board of Education, Regular\nBoard Meeting, Information: Public Comment (June 14, 2023). The annotated April 12, 2023, meeting agenda\ncontains a similar statement: \"To preserve confidentiality, the Board and its President request that items relating to\neither personnel or students be provided to the Board privately or in writing for consideration in a future closed\nsession if necessary.\" Wheaton Warrenville Community Unit School District No. 200, Board of Education, Regular\nBoard Meeting, Public Comments - Agenda & Non-Agenda Items (April 12, 2023).\n2°Wheaton Warrenville Community Unit School District No. 200, Board of Education, Open\nMeeting, June 14, 2023, available at https://www.youtube.com/watch?v=F-\nZyQA2rsG4 &list=PLEv2Kc9ticB3 vHY OFJ-OH9nRTVoqT4r_ R&index=3, at 8:50-10:23.\n1Wheaton Warrenville Community Unit School District No. 200, Board of Education, Open\nMeeting, June 14, 2023, available at https://www.youtube.com/watch?v=F-\nZyQA2rsG4&list=PLEv2Kc9ticB3vOHFYJ -OH9nRTVoqT4r_ R&index=3, at 8:50-10:23.\nWheaton Warrenville Community Unit School District No. 200, Board of Education, Regular\nMeeting (June 14, 2023), https://cusd200public.ic-board.com/.\n*3Community Unit School District No. 200, Board of Education, Regular Board Meeting, Public\nComments — Agenda & Non-Agenda Items (June 14, 2023).\nMs. Elisabeth Aikins\nThe Honorable Rob Hanlon\nSeptember 13, 2023\nPage 8\nthe ordinary and popular meaning of words. Banco Popular North America v. Gizynski, 2015 IL\nApp (1st) 142871, 947, 39 N.E.3d 205, 213 (1st Dist. 2015).\nBlack's Law Dictionary defines \"establish\" as: \"To settle, make, or fix firmly; to\nenact permanently.\" Black's Law Dictionary 688 (11th ed. 2019). \"Enact\" is defined as \"[t]o\nmake into law by authoritative act; to pass.\" Black's Law Dictionary 666 (11th ed. 2019). To\n\"record\" is defined as \"[t]o deposit (an original or authentic official copy of a document) with an\nauthority.\" Black's Law Dictionary 1527 (11th ed. 2019).\nUnder these definitions, it is clear that Board Policy 2:230 was \"established\" and\n\"recorded\" by the Board, as the policy states that it was adopted on August 24, 2022, and it has\nbeen incorporated into the Board's formal policy manual. Accordingly, this policy sets forth the\nrules that govern public participation at Board meetings. Board Policy 2:230 does not restrict\npublic comment on personnel matters and there is no evidence that Board Policy 2:230 was\nformally amended to add this additional guideline prior to the June 14, 2023, meeting. Although\nthe Board's answer to this office referenced the limitation on discussing personnel matters as\nwritten in the annotated agendas, there is no evidence the Board communicated to the public,\neither orally or in writing, that restriction before interrupting Ms. Aikins. The annotated agenda\nrestricting public comment on personnel matters does not demonstrate that this limitation was\nestablished and recorded as part of the Board's formal rules or policies. Because that restriction\nwas not established and recorded, enforcing it is contrary to the plain language of section\n2.06(g), which expressly requires that a public body both establish and record its public comment\nrules.\nEven if the Board had established and recorded a rule generally prohibiting the\npublic from commenting on \"personnel matters,\" it unclear that such a rule would be permissible\nunder OMA. See Leventhal v. Vista Unified School District, 973 F. Supp. 951, 958-59 (S.D.\nCal.) (concluding that California's version of OMA” did not authorize a school board \"to silence\npublic speech that may also touch upon related employment issues[ ]\" and that the school board\nviolated the first amendment by stopping a speaker from addressing concerns about a\nsuperintendent's qualifications and performance based on a public comment rule that prohibited\ncriticism of public employees without their consent). This binding opinion does not determine\nwhether a rule restricting comments on personnel matters is proper because the Board's lack of\nan established and recorded rule to that effect is dispositive. This office notes, however, that\n\"[a]ny content-based restrictions, promulgated with reference to the content of the speech being\nrestricted, are subject to strict-scrutiny, and must serve a compelling state interest and be\n4Cal. Gov't Code §§ 54954.3, 54960 (West 1996).\nMs. Elisabeth Aikins\nThe Honorable Rob Hanlon\nSeptember 13, 2023\nPage 9\nnarrowly drawn to achieve that purpose.\" [A Rana Enterprises, Inc. v. City of Aurora, 630 F.\nSupp. 2d at 922-23.\nFor the reasons stated above, this office concludes that the Board violated section\n2.06(g) of OMA by improperly limiting Ms. Aikins' statutory right to address the Board during\nits June 14, 2023, meeting, based on a restriction that is not among its established and recorded\nrules governing public comment.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the arguments presented,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On June 14, 2023, Ms. Elisabeth Aikins attended the regular meeting of the\nBoard of Education of Wheaton Warrenville Community Unit School District No. 200.\n2) On June 16, 2023, Ms. Aikins submitted a Request for Review to the Public\nAccess Counselor alleging that the Board prohibited her from fully addressing members of the\nBoard during public comment because the Board President believed that she intended to discuss\na personnel matter. Ms. Aikins' Request for Review was timely filed and otherwise complies\nwith the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2022)).\n3) On June 23, 2023, the Public Access Bureau forwarded a copy of the Request\nfor Review to the Board President. The Public Access Bureau also sent the Board a letter\nrequesting a written response, copies of any Board rules or policies governing public comment\nthat were in effect at the time of the meeting in question, as well as copies of the agenda,\nminutes, and recording of the open session portion of that meeting.\n4) On June 27, 2023, the Board provided this office with a written answer\nand the requested materials, as well as copies of annotated agendas for the Board's April 12,\n2023, and June 14, 2023, meetings.\n5) On June 27, 2023, this office sent a copy of the Board's answer to Ms. Aikins\nand notified her of her opportunity to reply. On the same day, Ms. Aikins submitted a reply.\n6) On August 11, 2023, this office properly extended the time within which to\nissue a binding opinion by 21 business days, to September 14, 2023, pursuant to section 3.5(e) of\nOMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this\nmatter.\nMs. Elisabeth Aikins\nThe Honorable Rob Hanlon\nSeptember 13, 2023\nPage 10\n7) Section 2.06(g) of OMA provides that \"[a]ny person shall be permitted an\nopportunity to address public officials under the rules established and recorded by the public\nbody.\"\n8) It is undisputed that the Board President interrupted Ms. Aikins while she\nprovided public comment during the Board's June 14, 2023, meeting. The interruption occurred\nwhen Ms. Aikins referenced the District's hiring policy, and she was not permitted to finish her\ncomments because the Board President believed Ms. Aikins intended to address a personnel\nissue.\n9) Board Policy 2:230, which governs public comment, does not include an\nestablished or recorded rule restricting public comment on personnel matters.\n10) The annotated copy of the June 14, 2023, Board meeting agenda states \"[t]o\nmaintain confidentiality, the Board asks that any matters concerning personnel or students be\ncommunicated to the Board privately.\" The Board did not read this statement during the June\n14, 2023, meeting, but it implied that the statement was its basis for limiting Ms. Aikins'\ncomments. The Board, however, did not demonstrate that it took action to establish and record\nthis statement as a public comment rule or otherwise establish and record a restriction as to\ncomments on personnel matters.\n11) Accordingly, the Attorney General concludes that the Board violated section\n2.06(g) of OMA when it prohibited Ms. Aikins from providing public comment regarding the\nDistrict's hiring policies based on the assumption that she intended to comment on a personnel\nmatter.\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to take appropriate action to comply with this opinion by refraining from applying\nunestablished and unrecorded rules to restrict public comment at future meetings and by\notherwise conducting its future meetings in full compliance with OMA. As required by section\n3.5(e) of OMA, the Board shall either take necessary action as soon as practical to comply with\nthe directives of this opinion or shall initiate administrative review under section 7.5 of OMA. 5\nILCS 120/7.5 (West 2022).\nMs. Elisabeth Aikins\nThe Honorable Rob Hanlon\nSeptember 13, 2023\nPage 11\nThis opinion shall be considered a final decision of an administrative agency for\nthe purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision, naming the Attorney General of Illinois and Ms.\nElisabeth Aikins as defendants. See 5 ILCS 120/7.5 (West 2022).\nVery truly yours,\nKWAME RAOUL\n| a a GENERAL\nBy:\nNathalina Hudson\nChief of Staff\nCERTIFICATE OF SERVICE\nSteve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has\nserved a copy of the foregoing Binding Opinion (Public Access Opinion 23-013) upon:\nMs. Elisabeth Aikins\n1N580 Bob O Link Drive\nWinfield, Illinois 60190\nElisabeth.a.millar@gmail.com\nThe Honorable Rob Hanlon\nPresident, Board of Education\nWheaton Warrenville Community\nUnit School District No. 200\n130 West Park Avenue\nWheaton, Illinois 60189\nRob.hanlon@cusd200.org\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Chicago, Illinois on September 13, 2023.\nSieve Silverman\nBureau Chief\nSteve Silverman\nBureau Chief\nPublic Access Bureau\nOffice of the Attorney General\n100 West Randolph Street\nChicago, Illinois 60601\n(312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A member of the public filed a complaint after the school board restricted her ability to speak during a public meeting. The Illinois Attorney General's office found that the board violated the Open Meetings Act because the restriction it enforced was not part of its established and recorded rules for public comment. This means that public bodies must follow their own written policies when limiting public participation at meetings.","card_headline":"Restriction of public comment at a school board meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":177,"orig_master_id":19151,"dup_master_id":19379,"dup_sha256":"497ce272a0fecef18425adde309d79a8dd46e81e244dc7d867447c93655f6edc","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-12-27","case_number":"2023 PAC 78419","request_numbers":null,"title":"Duty to Respond to FOJA Requests","filename":"PUBLIC ACCESS OPINION 23-017 (Request for Review - 2023 PAC 78419).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 23-017 (Request for Review - 2023 PAC 78419).pdf","word_count":2124,"summary":"The City of Harvey failed to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Shahnawaz Hasan . The Attorney General's binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA)","plain_summary":"The requester, a business owner, sought records showing amounts billed by two law firms and information about a city's efforts to acquire property through a county program, and the city never responded despite months of follow-up. The Public Access Counselor held that the city violated section 3(d) of FOIA by failing to comply with, deny, or properly respond to the request within the statutory period. The city was directed to disclose all records responsive to the request, subject only to permissible redactions.","holding":"The City of Harvey violated section 3(d) of FOIA by failing to respond to the requester's FOIA request within the statutory timeframe.","legal_question":"Whether the City of Harvey violated section 3(d) of FOIA by failing to respond to a request for public records.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Harvey","requesting_party":"Both and Ms. Anderson","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"duty to respond","subject_description":"The request sought records concerning legal billing statements and real property acquisition by the City.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-017.pdf","sha256":"e086bcc2cdb79da385a0dcd679a7082545e58c849eaf1cffb40c7d48e80a12d7","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","legal bills","public records"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL December 27, 2023 , PUBLIC ACCESS OPINION 23-017 | (Request for Review 2023 PAC 78419) FREEDOM OF INFORMATION ACT: Duty to Respond to FOJA Requests Mr. Dennis Both American Kitchen Delights 15320 Cooper Avenue Harvey, Illinois 60426 Ms. Cheryl Anderson Deputy City Clerk City of Harvey 15320 Broadway Avenue Harvey, Illinois 60426 Dear Mr. Both and Ms. Anderson: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons discussed below, this office concludes that the City of Harvey (City) violated section 3(d) of FOJA (5 ILCS 140/3(d) (West 2022)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Shahnawaz Hasan. BACKGROUND On August 3], 2023, Mr. Hasan submitted a FOIA request to the City seeking \"[a]ny and all documents that identify amounts billed to the City of Harvey by the Law Firm Ancel Glink or Kathleen Kunkle during the period January 1, 2022, to date.\"! The request also sought records identifying real property the City sought to acquire through the Cook County No ‘City of Harvey Illinois Freedom of Information Act (FOIA) Request for Review or Copy of Public Records form submitted by Shahnawaz Hasan (August 31, 2023). 500 South Second Street, Springfield, Illinois 62701 © (217) 782-1090 © TTY: (877) 844-5461 ¢ Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © TTY: (800) 964-3013 ¢ Fax: (312) 814-3806 601 South University Ave., Carbondale, IL 62901 © (618) 529-6400 © ‘TTY: (877) 675-9339 © Fax (618) 529-6416 °&ecoust Mr. Dennis Both Ms. Cheryl Anderson December 27, 2023 Page 2 Cash Bid Program in 2023, as well as related \"correspondence, Resolutions Requesting Participation In The Cook County No Cash Bid Program, including any Third Party Requestor Affidavits, Affidavits of Intent, Certifications regarding the No Cash Bid Request, lists or schedules of properties to be acquired and Affidavits of Occupancy.\"* The FOIA request was stamped as received by the Harvey City Clerk as of August 31, 2023, at 2:22 p.m.*? As contact information, the request listed the mailing address for American Kitchen Delights and an American Kitchen Delights e-mail address for Mr. Dennis Both.* On October 2, 2023, this office received, on behalf of American Kitchen Delights, a Request for Review from Mr. Dennis Both in which he alleged that the City had failed to respond to Mr. Hasan's FOIA request.? On December 8, 2023, Mr. Both clarified to this office via telephone that Mr. Hasan is the owner of American Kitchen Delights and submitted the FOIA request on behalf of the company; Mr. Both is an attorney for the company.° On October 10, 2023, the Public Access Bureau e-mailed the FOIA Officer for the City a copy of the Request for Review and a letter asking whether the City had received and responded to Mr. Hasan's FOIA request.’ The October 10, 2023, letter also requested that if the City had not yet responded, it do so and provide this office with a copy of its response.* The City did not respond to the Public Access Bureau's October 10, 2023, correspondence. On October 27, 2023, the Public Access Bureau sent a letter via U.S. Postal Mail to the Deputy City Clerk, Ms. Cheryl Anderson, stating that this office had not received a response to its October 10, 2023, letter, attaching a copy of that letter, and requesting a *City of Harvey Illinois Freedom of Information Act (FOIA) Request for Review or Copy of Public Records form submitted by Shahnawaz Hasan (August 31, 2023). City of Harvey Illinois Freedom of Information Act (FOIA) Request for Review or Copy of Public Records form submitted by Shahnawaz Hasan (August 31, 2023). ‘City of Harvey Illinois Freedom of Information Act (FOIA) Request for Review or Copy of Public Records form submitted by Shahnawaz Hasan (August 31, 2023). Letter from Dennis Both, American Kitchen Delights, to Grace Angelos, Assistant Attorney General, Public Access Bureau (September 26, 2023). STelephone conversation between Dennis Both and Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (December 8, 2023). 7Letter from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Cheryl Anderson, Deputy City Clerk, City of Harvey (October 10, 2023), at 1. Letter from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Cheryl Anderson, Deputy City Clerk, City of Harvey (October 10, 2023), at 1. Mr. Dennis Both Ms. Cheryl Anderson December 27, 2023 Page 3 response.’ This office also e-mailed a copy of that correspondence to the City Clerk's e-mail address.!° The City did not respond to the Public Access Bureau's October 27, 2023, letter. On November 16, 2023, an Assistant Attorney General (AAG) in the Public Access Bureau called the City Clerk's telephone number but was unablteo reach the City's FOIA Officer. On December 1, 2023, this office extended the time for issuing a binding opinion by 30 business days, pursuant to section 9.5(f) of FOIA.\" As of the date of the issuance of this binding opinion, this office has not received confirmation or any indication from the City or Mr. Both that the City has responded to the FOIA request at issue in this matter. ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2022). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2022)), \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2022)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records *Letter from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Cheryl Anderson, Deputy City Clerk, City of Harvey (October 27, 2023). 10F-mail from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to cityclerk@cityofharveyil.gov (October 27, 2023). ‘Letter from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Cheryl Anderson, Deputy City Clerk, City of Harvey, and Dennis Both, American Kitchen Delights (December 1, 2023). Mr. Dennis Both Ms. Cheryl Anderson December 27, 2023 Page 4 may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). Section 3(e) of FOIA (5 ILCS 140/3(e) (West 2022)) permits a public body to extend its response time by no more than five business days for any of seven enumerated reasons. Any additional extension requires a written agreement between the requester and the public body. 5 ILCS 140/3(e) (West 2022). The City did not respond to Mr. Hasan's August 31, 2023, FOIA request within five business days after its receipt by either complying with the request, extending the time for its response pursuant to section 3(e) of FOIA, or denying the request in writing. The failure of the City to comply with the requisite response procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On August 31, 2023, Mr. Shahnawaz Hasan, on behalf of American Kitchen Delights, submitted a FOIA request to the City of Harvey seeking copies of records relating to billings for two specific law firms and the City's attempts to acquire real property via Cook County's No Cash Bid Program. 2) On October 2, 2023, Mr. Dennis Both, attorney for American Kitchen Delights, submitted the documents required to file a Request for Review with the Public Access Counselor alleging that the City had not responded to Mr. Hasan's FOIA request. Mr. Both's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2022)). 3) On October 10, 2023, the Public Access Bureau forwarded a copy of the Request for Review to the City along with a letter asking whether the City had responded to Mr. Hasan's FOIA request. The City did not respond. 4) On October 27, 2023, the Public Access Bureau sent a second letter to the City's FOIA officer, via both e-mail and U.S. Postal Mail, stating that the Public Access Bureau had not received any indication that the City had responded to Mr. Hasan's FOIA request. The City did not respond. 5) On November 16, 2023, the Public Access Bureau attempted unsuccessfully to reach the City's FOIA officer via telephone. Mr. Dennis Both Ms. Cheryl Anderson December 27, 2023 Page 5 6) On December 1, 2023, the Public Access Bureau extended the time in which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 7) As of the date of the issuance of this binding opinion, this office has received no information indicating that the City has responded to Mr. Hasan's August 31, 2023, FOIA request. Therefore, it is the opinion of the Attorney General that the City of Harvey has violated section 3(d) of FOIA by failing, within the statutory time for responding to Mr. Hasan's August 31, 2023, FOIA request, to provide copies of the requested records or to deny the request in writing in whole or in part. Accordingly, the City is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Hasan with copies of all records responsive to the August 31, 2023, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2022), as amended by Public Acts 103-154, effective June 30, 2023; 103-462, effective August 4, 2023; 103-446, effective August 4, 2023).!? If the City determines that any portion of the responsive records is exempt from disclosure under section 7, it is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2022)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Dennis Both as defendants. See 5 ILCS 140/11.5 (West 2022). Sincerely, KWAME RAOUL ATTORNEY GENERAL By: pee Brent D. Stratton Chief Deputy Attorney General Because the City did not comply with the statutory requirements for responding to Mr. Hasan's FOIA request, the City is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d) (West 2022). CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 23-017) upon: Mr. Dennis Both American Kitchen Delights 15320 Cooper Avenue Harvey, Illinois 60426 dboth@akdi.com Ms. Cheryl Anderson Deputy City Clerk City of Harvey 15320 Broadway Avenue Harvey, Illinois 60426 cityclerk@cityofharveyil.gov by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on December 27, 2023. ” Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street Chicago, Hlinois 60601 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Shahnawaz Hasan requested public records from the City of Harvey regarding legal bills and property acquisitions, but the City never responded to him. The Illinois Attorney General ruled that the City broke the law by ignoring the request. Because the City failed to respond, they are now prohibited from claiming the request was too burdensome or charging fees for the records.","card_headline":"Legal billing statements and real property acquisition records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":178,"orig_master_id":19152,"dup_master_id":19380,"dup_sha256":"cfcc65884dcf50c35df60df7a848894c3e5ff4d8e33bbeb6e35ba2e9c50b6c35","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-02-09","case_number":"2023 PAC 79369","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 24-002 (Request for Review 2023 PAC 79369).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 24-002 (Request for Review 2023 PAC 79369).pdf","word_count":2367,"summary":"WGN-TV Investigative Producer Andrew Schroedter filed a FOIA request to the Village of Dolton . The request was \"past duef\" on November 29, 2023 . The Attorney General issued a binding opinion of the opinion issued by the Attorney General .","plain_summary":"The requester, a television investigative producer, sought records showing payments to a village mayor, her vehicle lease, and village credit card statements, and the village failed to substantively respond for months, at one point sending a letter claiming records were attached when none were. The Public Access Counselor held that the village violated section 3(d) of FOIA by failing to comply with, deny, or properly respond to the request within the statutory period. The village was directed to disclose all records responsive to each part of the request, subject only to permissible redactions.","holding":"The Village of Dolton violated section 3(d) of FOIA by failing to respond to the requester's FOIA request.","legal_question":"Whether the Village of Dolton violated section 3(d) of FOIA by failing to respond to a request for public records.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Dolton","requesting_party":"Schroedter and Freedom of Information Officer","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"FOIA response","subject_description":"The request sought financial records including payments to the Mayor, a vehicle lease, and village credit card statements.","ocr_status":"ok","ocr_quality":90.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/24-002.pdf","sha256":"a8c63d3a370737165a60874c386750fa43ec31b409101ad752806f314be1e421","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA request","failure to respond","Village of Dolton","public records"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL February 9, 2024 PUBLIC ACCESS OPINION 24-002 (Request for Review 2023 PAC 79369) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Andrew Schroedter Investigative Producer WGN-TV 2501 West Bradley Place Chicago, Illinois 60618 Freedom of Information Officer Village of Dolton 14122 Dr. Martin Luther King Drive Dolton, Illinois 60419 Dear Mr. Schroedter and Freedom of Information Officer: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069, effective January 1, 2024). For the reasons discussed below, this office concludes that the Village of Dolton (Village) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2022)) by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Andrew Schroedter. BACKGROUND On November 29, 2023, Mr. Schroedter, on behalf of WGN-TV, submitted a FOIA request to the Village seeking: + Copies of documents sufficient to show total payments to Tiffany Henyard in 2023. + A copy of the current lease for Mayor Henyard's village vehicle. 500 South 2\" Street, Springfield, Illinois 62701 ¢ (217) 782-1090 © Fax: (217) 782-7046 115 South LaSalle Street, Chicago Illinois 60603, ¢ (312) 814-3000 ¢ Fax: (312) 814-3806 1745 Innovation Drive, Suite C, Carbondale, Illinois 62903 ¢ (618) 529-6400 ¢ Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. eee~ Mr. Andrew Schroedter Freedom of Information Officer February 9, 2024 Page 2 + Copies of monthly statements for any and all village credit cards, from June 1, 2023 to present.!!! Having received no response, on December 14, 2023, Mr. Schroedter sent an e-mail forwarding his November 29, 2023, request to Mr. Keith Freeman, the Village Administrator, and copied Village Clerk Alison Key, Mr. Michael Del Galdo, an attorney in private practice who represents the Village,” and a colleague at WGN-TV. The e-mail stated that the request was \"past duef.]\"? On December 15, 2023, Mr. Schroedter submitted a Request for Review to the Public Access Counselor in which he alleged that the Village had failed to respond to his FOIA request. On December 27, 2023, the Public Access Bureau e-mailed the FOIA Officer for the Village a copy of the Request for Review and a letter asking whether the Village had received and responded to Mr. Schroedter's FOIA request.> The December 27, 2023, letter also requested that if the Village had not yet responded, it do so and provide this office with a copy of its response.® The Village did not respond to the Public Access Bureau's December 27, 2023, correspondence. 'E-mail from Andrew Schroedter, Investigative Producer, Chicago's Very Own WGN, to Alison Key, [Village Clerk, Village of Dolton] (November 29, 2023). *The agenda for the December 4, 2023, Village Board of Trustees meeting identified Mr. Del Galdo as the \"Attorney.\" Village of Dolton Board of Trustees, Regular Meeting, Agenda Item 7.C., Executive Session (December 4, 2023). 3E-mail from Andrew Schroedter, Investigative Producer, Chicago's Very Own WGN, to Keith Freeman, [Village Administrator, Village of Dolton] Alison Key, [Village Clerk, Village of Dolton] delgaldo@dlglawgroup.com, and Ben Bradley, [Reporter, WGN-TV] (December 14, 2023). ‘E-mail from Andrew Schroedter, Investigative Producer, Chicago's Very Own WGN, to Public Access [Bureau, Office of the Attorney General] (December 15, 2023). In that same correspondence, Mr. Schroedter also alleged that the Village had failed to respond to a second FOIA request he submitted on November 29, 2023, by e-mail to the Village Clerk. E-mail from Andrew Schroedter, Investigative Producer, Chicago's Very Own WGN, to Alison Key, [Village Clerk, Village of Dolton] (November 29, 2023). This office opened a separate Request for Review to address the second unanswered request, 2023 PAC 79370. On January 16, 2024, the Village responded to that request, asserting that it did not possess any responsive records. Letter from Freedom of Information Officer, Village of Dolton, to Andrew Schroedter (January 16, 2024). *Letter from Leah Bartelt, Public Access Counselor, Public Access Bureau, Office of the Attorney General, to FOIA Officer, Village of Dolton (December 27, 2023), at 1. This office directed its e-mail to the e-mail address listed on the Village's website for FOIA requests: foia@vodolton.org. Village of Dolton, Transparency, https://vodolton.org/transparency-2/ (last visited January 29, 2024); Village of Dolton, Village Clerk — Alison Key, https://vodolton.org/village-clerk/ (last visited January 29, 2024). *Letter from Leah Bartelt, Public Access Counselor, Public Access Bureau, Office of the Attorney General, to FOIA Officer, Village of Dolton (December 27, 2023), at 1. Mr. Andrew Schroedter Freedom of Information Officer February 9, 2024 Page 3 On January 11, 2024, the Public Access Bureau sent via U.S. Postal Mail a letter to the Village's Freedom of Information Officer stating that this office had not received a response to its December 27, 2023, letter; the correspondence included a copy of the December 27, 2023, letter and again requested a response.’ This office also e-mailed a copy of that correspondence to the FOIA Officer's e-mail address.* The Village did not respond to the Public Access Bureau's January 11, 2024, letter. On January 26, 2024, the Public Access Counselor in the Public Access Bureau sent an e-mail to the FOIA Officer inquiring about the status of its response to Mr. Schroedter's November 29, 2023, FOIA request; the FOIA Officer did not respond.” On January 29, 2024, Mr. Schroedter sent this office correspondence which indicated that he still had not received a response to the November 29, 2023, FOIA request at issue in this matter.!° On January 30, 2024, the Village e-mailed Mr. Schroedter a letter, dated January 17, 2024, which asserted that the Village has located five pages of records responsive to his request, and further asserted that those pages, with redactions, were attached to the letter.!' Mr. Schroedter responded to that e-mail, alerting the Village that there were no records attached to its e-mail, and asking how a request seeking copies of payments to the Mayor, a vehicle lease, and five months of credit card statements, could total only five pages of responsive records.” The Village acknowledged receipt of that e-mail but did not provide Mr. Schroedter the five pages of records, or any other records.'* As of the date of the issuance of this binding opinion, this office has not received confirmation or any indication from the Village or Mr. Schroedter that the Village has substantively responded to the FOIA request. \"Letter from Leah Bartelt, Public Access Counselor, Public Access Bureau, Office of the Attorney General, to Freedom of Information Officer, Village of Dolton (January 11, 2024). 8E-mail from Leah Bartelt, Public Access Counselor, Public Access Bureau, Office of the Attorney General, to Freedom of Information Officer, [Village of Dolton] (January 11, 2024). E-mail from Leah Bartelt, Public Access Bureau, Office of the Attorney General, to foia@vodolton.org (January 26, 2024). '°E-mail from Andrew Schroedter, [Investigative Producer, Chicago's Very Own WGN,] to Leah Bartelt, [Public Access Counselor, Public Access Bureau, Office of the Attorney General] (January 29, 2024). \"E-mail from foia@vodolton.org to Andrew Schroedter (January 30, 2024), attaching letter from Freedom of Information Officer, Village of Dolton, to Andrew Schroedter, [Investigative Producer, Chicago's Very Own WGN], (January 17, 2024). '*E-mail from Andrew Schroedter, Investigative Producer, Chicago's Very Own WGN, to foia@vodolton.org (January 30, 2024). E-mail from foia@vodolton.org to Andrew Schroe [...] CS 140/3(a) (West 2022)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). Section 3(e) of FOIA (5 ILCS 140/3(e) (West 2022)) permits a public body to extend its response time by no more than five business days for any of seven enumerated reasons. Any additional extension requires a written agreement between the requester and the public body. 5 ILCS 140/3(e) (West 2022). It is undisputed that the Village did not respond to Mr. Schroedter's November 29, 2023, FOIA request within five business days after its receipt by either complying with the request, extending the time for its response pursuant to section 3(e) of FOIA, or denying the request in writing. The Village's letter dated January 17, 2024, to Mr. Schroedter was not accompanied by any responsive records. The failure of the Village to comply with the requisite response procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On November 29, 2023, Mr. Andrew Schroedter, on behalf of WGN-TV, submitted a FOIA request to the Village of Dolton seeking copies of records showing payments Mr. Andrew Schroedter Freedom of Information Officer February 9, 2024 Page 5 made to the Village Mayor, the lease for the Mayor's village vehicle, and monthly credit card statements from June 1, 2023, to the date of the request. 2) On December 15, 2023, Mr. Schroedter submitted the documents required to file a Request for Review with the Public Access Counselor alleging that the Village had not responded to his FOIA request. Mr. Schroedter's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2022)). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 3) On December 27, 2023, the Public Access Bureau forwarded a copy of the Request for Review to the Village along with a letter asking whether the Village had responded to Mr. Schroedter's FOIA request. The Village did not respond. 4) On January 11, 2024, the Public Access Bureau sent a second letter to the Village's FOIA officer, via both e-mail and U.S. Postal Mail, stating that the Public Access Bureau had not received any indication that the Village had responded to Mr. Schroedter's FOIA request. The Village did not respond. 5) On January 26, 2024, the Public Access Counselor e-mailed the Village's FOIA Officer requesting an update on the status of the Village's response to the request. The Village did not respond. 6) On January 30, 2024, the Village e-mailed Mr. Schroedter a letter stating that copies of five pages of records with redactions were attached. However, no records were attached to that e-mail. 7) As of the date of the issuance of this binding opinion, this office has received no information indicating that the Village has responded to Mr. Schroedter's November 29, 2023, FOIA request. Therefore, it is the opinion of the Attorney General that the Village of Dolton has violated section 3(d) of FOIA by failing, within the statutory time for responding to Mr. Schroedter's November 29, 2023, FOIA request, to provide copies of the requested records or to deny the request in writing in whole or in part. Accordingly, the Village is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Schroedter with copies of all records responsive to each part of the November 29, 2023, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2022), as amended by Public Acts 103-154, effective June 30, 2023; 103-423, effective January 1, 2024; 103-462, effective August 4, 2023; 103-446, effective August 4, 2023; 103-540, effective Mr. Andrew Schroedter Freedom of Information Officer February 9, 2024 Page 6 January 1, 2024; 103-554, effective January 1, 2024).'* If the Village determines that any portion of the responsive records is exempt from disclosure under section 7, it is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2022)), This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Andrew Schroedter as defendants. See 5 ILCS 140/11.5 (West 2022). Sincerely, KWAME RAOUL ATTORNEY GENER (lak— alD . Stratton Chief Deputy Attorney General ‘Because the Village did not comply with the statutory requirements for responding to Mr. Schroedter's FOIA request, the Village is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d) (West 2022). CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 24-002) upon: Mr. Andrew Schroedter Investigative Producer WGN-TV 2501 West Bradley Place Chicago, Illinois 60618 aschroedter@wegntv.org Freedom of Information Officer Village of Dolton 14122 Dr. Martin Luther King Drive Dolton, Illinois 60419 foia@vodolton.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on February 9, 2024. a Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A journalist requested financial records from the Village of Dolton, but the Village never replied to the request. The Illinois Attorney General ruled that the Village broke the law by ignoring the request. Because of this failure to respond, the Village is now prohibited from charging fees or claiming the request was too burdensome.","card_headline":"Financial records of a village mayor and credit card statements","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":179,"orig_master_id":19382,"dup_master_id":19153,"dup_sha256":"dee8e5bd4619cc8de9c610f6d38abb1b80d2fac0d07dc678651355ac51559cd2","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2023,"date_issued":"2023-12-27","case_number":"2023 PAC 78356","request_numbers":null,"title":"Improper Closed Session Discussion of Removing Book from Curriculum","filename":"PUBLIC ACCESS OPINION 23-016 (Request for Review - 2023 PAC 78356).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 23-016 (Request for Review - 2023 PAC 78356).pdf","word_count":2352,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a complaint about the Yorkville Community Unit School District 115's improper closed session discussion related to the removal of a book from the curriculum.","plain_summary":"The requester, a resident, alleged that a school board improperly discussed removing a book from an English class curriculum in closed session after a parent's grievance about the book reached the board. The Public Access Counselor held that none of the personnel, quasi-adjudicative, or student-placement exceptions the board cited authorized closing the meeting, because the board was actually deliberating on a curriculum decision affecting students generally rather than a specific employee's conduct or an individual student. The board was directed to disclose the closed-session recording, with only the brief portions naming a specific student redacted, and to revise its closed-session minutes to meaningfully summarize the discussion.","holding":"The Board of Education violated the Open Meetings Act during its August 7, 2023 meeting.","legal_question":"Did the Board of Education violate the Open Meetings Act by holding an improper closed session discussion?","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/1, 5 ILCS 120/2(b), 275 ILCS 120/2(c), 5 ILCS 120/2(c), 5 ILCS 120/2, 5 ILCS 120/2(d), 105 ILCS 5/24, 05 ILCS 5/10, 5 ILCS 120/7","foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)"],"public_body":"Board of Education Yorkville Community Unit School District","requesting_party":"Grzywa and Mr. Crawford","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board of Education held an improper closed session to discuss the removal of the book 'Just Mercy' from the school curriculum.","ocr_status":"ok","ocr_quality":90.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2023-Binding-PAC-Opinions/23-016.pdf","sha256":"1396fec73b8817638199a833833550d262162b56226317798c1768248b927688","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","school board","curriculum","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL A'ITORNEY GENERAL December 27, 2023 PUBLIC ACCESS OPINION 23-016 (Request for Review 2023 PAC 78356) OPEN MEETINGS ACT: Improper Closed Session Discussion of Removing Book from Curriculum Ms. Mary Grzywa 2691 North 2409th Road Marseilles, Illinois 61341 The Honorable Darren Crawford President, Board of Education Yorkville Community Unit School District 115 800 Game Farm Road Yorkville, Illinois 60560 Dear Ms. Grzywa and Mr. Crawford: This binding opinion is issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2022)). For the reasons discussed below, this office concludes that the Board of Education (Board) of Yorkville Community Unit School District 115 (District) violated section 2(a) of OMA (5 ILCS l 20/2(a) (West 2022), as amended by Public Act 103-311, effective July 28, 2023) during its August 7, 2023, meeting by holding an improper closed session discussion concerning the removal of a book from a curriculum. BACKGROUND On September 28, 2023, Ms. Mary Grzywa submitted a Request for Review to the Public Access Bureau alleging: \"The board held closed sessions at their meetings to discuss curriculum. Decisions from the closed meetings were given on May 22, 2023 and August 7, 2023. The topic of the discussion was the use of the book\" Just Mercy by Bryan Stevenson \"in an 500 Somh Second Street, Springfield, Illinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • fax: (217) 782-70+6 100 \\Vest Randolph Street, Chicago, Illinois 60601 • (312) 81+-3000 • TIT (800) 96+-3013 • Fax: (312) 81+-3806 601 South Univcrsitv Ave., Carbondale, IL 62901 • (618) 529-6+00 • rrY: (877) 675-9339 • Fax (618) 529-6416 ~ - Ms. Mary Grzywa The Honorable Darren Crawford December 27, 2023 Page 2 English class.\" 1 Ms. Grzywa provided a link to a news article about the controversy over the Board's decision to pull the book from the curriculum after returning from closed session during the August 7, 2023, meeting.2 The article stated that \"[e]arlier this year, a parent's objection to the book triggered the district's uniform grievance procedure[,]\" which resulted in a determination by the District's administration that use of the book did not violate Board policy.3 The parent appealed that decision to the Board, which discussed the matter in closed session on May 22, 2023, and then in open session voted to add a second text as an alternative option to Just Mercy.4 \"[T]he board subsequently removed the option ofreading 'Just Mercy' as part of the course at its Aug. 7 meeting[,]\" the article continued, but \"why the board revisited the issue and reversed its decision remains unclear. The discussions were held in closed session. \"5 Ms. Grzywa argued that \"[t]he board owes the public full disclosure of their debate on the matter.\"6 1E-mail from Mary Grzywa to Public Access [Bureau, Office of the Attorney General] (September 28, 2023). 2Mark Foster, 'Just Mercy' - What's the book at the center ofc ontroversy in Yorkville about?, Shaw Local News Network (September 28, 2023, 5:00 a.m.), https://www.sbawlocal.com/kendall-county now/2023/09/28/just-mercy-whats-the-book-banned-by-yorkville-school-board-about/. 3Mark Foster, 'Just Mercy' - What's the book at the center ofc ontroversy in Yorkville about?, Shaw Local News Network (September 28, 2023, 5:00 a.m.), https://www.shawlocal.com/kendall-county now/2023/09/28/just-mercy-wbats-the-book-banned-by-yorkville-scbool-board-about/. 4Mark Foster, 'Just Mercy' - What's the book at the center ofc ontroversy in Yorkville about?, Shaw Local News Network (September 28, 2023, 5:00 a.m.), https://www.shawlocal.com/kendall-county now/2023/09/28/just-mercy-whats-the-book-banned-by-yorkville-school-board-about/. 5Mark Foster, 'Just Mercy' - What's the book at the center ofc ontroversy in Yorkville about?, Shaw Local News Network (September 28, 2023, 5:00 a.m.), https://www.shawlocal.com/kendall-county now/2023/09/28/just-mercy-whats-the-book-banned-by-yorkville-school-board-about/. 6E-mail from Mary Grzywa to Public Access [Bureau, Office of the Attorney General] (September 28, 2023). Ms. Mary Grzywa The Honorable Darren Crawford December 27, 2023 Page 3 On October 2, 2023, the Public Access Bureau determined that further action was warranted as to the allegation concerning the August 7, 2023, meeting.7 The Public Access Bureau sent a copy of the Request for Review to the Board President, Mr. Darren Crawford. The Public Access Bureau also sent Mr. Crawford a letter asking for copies of the August 7, 2023, meeting agenda, minutes (both open and closed sessions), and closed session verbatim recording. This office also asked the Board to respond in writing to the allegation that it violated OMA by discussing whether to remove the book from the curriculum in closed session. 8 On October 20, 2023, counsel for the Board provided the Public Access Bureau with those materials, as well as various materials about the grievances filed by the parent of a student in the District that served as the basis for the Board's deliberations about the book. In a written answer to Ms. Grzywa's allegations, counsel for the Board denied that the Board had violated OMA.9 As background, the Board explained that its August 7, 2023, closed session discussion stemmed from a parent's complaint to the District on January 21, 2023, under Board Policy 2:260, 10 which sets forth the District's Uniform Grievance Procedure (UGP).11 The complaint alleged District employees failed to comply with Board Policy 6:80, \"Teaching About 7Ms. Grzywa's Request for Review about the May 22, 2023, meeting was untimely because it did not indicate that she did not discover facts about the alleged violation from that meeting within 60 days after it occurred despite using reasonable diligence. See 5 ILCS 120/3.5(a) (West 2022) (requiring a Request for Review to be filed within 60 days after an alleged violation occurred except that \"[i]f facts concerning the violation are not discovered within the 60-day period, but are discovered at a later date, not exceeding 2 years after the alleged violation, by a person utilizing reasonable diligence, the request for review may be made within 60 days of the discovery of the alleged violation.\"). Notably, the Board approved the May 22, 2023, minutes during the open session portion of its June 26, 2023, meeting. Yorkville Community Unit School District 115 Board of Education, Meeting, June 26, 2023, Minutes 2. 8Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Darren Crawford, President, Board of Education, Yorkville Community Unit School District 115 (October 2, 2023), at 1. 9Letter from Steven M. Richart, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (October 20, 2023). 10Yorkville Community Unit School District 115 Board of Education, Policy Manual, § 2:260 (adopted February 28, 2022). 11Letter from Steven M. Richart, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (October 20, 2023), at 4. Ms. Mary Grzywa The Honorable Darren Crawford December 27, 2023 Page4 Controversial Issues.\"12 The District investigated the complaint, and, on April 26, 2023, then Superintendent Tim Shimp issued a decision letter finding the complaint to be unsubstantiated.13 In accordance with the next step in the UGP, the parent escalated the complaint to the full Board on May 9, 2023.14 The parent alleged that the \"Yorkville High School Principal and English Department Leader * * * knowingly allowed school board policy 6.8 to be violated by assigning a novel in which the theme was America is systemically racist against black and brown people, which is a political opinion not a fact.\" 15 The Board placed the item \"E [...] 's review, and the applicable law, the Attorney General finds that: 1) On September 28, 2023, Ms. Mary Grzywa submitted a Request for Review to the Public Access Bureau alleging that the Board of Education of Yorkville Community Unit School District 115 improperly adjourned to closed session on August 7, 2023, to discuss removing the book Just Mercy from a course curriculum. Ms. Grzywa's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA. 2) On October 2, 2023, the Public Access Bureau sent a copy of the Request for Review to the Board President, Darren Crawford, and asked the Board to provide copies of the August 7, 2023, meeting agenda, minutes (both open and closed sessions), and closed session verbatim recording. This office also asked the Board to respond in writing to the allegation that it violated OMA by discussing removing the book from the curriculum in closed session. 3) On October 20, 2023, counsel for the Board provided the Public Access Bureau with those materials, as well as certain materials about the grievances filed by the parent of a student in the District that served as the basis for the Board's deliberations about the book. The Board denied that it had violated OMA during closed session on August 7, 2023. 4) On October 23, 2023, this office sent a copy of the Board's answer to Ms. Grzywa. On October 27, 2023, she submitted a reply. 5) On November 20, 2023, the Public Access Bureau properly extended the time within which to issue a binding opinion by 21 business days, to December 27, 2023, pursuant to section 3.5(e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. Ms. Mary Grzywa The Honorable Darren Crawford December 27, 2023 Page 15 6) Section 2(a) of OMA requires that all meetings of public bodies be open to the public unless the subject of the meeting is covered by one of the limited exceptions enumerated in section 2(c). Section 2(c)(l) authorizes closed session discussion of, among other things, \"[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees[.]\" Section 2( c )( 4) authorizes closed session discussion of 11 e ]vidence or testimony [ presented in open hearing, or in closed hearing where specifically authorized by law, to a quasi adjudicative body, * * * provided that the body prepares and makes available for public inspection a written decision setting forth its determinative reasoning.\" Section 2(c)(10) authorizes closed session discussion of 11 t ]he placement of individual students in special [ education programs and other matters relating to individual students. 11 7) The Board argued that it properly held a discussion concerning Just Mercy in closed session on August 7, 2023, pursuant to the exceptions in sections 2(c)(l), 2(c)(4), and 2(c)(10) of OMA. 8) The Board's closed session discussion about Just Mercy and related curriculum matters was not authorized by any of the exceptions upon which the Board relied to close the meeting. 9) Section 2( c) (1) is inapplicable because the Board was not in closed session to deliberate about specific employees' job performance or other matters concerning specific employees. Instead, the Board entered closed session to deliberate on whether a specific book should be part of the curriculum for an English class. 10) Section 2(c)(4) is inapplicable because even if the Board acts as a quasi adjudicative body to resolve grievances, the grievance at issue in this matter was against employees rather than the book itself. Instead of entering closed session as a quasi-adjudicative body to assess whether employees violated Board policies, the Board discussed whether to keep Just Mercy as a classroom text. Further, the closed session discussion involved minimal, if any, evaluation of evidence or testimony presented in an open hearing, or in a closed hearing where specifically authorized by law. 11) Section 2(c)(10) is inapplicable to all but less than a minute of the recording in total, as the allusions or references to an individual student were momentary in nature, and the Board spent the overwhelming majority of the closed session discussing curriculum matters that broadly impact whole groups of students. In accordance with these findings of fact and conclusions of law, the Board is directed to remedy this violation by disclosing to Ms. Grzywa and making publicly available the August 7, 2023, closed session verbatim recording. The discrete portions of the recording that Ms. Mary Grzywa The Honorable Darren Crawford December 27, 2023 Page 16 refer to a particular student may be redacted. The Board is further directed to revise its August 7, 2023, closed session minutes to provide a meaningful summary of all matters proposed, deliberated, or decided, and then to disclose to Ms. Grzywa and make publicly available those minutes as well. As required by section 3 .5( e) of OMA, the Board shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA. 5 ILCS 120/7.5 (West 2022). This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Ms. Mary Grzywa as defendants. See 5 ILCS 120/7.5 (West 2022). Very truly yours, KWAMERAOUL ATTORNEY GENERAL /],,-1-s, S}-p.~ By: f ;;~ 1 j ~ . Stratton Chief Deputy Attorney General cc: Mr. Steve Richart Partner Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP 500 Park Boulevard, Suite 1000 Itasca, Illinois 6014 3 CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 23-016) upon: Ms. Mary Grzywa 2691 North 2409th Road Marseilles, Illinois 61341 mary@grzywa.net The Honorable Darren Crawford President, Board of Education Yorkville Community Unit School District 115 800 Game Farm Road Yorkville, Illinois 60560 boe@yl 15.org Mr. Steve Richart Partner Hodges, Loizzi, Eisenharnmer, Rodick & Kohn LLP 500 Park Boulevard, Suite 1000 Itasca, Illinois 6014 3 srichart@hlerk.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on December 27, 2023. ~ ' ::::::---_ ~ Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A school board held a private, closed-door meeting to discuss whether to remove a specific book from the school curriculum. The Illinois Attorney General's office ruled that this discussion was not allowed to be held in private under the Open Meetings Act. The opinion finds a past violation but does not order any specific future action.","card_headline":"Closed-session discussion of a book's removal from curriculum","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":180,"orig_master_id":19381,"dup_master_id":19154,"dup_sha256":"45ad39e5e8a50868dad24c067a89b0857a94897ffef0414bd313e9adc7cf0a14","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-01-24","case_number":"2023 PAC 78717","request_numbers":null,"title":"Disclosure of Settlement Agreements","filename":"PUBLIC ACCESS OPINION 24-001 (Request for Review 2023 PAC 78717).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 24-001 (Request for Review 2023 PAC 78717).pdf","word_count":2316,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request by Ms. Ellen Moriarty for the disclosure of settlement agreements withheld by Homer Township.","plain_summary":"The requester sought invoices and documents underlying township payments to its law firm, and the township withheld a related settlement agreement based on a mutual nondisparagement clause it read as barring disclosure. The Public Access Counselor held that settlement agreements are expressly public records under FOIA and that a nondisparagement clause does not create an enforceable confidentiality obligation that can override that requirement. The township was directed to provide the requester a copy of the settlement agreement.","holding":"Homer Township violated the requirements of FOIA by withholding a settlement agreement.","legal_question":"Did Homer Township violate the Freedom of Information Act by withholding a settlement agreement?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/2, 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/7, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Homer Township","requesting_party":"Moriarty and Ms. Bozen","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request sought supporting documentation, including settlement agreements, for payments made by the Township to its legal counsel.","ocr_status":"ok","ocr_quality":90.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/24-001.pdf","sha256":"27fb72ad571dac01a4e1629b7fd21dcc6016acb7198585036aaa45a24f6c8753","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["settlement agreement","legal invoices","public records","FOIA request"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL January 24, 2024 PUBLIC ACCESS OPINION 24-001 (Request for Review 2023 PAC 78717) FREEDOM OF INFORMATION ACT: Disclosure of Settlement Agreements Ms. Ellen Moriarty 13841 South Twin Oaks Court Homer Glen, Illinois 60491 The Honorable Vicki Bozen Clerk Homer Township 14350 West 151st Street Homer Glen, Illinois 60491 Dear Ms. Moriarty and Ms. Bozen: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069, effective January 1, 2024). For the reasons discussed below, this office concludes that Homer Township (Township) violated the requirements of FOIA by withholding a settlement agreement responsive to Ms. Ellen Moriarty's October 2, 2023, FOIA request. BACKGROUND On October 2, 2023, Ms. Moriarty submitted by e-mail a FOIA request to the Township seeking \"the invoices and all relevant documents that support\" nine specific checks, identified by check number and amount, payable to the Township's law firm or its law firm's 500 South 2nd Street, Springfield, Illinois 62701 • (217) 782-1090 • Fax: (217) 782-7046 115 South LaSalle Street, Chicago Illinois 60603, • (312) 814-3000 • Fax: (312) 814-3806 1745 Innovation Drive, Suite C, Carbondale, Illinois 62903 • (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. •~ - Ms. Ellen Moriarty The Honorable Vicki Bozen January 24, 2024 Page 2 trust account.1 On October 10, 2023, the Township e-mailed Ms. Moriarty copies of eight of the specified checks that were payable to the law firm along with redacted copies of legal invoices that corresponded to each of those checks.2 The e-mail to which those records were attached did not indicate any responsive information had been redacted or withheld, nor did the Township specify the bases for its redactions. On October 24, 2023, this office received Ms. Moriarty's Request for Review challenging the Township's response. In particular, she alleged that the Township's response was incomplete because it failed to provide the relevant records for check number 45079, for $22,950.00, which she indicated was payable to the law firm's trust fund.3 Although she expressed concern over the \"erratic and convoluted\" manner in which the Township provided the records to her, she did not contest the Township's redactions to the legal invoices.4 In an attempt to mediate this matter, on November 1, 2023, an Assistant Attorney General (AAG) in the Public Access Bureau e-mailed the Township Clerk a copy of Ms. Moriarty's Request for Review and asked if the Township Clerk had availability to discuss the matter.5 Alternatively, the AAG suggested that if the Township had overlooked any responsive records, the Township may wish to disclose those records to Ms. Moriarty in a supplemental response.6 In telephone calls on November 7, 2023, and November 9, 2023, the AAG spoke with the Township Clerk. During those calls, the Township Clerk explained that the Township had inadvertently omitted a copy of check 45079 from its response to Ms. Moriarty, but she was concerned that releasing the remaining responsive records related to the check would subject the Township to legal liability. 7 She stated that she was unsure what FOIA exemption applied to the 1E-mail from Ellen Moriarty to Vicki Bozen, [Clerk, Homer Township], and Steve Balich [Supervisor, Homer Township] (October 2, 2023). 2E-mail from Vicki Bozen, Homer Township Clerk, Homer Township, to Ellen [Moriarty] (October 10, 2023). 3E-mail from Ellen Moriarty to Public Access [Bureau, Office of the Attorney General] (October 24, 2023). 4E-mail from Ellen Moriarty to Public Access [Bureau, Office of the Attorney General] (October 24, 2023). 5E-mail from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to [Vicki Bozen, Clerk, Homer Township] (November 1, 2023). 6E-mail from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to [Vicki Bozen, Clerk, Homer Township] (November 1, 2023). 7Telephone call from Vicki Bozen, Clerk, Homer Township, to Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (November 7, 2023). Office of the fllinois Attorney General Ms. Ellen Moriarty The Honorable Vicki Bozen January 24, 2024 Page 3 withheld records, but indicated that she was unwilling to disclose them without a final determination from the Public Access Counselor. 8 On November 13, 2023, the Public Access Bureau e-mailed the Township a copy of the Request for Review9 and a letter10 asking it to provide, for this office's confidential review, copies of the withheld records. This office also requested that the Township provide a written answer describing its legal and factual bases for withholding the records, including the specific exemption(s) the Township is asserting to withhold the records.11 On November 14, 2023, the Township provided this office with unredacted copies of check 45079 and one withheld responsive record, a settlement agreement.12 The Township also provided a confidential explanation of its reason for withholding the settlement agreement, but it did not specify the FOIA exemption upon which the Township relied. 13 In an additional attempt to mediate this matter, on November 20, 2023, by telephone and e-mail, 14 the AAG directed the Township Clerk to section 2.20 of FOIA (5 ILCS 140/2.20 (West 2022)), which provides that \"[a]ll settlement and severance agreements entered into by or on behalf of a public body are public records subject to inspection and copying by the public, provided that information exempt from disclosure under Section 7 of this Act may be redacted.\" The AAG stated that section 2.20 specifically identifies settlement agreements as public records open to inspection, and asked the Township to copy this office if it issued a supplemental response disclosing the withheld record.15 On November 22, 2023, the Township 8Telephone call from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Vicki Bozen, Clerk, Homer Township (November 9, 2023). 9E-mail from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to [Vicki Bozen, Clerk, Homer Township] (November 13, 2023). 10Letter from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable Vicki Bozen, Clerk, Homer Township (November 13, 2023). 11Letter from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable Vicki Bozen, Clerk, Homer Township (November 13, 2023), at 1-2. 12E-mail from Clerk Vicki Bozen, Homer Township Clerk, Homer Township, to Victoria [Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (November 14, 2023). 13E-mail from Clerk Vicki Bozen, Homer Township Clerk, Homer Township, to Victoria [Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (November 14, 2023). 14E-mail from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to [Vicki] Bozen, [Clerk, Homer Township] (November 20, 2023) (quoting 5 ILCS 140/2.20 (West 2022)). 15E-mail from Victoria Frazier, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to [Vicki] Bozen, [Clerk, Homer Township] (November 20, 2023). Office of the Tllinois Attorney General Ms. Ellen Moriarty The Honorable Vicki Bozen January 24, 2024 Page 4 Clerk informed this office that she would not disclose the settlement agreement to Ms. Moriarty. 16 On November 29, 2023, the Township provided by e-mail a non-confidential written answer to this of [...] reements entered into by public bodies are contrary to the specific language of section 2.20 and the legislative intent underlying that section, this office finds that the confidentiality provisions in the settlement agreements are not enforceable[.]\"); see Ill. Gen. Pub. Acc. Op. No. 15-004, issued June 17, 2015, at 4 (finding that a confidentiality provision did not authorize a city to withhold a settlement agreement requested under FOIA). Because the withheld record is a settlement agreement between the Township and another party, it is a public record subject to disclosure. The Township's sole basis for withholding the record is a mutual nondisparagement clause, the language of which does not expressly or implicitly prohibit disclosure of the agreement itself. Black's Law D.ictionary defines \"nondisparagement clause\" in relevant part as \"[a] contractual provision prohibiting the parties from publicly communicating anything negative about each other.\" Black's Law Dictionary 315 (11th ed. 2019). It appears that the Township's position is that disclosure of the settlement agreement pursuant to FOIA would necessarily be a \"negative\" communication about the other party and/or that disclosure of the record could lead to others disparaging the other party, which the Township believes would expose it to potential liability. The Township's Office of the Tllinois Attorney General Ms. Ellen Moriarty The Honorable Vicki Bozen January 24, 2024 Page 8 interpretation of the nondisparagement clause is strained, but even if the clause could be construed to impose a constructive duty of confidentiality on the parties, such confidentiality clauses pertaining to settlement agreements are not enforceable. If public bodies could use nondisparagement clauses to circumvent the disclosure requirements of section 2.20 of FOIA, the purpose of that provision would be defeated. See People v. Latona, 184 Ill. 2d 260, 269 ( 1998) (\" [T]his court has a duty to avoid a construction of [a] statute that would defeat the statute's purpose or yield an absurd or unjust result.\"). Accordingly, the Township violated the requirements of FOIA by withholding the responsive settlement agreement based on a mutual nondisparagement clause. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On October 2, 2023, Ms. Ellen Moriarty submitted a FOIA request to Homer Township seeking \"the invoices and all relevant documents that support\" nine specific checks payable to the Township's law firm or its trust fund. 2) On October 10, 2023, the Township provided Ms. Moriarty with responsive records for eight of the checks, but did not provide any records for check 45079. 3) On October 24, 2023, Ms. Moriarty filed a Request for Review with the Public Access Counselor alleging that the Township's response was incomplete. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) ofFOIA (5 ILCS 140/9.5(a) (West 2022), as amended by Public Act 103-069, effective January 1, 2024). 4) On November 13, 2023, the Public Access Bureau forwarded a copy of the Request for Review to the Township along with a letter requesting copies of the unredacted records for this office's confidential review and a written answer specifying the FOIA exemption(s) under which it was withheld, and a factual and legal basis for the applicability of any such exemption. On November 14, 2023, the Township provided the requested records and a confidential written answer. 5) On November 20, 2023, an AAG suggested, based on section 2.20 of FOIA, that the Township consider providing the settlement agreement to Ms. Moriarty. On November 22, 2023, the Township declined to do so. 6) On November 29, 2023, the Township provided a non-confidential version of its answer to this office. On November 30, 2023, the Public Access Bureau forwarded that answer to Ms. Moriarty. Ms. Moriarty did not reply to that answer, but in a December 6, 2023, Office of the Tllinois Attorney General Ms. Ellen Moriarty The Honorable Vicki Bozen January 24, 2024 Page 9 telephone call with the AAG who forwarded the letter, she confirmed that receipt of a copy of the settlement agreement would resolve her Request for Review. 7) On December 18, 2023, the Public Access Bureau extended the time in which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 2.20 of FOIA specifically provides that all settlement agreements entered into by or on behalf of a public body are public records subject to inspection and copying by the public. 9) The responsive record is a settlement agreement entered into by the Township. The settlement agreement does not contain a provision prohibiting disclosure. Even if it did, such provision would be unenforceable because it would defeat the purpose of section 2.20 of FOIA. Therefore, it is the opinion of the Attorney General that Homer Township has violated FOIA by withholding the settlement agreement responsive to Ms. Ellen Moriarty's October 2, 2023, Freedom oflnformation Act request. Accordingly, the Township is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. Moriarty a copy of the settlement agreement. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Ellen Moriarty as defendants. See 5 ILCS 140/11.5 (West 2022). Sincerely, KWAMERAOUL ORNEY GENERAL By: frz-fro-v.__ Brent D. Stratton Chief Deputy Attorney General Office of the fllinois Attorney General CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 24-001) upon: Ms. Ellen Moriarty 13 841 South Twin Oaks Court Homer Glen, Illinois 60491 el.n.moriarty@gmail.com The Honorable Vicki Bozen Clerk Homer Township 14350 West 151st Street Homer Glen, Illinois 60491 vbozen@homertownship.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on January 24, 2024. Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Ms. Ellen Moriarty requested documents from Homer Township related to payments made to their law firm, but the Township refused to provide a specific settlement agreement. The Illinois Attorney General's office reviewed the case and ruled that the Township broke the law by withholding this public record. The Township is now required to release the document to the requester.","card_headline":"Settlement agreements for legal counsel payments","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":181,"orig_master_id":19383,"dup_master_id":19155,"dup_sha256":"5e3996d727b97abe585738c23060b9e6dbc6a406c42ae1576491902d81c02e19","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-03-15","case_number":"2024 PAC 79748","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 24-004 (Request for Review 2024 PAC 79748).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 24-004 (Request for Review 2024 PAC 79748).pdf","word_count":2065,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act (FOIA) request submitted by Mr. Manny Ramos to the Chicago Transit Authority (CTA). It concludes that the CTA violated FOIA by failing to appropriately respond to the request.","plain_summary":"The requester, a reporter, sought a transit agency president's public schedule and calendar for a six-month period, and the agency extended its response deadline but then never substantively responded despite repeated inquiries from this office. The Public Access Counselor held that the agency violated section 3(d) of FOIA by failing to comply with, deny, or properly respond to the request within the statutory period. The agency was directed to disclose all records responsive to the request, subject only to permissible redactions.","holding":"The Chicago Transit Authority violated section 3(d) of FOIA by failing to comply with the FOIA request.","legal_question":"Did the Chicago Transit Authority comply with the Freedom of Information Act in responding to a FOIA request?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/3(e), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Freedom of Information Compliance Chicago Transit Authority","requesting_party":"Ramos and Ms. Bevan","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"public records","subject_description":"The request sought the public schedule and calendar of the Chicago Transit Authority's President, Dorval Carter, for a six-month period.","ocr_status":"ok","ocr_quality":89.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/24-004.pdf","sha256":"4fe3bde1053f38409dfcc192cbe476783f0dc0c1ed0f0b42dead4a41f4024ade","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA","duty to respond","public records","CTA","calendar"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL March 15, 2024 PUBLIC ACCESS OPINION 24-004 (Request for Review 2024 PAC 79748) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Manny Ramos Investigative reporter Block Club Chicago 303 East Wacker Drive, Suite 2106 Chicago, Illinois 60601 Ms. Brigett R. Bevan Director, Freedom of Information Compliance Chicago Transit Authority 567 West Lake Street Chicago, Illinois 60661 Dear Mr. Ramos and Ms. Bevan: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069, effective January 1, 2024). For the reasons discussed below, this office concludes that the Chicago Transit Authority (CTA) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2022)) by failing to comply with, deny in writing in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Manny Ramos. BACKGROUND On December 12, 2023, Mr. Ramos, on behalf of Block Club Chicago, submitted the following FOIA request to CT A: • I am asking for CT A's President Dorval Carter's public schedule and/or calendar. This should include events, 500 South 2nd Street, Springfield, Illinois 62701 • (217) 782-1090 • Fax: (217) 782-7046 115 South LaSalle Street, Chicago Illinois 60603, • (312) 814-3000 • Fax: (312) 814-3806 1745 Innovation Drive, Suite C, Carbondale, Illinois 62903 • (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. •~ - Mr. Manny Ramos Ms. Brigett R. Bevan March 15, 2024 Page 2 meetings and media availability that Carter was expected to attend. This request is only for the past six months from June 1, 2023 to Dec. 1, 2023.[IJ On December 19, 2023, CTA extended its time to respond by five business days pursuant to section 3(e)(vii) ofFOIA (5 ILCS 140/3(e)(vii) (West 2022)).2 Having received no response within that extended time period or thereafter, on January 9, 2024, Mr. Ramos sent an e-mail to CTA asking for an update.3 On January 16, 2024, Mr. Ramos submitted a Request for Review to the Public Access Counselor alleging that CTA had failed to respond to his FOIA request.4 Mr. Ramos stated that CT A had not responded to his January 9, 2024, status request, either. 5 On January 19, 2024, the Public Access Bureau sent a copy of the Request for Review to CT A together with a letter asking whether CT A had received and responded to Mr. Ramos's FOIA request.6 lfCTA had received but not responded to the request, the January 19, 2024, inquiry letter asked CTA to do so and to provide a copy of its response to this office. 7 CT A did not respond to the inquiry letter. 1E-mail from Manny Ramos, Investigative reporter, Block Club Chicago, to FOIA@transitchicago.com (December 12, 2023). 2Letter from Ashley P. Neuhauser, Senior FOIA, Compliance, & Appeals Attorney, Chicago Transit Authority, to Manny Ramos, Block Club Chicago (December 19, 2023). 3E-mail from Manny Ramos, Investigative reporter, Block Club Chicago, to FOIA@transitchicago.com (January 9, 2024). 4E-mail from Manny Ramos, Investigative reporter, Block Club Chicago, to Public Access [Bureau, Office of the Attorney General] (January 16, 2024). 5E-mail from Manny Ramos, Investigative reporter, Block Club Chicago, to Public Access [Bureau, Office of the Attorney General] (January 16, 2024). 6Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Brigett R. Bevan, Director, Freedom of Information Compliance, Chicago Transit Authority (January 19, 2024). 7Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Brigett R. Bevan, Director, Freedom oflnformation Compliance, Chicago Transit Authority (January 19, 2024), at I. The inquiry letter also asked whether CTA had responded to two other FOIA requests for which Mr. Ramos alleged he received no response in additional Requests for Review, 2023 PAC 79747 and 2023 PAC 79749. Mr. Manny Ramos Ms. Brigett R. Bevan March 15, 2024 Page 3 On February 7, 2024, the Public Access Bureau sent an e-mail to CTA asking it to confirm that it would respond to the request that same week or, if not, to indicate its intentions. 8 The following day, CTA responded: \"CTA plans to substantively respond to this FOIA request and is currently working to finalize our response. We will issue our FOIA response as soon as possible. \"9 On March 8, 2024, Mr. Ramos notified this office that he still had not received a response to his request from CT A. 10 As of the date of the issuance of this binding opinion, this office has not received confirmation or any indication from CTA or Mr. Ramos that CTA has substantively responded to the FOIA request. ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2022). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2022)), \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) ofFOIA (5 ILCS 140/3(a) (West 2022)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection ( e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). 8E-mail from Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to [David] Montgomery and [Brigett] Bevan, [Chicago Transit Authority] (February 7, 2024). 9E-mail from Ashley P. Neuhauser, Senior FOIA, Compliance, & Appeals Attorney, Chicago Transit Authority, Law Department, to [Joshua] Jones, [Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General] (February 8, 2024). 10E-mail from [Manny Ramos, Investigative reporter, Block Club Chicago] to [Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General] (March 8, 2024). Mr. Manny Ramos Ms. Brigett R. Bevan March 15, 2024 Page 4 Section 3(e) of FOIA (5 ILCS 140/3(e) (West 2022)) permits a public body to extend its response time by no more than five business days for any of seven enumerated reasons. Any additional extension requires a written agreement between the requester and the public body. 5 ILCS 140/3(e) (West 2022). It is undisputed that although CTA extended its time to respond to Mr. Ramos's December 12, 2023, FOIA request for a copy of CTA President Carter's public schedule/calendar by five business days on December 19, 2023, CTA did not subsequently comply with the request, deny the request in writing in whole or in part, or reach a written agreement with Mr. Ramos for a longer extension of its response time. CT A's failure to comply with the requisite response procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On December 12, 2023, Mr. Manny Ramos, on behalf of Block Club Chicago, submitted a FOIA request to CT A seeking a copy of CTA President Dorval Carter's public schedule and/or calendar from June 1, 2023, to December 1, 2023. 2) On January 16, 2024, Mr. Ramos submitted a Request for Review to the Public Access Bureau alleging that although CTA had extended its time to respond by five business days on December 19, 2023, CTA had not subsequently responded to his FOIA request. Mr. Ramos's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2022), as amended by Public Act 103-069, effective January 1, 2024 ). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 3) On January 19, 2024, the Public Access Bureau forwarded a copy of the Request for Review to CTA along with a letter asking whether CT A had responded to Mr. Ramos's FOIA request. CTA did not respond. 4) On February 7, 2024, the Public Access Bureau sent CTA an e-mail asking it to confirm if it would respond to the request that same week or, if not, to clarify its intentions. The following day, CTA advised that it planned to respond as soon as possible. 5) On March 8, 2024, Mr. Ramos e-mailed the Public Access Bureau and confirmed that he still had not received a response to his request from CT A. Mr. Manny Ramos Ms. Brigett R. Bevan March 15, 2024 Page 5 6) As of the date of the issuance of this binding opinion, this office has received no information indicating that CTA has responded to Mr. Ramos's December 12, 2023, FOIA request concerning CT A President Carter's public schedule/calendar. Therefore, it is the opinion of the Attorney General that CTA has violated section 3(d) of FOIA by failing, within the statutory time for responding to Mr. Ramos's December 12, 2023, FOIA request concerning CTA President Carter's public schedule/calendar, to provide copies of the requested records or to deny the request in writing in whole or in part. Accordingly, CTA is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Ramos with copies of all records responsive to his December 12, 2023, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2022), as amended by Public Acts 103-154, effective June 30, 2023; 103-423, effective January 1, 2024; 103-462, effective August 4, 2023; 103-446, effective August 4, 2023; 103-540, effective January 1, 2024; 103-554, effective January 1, 2024). 11 If CTA determines that any portion of the responsive records is exempt from disclosure under section 7, it is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2022)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 3 5 days of the date of this decision naming the Attorney General of Illinois and Mr. Manny Ramos as defendants. See 5 ILCS 140/11.5 (West 2022). Sincerely, KWAMERAOUL ATTORNEY GENERAL By: ~=ft.}-.___ __ Brent D. Stratton Chief Deputy Attorney General 11Because CTA did not comply with the statutory requirements for responding to Mr. Ramos's FOIA request, CTA is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d) (West 2022). CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 24-004) upon: Mr. Manny Ramos Investigative reporter Block Club Chicago 303 East Wacker Drive, Suite 2106 Chicago, Illinois 60601 manny@blockclubchi.org Ms. Brigett R. Bevan Director, Freedom of Information Compliance Chicago Transit Authority 567 West Lake Street Chicago, Illinois 60661 FOIA@transitchicago.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on March 15, 2024. Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Manny Ramos requested the public calendar of the Chicago Transit Authority's president, but the CTA failed to provide a timely response or a written denial as required by law. The Illinois Attorney General ruled that the CTA violated the Freedom of Information Act by ignoring the request. Consequently, the CTA is now required to provide the records and cannot claim the request was burdensome or charge fees for the copies.","card_headline":"Transit authority president's schedule and calendar","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":182,"orig_master_id":19156,"dup_master_id":19385,"dup_sha256":"c4614998ae0415f14134e7774a3141b964fb4d22d39fc42e867173e086511998","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-03-01","case_number":"2024 PAC 79650","request_numbers":null,"title":"Taking Final Action in Closed Session","filename":"PUBLIC ACCESS OPINION 24-003 (Request for Review 2024 PAC 79650).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 24-003 (Request for Review 2024 PAC 79650).pdf","word_count":2379,"summary":"The City of Evanston, Illinois, violated section 2(e) of the Open Meetings Act during the closed session portion of its October 16, 2023, meeting by taking final action to authorize an exclusive representation agreement with a real estate broker . The agreement was not brought before the City Council at any open meeting .","plain_summary":"The requester, a resident, alleged that a city council authorized an exclusive real estate brokerage agreement for city office space during closed session rather than voting on it in open session. The Public Access Counselor held that the verbatim recording showed the council's city manager sought and received the council's approval to execute the agreement in closed session, which constituted final action barred from occurring outside of open session regardless of the dollar amount involved. The city council was directed to reconsider and take final action on the agreement in open session after an adequate public recital.","holding":"The City of Evanston violated section 2(e) of the Open Meetings Act by taking final action to authorize a contract during a closed session.","legal_question":"Whether a public body violates section 2(e) of the Open Meetings Act by taking final action to authorize a contract during a closed session.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2(e), 5 ILCS 120/1, 5 ILCS 120/2, 5 ILCS 120/7, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Evanston Morton Civic Center","requesting_party":"Rosinski and Mr. Biss","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"closed session","subject_description":"The City Council took final action to authorize an exclusive representation agreement with a real estate broker during a closed session.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/24-003.pdf","sha256":"51f48e0d0cf5675a40d208b77d327fe8de43066cf092764ac9f0ca886158e2a3","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","final action","Open Meetings Act","city council","voting"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL March 1, 2024 PUBLIC ACCESS OPINION 24-003 (Request for Review 2024 PAC 79650) OPEN MEETINGS ACT: Taking Final Action in Closed Session Ms. Mary O'Rourke Rosinski 1729 Chancellor Street Evanston, Illinois 60201 The Honorable Daniel Biss Mayor City of Evanston Morton Civic Center 2100 Ridge Avenue Evanston, Illinois 60201 Dear Ms. Rosinski and Mr. Biss: This binding opinion is issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2022)). For the reasons discussed below, this office concludes that the City of Evanston (City) City Council violated section 2(e) of OMA! during the closed session portion of its October 16, 2023, meeting by taking final action to authorize an exclusive representation agreement with a real estate broker. BACKGROUND On January 9, 2024, Ms. Mary Rosinski submitted a Request for Review, ona form dated January 2, 2024, to the Public Access Bureau alleging that the City Council improperly took final action to authorize an exclusive representation agreement with Jones Lang '5 ILCS 120/2(e) (West 2022), as amended by Public Act 103-311, effective July 28, 2023. 500 South 2TM Street, Springfield, Illinois 62701 © (217) 782-1090 © Fax: (217) 782-7046 115 South LaSalle Street, Chicago Illinois 60603, ¢ (312) 814-3000 ¢ Fax: (312) 814-3806 1745 Innovation Drive, Suite C, Carbondale, Illinois 62903 ¢ (618) 529-6400 ¢ Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. Cece Ms. Mary O'Rourke Rosinski The Honorable Daniel Biss March 1, 2024 Page 2 LaSalle Midwest, LLC (JLL) during the closed session portion of its October 16, 2023, meeting.” Noting that the exclusive representation agreement was not brought before the City Council at any open meeting, Ms. Rosinski explained that she first learned? about the City's execution of the agreement from a local news article published on December 22, 2023.4 The article begins: Evanston officials are exploring moving city offices from the Morton Civic Center to a downtown site while they consider their next options for the building. Officials confirmed this week that they have engaged the commercial real estate firm Jones Lang LaSalle to facilitate lease negotiations for office space in downtown Evanston.!! Ms. Rosinski attached a copy of the executed exclusive representation agreement with JLL to her Request for Review and noted that it was signed by the City Manager on October 17, 2023—the day after the City Council's October 16, 2023, meeting.© The agreement states that the City \"hereby engages JLL to be its exclusive real estate broker to identify and evaluate [the City's] acquisition of office space in the Chicago, Illinois metropolitan area, Workplace Strategy, and the disposition of current site at 2100 Ridge Road, Evanston, Illinois 60201.\"’ The 2OMA -— Request for Review by Public Access Counselor (PAC) form from Mary O'Rourke Rosinski [to Public Access Counselor, Office of the Illinois Attorney General] (January 2, 2024). ‘It is undisputed that Ms. Rosinski's Request for Review is timely under section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2022)). That provision generally requires a Request for Review to be submitted within 60 days of an alleged violation of OMA, but contains the following exception: \"If facts concerning the violation are not discovered within the 60—day period, but are discovered at a later date, not exceeding 2 years after the alleged violation, by a person utilizing reasonable diligence, the request for review may be made within 60 days of the discovery of the alleged violation.\" 5 ILCS 120/3.5(a) (West 2022). Although Ms. Rosinski did not submit the Request for Review within 60 days after the alleged violation occurred, a member of the public exercising reasonable diligence would not have been aware of facts indicating that the City Council may have violated OMA during closed session on October 16, 2023, until the news article was published; Ms. Rosinski submitted her Request for Review within 60 days after her discovery of the alleged violation. “OMA — Request for Review by Public Access Counselor (PAC) form from Mary O'Rourke Rosinski [to Public Access Counselor, Office of the Illinois Attorney General] (January 2, 2024). Bob Seidenberg, City exploring temporary move from Civic Center offices to downtown, Evanston RoundTable (Dec. 22, 2023), https://evanstonroundtable.com/2023/12/22/officials-exploring-move-for- offices-in-civic-center-to-downtown/. SOMA — Request for Review by Public Access Counselor (PAC) form from Mary O'Rourke Rosinski [to Public Access Counselor, Office of the Illinois Attorney General] (January 2, 2024). ’Contract for the purpose of an exclusive representation agreement, Jones Lang LaSalle Midwest, LLC — City of Evanston, § 1, October 17, 2023. Office of the Illinois Attorney General Ms. Mary O'Rourke Rosinski The Honorable Daniel Biss March 1, 2024 Page 3 \"Compensation\" section is divided in two parts, one for brokering a lease of property for the City and one for brokering a sale of the Morton Civic Center (Civic Center). The agreement states that as to a lease, the City \"is not obligated to compensate JLL, provided that [the City] performs pursuant to the terms of the Agreement, for the acquisition of space and Workplace Strategy services.\"® Rather, the agreement requires that any lease the City executes provides for JLL to be paid \"one full market commission\" by the lessor if certain conditions are met.’ In contrast, as to the sale of the Civic Center, the agreement provides: Building Disposition : In the event of a disposition transaction that involves a procuring broker, [the City] shall pay a fee to JLL in the amount of six percent (6%) of gross sales proceeds. This fee shall be split between JLL and procuring broker and JLL shall be responsible for paying procuring broker once payment has been received from [the City]. Procuring broker shall be defined as anyone other than Chris Cummins and Steven Spinell of JLL. In the event of a transaction where Chris Cummins and Steven Spinell of JLL are the procuring broker, [the City] shall pay a fee in the amount of five percent (5%) of gross sales proceeds. In the event of a transaction that doesn't involve a procuring broker, [the City] shall pay a fee in the amount of five percent (5%) of gross proceeds. Fee shall be due and payable at the time of closing10,! Stating that \"[t]he Civic Center has been a controversial issue for years[,]\" with a long-awaited report from AECOM about options for the Civic Center still pending,'! Ms. Rosinski argued that \"[d]ecisions like this fail the transparency test.\"!* ’Contract for the purpose of an exclusive representation agreement, Jones Lang LaSalle Midwest, LLC — City of Evanston, § 5.a., October 17, 2023. °Contract for the purpose of an exclusive representation agreement, Jones Lang LaSalle Midwest, LLC — City of Evanston, § 5.a., October 17, 2023. '°Contract for the purpose of an exclusive representation agreement, Jones Lang LaSalle Midwest, LLC — City of Evanston, § 5.b., October 17, 2023. ''The news article notes that \"[d]iscussions about relocating city operations to a new civic center date back to the 1990s[,]\" and \"officials expect that a feasibility study the city contracted for with AECOM, a Chicago firm, in late 2022 — to help reach an informed choice on renovation versus relocation — will be released in the next couple of weeks and will be an item for discussion at the meeting.\" Bob Seidenberg, City exploring temporary move from Civic Center offices to downtown, Evanston RoundTable (Dec. 22, 2023), https://evanstonroundtable.com/2023/12/22/officials-exploring-move-for-offices-in-civic-center-to-downtown/, \"OMA — Request for Review by Public Access Counselor (PAC) form from Mary O'Rourke Rosinski [to Public Access Counselor, Office of the Illin [...] Tlinois Attorney General Ms. Mary O'Rourke Rosinski The Honorable Daniel Biss March 1, 2024 Page 9 Insurance Co. v. Riseborough, 2014 IL 114271, 4 23 (a reviewing body \"may not read into a statute any limitations or conditions which are not expressed in the plain language of the statute.\"). Given OMA's central purpose of ensuring that the public is kept informed about the conduct of the people's business, the statute cannot reasonably be construed to allow a governing body to bind the public body to a contract, such as the exclusive representation agreement with JLL, in private. Accordingly, this office concludes that the City Council violated section 2(e) of OMA by authorizing an exclusive representation agreement with JLL during the closed session portion of its October 16, 2023, meeting, without taking concomitant action in open session. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments presented, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On January 9, 2024, Ms. Mary Rosinski submitted a Request for Review to the Public Access Bureau alleging that the City Council improperly took final action to authorize an exclusive representation agreement with Jones Lang LaSalle Midwest, LLC during the closed session portion of its October 16, 2023, meeting. It is undisputed that Ms. Rosinski's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA. 2) On January 11, 2024, the Public Access Bureau sent a copy of the Request for Review to the City Council. The Public Access Bureau also sent the City Council a letter requesting unredacted copies of the October 16, 2023, closed session minutes and closed session verbatim recording for this office's confidential review, together with a detailed written answer to the allegation that the City Council violated OMA by taking final action to enter an exclusive representation agreement with JLL outside of an open meeting. 3) On January 19, 2024, the City's Interim Corporation Counsel, on behalf of the City Council, provided this office with the requested materials, including a redacted written answer for forwarding to Ms. Rosinski and an unredacted written answer for this office's confidential review. 4) On January 22, 2024, the Public Access Bureau forwarded a copy of the City Council's redacted written answer to Ms. Rosinski and notified her of her opportunity to reply. On January 24, 2024, Ms. Rosinski submitted a reply. 5) Section 2(e) of OMA provides that \"[n]o final action may be taken at a closed meeting[,]\" and that \"[f]inal action shall be preceded by a public recital of the nature of the Office of the JIlinois Attorney General Ms. Mary O'Rourke Rosinski The Honorable Daniel Biss March 1, 2024 Page 10 matter being considered and other information that will inform the public of the business being conducted.\" 6) In closed session on October 16, 2023, the City Manager asked the City Council to authorize an exclusive representation agreement with JLL in order for the City to execute the agreement. When polled, a majority of the members of the City Council approved the execution of the agreement with JLL. Still in closed session, the City's Mayor stated that City staff had been directed to execute the agreement. 7) Following the closed session, the City Council returned to open session and voted to adjourn without further considering or taking action on the exclusive agreement. 8) The City Manager's signature on the contract is dated October 17, 2023. Among other things, the agreement obligates the City to pay to JLL 5-6% of the proceeds of a sale of the Civic Center. 9) The City Council's claims—that the City Manager executed the contract on his own and that the agreement was not subject to final action because it costs less than $25,000— are unavailing. The verbatim recording conclusively shows that the City Manager expressly sought and obtained the City Council's approval to enter the agreement. Section 2(e) of OMA does not limit the requirement that public bodies take final action openly to those final actions that concern expenditures of a certain amount of public funds or, for that matter, any public funds. 10) Accordingly, the Attorney General concludes that the City Council violated section 2(e) of OMA by taking final action during the closed session portion of its October 16, 2023, meeting. In accordance with these findings of fact and conclusions of law, the City Council is directed to take immediate and appropriate action to comply with this opinion by reconsidering and taking final action on the exclusive representation agreement with JLL in the open session portion of a meeting after a sufficient public recital in accordance with section 2(e) of OMA. As required by section 3.5(e) of OMA, the City Council shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA. 5 ILCS 120/7.5 (West 2022). Office of the Illinois Attorney General Ms. Mary O'Rourke Rosinski The Honorable Daniel Biss March 1, 2024 Page 11 This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Ms. Mary Rosinski as defendants. See 5 ILCS 120/7.5 (West 2022). Very truly yours, KWAME RAOUL ATTORNEY GENERAL dat Heth _ By: / Brent Stratton ! Chief Deputy Attorney General [eer Ms. Alexandra B. Ruggie Interim Corporation Counsel City of Evanston 2100 Ridge Avenue Evanston, Illinois 60201 Office of the Illinois Attorney General CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 24-003) upon: Ms. Mary O'Rourke Rosinski 1729 Chancellor Street Evanston, Illinois 60201 maryrosinski@gmail.com The Honorable Daniel Biss Mayor City of Evanston Morton Civic Center 2100 Ridge Avenue Evanston, Illinois 60201 dbiss@cityofevanston.org Ms. Alexandra B. Ruggie Interim Corporation Counsel City of Evanston Morton Civic Center 2100 Ridge Avenue Evanston, Illinois 60201 aruggie@cityofevanston.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on March 1, 2024. Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The City of Evanston held a private, closed-door meeting where they voted to approve a contract with a real estate broker. The Illinois Attorney General ruled this illegal because the Open Meetings Act requires all final votes and decisions to be made in public. This means the City's action was invalid and they must conduct such business in an open, public forum.","card_headline":"City council's closed-session authorization of a real estate contract","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":183,"orig_master_id":19384,"dup_master_id":19157,"dup_sha256":"d55bb154adadc77ff7f4af4af3a1e23db6d9b5317c6ff65a251013823ada5e44","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-03-15","case_number":"2024 PAC 79729","request_numbers":null,"title":"Disclosure ofVideo Footage","filename":"PUBLIC ACCESS OPINION 24-005 (Request for Review 2024 PAC 79729).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 24-005 (Request for Review 2024 PAC 79729).pdf","word_count":2361,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request by Ms. Cindy Thomas for video footage, which was denied by the Macon County Sheriff's Office.","plain_summary":"The requester sought video footage of an incident at a county animal control facility, which a sheriff's office withheld, first suggesting the investigation would soon close and then, on a renewed request, as records of an employee disciplinary adjudication. The Public Access Counselor held that the footage was investigatory material predating and existing independently of any adjudication, so the sheriff's office failed to prove the adjudication exemption applied. The sheriff's office was directed to disclose the video footage.","holding":"The Macon County Sheriff's Office violated FOIA by withholding video footage.","legal_question":"Did the Macon County Sheriff's Office violate the Freedom of Information Act by withholding requested video footage?","disposition":"violation_found","primary_statute":"5 ILCS 140, 5 ILCS 140/7(1), 5 ILCS 140/3(a), 5 ILCS 140/7, 5 ILCS 140/2(c), 735 ILCS 5/3","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":["7(1)(d)","7(1)(n)"],"public_body":"Macon County Sheriff's Office","requesting_party":"Thomas and Mr. Gordy","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought video surveillance footage from the Macon County Animal Control facility.","ocr_status":"ok","ocr_quality":89.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/24-005.pdf","sha256":"d6a270495ac186c3b189d27ce8d9e3e78e37088bbbcd3465228bf528d9a726e5","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["video footage","FOIA request","animal control","denial of records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL March 15, 2024 PUBLIC ACCESS OPINION 24-005 Request for Review 2024 PAC 79729) FREEDOM OF INFORMATION ACT: Disclosure ofVideo Footage Ms. Cindy Thomas 3360 East Chestnut Decatur, Illinois 62521 Mr. Chad Gordy FOIA Officer Macon County Sheriffs Office 333 South Franklin Street Decatur, Illinois 62523 Dear Ms. Thomas and Mr. Gordy: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) ofthe Freedom oflnformation Act (FOIA) (5 ILCS 140 /9.5(f) (West 2022), as amended by Public Act 103-069, effective January 1, 2024). Forthe reasons discussed below, this office concludes that the Macon County Sheriffs Office (Sheriffs Office) violated the requirements of FOIA by withholding video footage responsive to Ms . Cindy Thomas'sDecember 7 , 2023 , FOIA request. BACKGROUND Ms. Thomas first submitted an undated FOIA request to the Sheriffs Office seeking copies of \"[v]ideo camera footage on Monday , Nov 6 , 2023 , 3:20pm-3:45pm. Both 500 South 2nd Street, Springfield, Illinois 62701 • ( 217) 782-1090 • Fax: (217) 782-7046 115 South LaSalleStreet, Chicago Illinois 60603, • ( 312) 814-3000 • Fax: ( 312) 814-3806 1745 Innovation Drive, Suite C, Carbondale, Illinois 62903 • ( 618) 529-6400 • Fax: ( 618) 529-6416 Individuals with hearing orspeech disabilities can reach us byusing the 7-1-1 relay service. •~- Ms. Cindy Thomas Mr. Chad Gordy March 15, 2024 Page 2 West end kennel areas (North & South)\" from the Macon County Animal Control facility.1 On November 14 , 2023 , the Sheriffs Office's denied the request in its entirety pursuant to section 7(1)(d)(i) ofFOIA (5 ILCS 140/7(1)(d)(i) (West 2022), as amended by Public Acts 103-154 , effective June 30, 2023; 103-462, effective August 4 , 2023; 103-446, effective August 4 , 2023). The denial letter stated: \" This office wishes to release records and has collected the video footage requested . You are encouraged to please re -submit your request in thirty days as this office believes the investigation to have been completed within such time.\"2 On December 7, 2023, Ms. Thomas submitted another FOIA request to the Sheriffs Office seeking the same records.3 On December 13, 2023 , the Sheriffs Office denied the request in its entirety pursuant to section 7(1)(n) ofFOIA (5 ILCS 140/7(1)(n) (West 2022), as amended by Public Acts 103- 154, effective June 30 , 2023; 103-462 , effective August 4 , 2023 ; 103-446 , effective August 4 , 2023). The denial letter asserted that \"[u]pon the culmination ofthe investigation , video records are not subject to FOIA.\"4 On January 12, 2024 , Ms. Thomas submitted this Request for Review contesting the Sheriffs Office's denials. 5 On January 25 , 2024, the Public Access Bureau e-mailed the Sheriffs Office a copy ofthe Request for Review6and a letter7asking it to provide , for this office's confidential review , copies ofthe withheld records. This office's letter also requested that the Sheriffs Office provide awritten answer describing its legal and factual bases for withholding the records under the section 7(1 )(n) exemption. 8 On February 1, 2024 , the Sheriffs Office provided this office 1Macon County Sheriffs Office Request for Public Record form submitted by Cindy Thomas stamped received November 8, 2023). 2Letterfrom Chad Gordy , FOIA Officer, Macon County Sheriffs Office , to [Cindy] Thomas November 14, 2023). 3E-mail from Cindy Thoma sto Officer Gordy [ FOlA Officer, Macon County Sheriffs Office] December 7 , 2023). 4Letter from Chad Gordy, FOIA Officer, Macon County Sheriffs Office , to [Cindy] Thomas December 13 , 2023). 5Request for Review from Cindy Thomas to Public Access Counselor, Office ofthe Attorney General ( January 12, 2024 ). 6E-mail from Christopher R. Boggs , Deputy Public Access Counselor, Public Access Bureau, Office ofthe Attorney General, to foiainform ation@sheriff- macon -il.us (January 25 , 2024). 7Letter from Christopher R. Boggs, Deputy Public Access Counse lor, Public Access Bureau , Office ofthe Attorney General , to Chad Gordy , FOIA Officer, Macon County Sheriffs Office ( January 25 , 2024), at 2. 8Letterfrom Christopher R. Boggs , Deputy Public Access Counselor, Public Access Bureau, Office ofthe Attorney General , to Chad Gordy, FOIA Officer, Macon County Sheriffs Office ( January 25 , 2024), at 2. Officeofthe TllinoisAttorney General Ms. Cindy Thomas Mr. Chad Gordy March 15, 2024 Page 3 with unredacted copies ofthe responsive video footage and an explanation ofits reason for withholding that footage.9 On February 8, 2024, this office forwarded the Sheriffs Office's answer to Ms. Thomas.10 She did not submit areply. In aFebruary 22 , 2024 , telephone conversation with Deputy Public Access Counselor Christopher R. Boggs , Ms. Thomas limited her Request for Review to the Sheriffs Office's December 13, 2023 , denial.11 Accordingly , the scope ofthis opinion is limited to whether the video footage in question is a \"public record\" as defined under FOIA, and whether that footage is exempt from disclosure under section 7(1)(n) ofFOIA. On March 11 , 2024 , this office extended the time for issuing a binding opinion by 30 business days, to April 23, 2024, pursuant to section 9.5(f) ofFOIA. 12 ANALYSIS All records in the custody or possession ofa public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden ofproving by clear and convincing evidence that it is exempt.\" 5ILCS 140 /1.2 (West 2022). Section 3(a) ofFOIA (5 ILCS 140/3(a) (West 2022)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7and 8.5 ofthis Act.\" The exemptions from disclosure contained in section 7ofFOIA13 are to be narrowly construed. Lieber v. BoardofTrustees of Southern Illinois University, 176 Ill. 2d 401 ,407 (1997). The Sheriffs Office'sresponse to this office appeared to assert thatthe video footage is not apublic record subject to the requirements ofFOIA. The Sheriffs Office also contended that the video footage is exempt from disclosure under section 7(1)(n) ofFOIA. This office will consider each argument in turn. 9E-mail from Chad Gordy, FOJA Officer, Macon County Sheriffs Office , to Christopher [ R . Boggs, Deputy Public Access Counselor, Public Access Bureau , Office ofthe Attorney General] ( February I ,2 024). 10Letter from Christopher R. Boggs , Deputy Public Access Counselor, Public Access Bureau, Office ofthe Attorney General , to Cindy Thomas ( February 8, 2024). 11Telephone call between Cindy Thomas and Christopher R . Boggs , Deputy Public Access Counselor, Public Access Bureau , Office ofthe Attorney General ( February 22 , 2024). 12Letter from Christopher R . Boggs, Deputy Public Access Counselor, Public Access Bureau , Office ofthe Attorney General , to Cindy Thomas and Chad Gordy, FOIA Officer, Macon County Sheriffs Office March I1, 2024 ). 135 ILCS 140/7 (West 2022), as amended by Public Acts I03-154 , effective June 30 , 2023 ; I03-423 , effective January I ,2 024 ; I03-462 , effective August 4 , 2023 ; I03-446 , effective August 4 , 2023 ; I03-540 , effective January I ,2 024; I03-554 , effective January I ,2 024 . Officeofthe 111inoisAtlorney General Ms. Cindy Thomas Mr. Chad Gordy March 15, 2024 Page 4 Section 2(c) ofFOIA The requirements ofFOIA apply to public records. See 5ILCS 140/1 (West 2022) (\" It is a fundamental obligation ofgovernment to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act.\"). Section 2(c) of FOIA (5 ILCS 140/2(c) (West 2022), as amended by Public Act 103-554, effective January 1, 2024) defines \"public records\" as: all records, reports, forms , writings, letters, memoranda, books, papers, maps, photographs , microfilms , cards, tapes, recordings, electronic data processing records , electr [...] nvestigation. Kalven , 2014 IL App (1st) 121846 , 122; see also Peoria Journal Star v. City ofPeoria , 2016 IL App (3d) 140838 , 116 (police department improperly withheld pursuant to section 7(1 )(n) a report that \"was created well before any adjudication took place and existed independent ofany adjudication. That the report later led to disciplinary action against two officers is insufficient to make it exempt under FOIA.\"). In its written answer to this office, the Sheriffs Office stated that , upon completion ofthe investigation, disciplinary action was instituted against an unidentified individual.\" 15 However, the Sheriffs Office's answer did not explain whether orto what extent any formalized legal proceeding that could be considered an \" adjudication\" occurred following the investigation. Even ifan adjudication did occur, this office's confidential review ofthe withheld footage revealed that it consists ofinvestigatory information that predates and exists independently ofany adjudication. Accordingly, this office concludes that the Sheriffs Office has not sustained its burden ofdemonstrating by clear and convincing evidence that the withheld video footage is exempt from disclosure under section 7(1 )(n) ofFOIA. 15E-mail from Chad Gordy, FOIA Officer, Macon County Sheriffs Office, to Christopher [ R. Boggs, Deputy Public Access Counselor, Public Access Bureau, Office ofthe Attorney General] ( February I ,2 024). Office ofthe TllinoisAltorney General Ms. Cindy Thomas Mr. Chad Gordy March 15, 2024 Page 6 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review , and the applicable law, the Attorney General finds that: 1) On December 7 , 2023 , Ms. Cindy Thomas submitted aFOIA request to the Macon County Sheriffs Office seeking specific video footage from the Macon County Animal Control facility from November 6, 2023. 2) On December 13 , 2023 , the Sheriffs Office denied the request in its entirety pursuant to section 7(1)(n) ofFOIA. The Sheriffs Office also asserted that the video footage was not subject to FOIA. 3) On January 12 , 2024 , Ms. Thomas submitted this Request for Review contesting the Sheriffs Office's denial. The Request for Review was timely filed and otherwise complies with the requirements ofsection 9.5(a) ofFOIA (5 ILCS 140 /9.5(a) (West 2022), as amended by Public Act 103-069 , effective January 1, 2024). 4) On January 25 , 2024 , the Public Access Bureau forwarded a copy ofthe Request for Review to the Sheriffs Office and asked it to provide for this office's confidential review umedacted copies ofthe requested records , together with awritten response, including a detailed explanation ofthe factual and legal basis for the applicability ofsection 7(1 )(n). 5) On February 1, 2024 , the Sheriffs Office provided this office with umedacted copies ofthe video footage and its written explanation. On February 8, 2024 , the Public Access Bureau forwarded that answer to Ms. Thomas. Ms. Thomas did not reply to the answer , but in a February 22, 2024 , telephone call with the Deputy Public Access Counselor, she limited the scope ofher Request for Review to the Sheriffs Office's December 13, 2023, denial. 6) OnMarch 11, 2024 , the Public Access Bureau extended the time in whichto issue a binding opinion by 30 business days to section 9 .5(f) ofFOIA. Accordingly , the Attorney General may properly issue abinding opinion with respect to this matter. 7) Section 2(c) of FOIA defines \"public records\" as \" all * * * documentary materials pertaining to the transaction ofpublic business, regardless ofphysical form or characteristics, having been prepared by or for , or having been or being used by , received by, in the possession of, or under the control ofany public body.\" 8) The responsive video footage pertains to the transaction ofpublic business of the Sheriffs Office and was received and used by the Sheriffs Office in the course ofits investigation ofan alleged incident at the Macon County Animal Control facility. Therefore, those recordings are public records subject to the requirements ofFOIA. Officeof thefllinoisAttorn ey General Ms. Cindy Thomas Mr. Chad Gordy March 15, 2024 Page 7 9) Section 7(l)(n) ofFOIA exempts from disclosure \"[ r]ecords relating to a public body's adjudication ofemployee grievances or disciplinary cases[.]\" The Illinois Appellate Court has construed \"adjudication\" for purposes ofsection 7(l)(n) as a \"formalized legal process that results in afinal and enforceable decision.\" 10) The information provided by the Sheriffs Office does not establish thatthe responsive video footage related to apublic body's \"adjudication\" ofan employee disciplinary case. Rather, the footage plainly constituted investigatory materials that predated and existed independently ofany adjudication that may have ultimately occurred. Accordingly, this office concludes that the Sheriffs Office has not met its burden ofdemonstrating that the withheld video footage is exempt from disclosure under section 7(1 )(n) ofFOIA. Therefore, it is the opinion ofthe Attorney General that the Macon County Sheriffs Office has violated FOIA by withholding video footage responsive to Ms. Cindy Thomas's December 7, 2023 , Freedom oflnformation Act request. Accordingly , the Sheriffs Office is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. Thomas with copies ofthat footage. This opinion shall be considered a final decision ofan administrative agency for the purposes ofadministrative review under the Administrative Review Law. 735 ILCS 5/3-101 etseq. ( West 2022). An aggrieved party may obtainjudicial review ofthe decision by filing a complaint for administrative review withthe Circuit Court ofCook County or Sangamon County within 35days ofthe date ofthis decision naming the Attorney General ofIllinois and Ms. Cindy Thomas as defendants. See 5ILCS 140/11.5 (West 2022). Sincerely , KWAMERAOUL TO ~ Y GENERAL By: i;Jt~~ ent D . Stratton ChiefDeputy Attorney General Office ofthe lllinoisAttorney General CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau , hereby certifies that he has served a copy ofthe foregoing Binding Opinion (Public Access Opinion 24-005) upon: Ms . Cindy Thomas 3360 East Chestnut Decatur , Illinois 62521 tlcinthom@gmaiI c.om Mr. Chad Gordy FOIA Officer Macon County Sheriffs Office 333 SouthFranklin Street Decatur, Illinois 62523 foiainformation@sheriff-macon-il.us by causing atrue copy thereofto be sent electronically to the addresses as listed above and by causing to be mailed atrue copy thereofin correctly addressed , prepaid envelopes to be deposited in the United States mail at Chicago , Illinois on March 15 , 2024. K--- 2f![ ? Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office ofthe Attorney General 100 West Randolph Street Chicago , Illinois 60601 312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Ms. Cindy Thomas requested video footage from an animal control facility, but the Macon County Sheriff's Office denied her request, claiming it was exempt from disclosure. The Illinois Attorney General's Public Access Counselor reviewed the case and ruled that the Sheriff's Office did not have a valid legal reason to withhold the video. This means the Sheriff's Office must now provide the requested footage to Ms. Thomas.","card_headline":"Video surveillance footage from an animal control facility","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":"December 7, 2023","year_pre_fix":"2024","site_dup_of":null},{"id":184,"orig_master_id":19387,"dup_master_id":19158,"dup_sha256":"187ccc6ad41e4138acb6761fb0098cde63c1a0bd9460d3e2b5b08ff2a4432bdb","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-06-28","case_number":"2024 PAC 81336","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 24-009 (Request for Review 2024 PAC 81336).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 24-009 (Request for Review 2024 PAC 81336).pdf","word_count":2027,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a violation of the Freedom of Information Act (FOIA) by the Village of Lyons for failing to respond to a FOIA request submitted by Mr. Peter T. Sadelski.","plain_summary":"The requester, an attorney at a law firm, sought all records concerning a named individual and any village police employee over roughly fourteen years, and the village never substantively responded despite the requester's and this office's repeated follow-up. The Public Access Counselor held that the village violated section 3(d) of FOIA by failing to comply with, deny, or properly respond to the request within the statutory period. The village was directed to disclose all records responsive to the request, subject only to permissible redactions.","holding":"The Village of Lyons violated section 3(d) of FOIA by failing to appropriately respond to the FOIA request.","legal_question":"Did the Village of Lyons violate the Freedom of Information Act by failing to respond to a FOIA request?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Lyons","requesting_party":"Sadelski and Ms. Norris","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"duty to respond","subject_description":"The request sought records concerning a named individual and Village Police Department employees over a 14-year period.","ocr_status":"ok","ocr_quality":91.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/Binding%20Opinion%2024-009.pdf","sha256":"fd817b39dd588effbcd244ecb0dc7e4a50b79a444e5c34a7a91f86855ba55ba0","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["failure to respond","FOIA request","Village of Lyons","public records"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL June 28, 2024 PUBLIC ACCESS OPINION 24-009 (Request for Review 2024 PAC 81336) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Peter T. Sadelski Associate Attorney Ed Fox & Associates, Ltd. 118 North Clinton Street, Suite 425 Chicago, Illinois 60661 Ms. Doreen Norris FOIA Officer and Assistant to the Village Manager Village of Lyons 4200 Lawndale A venue Lyons, Illinois 60534 Dear Mr. Sadelski and Ms. Norris: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069, effective January 1, 2024). For the reasons discussed below, this office concludes that the Village of Lyons (Village) violated section 3(d) ofFOIA (5 ILCS 140/3(d) (West 2022)) by failing to comply with, deny in writing in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Peter T. Sadelski. BACKGROUND On April 12, 2024, Mr. Sadelski, on behalf of Ed Fox & Associates, Ltd., submitted a FOIA request to the Village seeking all records concerning a named individual and any employee of the Village Police Department between January 1, 2010, and the date of the 500 South 2nd Street, Springfield, Illinois 62701 • (217) 782-1090 • Fax: (217) 782-7046 115 South LaSalle Street, Chicago Illinois 60603, • (312) 814-3000 • Fax: (312) 814-3806 1745 Innovation Drive, Suite C, Carbondale, Illinois 62903 • (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. •E:._q.B- Mr. Peter T. Sadelski Ms. Doreen Norris June 28, 2024 Page 2 request.1 On May 9, 2024, Mr. Sadelski submitted a Request for Review to the Public Access Counselor alleging that the Village had failed to respond to his FOIA request.2 On May 17, 2024, the Public Access Bureau sent a copy of the Request for Review to the Village together with a letter asking whether the Village had responded to Mr. Sadelski's FOIA request.3 If the Village had not responded to the request, the May 17, 2024, inquiry letter asked the Village to do so and to provide a copy of its response to this office. 4 The Village did not respond to the inquiry letter. On June 7, 2024, an Assistant Attorney General in the Public Access Bureau left a voicemail message for and sent an e-mail to Ms. Doreen Norris, the Village's FOIA Officer and Assistant to the Village Manager, requesting an update on the status of the Village's response to the request.5 On June 13, 2024, she responded: \"The status of your FOIA REQUEST is that our attorneys are assisting us with this request.\"6 (Emphasis in original.) On June 17, 2024, the Assistant Attorney General replied: \"Thank you for getting back to me but can you be more specific and let me know if the Village will respond to the request this week? Under FOIA, the Village was required to respond to the request within five business days of receiving it more than two months ago on April 12, and the requester has not agreed to an extension.\"7 The Village did not respond to that correspondence. On June 24, 2024, the Assistant Attorney General sent another e-mail asking for the status of the Village's response to the FOIA request, or that the Village forward a copy of the response if it had responded. 8 Again, the Village did not respond to this office. As of the date of the issuance of this binding opinion, this office has not received confirmation or any indication 1L etter from Peter D. Sadelski, Ed Fox & Associates, Ltd., to Village of Lyons (April 12, 2024). 2E-mail from Peter T. Sadelski, Associate Attorney, Ed Fox & Associates, Ltd., to Public Access [Bureau, Office of the Attorney General] (May 9, 2024). 3Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to Village of Lyons, Attn: FOIA Officer (May 17, 2024), at I. 4Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, Village of Lyons, Attn: FOIA Officer (May 17, 2024), at I. 5E-mail from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to [Doreen] Norris, [FOIA Officer and Assistant to the Village Manager, Village of Lyons] (June 7, 2024). 6E-mail from Doreen [Norris], Assistant to the Village Manager, [Village of Lyons], to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General (June 13, 2024). 7E-mail from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to Doreen Norris (June 17, 2024). 8E-mail from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to Doreen Norris (June 24, 2024). Mr. Peter T. Sadelski Ms. Doreen Norris June 28, 2024 Page 3 from the Village or Mr. Sadelski that the Village has responded to Mr. Sadelski's April 12, 2024, FOIA request. ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2022). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2022)), \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2022)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3( d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection ( e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). Section 3(e) ofFOIA (5 ILCS 140/3(e) (West 2022)) permits a public body to extend its response time by no more than five business days for any of seven enumerated reasons. Any additional extension requires a written agreement between the requester and the public body. 5 ILCS 140/3(e) (West 2022). It is undisputed that the Village did not timely respond and provide records responsive to Mr. Sadelski's April 12, 2024, FOIA request, deny the request in writing in whole or in part, extend the time for responding to the request by five business days, or reach a written agreement with Mr. Sadelski for a longer extension. The Village's failure to comply with the requisite response procedures violated section 3(d) ofFOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: Mr. Peter T. Sadelski Ms. Doreen Norris June 28, 2024 Page 4 1) On April 12, 2024, Mr. Peter T. Sadelski, on behalf of Ed Fox & Associates, Ltd., submitted a FOIA request to the Village seeking all records concerning a named individual and any employee of the Village Police Department between January 1, 2010, and the date of the request. 2) On May 9, 2024, Mr. Sadelski submitted a Request for Review to the Public Access Bureau alleging that the Village had not responded to his FOIA request. Mr. Sadelski's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2022), as amended by Public Act 103-069, effective January 1, 2024 ). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 3) On May 17, 2024, the Public Access Bureau forwarded a copy of the Request for Review to the Village along with a letter asking whether the Village had responded to Mr. Sadelski's FOIA request. The Village did not respond. 4) On June 7, 2024, the Public Access Bureau sent the Village an e-mail requesting an update on the status of the Village's response to the request. On June 13, 2024, the Village replied via e-mail that its attorneys were assisting the Village with the response to the request, but provided no indication as to when the Village would respond. 5) On June 17, 2024, and June 24, 2024, the Public Access Bureau sent additional e-mails to the Village requesting clarification of the status of its response to Mr. Sadelski's request. The Village did not respond to those e-mails. 6) As of the date of the issuance of this binding opinion, this office has received no information indicating that the Village has responded to Mr. Sadelski's April 12, 2024, FOIA request seeking records concerning a named individual and any employee of the Village's Police Department. Therefore, it is the opinion of the Attorney General that the Village has violated section 3( d) of FOIA by failing, within the statutory time period for responding to Mr. Sadelski's April 12, 2024, request, to provide copies of the requested records or to deny the request in writing in whole or in part. Accordingly, the Village is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Sadelski with copies of all records responsive to his April 12, 2024 FOIA, request, subject only to permissible redactions, if any, under section 7 ofFOIA (5 ILCS 140/7 (West 2022), as amended by Public Acts 103-154, effective June 30, 2023; 103-423, effective January 1, 2024; 103-462, effective August 4, 2023; 103-446, effective August 4, 2023; 103-540, effective January 1, 2024; 103-554, effective Mr. Peter T. Sadelski Ms. Doreen Norris June 28, 2024 Page 5 January 1, 2024).9 If the Village determines that any portion of the responsive records is exempt from disclosure under section 7, it is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2022)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Peter T. Sadelski as defendants. See 5 ILCS 140/11.5 (West 2022). Sincerely, KWAMERAOUL ATTORNEY GENERAL By: (::~f:::- Chief Deputy Attorney General 9Because the Village did not comply with the statutory requirements for responding to Mr. Sadelski's FOIA request, the Village is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS l40/3(d) (West 2022). CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 24-009) upon: Mr. Peter T. Sadelski Associate Attorney Ed Fox & Associates, Ltd. 118 North Clinton Street, Suite 425 Chicago, Illinois 60661 psadelski@efoxlaw.com Ms. Doreen Norris FOIA Officer and Assistant to the Village Manager Village of Lyons 4200 Lawndale Avenue Lyons, Illinois 60534 dnorris@villageoflyons-il.net by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on June 28, 2024. --- ~ ~~-~~- -- - .._ _ Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Peter T. Sadelski requested public records from the Village of Lyons, but the Village never responded to his request. The Illinois Attorney General's office ruled that the Village broke the law by ignoring the request. As a result, the Village must now provide the requested records and cannot charge fees for them.","card_headline":"Records of an individual and police employees over 14 years","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":185,"orig_master_id":19386,"dup_master_id":19159,"dup_sha256":"f4a643666fd375b8a3bd468759c7bac211b2229ac9c9b9526080b835255f5769","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-04-01","case_number":"24-006","request_numbers":null,"title":"Basis for Withholding Police Reports Related to Death of Missing Person","filename":"PUBLIC ACCESS OPINION 24-006 (Request for Review 2023 PAC 79453).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 24-006 (Request for Review 2023 PAC 79453).pdf","word_count":2240,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request submitted by Ms. Meredith Newman for police reports related to the death of a missing person, Logan Dunne. The opinion concludes that the Peoria County Sheriff's Office improperly denied the request.","plain_summary":"The requester, an investigative reporter, sought police reports concerning a man who went missing and was later found dead, which a sheriff's office withheld in full as an unwarranted invasion of privacy and, for one report, as interfering with a law enforcement proceeding. The Public Access Counselor held that the reports lacked graphic content warranting privacy protection given the substantial public interest in the case, and that the sheriff's office's law-enforcement-proceeding claims were conclusory and unsupported. The sheriff's office was directed to disclose the remaining reports, subject to limited redactions such as private information and witness-identifying details.","holding":"The Peoria County Sheriff's Office violated FOIA by improperly denying the FOIA request.","legal_question":"Did the Peoria County Sheriff's Office properly deny the FOIA request submitted by Ms. Meredith Newman?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 105 ILCS 140/7(1), 5 ILCS 140/1, 735 ILCS 5/3, 5 ILCS 140/11, 5 ILCS 140/2","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(d)"],"public_body":"County of Peoria","requesting_party":"Newman and Ms. Lotz","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought police reports concerning the death of a missing person, Logan Dunne.","ocr_status":"ok","ocr_quality":89.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/24-006.pdf","sha256":"396d2364430883a1d65c27d0a524ff520c1d2bbe8733b0b7c17e6da5d20b637d","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","FOIA denial","missing person","public records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL April 1, 2024 PUBLIC ACCESS OPINION 24-006 (Request for Review 2023 PAC 7~453) FREEDOM OF INFORMATION ACT: Basis for Withholding Police Reports Related to Death of Missing Person Ms. Meredith Newman • Embed Investigative Reporter r Illinois Answers Project/Better Government Association 223 West Jackson Boulevard Chicago, Illinois 60606 · Ms. Carol Lotz SID Secretary • Peoria County Sheriffs Office 301 North Maxwell Road Peoria, lllinois 61604 Dear Ms. Newman and Ms. Lotz: This binding opinion is issued pursuant to section 9.5(±) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(±) (West 2022), as amended by Public Act 103-069, effective January 1, 2024). For the reasons discussed below, this office concludes that the Peoria County Sheriffs Office (Sheriffs Office) violated the requirements of FOIA by improperly denying a FOIA request submitted by Ms. Meredith Newman. BACKGROUND On December 6, 2023, Ms. Newman submitted a FOIA request to the Sheriffs Office on behalf of the Better Government Association (BGA) seeking copies of \"all Peoria 500 South 2nd Street, Springfield, Illinois 62701 • (217) 782-1090 • Fax: (217) 782-7046 115 South LaSalle Street, Chicago Illinois 60603, • (312) 814-3000 • Fax: (312) 814-3806 1745 Innovation Drive, Suite C, Carbondale, Illinois 62903 • (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. •~- Ms. Meredith Newman Ms. Carol Lotz April 1, 2024 Page 2 County police reports for Logan Dunne[.]\"1 On December 14, 2023, the Sheriffs Office denied the request in its entirety pursuant to sections 7(1)(b) and 7(1)(c) of FOIA.2 The Sheriffs Office asserted: Reports 23-3543, 23-3897, 23-4533 & 23-7919 are highly personal and private in nature to the parties involved. These reports were non-crime incidents in which no arrests were made. They are being withheld [under sections 7(1)(b) and 7(1)(c)] as the subject/involved parties right to privacy outweighs any legitimate public interest in obtaining the information.l31 On December 20, 2023, Ms. Newman submitted a Request for Review contesting that denial. She explained that \"Mr. Dunne is a man who went missing from a Peoria hospital this past June. His remains were found in November, which was confirmed by the Peoria County Coroner's Office.\" (Hyperlinks omitted.)4 Ms. Newman provided internet links to news stories about Mr. Dunne's disappearance and his remains being found. 5 She disputed the Sheriffs Office's denial because \"Mr. Dunne is deceased and therefore privacy concerns do not apply here. The circumstance around how Mr. Dunne went missing is of public interest. \"6 On January 3, 2024, the Public Access Bureau sent a copy of the Request for Review to the Sheriffs Office. The Public Access Bureau also sent the Sheriffs Office a letter requesting unredacted copies of the withheld records for this office's confidential review and a 'FOIA request form from Meredith Newman, Better Government Association, to Freedom of Information Officer, County of Peoria (December 6, 2023). 25 ILCS I40/7(1)(b), (l)(c) (West 2022), as amended by Public Acts 103-154, effective June 30, 2023; 103-462, effective August 4, 2023; 103-446, effective August 4, 2023. 3Letter from Carol Lotz, SID Secretary, Peoria County Sheriffs Office, to Meredith Newman (December 14, 2023). 4E-mail from Meredith Newman, Embed Investigative Reporter, Illinois Answers Project/Better Government Association, to Public Access Counselor, [Office of the Attorney General] (December 20, 2023). 5Anna Turning, Illinois parents desperately searching/or son Logan Dunne, who escaped from a Peoria hospital nearly three months ago, NBC News (August 29, 2023, 4:27 p.m.), https://www.nbcnews.com/dateline/missing-in-america/illinois-parents-desperately-searching-son-logan-dunne escaped-peoria-rcnal 02443; 25News Now, Coroner confirms body found in the woods Sunday is Logan Dunne, 25 News Now (November 13, 2023, 4:44 p.m.), https://www.25newsnow.com/2023/11/13/sheriff-human-remains found-wooded-area-peoria-county/. 6E-mail from Meredith Newman, Embed Investigative Reporter, Illinois Answers Project/Better Government Association, to Public Access Counselor, [Office of the Attorney General] (December 20, 2023). Ms. Meredith Newman Ms. Carol Lotz April 1, 2024 Page 3 detailed written explanation of the legal and factual bases for the applicability of the asserted exemptions. 7 The inquiry letter also asked the Sheriffs Office to \"please explain whose right to privacy would incur an unwarranted invasion from disclosure of the responsive records and why.\"8 On January 23, 2024, the Sheriffs Office provided for this office's confidential review unredacted copies ofreports 23-3543 and 23-7919, and a written explanation for withholding those records from Ms. Newman.9 The Sheriffs Office maintained that report 23- 3543 was exempt from disclosure under section 7(1)(c) of FOIA, but asserted for the first time that report 23-7919 was exempt from disclosure under sections 7(1)(d)(i) and 7(1)(d)(vii).10 The Sheriffs Office also elected to provide Ms. Newman with copies ofreports 23-3897 and 23-4533 with certain discrete redactions.11 On that same date, this office forwarded a copy of the Sheriffs Office's answer to Ms. Newman and notified her of her opportunity to reply in writing.12 She did not do so, but during a telephone call on February 8, 2024, she notified an Assistant Attorney General in the Public Access Bureau that she disputed the Sheriffs Office's arguments for withholding reports 23-3543 and 23-7919 in their entireties.13 7Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Carol Lotz, SID Secretary, Peoria County Sheriff's Office (January 3, 2024). 8Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Carol Lotz, SID Secretary, Peoria County Sheriff's Office (January 3, 2024), at 2. 9Letter from Carol Lotz, Records Manager, Peoria County Sheriff's Office, to Deputy Bureau Chief [Joshua] Jones, Attorney General's Office, Public Access Bureau (dated January I 0, 2024; transmitted to the Public Access Bureau via e-mail on January 23, 2024). • 105 ILCS 140/7(1)(d)(i), (l)(d)(vii) (West 2022), as amended by Public Acts 103-154, effective June 30, 2023; 103-462, effective August 4, 2023; 103-446, effective August 4, 2023. \"E-mail from Carol Lotz, Records Manager, Peoria County Sheriff[']s Office, to [Meredith] Newman (January 23, 2024). 12Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Meredith Newman, Embed Investigative Reporter, Illinois Answers Project/Better Government Association (January 23, 2024). 13Telephone call between Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, and Meredith Newman, Embed Investigative Reporter, Illinois Answers Project/Better Government Association (February~, ,2024). Ms. Meredith Newman Ms. Carol Lotz April 1, 2024 Page 4 On February 14, 2024, this office extended the time within which to issue a binding opinion by 30 business days, to April 1, 2024, pursuant to section 9.5(f) of FOIA.14 ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with\" FOIA. 5 ILCS 140/1 (West 2022). Under FOIA, \"(a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2022). Bare assertions without a detailed rationale do not satisfy a public body's burden of proving that exemptions are applicable. Rocliford Police Benevolent & Protective Ass'n [...] days, to April 1, 2024, pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information.\" Section 7(1)(c) defines \"unwarranted invasion of personal privacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining Ms. Meredith Newman Ms. Carol Lotz April 1, 2024 Page 11 the information.\" Section 7 ( 1) ( c) further provides that \" [t ]he disclosure of information that bears •o n the public duties of public employees and officials shall not be considered an invasion of personal privacy.\" 9) The Sheriffs Office's argument that report 23-3543 is exempt from disclosure under section 7(1 )( c) is unavailing because the report does not contain the type of graphic or vivid content for which courts have recognized a protectable privacy interest for surving family members. There is a significant public interest in the information concerning the disappearance and death of a member of the community which has been the subject of extensive media coverage. That public interest outweighs the Sheriffs Office's sparse personal privacy claims. 10) Section 7(1)(d)(i) of FOIA exempts from disclosure law enforcement records that would \"interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency[.]\" Section 7(1)(d)(vii) exempts from disclosure law enforcement records that would \"obstruct an ongoing criminal investigation by the agency that is the recipient of the request.\" 11) The Sheriffs Office's explanation for the applicability of sections 7(1 )( d)(i) and 7(1)(d)(vii) is conclusory and does not explain how orwhy disclosure ofreport 23-7919 would have the negative consequences that these two exemptions are intended to prevent. In addition, the Sheriffs Office's response to this office neither asserted nor demonstrated that report 23-7919 is exempt from disclosure under section 7(1)(c). Accordingly, the Sheriffs Office did not prove by clear and convincing evidence that either of the withheld reports is exempt from disclosure in its entirety under sections 7(l)(c), 7(l)(d)(i), or 7(l)(d)(vii) of FOIA. Therefore, it is the opinion of the Attorney General that the Peoria County Sheriffs Office violated the requirements of FOIA by improperly denying in its entirety Ms. Newman's December 6, 2023, Freedom oflnformation Act request. Accordingly, the Sheriffs Office is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. Newman with copies of the remaining reports responsive to the FOIA request, subject only to permissible redactions of discrete information. Pursuant to section 7(l)(b) ofFOIA, the Sheriffs Office may properly redact Ms. Meredith Newman Ms. Carol Lotz April 1, 2024 Page 12 \"private information\" as that term is defined in FOIA.27 Pursuant to section 7(1)(c) of FOIA, the Sheriffs Office also may properly redact as \"personal information\" dates of birth and the names of third parties that appear incidentally in the records. In addition, the Sheriffs Office may redact the names and other personally-identifying information of witnesses who provided the Sheriffs Office with information during the investigation pursuant to section 7(1)(d)(iv).28 If the Sheriffs Office redacts information from the copies of the reports it provides to Ms. Newman, it must include a written denial notice that identifies the factual or legal basis for each redaction and that otherwise fully complies with the requirements of section 9(b) of FOIA.29 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Meredith Newman as defendants. See 5 ILCS 140/11.5 (West 2022). Very truly yours, KWAMERAOUL TTO1rfY GENERAL ~~x~~ By: nt D. Stratton • Chief Deputy Attorney General 27Section 2(c-5) ofFOIA (5 ILCS 140/2(c-5) (West 2022)) provides: \"Private information\" means unique identifiers, including a person's social security number, driver's license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person. 285 ILCS I 40/7( 1) ( d)(iv) (West 2022), as amended by Public Acts 103-154, effective June 30, 2023; 103-462, effective August 4, 2023; 103-446, effective August 4, 2023 ( exempting from disclosure law enforcement records to the extent that disclosure would \"unavoidably disclose the identity of a confidential source, confidential information furnished only by the confidential source, or persons who file complaints with or provide information to administrative, investigative, law enforcement, or penal agencies[.]\"). 295 ILCS I40/9(b) (West 2022) (\"When a request for public records is denied on the grounds that the records are exempt under Section 7 of this Act, the notice of denial shall specify the exemption claimed to authorize the denial and the specific reasons for the denial, including a detailed factual basis and a citation to supporting legal authority.\"). CERTIFICATE OF SERVICE Joshua Jones, Deputy Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 24-006) upon: Ms. Meredith Newman Embed Investigative Reporter Illinois Answers Project/Better Government Association 223 West Jackson Boulevard Chicago, Illinois 60606 mnewman@illinoisanswers.org Ms. Carol Lotz SID Secretary Peoria County Sheriffs Office 301 North Maxwell Road Peoria, Illinois 61604 clotz@peoriacounty.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on April 1, 2024. Deputy Chief, Public Access Bureau JOSHUA JONES Deputy Bureau Chief Public Access Bureau Office of the Attorney General 115 South Lasalle Street Chicago, Illinois 60603 (773) 590-7~51","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested police reports regarding the death of a missing person, but the Peoria County Sheriff's Office denied the request claiming privacy exemptions. The Attorney General's office ruled that the Sheriff's Office failed to provide a sufficient legal basis for the denial and violated FOIA. The Sheriff's Office must now release the requested records.","card_headline":"Police reports on a missing person's death","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":186,"orig_master_id":19388,"dup_master_id":19160,"dup_sha256":"2f62c31a9524bd5a46635b519a5a41f5b627419f40b23bbf265a4848f29d53d0","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-06-21","case_number":"2024 PAC 80807","request_numbers":null,"title":"Attendance by Means Other Than Physical Presence Because of Employment Purposes; Taking Final Action on Matter Not on Meeting Agenda","filename":"PUBLIC ACCESS OPINION 24-007 (Request for Review 2024 PAC 80807).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 24-007 (Request for Review 2024 PAC 80807).pdf","word_count":2474,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding the Village of Princeville Board of Trustees' compliance with the Open Meetings Act concerning attendance by means other than physical presence and taking final action on matters not on the meeting agenda.","plain_summary":"The requester, a resident, alleged that a village board improperly let its president attend meetings remotely for work reasons and separately approved a truck purchase that was not disclosed on the meeting agenda. The Public Access Counselor held that the president's work-related travel properly justified his remote attendance under the Open Meetings Act, but that the board violated the Act by voting to purchase the truck without first listing that action's general subject matter on the agenda. Because the board had already re-noticed and re-voted on the truck purchase by the time of this opinion, no further remedy was ordered for that violation.","holding":"The Village of Princeville Board did not violate the Open Meetings Act by allowing a Board member to attend meetings remotely, but did violate the Act by failing to provide advance notice of a final action.","legal_question":"Did the Village of Princeville Board violate the Open Meetings Act by allowing remote attendance and failing to provide notice of final action?","disposition":"partial_violation","primary_statute":"5 ILCS 120/3, 15 ILCS 120/7(a), 5 ILCS 120/2, 5 ILCS 120/1, 5 ILCS 120/7(c), 185 ILCS 120/7(c), 735 ILCS 5/3, 5 ILCS 120/7","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Princeville","requesting_party":"Harmon and Mr. Troutman","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"remote meeting","subject_description":"Board allowed remote attendance by a trustee for employment reasons and took final action on a vehicle purchase not listed on the agenda.","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/Binding%20Opinion%2024-007.pdf","sha256":"4c5f1596a6324d18f8d70f42671bc2ac61ca4db2049d06359cf9b1dee6a4664f","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["remote attendance","employment purposes","final action notice","agenda","OMA"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL June 21, 2024 PUBLIC ACCESS OPINION 24-007 (Request for Review 2024 PAC 80807) OPEN MEETINGS ACT: Attendance by Means Other Than Physical Presence Because of Employment Purposes; Taking Final Action on Matter Not on Meeting Agenda Mr. Michael Harmon 21 5 West Main Street Princeville, Illinois 615 59 The Honorable Jeff Troutman Village President Village of Princeville 206 North Walnut P.O. Box 200 Princeville, Illinois 615 59 Dear Mr. Harmon and Mr. Troutman: This binding opinion is issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2022)). For the reasons discussed below, this office concludes that the Village of Princeville (Village) Board of Trustees (Board) did not violate section 7(a) of OMA I by allowing a Board member to attend its February 5, 2024, March 5, 2024, and March 19, 2024, regular meetings by means other than his physical presence. In connection with the March 5, 2024, meeting, this office also concludes that the Board violated 15 ILCS 120/7(a) (West 2022), as amended by Public Act I 03-311, effective July 28, 2023. 500 South 2nd Street, Springfield, Illinois 62701 • (217) 782-1090 • Fax: (217) 782-7046 115 South LaSalle Street, Chicago Illinois 60603, • (312) 814-3000 • Fax: (312) 814-3806 1745 Innovation Drive, Suite C, Carbondale, Illinois 62903 • (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. •~ - Mr. Michael Harmon The Honorable Jeff Troutman June 21, 2024 Page 2 section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2022)) by failing to provide the public with advance notice of the Board's final action authorizing the purchase of a vehicle. BACKGROUND On March 28, 2024, Mr. Michael Harmon submitted a Request for Review alleging that the Board improperly took final action to authorize the purchase of a truck at its March 5, 2024, regular meeting without including that purchase as an item on the meeting agenda. 2 Mr. Harmon also alleged that the Board continuously and improperly allowed Village President Jeff Troutman to attend Board meetings after he \"purposefully took a job that requires him to be out of town. This job is not inflicted upon him, he chose it. * * *. Additionally, even when travelling for work, his work ends some 2-3 hours before the meetings and the location of his work is typically within an [hour's] drive of the meeting location so I would also argue this is a commutable distance. \"3 This office construed Mr. Harmon's allegations as asserting violations of sections 2.02(c) and 7(a) of OMA. On April 1, 2024, the Public Access Bureau sent a copy of the Request for Review to Mr. Troutman, in his capacity as the head of the Board. The Public Access Bureau also sent Mr. Troutman a letter4 requesting copies of the Board's March 5, 2024, meeting agenda and any available recordings, as well as copies of the minutes from the Board's four meetings (February 5, 2024, February 20, 2024, March 5, 2024, and March 19, 2024) that occurred within 60 days of the submission of Mr. Harmon's Request for Review.5 The Public Access Bureau also asked the Board to provide a detailed written response to the allegations that the Board violated OMA (1) by authorizing the purchase of a truck without providing advance notice on its March 5, 2024, meeting agenda, and (2) by improperly allowing Mr. Troutman to attend its four 2Letter from Michael Harmon to Public Access Counselor, Office of the Attorney General (undated, transmitted by e-mail March 28, 2024), at [l]. 3Letter from Michael Harmon to Public Access Counselor, Office of the Attorney General (undated, transmitted by e-mail March 28, 2024), at [1-2]. 4Letter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable Jeff Troutman, Village President, Village of Princeville (April I, 2024), at 2. 5Section 3.5(a) of OMA (5 ILCS 120/3.S(a) (West 2022)) generally requires a Request for Review to be filed \"not later 60 days after the alleged OMA violation[,]\" but provides an exception \"[i]f facts concerning the violation are not discovered within the 60-day period, but are discovered at a later date, not exceeding 2 years after the alleged violation, by a person utilizing reasonable diligence[.]\" Mr. Harmon submitted his Request for Review on March 28, 2024. Because there is no indication that he could not have discovered any alleged violations more than 60 days before that date despite utilizing reasonable diligence, the Public Access Counselor's review was limited to Board meetings that occurred on or after January 28, 2024. Office of the lllinois Attorney General Mr. Michael Harmon The Honorable Jeff Troutman June 21, 2024 Page 3 most recent meetings remotely.6 On April 24, 2024, counsel for the Board, Mr. Scott A. Brunton, provided this office with the requested materials and a written response.7 On April 26, 2024, the Public Access Bureau forwarded a copy of the Board's written response to Mr. Harmon and notified him of his opportunity to reply.8 On that same date, Mr. Harmon submitted a reply.9 On May 23, 2024, the Public Access Bureau extended the time in which to issue a binding opinion by 21 business days, to June 26, 2024, pursuant to section 3.5(e) of OMA. 10 ANALYSIS It is \"the public policy of this State that its citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in any way.\" 5 ILCS 120/1 (West 2022). \"The Open Meetings Act provides that public agencies exist to aid in the conduct of the people's business and that the intent of the Act is to assure that agency actions be taken openly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989). Final Action Section 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2022)) provides, in relevant part, that \"[a]n agenda for each regular meeting shall be posted at the principal office of the public body and at the location where the meeting is to be held at least 48 hours in advance of the holding of the meeting.\" Section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2022)) further provides that \"[a]ny agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.\" (Emphasis added.) 6Letter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable Jeff Troutman, Village President, Village of Princeville (April I, 2024), at 2. 7Letter from Scott A. Brunton, Miller, Hall & Triggs, LLC, to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (April 24, 2024). 8Letter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Michael Harmon (April 26, 2024). 9E-mail from Michael Harmon to [Benjamin J.] Silver, [Assistant Attorney, Public Access Bureau, Office of the Attorney General] (April 26, 2024). 10Letter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Michael Harmon, The Honorable Jeff Troutman, Village President, Village of Princeville, and Scott A. Brunton, Miller, Hall & Triggs, LLC (May 23, 2024). Office of the fllinois Altorney General Mr. Michael Harmon The Honorable Jeff Troutman June 21, 2024 Page 4 The agenda of the Board's March 5, 2024, meeting included the agenda item \"Report from the Superintendent of Public Works[.]\"11 The meeting minutes show that during the report, the Superintendent of Public Works stated that he had found a used truck at a dealership which the Village could purchase with Tax Increment Financing funds.12 The Board then approved a motion to purchase that truck \"fo [...] ployer[]\" that provide a permissible reason for remote attendance under the Board's rules. Accordingly, this 30 I 03rd Ill. Gen. Assem., House Bill 2447, House Amendment No. 2, 2023 Sess. 31 People v. Garcia, 241 Ill. 2d 416, 421 (2011 ). Office of the fll inois Attorney General Mr. Michael Harmon The Honorable Jeff Troutman June 21, 2024 Page 9 office concludes that the Board did not violate section 7(a) of OMA by allowing Mr. Troutman to attend those meetings by video conference. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments presented, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On March 28, 2024, Mr. Michael Harmon submitted a Request for Review alleging that the Board improperly took final action to authorize the purchase of a truck at its March 5, 2024, regular meeting without including the purchase as an item on the agenda. He also alleged that the Board improperly allowed Mr. Troutman to repeatedly attend its meetings remotely for \"employment purposes.\" It is undisputed that Mr. Harmon's Request for Review was timely filed and otherwise comp! ies with the requirements of section 3 .5( a) of OMA. 2) On April 1, 2024, the Public Access Bureau sent a copy of the Request for Review to the Board. The Public Access Bureau also sent the Board a letter requesting copies of the Board's March 5, 2024, meeting agenda, any available recordings, and copies of the minutes from the Board's four most recent meetings (February 5, 2024, February 20, 2024, March 5, 2024, and March 19, 2024), together with a detailed written answer to the allegations that the Board violated sections 2.02(c) and 7(a) of OMA. 3) On April 24, 2024, counsel for the Board provided this office with the requested materials, including a written answer. 4) On April 26, 2024, the Public Access Bureau forwarded a copy of the Board's written answer to Mr. Harmon and notified him of his opportunity to reply. On that same date, Mr. Harmon submitted a reply. 5) On May 23, 2024, the Public Access Bureau extended the time in which to issue a binding opinion by 21 business days pursuant to section 3.5(e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 6) Section 2.02(c) of OMA provides that \"[a]ny agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.\" 7) On March 5, 2024, the Board voted to approve the purchase of a truck, but the purchase was not listed on the agenda for that meeting. In its answer to this office, the Board conceded that this action was not in compliance with OMA. Accordingly, this office concludes that the Board violated section 2.02(c) of OMA by failing to provide advance notice of its vote to approve the purchase of the truck at the March 5, 2024, meeting. Office of the Tllinois .Attorney General Mr. Michael Harmon The Honorable Jeff Troutman June 21, 2024 Page 10 8) On April 16, 2024, the Board included the purchase of the truck on its meeting agenda for that date and re-voted to approve the purchase. 9) Because the Board provided sufficient notice of its final action to approve the purchase of the truck on the agenda for its April 16, 2024, meeting and re-voted on the matter at that meeting, no further action is required to remedy the Board's violation of section 2.02( c) of OMA. 10) Section 7(a) of OMA provides that \"[i]f a quorum of the members of the public body is physically present as required by Section 2.01, a majority of the public body may allow a member of that body to attend the meeting by other means if the member is prevented from physically attending because of* * * (ii) employment purposes[.]\" The Board's rules for electronic participation in remote meetings correspondingly permit the Board to permit remote attendance \"because of conflicting obligations to the Board member's employer[.]\" 11) The plain and ordinary meaning of \"employment purposes\" in section 7(a)(ii) of OMA includes actions in the course of executing a person's job responsibilities. 12) Mr. Troutman attended the Board's February 5, 2024, March 5, 2024, and March 19, 2024, regular meetings by means other than physical presence because his job obligations required him to stay at a hotels while working in cities outside of Princeville on those meeting dates. 13) Mr. Troutman's work-related travel constituted an action in the course of executing his job responsibilities and a conflicting obligation to his employer that prevented him from physically attending the Board's February 5, 2024, March 5, 2024, and March 19, 2024, regular meetings. 14) Accordingly, the Attorney General concludes that the Board did not violate section 7(a) of OMA by allowing Mr. Troutman to attend its February 5, 2024, March 5, 2024, and March 19, 2024, regular meetings remotely. Office of the Tllinois Attorney General Mr. Michael Harmon The Honorable Jeff Troutman June 21, 2024 Page 11 This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 3 5 days of the date of this decision, naming the Attorney General of Illinois and the Village of Princeville Board of Trustees or Mr. Michael Harmon as defendants. See 5 ILCS 120/7.5 (West 2022). Very truly yours, KWAME RAOUL ATTORNEY GENERAL aMMii,Jt~1'r- By: ent Stratton . Chief Deputy Attorney General cc: Mr. Scott A. Brunton Attorney for the Village of Princeville Miller, Hall & Triggs, LLC 416 Main Street, Suite 1125 Peoria, Illinois 61602 Office of the Tllinois Attorney General CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 24-007) upon: Mr. Michael Harmon 215 West Main Street Princeville, Illinois 61559 michaelj harmon@hotmai I. com The Honorable Jeff Troutman Village President Village of Princeville 206 North Walnut P.O. Box 200 Princeville, Illinois 61559 villagepresident@princeville.org Mr. Scott A. Brunton Attorney for the Village of Princeville Miller, Hall & Triggs, LLC 416 Main Street, Suite 1125 Peoria, Illinois 61602 Scott. brunton@mhtlaw.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on June 21, 2024. / k ; i ? ~ Steve Silverman ----------~ Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under the Open Meetings Act, a public body may allow remote attendance if the member's physical presence is not reasonably feasible due to employment or other specified reasons, and if the body follows procedural requirements like having a quorum present and providing audio/video access. Here, the Board complied with those requirements for a trustee whose employment prevented physical attendance, so no violation occurred. However, OMA also requires that any final action be preceded by agenda notice; the Board violated that rule by authorizing the purchase of a vehicle that was not listed on the meeting agenda, denying the public advance knowledge of the action. The decisive factor was the lack of any mention of the purchase in the agenda, not the substance of the decision itself.","card_headline":"Remote trustee attendance and unlisted vehicle purchase vote","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":187,"orig_master_id":19389,"dup_master_id":19161,"dup_sha256":"779a7e75ffd5059b21d5843ec0f66e873300ce652ac0817ffb3ce250590acdbf","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-06-21","case_number":"2024 PAC 81170","request_numbers":null,"title":"Meaning of \"Security Measures\" in Section 7(1)(v) of FOIA","filename":"PUBLIC ACCESS OPINION 24-008 (Request for Review 2024 PAC 81170).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 24-008 (Request for Review 2024 PAC 81170).pdf","word_count":2327,"summary":"This document is a Public Access Opinion regarding a FOIA request submitted by Ms. Sasha Mothershead on behalf of HOPE Fair Housing Center, which was partially denied by the Chicago Housing Authority.","plain_summary":"The requester, a fair housing organization, sought a dataset of scattered-site public housing units including their addresses and occupancy status, and the housing authority redacted most digits of the street numbers for vacant units, citing the exemption for vulnerability assessments and security plans. The Public Access Counselor held that street addresses are not themselves vulnerability assessments, security measures, or response plans, so the exemption did not apply on its face. The housing authority was directed to provide the full street addresses for the vacant units.","holding":"The Chicago Housing Authority violated the requirements of FOIA by improperly partially denying the FOIA request.","legal_question":"Whether the Chicago Housing Authority's partial denial of the FOIA request was in violation of the Freedom of Information Act.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(e), 95 ILCS 140/7, 5 ILCS 140/9(b), 5 ILCS 140/1, 175 ILCS 140/7(1), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(v)","7(1)(c)"],"public_body":"Hernandez FOIA Officer Government and External Affairs Chicago Housing Authority","requesting_party":"Mothershead and Mr. Hernandez","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(v)","subject_description":"The request sought an Excel file containing unit addresses and occupancy status for Chicago Housing Authority Scattered Site properties.","ocr_status":"ok","ocr_quality":88.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/Binding%20Opinion%2024-008.pdf","sha256":"e0712b1ca787fb567b7bfbb1a377c1c2d7b7edf67de2ebaf4ccd6e8997717bfe","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["housing records","security measures","FOIA denial","public housing"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL June 21, 2024 PUBLIC ACCESS OPINION 24-008 (Request for Review 2024 PAC 81170) FREEDOM OF INFORMATION ACT: Meaning of \"Security Measures\" in Section 7(1)(v) of FOIA Ms. Sasha Mothershead Fair Housing Specialist HOPE Fair Housing Center · 202 West Willow Avenue, Suite 203 Wheaton, Illinois 60187 Mr. Julio C. Hernandez FOIA Officer Government and External Affairs Chicago Housing Authority 60 East Van Buren Chicago, Illinois 60605 Dear Ms. Mothershead and Mr. Hernandez: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069, effective January 1, 2024 ). For the reasons discussed below, this office concludes that the Chicago Housing Authority (CHA) violated the requirements of FOIA by improperly partially denying Ms. Sasha Mothershead's FOIA request. BACKGROUND On March 15, 2024, Ms. Mothershead submitted a FOIA request to the CHA, on behalf of the HOPE Fair Housing Center (HOPE), seeking an Excel file of certain information about each CHA Scattered Site property, including \"Unit Address\" and \"Unit Status (ie. occupied 500 South 2nd Street, Springfield, Illinois 62701 • (217) 782-1090 • Fax: (217) 782-7046 115 South LaSalle Street, Chicago Illinois 60603, • (312) 814-3000 • Fax: (312) 814-3806 1745 Innovation Drive, Suite C, Carbondale, Illinois 62903 • (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. •~ - Ms. Sasha Mothershead Mr. Julio C. Hernandez June 21, 2024 Page 2 or vacant).\" 1 HOPE \"is a HUD-approved,[21 nonprofit organization dedicated to eliminating housing discrimination across Illinois.\"3 CHA's website describes the properties at issue in the request as follows: CHA's Scattered Site properties consist of nearly 2,800 public housing units scattered individually or in small groups throughout Chicago's 77 communities and diverse housing populations. Scattered site units offer a variety of housing options including homes in newer construction condominium buildings, single family detached homes, and within market rate rental developments. [4l On March 22, 2024, CHA extended its time to respond by five business days pursuant to section 3(e)(vi) of FOIA (5 ILCS 140/3(e)(vi) (West 2022)).5 On March 29, 2024, CHA e-mailed Ms. Mothershead to state that it was still working on the request and would respond before the close of business on April 1, 2024.6 On April 4, 2024, having received no response, Ms. Mothershead e-mailed CHA to check the status.7 On April 5, 2024, CHA responded to the request by providing Ms. Mothershead with a spreadsheet of responsive information. The data, however, included only the second digit in the street number for each vacant unit. In its written response to the request, 8 CHA asserted that the full street addresses 1L etter from Sasha Mothershead, Fair Housing Specialist, HOPE Fair Housing Center, to FOIA Officer, Chicago Housing Authority (March 15, 2024), at [I]. 2\"HUD\" stands for the United States Department of Housing and Urban Development. 3HOPE Fair Housing Center, https://hopefair.org/ (last visited June 7, 2024). 4Public Housing, Chicago Housing Authority, https://www.thecha.org/residents/public-housing (last visited June 7, 2024). 5E-mail from Julio C. Hernandez, FOIA Officer, Government and External Affairs, Chicago Housing Authority, to [Sasha] Mothershead (March 22, 2024). 6E-mail from Julio C. Hernandez, FOIA Officer, Government and External Affairs, Chicago Housing Authority, to [Sasha) Mothershead (March 29, 2024). 7E-mail from Sasha [Mothershead, Fair Housing Specialist, HOPE Fair Housing Center] to [Julio C.) Hernandez, [FOIA Officer, Government and External Affairs, Chicago Housing Authority] (April 4, 2024). 8E-mail from Julio C. Hernandez, FOIA Officer, Government and External Affairs, Chicago Housing Authority, to [Sasha] Mothershead (April 5, 2024). Ms. Sasha Mothershead Mr. Julio C. Hernandez June 21, 2024 Page 3 were exempt from disclosure under section 7(l)(v) ofFOIA,9 quoting the language of the exemption; CHA did not articulate a factual basis for its denial.10 On April 15, 2024, Ms. Mothershead e-mailed CHA seeking reconsideration of the denial of the full street numbers of the vacant units. On April 17, 2024, CHA responded that under section 7(1)(v), CHA \"is able to withhold the full street addresses of vacant units as providing this information poses a threat to community safety and makes these buildings the targets of squatters and other illegal activity.\" 11 On April 24, 2024, Ms. Mothershead submitted a Request for Review contesting CHA's denial of the full street addresses for the vacant units.12 On April 26, 2024, the Public Access Bureau sent a copy of the Request for Review to CHA. The Public Access Bureau also sent CHA a letter asking for an unredacted copy of the requested dataset for this office's confidential review, together with a detailed explanation of the legal and factual bases for the applicability of the section 7(l)(v) exemption.13 On May 21, 2024, CHA provided this office with those materials. 14 On May 23, 2024, this office forwarded a copy of CHA's answer to Ms. Mothershead and notified her of her opportunity to reply. 15 On June 3, 2024, Ms. MacKenzie Speer, counsel for HOPE at the Chicago Lawyers' Committee for Civil Rights, submitted a reply.16 95 ILCS 140/7(1 )(v) (West 2022), as amended by Public Acts 103-154, effective June 30, 2023; I 03-423, effective January I, 2024; I 03-462, effective August 4, 2023; I 03-446, effective August 4, 2023; 103-540, effective January 1, 2024; 103-554, effective January 1, 2024. 10Pursuant to section 9(b) ofFOIA (5 ILCS 140/9(b) (West 2022)), \"[w]hen a request for public records is denied on the grounds that the records are exempt under Section 7 of th is Act, the notice of denial shall specify the exemption claimed to authorize the denial and the specific reasons for the denial, including a detailed factual basis and a citation to supporting legal authority.\" (Emphasis added.) 11E-mail from Julio C. Hernandez, FOIA Officer, Government and External Affairs, Chicago Housing Authority, to [Sasha] Mothershead (April 17, 2024). 12E-mail from Sasha Mothershead, Fair Housing Specialist, HOPE Fair Housing Center, to IL AG Public Access Counselor, [Office of the Attorney General] (April 24, 2024). 13Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Julio C. Hernandez, FOIA Officer, Government and External Affairs, Chicago Housing Authority (April 26, 2024), at 2. 14Letter from TaSheena Cunningham-Rimmer, Senior Assistant General Counsel, Office of the General Counsel, Chicago Housing Authority, to Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General (May 21, 2024). 15Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Sasha Mothershead, Fair Housing Specialist, HOPE Fair Housing Center (May 23, 2024). 16Letter from MacKenzie Speer, Program Counsel, Chicago Lawyers' Committee for Civil Rights, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, State of lllinois (June 3, 2024). Ms. Sasha Mothershead Mr. Julio C. Hernandez June 21, 2024 Page 4 ANALYSIS Section 1 of FOIA (5 ILCS 140/1 (West 2022)) declares that \"it is the public policy of the State of Illinois that access by all persons to public records promotes the transparency and accountability of public bodies at all levels of government.\" Under FOIA, \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2 [...] esigned to identify, prevent, or respond to potential attacks upon a community's population or system, facilities, or installations-the court in Chicago Sun Times then proceeded to explain that a public body need not prove that disclosing a record would in fact jeopardize the effectiveness of the measures to sustain its burden under section 7(1 )(v). Similarly, the record at issue in Lucy Parsons Labs was among the specific types of records listed in the exemption-a response plan, described as an \"action plan for 'managing unrest in the case of an acquittal[ ]\"' of a police officer facing trial in connection with a fatal shooting. Lucy Parsons Labs, 2021 IL App (1st) 192073, ,r,r 3, 14. Again, the street addresses that CHA redacted do not meet this threshold requirement, making discussion of the exemption's other requirements moot. Because the section 7(1 )(v) exemption is inapplicable by its plain language, CHA improperly redacted the vacant unit street addresses responsive to Ms. Mothershead's request. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On March 15, 2024, Ms. Sasha Mothershead submitted a FOIA request to CHA on behalf of the HOPE Fair Housing Center seeking an Excel file containing certain information for each CHA Scattered Site property, including unit addresses and unit statuses (i.e., occupied or vacant). 2) On April 5, 2024, CHA responded by providing Ms. Mothershead with an Excel spreadsheet containing responsive information, but redacted numbers from the street addresses for the vacant units except for the second digits under section 7(1)(v) of FOIA. 3) In an e-mail transmitted to the Public Access Bureau on April 24, 2024, Ms. Mothershead submitted a Request for Review contesting CHA's redaction of portions of the Ms. Sasha Mothershead Mr. Julio C. Hernandez June 21, 2024 Page 8 street addresses. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) ofFOIA (5 ILCS 140/9.5(a) (West 2022), as amended by Public Act 103-069, effective January 1, 2024). Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 4) On April 26, 2024, the Public Access Bureau sent a copy of the Request for Review to CHA. The Public Access Bureau also sent CHA a letter asking for an unredacted copy of the responsive record for this office's confidential review, and a detailed explanation of the legal and factual bases for the applicability of the asserted exemption. 5) On May 21, 2024, CHA provided this office with an unredacted copy of the responsive spreadsheet and its written answer. 6) On May 23, 2024, the Public Access Bureau forwarded a copy of CHA's answer to Ms. Mothershead and notified her of her opportunity to reply. On June 3, 2024, Ms. MacKenzie Speer, counsel for the HOPE Fair Housing Center at the Chicago Lawyers' Committee for Civil Rights, submitted a reply. 7) Section 7(1)(v) ofFOIA exempts from disclosure \"[v]ulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations, but only to the extent that disclosure could reasonably be expected to expose the vulnerability or jeopardize the effectiveness of the measures, policies, or plans, or the safety of the personnel who implement them or the public.\" Under the plain language of section 7(1 )(v), a record must meet the threshold requirement of consisting of or depicting a vulnerability assessment, security measure, or response policy or plan to qualify for redaction under this section. 8) The street addresses of CHA's Scattered Site properties do not consist of or depict vulnerability assessments, security measures, or response policies or plans that are designed to identify, prevent, or respond to potential attacks. Accordingly, CHA did not demonstrate that the redacted portions of the street addresses fall within the plain language of the section 7(1 )(v) exemption. Therefore, it is the opinion of the Attorney General that the Chicago Housing Authority violated the requirements of FOIA by improperly redacting portions of the street addresses responsive to Ms. Mothershead's Freedom oflnformation Act request. Accordingly, CHA is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. Mothershead and the HOPE Fair Housing Center with the full street addresses responsive to the March 15, 2024, FOIA request. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within Ms. Sasha Mothershead Mr. Julio C. Hernandez June 21, 2024 Page 9 3 5 days of the date of this decision naming the Attorney General of Illinois and Ms. Sasha Mothershead as defendants. See 5 ILCS 140/11.5 (West 2022). Very truly yours, KWAMERAOUL ATTORNEY GENERAL By (::;:~~ ::: Chief Deputy Attorney General cc: Ms. MacKenzie Speer Program Counsel Chicago Lawyers' Committee for Civil Rights 100 North LaSalle Street, Suite 600 Chicago, Illinois 60602 cc: Ms. TaSheena Cunningham-Rimmer Senior Assistant General Counsel Office of the General Counsel Chicago Housing Authority 60 East Van Buren, 12th Floor Chicago, Illinois 60605 CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 24-008) upon: Ms. Sasha Mothershead Fair Housing Specialist HOPE Fair Housing Center 202 West Willow Avenue, Suite 203 Wheaton, Illinois 60187 Sasha.mothershead@hopefair.org Mr. Julio C. Hernandez FOIA Officer Government and External Affairs Chicago Housing Authority 60 East Van Buren Chicago, Illinois 60605 FO IAreq uest@thecha.org Ms. MacKenzie Speer Program Counsel Chicago Lawyers' Committee for Civil Rights 100 North LaSalle Street, Suite 600 Chicago, Illinois 60602 mspeer@cl ccrul.o rg Ms. TaSheena Cunningham-Rimmer Senior Assistant General Counsel Office of the General Counsel Chicago Housing Authority 60 East Van Buren, 12th Floor Chicago, Illinois 60605 tcunningham@thecha.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on June 21, 2024. ~ - 2 ' - Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"HOPE Fair Housing Center requested an Excel file from the Chicago Housing Authority (CHA) listing each Scattered Site property's address and occupancy status. The CHA partially denied the request by redacting the full street addresses of vacant units, claiming the addresses were exempt as 'security measures' under FOIA. The Attorney General's office ruled that the street addresses do not meet the threshold requirement of being a vulnerability assessment, security measure, or response policy or plan under the plain language of the exemption, and therefore the CHA improperly redacted the addresses.","card_headline":"Excel file of scattered-site unit addresses and occupancy status","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":188,"orig_master_id":19390,"dup_master_id":19162,"dup_sha256":"662880c47a92973bca56a56668b5cb77330b17b7a3a65394205fbdf53825f7c9","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-09-20","case_number":"2024 PAC 82164","request_numbers":null,"title":"Public Body Must Prove How Disclosure of All Records Withheld Under Section 7(1)(d)(i) of FOIA Would Interfere With a Pending Law Enforcement Investigation","filename":"Public Access Opinion 24-011 (Request for Review 2024 PAC 82164).pdf","rel_path":"PAC\\opinions\\Public Access Opinion 24-011 (Request for Review 2024 PAC 82164).pdf","word_count":2254,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request made by Mr. Michael Kielczewski to the Elk Grove Village Police Department, which was denied.","plain_summary":"The requester sought the police report and related records from an incident in which he was stopped, searched, and released while photographing nearby police activity, which the police department withheld in full as interfering with a pending law enforcement proceeding. The Public Access Counselor held that the case had been administratively closed and the department's claim of an ongoing multi-agency investigation was unsupported by specific facts, so the department failed to prove the records were exempt in their entirety. The department was directed to disclose the case report and stop card, subject to redaction of witness and suspect identifying details and other private information.","holding":"The Elk Grove Village Police Department violated FOIA by withholding all records responsive to Mr. Kielczewski's request.","legal_question":"Whether the Police Department's withholding of records under Section 7(1)(d)(i) of FOIA was justified.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 35 ILCS 140/7, 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/7(1), 165 ILCS 140/7(l), 5 ILCS 140/9(a), 5 ILCS 140/2, 5 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)","7(1)(c)","7(1)(b)"],"public_body":"Elk Grove Village Police Department","requesting_party":"Kielczewski and Ms. Freidenfelds","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought a specific case/incident report and related records from the police department.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/Binding%20Opinion%2024-011.pdf","sha256":"41ee94330ab3c729882eabef5666f710c37e6b9ae58dd905d09d302588c282ab","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","pending investigation","FOIA denial","law enforcement records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL September 20, 2024 PUBLIC ACCESS OPINION 24-011 (Request for Review 2024 PAC 82164) FREEDOM OF INFORMATION ACT: Public Body Must Prove How Disclosure of All Records Withheld Under Section 7(1)(d)(i) of FOIA Would Interfere With a Pending Law Enforcement Investigation Mr. Michael Kielczewski 633 North Parkway Elk Grove Village, Illinois 60007 Ms. Donna Freidenfelds Police Records Technician Elk Grove Village Police Department 901 Wellington A venue Elk Grove Village, Illinois 60007 Dear Mr. Kielczewski and Ms. Freidenfelds: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.S(f) (West 2023 Supp.)). For the reasons discussed below, this office concludes that the Elk Grove Village Police Department (Police Department) violated the requirements of FOIA by withholding all records responsive to Mr. Michael Kielczewski's FOIA request. BACKGROUND On July 6, 2024, Mr. Kielczewski submitted a FOIA request to the Police Department seeking a copy of Case/Incident Report EGP23-026823 and any other records related to that report, excluding body camera footage. 1 On July 12, 2024, the Police Department 'E-mail from Michael Kielczewski to FOIA@elkgrove.org (July 6, 2024). 500 South 2nd Street, Springfield, Illinois 62701 • (217) 782-1090 • Fax: (217) 782-7046 115 South LaSalle Street, Chicago Illinois 60603, • (312) 814-3000 • Fax: (312) 814-3806 1745 Innovation Drive, Suite C, Carbondale, Illinois 62903 • (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. -~ - Mr. Michael Kielczewski Ms. Donna Freidenfelds September 20, 2024 Page 2 denied Mr. Kielczewski's request2 in its entirety pursuant to section 7(1)(d)(i) of FOIA.3 On that same date, Mr. Kielczewski submitted a Request for Review to the Public Access Counselor contesting the denial.4 Mr. Kielczewski stated that on December 18, 2023, he \"was walking and had taken some video and pictures due to large police activity across the street from a police incident\" when he was \"identified, detained, searched, disarmed, questioned and released\" by the Police Department; he sought the records to better understand the reasons for the Police Department's actions. 5 On July 29, 2024, the Public Access Bureau sent a copy of the Request for Review to the Police Department. The Public Access Bureau also sent the Police Department a letter asking for an unredacted copy of the requested records for this office's confidential review, together with a detailed explanation of the legal and factual bases for the applicability of the section 7(1)(d)(i) exemption.6 On August 1, 2024, the Police Department provided this office with the requested materials.7 On August 9, 2024, this office forwarded a copy of the Police Department's written response to Mr. Kielczewski and notified him of his opportunity to reply.8 On August 11, 2024, Mr. Kielczewski submitted his reply to the Police Department's response.9 In his reply, Mr. 2Letter from Donna Freidenfelds, Police Records Technician, Elk Grove Village Police Department, to [Michael Kielczewski] (July 12, 2024). 35 ILCS 140/7(1 )(d)(i) (West 2023 Supp.), as amended by Public Act 103-605, effective July 1, 2024. 4E-mail from Michael Kielczewski to Public Access [Bureau, Office of the Attorney General] (July 12, 2024). 5E-mail from Michael Kielczewski to Public Access [Bureau, Office of the Attorney General] (July 12, 2024). 6Letter from Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Donna Freidenfelds, Police Records Technician, Elk Grove Village Police Department (July 29, 2024), at I. 7E-mail from Shannon Hernandez, Police Records Assistant, Elk Grove Village Police Dept., to Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office (August I, 2024). 8Letter from Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Michael Kielczewski (August 9, 2024). 9E-mail from Michael Kielczewski to Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (August 11, 2024). Mr. Michael Kielczewski Ms. Donna Freidenfelds September 20, 2024 Page 3 Kielczewski maintained that the Police Department improperly \"denied even a redacted record or records that would show its justification in stopping me or failure in documenting.\" 10 On September 6, 2024, this office extended the time within which to issue a binding opinion by 30 business days, to October 23, 2024, pursuant to section 9.5(f) of FOIA.11 ANALYSIS \"All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2022). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2022)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" When a record contains information that is exempt from disclosure \"but also contains information that is not exempt from disclosure, the public body may elect to redact the information that is exempt. The public body shall make the remaining information available for inspection and copying.\" (Emphasis added.) 5 ILCS 140/7(1) (West 2023 Supp.), as amended by Public Act 103-605, effective July 1, 2024. Section 7(1 )( d)(i) of FOIA exempts from disclosure: ( d) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would: (i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request[.] (Emphasis added). \"The classification of information as 'law enforcement' or 'investigatory' does not necessarily foreclose access unless it can be shown, in a particular case, that disclosure would interfere with law enforcement and would, therefore, not be in the public interest.\" Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530, 536 (1989). Conclusory statements that the disclosure of records would obstruct a law enforcement proceeding are insufficient to support the assertion ' 0E-mail from Michael Kielczewski to Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau (August 11, 2024). \"Letter from Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Michael Kielczewski, Donna Freidenfelds, Police Records Technician, Elk Grove Village Police Department (September 6, 2024). Mr. Michael Kielczewski Ms. Donna Freidenfelds September 20, 2024 Page 4 of the pending law enforcement proceeding exemption. Day v. City of Chicago, 388 Ill. App. 3d 70, 76 (2009) (\"Simply saying there is an 'ongoing criminal investigation because the case has not been cleared,' with little additional explanation, is not 'objective indicia' sufficient to show the ongoing investigation exemption applies.\"); Ill. Att'y Gen. Pub. Acc. Op. No. 24-006, issued April 1, 2024, at 8-9 ( explaining that a law enforcement agency must demonstrate with a detailed factual basis, rather than conclusory statements, how disclosure of all information in a police report would interfere with a law enforcement investigation to sustain its burden of proving the report is exempt from disclosure in its entirety pursuant to the section 7(l)(d)(i) exemption). The public body must provide \"a detailed justification [...] llage Police, Patch (December 19, 2023), https://patch.com/illinois/arlingtonheights/armed-robbery-reported-subway-elk-grove-village police. 165 ILCS 140/7(l)(c) (West 2023 Supp.), as amended by Public Act 103-605, effective July I, 2024 (exempting from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information.\"). • Mr. Michael Kielczewski Ms. Donna Freidenfelds September 20, 2024 Page 6 1) On July 6, 2024, Mr. Michael Kielczewski submitted a FOIA request to the Police Department seeking a copy of Case/Incident Report EGP23-026823 and other records related to the case. 2) On July 12, 2024, the Police Department denied Mr. Kielczewski's request in its entirety pursuant to section 7(1 )( d)(i) of FOIA. 3) On that same date, Mr. Kielczewski submitted a Request for Review to the Public Access Counselor contesting the Police Department's denial of his request. Mr. Kielczewski's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) ofFOIA (5 ILCS 140/9.5(a) (West 2023 Supp.)). 4) On July 29, 2024, the Public Access Bureau forwarded a copy of the Request for Review to the Police Department along with a letter asking the Police Department for an unredacted copy of the requested records for this office's confidential review, together with a detailed explanation of the legal and factual bases for the applicability of the section 7(1)(d)(i) exemption. 5) On August 1, 2024, the Police Department provided the Public Access Bureau with those materials. The records consisted of a case repo1i and pedestrian stop card receipt. 6) On August 9, 2024, this office forwarded a copy of the Police Department's written response to Mr. Kielczewski and notified him of his opportunity to reply. On August 11, 2024, Mr. Kielczewski replied to the Police Department's response. 7) On September 6, 2024, this office extended the time to issue a binding opinion by 30 business days pursuant to section 9.5 of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 7(1)(d)(i) of FOIA exempts from disclosure records in the possession of a law enforcement agency for law enforcement purposes only to the extent that their disclosure would \"interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request[.]\" 9) The case report indicates that the Police Department administratively closed its investigation into this matter. Although the Police Department asserted it is participating in an ongoing multi-agency investigation that is looking into other similar incidents, the Police Department's response is devoid of facts to support its claim that disclosure of the two records would obstruct any joint investigation. Because the Police Department has not proven by clear and convincing evidence that disclosure of the records would interfere with a law enforcement proceeding, the Police Department has not sustained its burden of demonstrating that the entire Mr. Michael Kielczewski Ms. Donna Freidenfelds September 20, 2024 Page 7 police report and pedestrian stop card receipt are exempt from disclosure under section 7(1)(d)(i) ofFOIA. Therefore, it is the opinion of the Attorney General that the Police Department violated the requirements of FOIA by denying in whole Mr. Kielczewski's FOIA request. The Police Department is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Kielczewski with copies of the requested records. In addition to redacting pursuant to section 7(1 )( c) information such as a name and details of a possible motive from which the identity of a possible suspect could be discerned, the Police Department may redact pursuant to section 7(1)(b) ofFOIA17 \"unique identifiers\" that meet the definition of \"private information\" in section 2(c-5) of FOIA.18 The Police Department also may redact the names and other personally-identifying information of any witnesses and victims/complainants who provided information to the Police Department during its investigation. If the Police Department does elect to redact any information, it must provide Mr. Kielczewski with a notice of partial denial that meets the requirements of section 9(a) ofFOIA (5 ILCS 140/9(a) (West 2022)). 17Section 7(1)(b) ofFOIA (5 ILCS 140/7(1)(b) (West 2023 Supp.), as amended by Public Act 103- 605, effective July I, 2024) exempts from disclosure \"[p ]rivate information, unless disclosure is required by another provision of this Act, a State or federal law or a court order.\" 18\"Private information\" is defined as: unique identifiers, including a person's social security number, driver's license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person. 5 ILCS 140/2(c-5) (West 2023 Supp.). Mr. Michael Kielczewski Ms. Donna Freidenfelds September 20, 2024 Page 8 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 73 5 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Michael Kielczewski as defendants. See 5 ILCS 140/11.5 (West 2022). Sincerely, KWAMERAOUL ATTORNEY GENERAL By: 'JSfri➔,b--- D. Stratton Chief Deputy Attorney General CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 24-011) upon: Mr. Michael Kielczewski 633 North Parkway Elk Grove Village, Illinois 60007 mkielczewski@comcast.net Ms. Donna Freidenfelds Police Records Technician Elk Grove Village Police Department 901 Wellington A venue Elk Grove Village, Illinois 60007 dfreidenfelds@elkgrove.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on September 20, 2024. ~ ---- Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Kielczewski requested police records, but the Elk Grove Village Police Department denied the request by claiming the records were exempt because they related to a pending investigation. The Attorney General's office ruled that the police department did not provide enough evidence to prove that releasing the records would actually interfere with an investigation. Consequently, the department was found to have violated FOIA by withholding the documents.","card_headline":"A police department's case/incident report and related records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":189,"orig_master_id":19394,"dup_master_id":19163,"dup_sha256":"d3ba7c9191ebca43d09ffd7855f4a6ce523dc7a4f1cdfbc0624660269f65d32d","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-10-02","case_number":"2024 PAC 81978","request_numbers":null,"title":"Home or Personal Telephone Numbers of Witnesses to Traffic Crashes","filename":"PUBLIC ACCESS OPINION 24-012 (Requests for Review 2024 PAC 81978).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 24-012 (Requests for Review 2024 PAC 81978).pdf","word_count":2358,"summary":"This document is a Public Access Opinion regarding a FOIA request submitted by Ms. Deanna Wolff for 911 call recordings related to a traffic crash. The opinion concludes that the Central Illinois Regional Dispatch Center did not violate FOIA by redacting personal information.","plain_summary":"The requester, a law firm legal assistant, sought 911 call recordings related to a traffic crash and disputed a dispatch center's redaction of the callers' home or personal telephone numbers after it had already disclosed their names. The Public Access Counselor held that home and personal telephone numbers are private information exempt from disclosure without exception, and that the FOIA provision requiring disclosure of traffic-crash witnesses' identities does not extend to their phone numbers. No violation was found.","holding":"The Central Illinois Regional Dispatch Center did not violate FOIA by redacting home or personal telephone numbers from the 911 audio recordings.","legal_question":"Did the Central Illinois Regional Dispatch Center violate FOIA by redacting personal information from 911 call recordings?","disposition":"no_violation","primary_statute":"5 ILCS 140/9, 5 ILCS 140/9(b), 135 ILCS 140/7(1), 5 ILCS 140/1, 195 ILCS 140/7, 205 ILCS 140/2, 5 ILCS 140/7(1), 5 ILCS 140/2, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(d)"],"public_body":"Central Illinois Regional Dispatch Center","requesting_party":"Wolff and Ms. Anello","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The redaction of personal telephone numbers from 911 audio recordings provided in response to a FOIA request.","ocr_status":"ok","ocr_quality":89.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/Binding%20Opinion%2024-012.pdf","sha256":"f7c15c9fd026f7a6d95f575863a0cd979deb118a45752a57857d69d1a50a8f4c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["911 recordings","privacy","redaction","personal information"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL October 2, 2024 PUBLIC ACCESS OPINION 24-012 (Request for Review 2024 PAC 81978) FREEDOM OF INFORMATION ACT: Home or Personal Telephone Numbers of Witnesses to Traffic Crashes Ms. Deanna Wolff Legal Assistant Kanoski Bresney 23 7 East Front Street Bloomington, Illinois 61701 Ms. Brittany Anello FOIA Officer Central Illinois Regional Dispatch Center 1078 West Rotary Way Decatur, Illinois 62521 Dear Ms. Wolff and Ms. Anello: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2023 Supp.)). For the reasons discussed below, this office concludes that the Central Illinois Regional Dispatch Center (CIRDC) did not violate the requirements ofFOIA by redacting the home or personal telephone numbers of 911 callers from the 911 audio recordings responsive to Ms. Deanna Wolffs FOIA request. BACKGROUND On June 25, 2024, Ms. Wolff submitted a FOIA request to CIRDC on behalf of a legal client of the law firm Kanoski Bresney seeking copies of the 911 call recordings and 500 South 2nd Street, Springfield, Illinois 62701 • (217) 782-1090 • Fax: (217) 782-7046 115 South LaSalle Street, Chicago Illinois 60603, • (312) 814-3000 • Fax: (312) 814-3806 1745 Innovation Drive, Suite C, Carbondale, Illinois 62903 • (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. •~ - Ms. Deanna Wolff Ms. Brittany Anello October 2, 2024 Page 2 transcripts, tapes, or other documents related to an April 15, 2024, traffic crash.1 In a letter dated June 27, 2024, and transmitted via e-mail on June 28, 2024,2 CIRDC responded, in relevant part, by providing Ms. Wolff with copies of 911 audio recordings, but redacted the portions in which the callers gave their names and phone numbers.3 CIRDC's response letter did not cite any FOIA exemption(s) for those redactions.4 On June 28, 2024, Ms. Wolff submitted a Request for Review to the Public Access Bureau via e-mail contesting CIRDC's redaction of the names and telephone numbers of the 911 callers.5 She explained that her law firm seeks the witnesses' names and contact information to question them about the traffic crash: This crash involves a question of lights and who had the right of way. The crash report only lists one witness, however, there were multiple people who called it in. It is imperative that we speak with all witnesses in order to determine what happened to ensure [o ur client] is adequately represented. [61 On July 1, 2024, an Assistant Attorney General (AAG) in the Public Access Bureau attempted to send a copy of the Request for Review to CIRDC, but inadvertently used an incorrect e-mail address.7 On August 7, 2024, the AAG successfully sent a copy of the Request for Review to CIRDC.8 The AAG also sent CIRDC a letter asking for unredacted copies of the requested recordings for this office's confidential review, together with a detailed written response to the allegation that CIRDC improperly redacted the names of the callers.9 'Letter from Deanna Wolff, Legal Assistant, Kanoski Bresney, to Central Illinois Regional Dispatch Center, ATTN: FOlA Officer (June 25, 2024). 2E-mail from ClRDC_Management@cirdcil.gov to [Deanna] Wolff(June 28, 2024). 3Letter from Brittany Anello, FOIA Officer, Central Illinois Regional Dispatch Center, to Deanna Wolff(June 27, 2024). 4Section 9(b) of FOlA (5 ILCS 140/9(b) (West 2022)) requires: \"When a request for public records is denied on the grounds that the records are exempt under Section 7 of this Act, the notice of denial shall specify the exemption claimed to authorize the denial and the specific reasons for the denial, including a detailed factual basis and a citation to supporting legal authority.\" 5E-mail from Deanna Wolff, Legal Assistant, [Kanoski Bresney], to Public Access [Bureau, Office of the Attorney General] (June 28, 2024). 6Letter from Deanna Wolff, Legal Assistant, Kanoski Bresney, to Public Access Counselor, Office of the Attorney General (June 28, 2024). 7E-mail from Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General, to [Brittany] Anello at management@cirdcil.gov (July I, 2024). 8E-mail from Josh Jones, [Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General], to [John] Thomas atjthomas@cirdcil.gov (August 7, 2024). 9Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Brittany Anello, FOIA Officer, Central Illinois Regional Dispatch Center (July 1, 2024), at 2. Ms. Deanna Wolff Ms. Brittany Anello October 2, 2024 Page 3 On August 14, 2024, CIRDC elected to provide Ms. Wolff with a new copy of the compiled 911 call recordings without redacting the witnesses' names.10 The following day, Ms. Wolff notified the AAG that she contested CIRDC's revised response, stating: \"The telephone numbers of callers are still redacted and there is no explanation provided as to why. As stated previously, this is a question of lights and it is imperative that we speak to all witnesses to get a better understanding of what happened.\"11 On that same date, the AAG responded: Home or personal telephone numbers are exempt from disclosure under section 7(1 )(b ). Please see the attached determination letter from a previous file in which this office explained: \"Because section 7(l)(d)(iv) of FOIA requires the Department to provide only the names of witnesses to trafiic accidents, the Department did not violate FOIA by redacting from the records you requested contact information * * * pursuant to section 7(1)(b)[.]\"l12J In this e-mail, the AAG attached a copy of the determination letter from a previous file (2022 PAC 74691) in which Ms. Wolff also was the requester. On that same date, Ms. Wolff replied by emphasizing certain language from section 7(1)(d)(iv)13 and arguing that it requires disclosure of the home or personal telephone numbers: Section 7(1 )( d)(iv) states: ( d) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would: (iv) unavoidably disclose the identity of a confidential source, confidential information furnished only by the confidential source, or persons who file complaints with or provide information to administrative, investigative, law enforcement, or penal agencies; except that the identities of witnesses to traffic crashes, traffic crash reports, and rescue reports shall be provided by agencies of 10E-mail from Brittany Anello, Communications Supervisor, Central Illinois Regional Dispatch Center, to Deanna Wolff(August 14, 2024). 11 E-mail from Deanna Wolff, Legal Assistant, Kanoski Bresney, to [Joshua] Jones, [Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General] (August 15, 2024). 12E-mail from Joshua Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General, to [Deanna] Wolff (August 15, 2024) (quoting Ill. Att'y Gen. PAC Req. Rev. Ltr. 7469 I, issued February 6, 2023, at 3). 135 ILCS 140/7(1)(d)(iv)(West 2023 Supp.). Ms. Deanna Wolff Ms. Brittany Anello October 2, 2024 Page 4 local government, except when disclosure would interfere with an active criminal investigation conducted by the agency that is the recipient of the request; [e mphasis added] Three things: 1. It appears to me that this Section 7( I)( d)(iv) deals with confidential sources. Clearly this is not a case where a confidential source will be revealed because the name of the persons on the 911 calls have been provided; it is only their phone numbers that have been withheld. 2. It continues with \" ... the exception of identities of witnesses to traffic crashes, traffic crash reports, and rescue reports shall be provided ... \" 3. Furthermore, at [...] dment added the definition of \"private information\" to FOIA, including, without exception, \"home or personal telephone numbers[.]\"38 In interpreting a statute, \"each section should be construed with every other part or section of the statute to produce a harmonious whole.\" Land v. Board of Education, 202 Ill. 2d 414, 422 (2002). The amendments enacted by Public Act 96-542 may be read harmoniously to require disclosure of the \"identities of witnesses to traffic crashes,\" while permitting the redaction of home or personal telephone numbers. Accordingly, as it stands, public bodies shall disclose at least the names of witnesses to traffic crashes in response to FOIA requests, but retain the authority to redact their home or personal telephone numbers. To require CIRDC or any other public body to disclose the home or personal telephone numbers of traffic crash witnesses would necessitate amendatory 36Public Act 96-542, § 10, effective January I, 20 IO (amending and codifying 5 ILCS 140/7(1)(d)(iv) (West 2010)). 37Public Act 96-542, § 10, effective January 1, 2010 (adding 5 ILCS 140/7(1)). 38Public Act 96-542, § 10, effective January 1, 2010 (adding 5 ILCS 140/2(c-5)). Ms. Deanna Wolff Ms. Brittany Anello October 2, 2024 Page 12 language so stating. Because the home or personal telephone numbers of traffic crash witnesses are exempt from disclosure under section 7(1)(b) ofFOIA, CIRDC's redaction of the 911 callers' home or personal telephone numbers did not violate the requirements of the Act. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On June 25, 2024, Ms. Deanna Wolff submitted a FOIA request to CIRDC on behalf of a legal client of the law firm Kano ski Bresney seeking copies of the 911 call recordings and other records related to an April 15, 2024, traffic crash. 2) In a letter dated June 27, 2024, and transmitted via e-mail on June 28, 2024, CIRDC responded, in relevant part, by providing Ms. Wolff with copies of 911 audio recordings, but redacted the portions in which the callers gave their identifying information. 3) In an e-mail transmitted to the Public Access Bureau on June 28, 2024, Ms. Wolff submitted a Request for Review contesting CIRDC's redaction of the witnesses' names and telephone numbers. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2023 Supp.)). 4) On August 7, 2024, the Public Access Bureau sent a copy of the Request for Review to CIRDC. The Public Access Bureau also sent CIRDC a letter asking for unredacted copies of the responsive recordings for this office's confidential review, and a detailed explanation of the legal and factual bases for redacting the witnesses' names. 5) On August 14, 2024, CIRDC elected to provide Ms. Wolff with a copy of a compiled recording of the 911 calls without redacting the names of witnesses, but still redacted their home or personal telephone numbers. 6) On August 15, 2024, Ms. Wolff replied that she disputed the redaction of the witnesses' home or personal telephone numbers. 7) On August 23, 2024, this office properly extended the time within which to issue a binding opinion by 30 business days, to October 9, 2024, pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 7(l)(b) of FOIA exempts from disclosure \"[p]rivate information, unless disclosure is required by another provision of this Act, a State or federal law, or a court order.\" Section 2( c-5) of FOIA defines \"private information\" as \"unique identifiers, including * * * home or personal telephone numbers[.)\" The definition contains no exception to the exemption of home or personal telephone numbers, in contrast to certain other forms of private Ms. Deanna Wolff Ms. Brittany Anello October 2, 2024 Page 13 information for which section 2( c-5) expressly provides exceptions. No provision of FOIA, another State law, a federal law, or a court order requires disclosure of the home or personal telephone numbers of traffic crash witnesses. 9) Section 7(1 )( d)(iv) of FOIA exempts from disclosure information that would \"unavoidably disclose the identity of a confidential source, confidential information furnished only by the confidential source, or persons who file complaints with or provide information to administrative, investigative, law enforcement, or penal agencies; except that the identities of witnesses to traffic crashes, traffic crash reports, and rescue reports shall be provided by agencies of local government, except when disclosure would interfere with an active criminal investigation conducted by the agency that is the recipient of the request[.]\" The meaning of the \"identities\" that shall be provided in this exemption cannot be construed to include witnesses' \"home or personal telephone numbers,\" because \"home or personal telephone numbers\" are expressly exempt from disclosure under section 7(1)(b). Therefore, it is the opinion of the Attorney General that the Central Illinois Regional Dispatch Center did not violate the requirements of FOIA by redacting the traffic crash witnesses' home or personal telephone numbers from the 911 call audio recordings responsive to Ms. Deanna Wolffs Freedom oflnformation Act request. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and the Central Illinois Regional Dispatch Center as defendants. See 5 ILCS 140/11.5 (West 2022). Very truly yours, KWAMERAOUL ATTORNEY GENERAL ~3~ By If ~;~{stratton Chief Deputy Attorney General CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 24-012) upon: Ms. Deanna Wolff Legal Assistant Kanoski Bresney 23 7 East Front Street Bloomington, Illinois 61701 deanna@kanoski.com Ms. Brittany Anello FOIA Officer Central Illinois Regional Dispatch Center 1078 West Rotary Way Decatur, Illinois 62521 banello@cirdcil.gov by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on October 2, 2024. ~«----- Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A legal assistant requested 911 recordings related to a traffic accident, but the dispatch center redacted the callers' personal phone numbers. The Attorney General's office reviewed the case and determined that the dispatch center acted legally by protecting this private contact information. This means public bodies are permitted to withhold specific personal identifiers from 911 audio to protect caller privacy.","card_headline":"Redaction of personal phone numbers from 911 audio","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":190,"orig_master_id":19391,"dup_master_id":19164,"dup_sha256":"42acb08f318f62e9576f58b81002cc5e025df7f22e0d82a7e36bf1ba0c16f3c3","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-09-03","case_number":"2024 PAC 81711","request_numbers":null,"title":"Duty to Make Meetings Convenient and Open to the Public","filename":"PUBLIC ACCESS OPINION 24-010 (Requests for Review 2024 PAC 81711, 81713, 81822, 82032, 82045).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 24-010 (Requests for Review 2024 PAC 81711, 81713, 81822, 82032, 82045).pdf","word_count":2497,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding violations of the Open Meetings Act by the Village of Dolton's Board of Trustees during their meetings on June 3, 2024, and July 1, 2024.","plain_summary":"Several residents alleged that a village board's meetings were not convenient and open to the public because of inadequate seating and an intimidating security presence, including street and parking-lot barricades that stranded elderly and disabled residents outside. The Public Access Counselor held that the board took no steps to accommodate the crowds it knew to expect and instead added unjustified security restrictions, violating the Open Meetings Act's requirement that meetings be convenient and open to the public. The board was directed to hold future meetings in adequately sized, accessible locations and to refrain from unnecessary security measures that impede public attendance.","holding":"The Village of Dolton Board of Trustees violated the Open Meetings Act.","legal_question":"Did the Village of Dolton Board of Trustees violate the Open Meetings Act by failing to make its meetings convenient and open to the public?","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 165 ILCS 120/3, 5 ILCS 120/1, 5 ILCS 120/2, 5 ILCS 120/7, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Dolton","requesting_party":"Schultz","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting access","subject_description":"The accessibility and convenience of public meetings held by the Village of Dolton Board of Trustees.","ocr_status":"ok","ocr_quality":90.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/Binding%20Opinion%2024-010.pdf","sha256":"ccc06ef59bf3de354c3d4316eddb63fbba729e18412cc341ba709b2e50ddac47","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["Open Meetings Act","public access","Village of Dolton","meeting convenience"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL September 3, 2024 PUBLIC ACCESS OPINION 24-010 (Requests for Review 2024 PAC 81711, 81713, 81822, 82032, 82045) OPEN MEETINGS ACT: Duty to Make Meetings Convenient and Open to the Public Ms. Peggy Kelly Schultz Mr. Dannie Lee Ms. Rosie Leftwich 1259 Heather Road 15249 Dante Avenue 15230 Irving A venue Homewood, Illinois 60430 Dolton, Illinois 60419 Dolton, Illinois 60419 The Honorable Tiffany A. Henyard Mayor Village of Dolton 14122 Martin Luther King Jr. Drive Dolton, Illinois 60419 Dear Ms. Schultz, Mr. Lee, Ms. Leftwich, and Ms. Henyard: This binding opinion is issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2022)). For the reasons discussed below, this office concludes that the Village of Dolton (Village) Board of Trustees (Board) violated OMA by failing to make its June 3, 2024, and July 1, 2024, meetings convenient and open to the public. 1 11n referring to the \"Board\" in this binding opinion, this office acknowledges that the Board was generally divided during the meetings at issue between the mayor and trustees who supported the mayor on one side and the remaining trustees on the other side. Nonetheless, Requests for Review of alleged OMA violations are properly lodged against a public body as a whole. 5 ILCS 120/3.S(a) (West 2022) (\"A person who believes that a violation of this Act by a public body has occurred may file a request for review with the Public Access Counselor established in the Office of the Attorney General not later than 60 days after the alleged violation.\" (Emphasis added.)). Therefore, this office construes allegations of OMA violations by the Village's mayor or administration as allegations that their actions caused the Board as a whole to violate OMA on the dates in question. 500 South 2nd Street, Springfield, Illinois 62701 • (217) 782-1090 • Fax: (217) 782-7046 115 South LaSalle Street, Chicago Illinois 60603, • (312) 814-3000 • Fax: (312) 814-3806 1745 Innovation Drive, Suite C, Carbondale, Illinois 62903 • (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. •~ - Mr. Dannie Lee, Ms. Peggy Kelly Schultz, Ms. Rosie Leftwich The Honorable Tiffany A. Henyard September 3, 2024 Page 2 BACKGROUND This office received three similar Requests for Review alleging that the Board failed to make its June 3, 2024, meeting convenient and open to the public. In a Request for Review (2024 PAC 81711) submitted to the Public Access Bureau on June 5, 2024, Mr. Dannie Lee alleged, in relevant part: We have many senior citizens and a number of disabled taxpayers * * *. We're VERY concerned with Mayor Henyards administration bringing in hired, out of town supporters and placing them strategically in a secured area to harass her opponents. Secondly Police Chief Lacey stalked the room and REPEATEDLY Threatens to Clear the room when he or his bosses perceive support such as applauding anything said that the administration doesn't approve of. * * * Also, despite several venues available in Dolton [t]he administration barricaded streets, set up entry blockages, made us stand in line for an hour to gain entry into the village hall they have limited to around 40 seats. There was a military like contingent of law enforcement both in and out of the building creating an intimidating atmosphere * * * . Some people had to wait outside because they [couldn't] get into the hall[,] which was totally unnecessary. They barricaded the parking lot forcing the * * * seniors and disabled to walk or hobble up to 2 blocks.[ 21 Also on June 5, 2024, Ms. Peggy Kelly Schultz submitted a Request for Review (2024 PAC 81713) to the Public Access Bureau alleging: I was refused access to the Village of Dolton Board of Trustees meeting due to inadequate space in the meeting room. No alternative accommodations were offered such as an additional room, live stream of meeting or moving the meeting to another location. At least 20 or 30 other members of the public were denied access into the building. In addition, the public parking lot and public street parking were blocked with large plastic drums, traffic barricades and police tape. 2E-mail from Dannie Lee to whom it may concern [Public Access Bureau, Office of the Attorney General] (June 5, 2024). Office of the Tllinois Attorney General Mr. Dannie Lee, Ms. Peggy Kelly Schultz, Ms. Rosie Leftwich The Honorable Tiffany A. Henyard September 3, 2024 Page 3 People with disabilities parking spots were blocked also. There were many senior citizens and others in line with walkers, canes, etc. It was 86 degrees and they were forced to wait in the heat and refused entry into the building. [3 J Finally, on June 14, 2024, Ms. Rosie Leftwich submitted a Request for Review (2024 PAC 81822) alleging that \"Mayor Tiffany A Henyard provided seating for only 40 residents. Other residents including seniors and handicapped were turned away because she did not provide adequate space for all residents. \"4 Ms. Leftwich also alleged that surrounding streets and the parking lot were blocked off, inconveniencing residents. 5 On June 10, 2024, the Public Access Bureau sent copies of Mr. Lee's and Ms. Schultz's Requests for Review to Ms. Henyard in her capacity as the head of the Board and to Village Administrator Keith Freeman. The Public Access Bureau also sent the Board a letter in each matter asking it to: [P]lease provide this office with a copy of the agenda, open session minutes (in draft form if necessary), any recording of the open session of the meeting that may have been made by the Village, and any safety or accessibility plan the Village/its police created for the meeting. Please also provide a detailed written answer to the allegation that the Board did not make the meeting space convenient and open to the public, describing the size of the crowd that the Board anticipated would attend the meeting as well as any efforts the Board made to enhance or ensure the convenience and openness of the meeting (such as, for example, additional seating, overflow capacity with working audio, consideration of a larger meeting room, making clear and short pathways to the meeting for elders and people with disabilities, etc.). [61 3E-mail from Peggy Kelly Schultz to Leah Bartelt, Public Access Counselor Office of the Attorney General (June 5, 2024). 4E-mail from Rosie Leftwich to Sir [Public Access Bureau, Office of the Attorney General] (June 14, 2024). 5E-mail from Rosie Leftwich to Sir [Public Access Bureau, Office of the Attorney General] (June 14, 2024). 6Letters from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Tiffany A. Henyard, Mayor, Village of Dolton (June I 0, 2024), at 2. Office of the Tllinois Attorney General Mr. Dannie Lee, Ms. Peggy Kelly Schultz, Ms. Rosie Leftwich The Honorable Tiffany A. Henyard September 3, 2024 Page 4 In the inquiry letters related to Ms. Schultz's and Ms. Leftwich's files, this office also asked the Board to address the allegation that it impeded access to the meeting by having surrounding streets and parking spaces blocked off. 7 In the inquiry letter related to Mr. Lee's file, this office further asked the Board to \"please address the allegation that the Board fostered a hostile environment at the meeting[.]\"8 On July 3, 2024, Mr. Lee and Ms. Leftwich each separately submitted a new Request for Review (2024 PAC 82032 and 82045 respectively) alleging that the Board again violated OMA by failing to make its July 1, 2024, meeting convenient and open to the public. 9 They alleged that members of the public were again improperly turned away from the meeting because of the limited seating capacity of the room, with no apparent adjustments made by the Board to ensure that interested members of the public could attend the meeting despite [...] Ms. Peggy Kelly Schultz each separately submitted a Request for Review to the Public Access Bureau alleging that the Board failed to make its June 3, 2024, meeting convenient and open to the public. On June 14, 2024, Ms. Rosie Leftwich submitted a Request for Review alleging the same violation. On July 3, 2024, Mr. Lee and Ms. Leftwich each separately submitted a new Request for Review alleging that the Board again violated OMA by failing to make its July 1, 2024, meeting convenient and open to the public. It is undisputed that the Requests for Review were timely filed and otherwise comply with the requirements of section 3.5(a) of OMA. 2) Within seven business days after receipt of each Request for Review, the Public Access Bureau forwarded a copy to the Board. The Public Access Bureau also sent the Board a letter in each matter concerning the June 3, 2024, meeting requesting a copy of the agenda, open session minutes (in draft form if necessary), any recording of the open session of the meeting that may have been made, and any safety or accessibility plan the Village/its police department created for the meeting. In those inquiry letters as well as the consolidated inquiry letter concerning the July 1, 2024, meeting, this office asked the Board to provide a detailed written answer to the allegation that it failed to make the meetings convenient and open to the public. 3) On July 8, 2024, the Board sent this office a written answer from the Acting Chief of Police of the Dolton Police Department, and a copy of the police report and alleged Office of the Tllinois Attorney General Mr. Dannie Lee, Ms. Peggy Kelly Schultz, Ms. Rosie Leftwich The Honorable Tiffany A. Henyard September 3, 2024 Page 14 piece of hate mail referenced therein. The Board also sent this office a copy of a letter from the Fire Chief of the Dolton Fire Department to the Village Administrator about the occupancy of the meeting room. 4) The Public Access Bureau forwarded a copy of the Acting Police Chiefs letter to Mr. Lee, Ms. Schultz, and Ms. Leftwich and notified them of their opportunity to reply. Between July 9, 2024, and July 13, 2024, they each submitted a reply. The Board then sent them its complete response on July 17, 2024, including a copy of the police report, a copy of the alleged piece of hate mail, and the Fire Chiefs letter. The following day, the Board confirmed that these materials were intended to apply to the July 1, 2024, meeting as well. On July 19, 2024, the Public Access Bureau notified Mr. Lee and Ms. Leftwich of their right to reply about the July 1, 2024, meeting. On that same date, Mr. Lee submitted a reply, and the next day, Ms. Leftwich submitted a reply. On July 23, 2024, Ms. Schultz submitted a final reply. 5) On August 2, 2024, this office extended the time in which to issue a binding opinion by 21 business days, to September 3, 2024, pursuant to section 3.5(e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 6) Section 2.01 of OMA (5 ILCS 120/2.01 (West 2022)) provides that \"[a]ll meetings required by this Act to be public shall be held at specified times and places which are convenient and open to the public.\" Section 2.01 requires public bodies to take measures to ensure that they afford the public reasonable access to their meetings. 7) Despite having advance notice that the location and set-up of the Board's June 3, 2024, and July 1, 2024, meetings was insufficient to accommodate many interested members of the public, the Board made no adjustments to afford reasonable access to the meetings, and many members of the public were prohibited from entering the meeting space. The Board added restrictions such as parking barricades without justification, which further impeded public access to the meetings. 8) Accordingly, the Attorney General concludes that the Board violated section 2.01 of OMA by failing to make its June 3, 2024, and July 1, 2024, meetings convenient and open to the public. In accordance with these findings of fact and conclusions of law, the Board is directed to take immediate and appropriate action to comply with this opinion by taking measures to make all future meetings convenient and open to the public, including holding meetings at a location with enough space to be reasonably accessible and configuring the meeting set-up to accommodate the public. Although the Board is permitted to take reasonable and appropriate measures to ensure the safety of members of the public and public officials, it is directed to refrain from unnecessary security measures such as street closures, parking barricades, and an excessive police presence that physically impedes members of the public from Office of the Tllinois Attorney General Mr. Dannie Lee, Ms. Peggy Kelly Schultz, Ms. Rosie Leftwich The Honorable Tiffany A. Henyard September 3, 2024 Page 15 reaching Village Hall and/or creates a hostile atmosphere that may deter the public from attending meetings. As required by section 3.5(e) of OMA, the Board shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7 .5 of OMA. 5 ILCS 120/7 .5 (West 2022). This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 3 5 days of the date of this decision, naming the Attorney General of Illinois and Mr. Dannie Lee, Ms. Peggy Kelly Schultz, and Ms. Rosie Leftwich as defendants. See 5 ILCS 120/7.5 (West 2022). Very truly yours, KWAMERAOUL ATTORNEY GENERAL ~3,/--J~ By: nt Stratton ef Deputy Attorney General Office of the Tllinois Attorney General CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 24-010) upon: Ms. Peggy Kelly Schultz 1259 Heather Road Homewood, Illinois 60430 peggy .schultz 1O @gmail.com Mr. Dannie Lee 15249 Dante Avenue Dolton, Illinois 60419 danlee4 750@gmail.com Ms. Rosie Leftwich 15230 Irving A venue Dolton, Illinois 60419 leftwichrosie 72@gmail.com The Honorable Tiffany A. Henyard Mayor Village of Dolton 14122 Martin Luther King Jr. Drive Dolton, Illinois 60419 thenyard@vodolton.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be - deposited in the United States mail at Chicago, Illinois on~ tember 3, 2024. ~?S__ / ======- Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Illinois Attorney General found that the Village of Dolton violated the Open Meetings Act by failing to ensure that its public meetings on June 3 and July 1, 2024, were truly accessible and convenient for the public to attend. This means the Board failed to meet the legal requirement that government meetings must be held in a manner that allows the public to participate and observe effectively. The ruling serves as a formal notice that the Village must comply with these transparency requirements in the future.","card_headline":"A village board's public meeting accessibility","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":191,"orig_master_id":19392,"dup_master_id":19165,"dup_sha256":"9e7797571ba2354a3ae238ac68626e8c0c1b8b455168dcd77c6c5498e0b2b9d9","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-10-25","case_number":"2024 PAC 82412","request_numbers":null,"title":"Notice of a Change in Regular Meeting Dates","filename":"PUBLIC ACCESS OPINION 24-013 (Request for Review 2024 PAC 82412).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 24-013 (Request for Review 2024 PAC 82412).pdf","word_count":2501,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a request for review related to the Open Meetings Act. It addresses the failure of the Village of Marissa Board of Trustees to provide proper notice of a change in their regular meeting dates.","plain_summary":"The requester, a resident, alleged that a village board changed its regular meeting dates without providing the ten-day newspaper notice of that change required by the Open Meetings Act. The Public Access Counselor held that the board violated section 2.03 of OMA because listing the new meeting dates on utility bills and a newspaper article about the change did not satisfy the required newspaper-publication notice. Because the board had since published proper legal notice of the changed schedule, no further remedy was ordered.","holding":"The Village of Marissa Board of Trustees failed to provide the required advance notice of the change in regular meeting dates as mandated by the Open Meetings Act.","legal_question":"Did the Village of Marissa Board of Trustees comply with the notice requirements of the Open Meetings Act when changing their regular meeting dates?","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2, 5 ILCS 120/1, 145 ILCS 120/2, 715 ILCS 5/0, 715 ILCS 10/0, 715 ILCS 15/0, 715 ILCS 5/8, 715 ILCS 15/1, 715 ILCS 5/2","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Marissa","requesting_party":"Dagner and Ms. McMahon","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"Change in regular meeting dates from third Monday to third Wednesday without required public notice","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/Binding%20Opinion%2024-013.pdf","sha256":"b08fe4c3182a238b77353b68bf3061cc5e9bf4676d6f4b6da0435e79f14c6258","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["meeting notice","regular meeting dates","Open Meetings Act","change of schedule"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL October 25, 2024 PUBLIC ACCESS OPINION 24-013 (Request for Review 2024 PAC 82412) OPEN MEETINGS ACT: Notice of a Change in Regular Meeting Dates Mr. John A. Dagner, Jr. 201 West Forest Street Marissa, Illinois 62257 The Honorable Laura McMahon Acting Mayor Village of Marissa 111 North Main Street Marissa, Illinois 62257 Dear Mr. Dagner and Ms. McMahon: This binding opinion is issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2022)). For the reasons discussed below, this office concludes that on June 3, 2024, the Village of Marissa (Village) Board of Trustees (Board) changed the dates of its regular meetings and failed to subsequently provide the advance notice of that change required by section 2.03 of OMA (5 ILCS 120/2.03 (West 2022)). BACKGROUND On July 31, 2024, Mr. John A. Dagner, Jr. submitted a Request for Review stating that on June 3, 2024, the Board voted to move its regular meetings that are scheduled for the third Monday of the month to the third Wednesday of the month, beginning in July until further notice. He alleged that the Board did not post notice of this change to its regular meeting dates in accordance with section 2.03 of OMA. 1 1OMA - Request for Review by Public Access Counselor (PAC) form submitted by John A. Dagner Jr. (July 31, 2024). 500 South 2nd Street, Springfield, Illinois 62701 • (217) 782-1090 • Fax: (217) 782-7046 115 South LaSalle Street, Chicago Illinois 60603, • (312) 814-3000 • Fax: (312) 814-3806 1745 Innovation Drive, Suite C, Carbondale, Illinois 62903 • (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. •~ - Mr. John A. Dagner, Jr. The Honorable Laura McMahon October 25, 2024 Page 2 On August 5, 2024, the Public Access Bureau e-mailed a copy of the Request for Review to Acting Mayor Laura McMahon, in her capacity as the head of the Board. 2 The Public Access Bureau also e-mailed the Acting Mayor a letter requesting copies of any notice given concerning the change in the Board's regular meeting dates and copies of the June 3, 2024, and July 17, 2024, Board meeting agendas and minutes.3 The Public Access Bureau also asked the Board to provide a written response describing the notice it gave for its change in regular meeting dates and addressing whether the Board met the requirements of section 2.03 of OMA.4 This office did not receive a response to its correspondence. On August 22, 2024, this office both mailed5 and e-mailed6 the Acting Mayor another copy of Mr. Dagner's Request for Review and this office's August 5, 2024, correspondence. On August 26, 2024, the Acting Mayor provided this office with a written response and supporting materials.7 On August 27, 2024, the Public Access Bureau forwarded a copy of the Board's written response to Mr. Dagner and notified him of his opportunity to reply.8 On September 3, 2024, Mr. Dagner submitted a reply.9 On September 17, 2024, the Public Access Bureau asked the Village to send it copies of the Board's 2024 schedule of regular meetings, as posted, as it appeared before the change and the 2024 schedule of regular meetings, as posted, after the change.10 On September 2E-mail from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to villageofrnarissa@gmail.com (August 5, 2024). 3Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Laura McMahon, Acting Mayor, Village of Marissa (August 5, 2024), at 1-2. 4Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Laura McMahon, Acting Mayor, Village of Marissa (August 5, 2024), at 2. 5Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Laura McMahon, Acting Mayor, Village of Marissa (August 22, 2024), at 2. 6E-mail from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to villageofrnarissa@gmail.com (August 22, 2024). 7Letter from Laura McMahon, Acting Mayor, Village of Marissa, to Laura S. Harter, Deputy Bureau Chief, Public Access B[ureau] (August 26, 2024). 8Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to John A. Dagner, Jr. (August 27, 2024). 9E-mail from John A. Dagner, Jr. to [Village of Marissa Board of Trustees and Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General] (September 3, 2024). 10E-mail from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to [Village of Marissa] (September 17, 2024). Mr. John A. Dagner, Jr. The Honorable Laura McMahon October 25, 2024 Page 3 18, 2024, the Village provided a copy of the regular schedule of meetings after the change and 11 stated that it did not have a schedule from before the change. On September 27, 2024, the Public Access Bureau extended the time in which to issue a binding opinion by 21 business days, to October 30, 2024, pursuant to section 3.5(e) of OMA.12 ANALYSIS It is \"the public policy of this State that its citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in any way.\" 5 ILCS 120/1 (West 2022). \"The Open Meetings Act provides that public agencies exist to aid in the conduct of the people's business and that the intent of the Act is to assure that agency actions be taken openly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989). Section 2.03 of OMA: A Change In Regular Meeting Dates Section 2.02 of OMA (5 ILCS 120/2.02 (West 2022)) provides, in pertinent part: Public notice of all meetings, whether open or closed to the public, shall be given as follows: (a) Every public body shall give public notice of the schedule of regular meetings at the beginning of each calendar or fiscal year and shall state the regular dates, times, and places of such meetings. * * * Public notice of any special meeting except a meeting held in the event of a bona fide emergency, or of any rescheduled regular meeting, or of any reconvened meeting, shall be given at least 48 hours before such meeting, which notice shall also include the agenda for the special, rescheduled, or reconvened meeting[.] * * * (b) Public notice shall be given by posting a copy of the notice at the principal office of the body holding the meeting or, if no such office exists, at the building in which the meeting is to be 11E-mail from Donna [Stewart, Village of Marissa] to [Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General] (September 18, 2024). 12Letter from Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to John A. Dagner, Jr., and The Honorable Laura McMahon, Acting Mayor, Village of Marissa (September 27, 2024). Mr. John A. Dagner, Jr. The Honorable Laura McMahon October 25, 2024 Page 4 held. * * * The body shall supply copies of the notice of its regular meetings, and of the notice of any special, emergency, rescheduled or reconvened meeting, to any news medium that has filed an annual request for such notice. (Emphasis added.) Further, section 2.03 provides: In addition to the notice required by Section 2.02, each body subject to this Act must, at the beginning of each calendar or fiscal year, prepare and make available a schedule of all its regular meetings for such calendar or fiscal year, listing the times and places of such meetings. If a change is made in regular meeting dates, at least 10 days' notice of such change shall be given by publication in a newspaper of general circulation in the area in which such body functions. However, in t [...] l[s] from 2 different months[.)\"31 The Board provided copies of the purported backs of the water bills, which list updates from the Village, including, \"Village Board Meetings July 1st & July 17th\" 30Public Notice Illinois, https://www.publicnoticeillinois.com/(S(drlgklbjrnrnhovyOchrg21tcp))/default.aspx (last visited October 11, 2024). 31L etter from Laura McMahon, Acting Mayor/Village of Marissa, to Laura S. Harter, Deputy Bureau Chief, Public Access [Bureau] (August 26, 2024). Mr. John A. Dagner, Jr. The Honorable Laura McMahon October 25, 2024 Page 10 and \"Village Board Meetings August 5th & August 21st[.]\"32 Section 2.03 of OMA does not require notice to be provided on utility bills; the Board's provision of that notice does not cure its failure to adhere to the requirements of section 2.03 of OMA. Based on this office's review of the Public Notice Illinois website, on August 29, 2024, the Board published legal notice of the change in regular meeting dates as approved at the August 21, 2024, meeting. 33 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments presented, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On July 31, 2024, Mr. John A. Dagner submitted a Request for Review alleging that on June 3, 2024, the Village of Marissa Board of Trustees voted to move its regular meetings that are scheduled for the third Monday of the month to the third Wednesday of the month, beginning in July until further notice. He alleged that the Board did not subsequently post notice of this change to its regular meeting dates in accordance with section 2.03 of OMA. It is undisputed that Mr. Dagner's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA. 2) On August 5, 2024, and August 22, 2024, the Public Access Bureau sent copies of the Request for Review to the Board. The Public Access Bureau also sent the Board a letter requesting copies of any notice given concerning the change in regular Board meeting dates and copies of the June 3, 2024, and July 17, 2024, Board meeting agendas and minutes together with a detailed written answer to the allegations that the Board violated section 2.03 of OMA. 3) On August 26, 2024, the Village's Acting Mayor provided this office with a written answer and supporting materials. 4) On August 27, 2024, the Public Access Bureau forwarded a copy of the Board's written answer to Mr. Dagner and notified him of his opportunity to reply. On September 3, 2024, Mr. Dagner submitted a reply. 5) On September 17, 2024, the Public Access Bureau asked the Village to send it copies of the Board's 2024 schedule of regular meetings before and after the changes. On 32Letter from Laura McMahon, Acting Mayor/Village of Marissa, to Laura S. Harter, Deputy Bureau Chief, Public Access [Bureau] (August 26, 2024), attachment. 33Notice, Village of Marissa Board of Trustees (August 29, 2024), https://www.publicnoticeillinois.com/(S(lgrmrceqpaxakdypxnrb4io5))/Details.aspx?SID=lgrmrceqpaxakdypxnrb4io 5&ID=2490736 (last visited October 11, 2024). Mr. John A. Dagner, Jr. The Honorable Laura McMahon October 25, 2024 Page 11 September 18, 2024, the Village responded that it did not have copies of the schedule before the change. It provided a copy of the schedule reflecting the changed dates. 6) On September 27, 2024, the Public Access Bureau extended the time in which to issue a binding opinion by 21 business days pursuant to section 3 .5( e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 7) Section 2.03 of OMA provides that \"[i]f a change is made in regular meeting dates, at least 10 days' notice of such change shall be given by publication in a newspaper of general circulation in the area in which such body functions. * * * Notice of such change shall also be posted at the principal office of the public body or, if no such office exists, at the building in which the meeting is to be held. Notice of such change shall also be supplied to those news media which have filed an annual request for notice as provided in paragraph (b) of Section 2.02.\" Accordingly, a public body must provide the notice required in section 2.03 of OMA after it takes action to change its regular meeting dates going forward, rather than merely rescheduling a single meeting. 8) On June 3, 2024, the Board voted to move its regular meeting date from the third Monday of the month to the third Wednesday of the month, starting in July until further notice. The Board subsequently followed that schedule for the months of July and August, meeting on July 17, 2024, and August 21, 2024. 9) The Board did not give at least 10 days' notice of the changed meeting dates before the July 17, 2024, meeting. A County Journal news article written about the schedule change does not constitute notice by publication in a newspaper as required by section 2.03 of OMA. Accordingly, the Board violated section 2.03 of OMA. 10) Because the Board has subsequently published a legal notice in the County Journal of its changed regular meeting dates, no further action is required at this time to remedy the Board's violation of section 2.03 of OMA. The Board is directed to fully comply with the requirements of section 2.03 if it makes future changes to its regular meeting dates. Mr. John A. Dagner, Jr. The Honorable Laura McMahon October 25, 2024 Page 12 This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 73 5 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and the Village of Marissa Board of Trustees or Mr. John A. Dagner, Jr. as defendants. See 5 ILCS 120/7.5 (West 2022). Very truly yours, KWAMERAO L ATI'OR EY GENERAL By: O~?J:!!~--- 1 i~i~r~eputy Attorney General CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 24-013) upon: Mr. John A. Dagner, Jr. 201 West Forest Street Marissa, Illinois 62257 John.dagner2@gmail.com The Honorable Laura McMahon Acting Mayor Village of Marissa 111 North Main Street Marissa, Illinois 62257 marissaclerk@egyptian.net by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on October 25, 2024. Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Open Meetings Act requires public bodies to provide advance notice of any change to their regular meeting dates, ensuring the public can stay informed. On June 3, 2024, the Village of Marissa Board of Trustees voted to move its regular meetings from the third Monday to the third Wednesday of each month. However, they did not post or otherwise provide notice of this change as required by section 2.03 of the Act. Because the Board failed to give the required notice, the Attorney General concluded a violation occurred.","card_headline":"A village board's change of regular meeting dates","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":192,"orig_master_id":19166,"dup_master_id":19393,"dup_sha256":"294b2040d8cad0c8e27fe375b5ad5c559511d0efefba2c90684c1826e39f2099","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-12-20","case_number":"2024 PAC 83788","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 24-015 (Request for Review 2024 PAC 83788).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 24-015 (Request for Review 2024 PAC 83788).pdf","word_count":1872,"summary":"The Illinois Municipal Retirement Fund (IMRF) violated the Freedom of Information Act by failing to comply with, deny in writing in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. David Brink . Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service .","plain_summary":"The requester, a member of the public, sought records concerning FOIA requests submitted to a public pension fund since December 2022, and the fund failed to substantively respond despite repeated follow-up from this office. The Public Access Counselor held that the fund violated section 3(d) of FOIA by failing to comply with, deny, or otherwise properly respond to the request within the statutory time period. The fund was directed to disclose all records responsive to the request, subject only to permissible redactions.","holding":"The Illinois Municipal Retirement Fund violated section 3(d) of FOIA by failing to provide a timely response to the requester's FOIA request.","legal_question":"Whether the Illinois Municipal Retirement Fund violated section 3(d) of FOIA by failing to respond to a request for records within the required statutory timeframe.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Illinois Municipal Retirement Fund","requesting_party":"Brink and Ms. Shadid","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"FOIA response","subject_description":"The request sought information regarding FOIA requests submitted to the IMRF since December 13, 2022, including request numbers, dates, descriptions, statuses, and closure dates.","ocr_status":"ok","ocr_quality":89.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/Binding%20Opinon%2024-015.pdf","sha256":"66deefd836a3dc15c364c73599de213fc31e9c38de6e9c42b16562e30f6174cb","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA request","failure to respond","public records","IMRF"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"Sa Bee ATT OR, SSSSSS OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL December 20, 2024 PUBLIC ACCESS OPINION 24-015 (Request for Review 2024 PAC 83788) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. David Brink 1902 Long Ridge Court Plainfield, Illinois 60586 Ms. Bonnie Shadid Freedom of Information Officer Illinois Municipal Retirement Fund 2211 York Road Oak Brook, Illinois 60523-2337 Dear Mr. Brink and Ms. Shadid: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2023 Supp.)). For the reasons discussed below, this office concludes that the Illinois Municipal Retirement Fund (IMRF) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2022)) by failing to comply with, deny in writing in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. David Brink. BACKGROUND On October 28, 2024, Mr. Brink submitted a FOIA request to IMRF seeking information concerning FOIA requests submitted to IMRF since December 13, 2022. Specifically, Mr. Brink requested (1) request numbers; (2) dates and times of the requests; (3) descriptions of the requests; (4) statuses of the requests; and (5) closure dates.' On November 5, 'E-mail from David Brink to Bonnie Shadid, Freedom of Information Officer, Illinois Municipal Retirement Fund (October 28, 2024). 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 « Fax: (312) 814-3806 (618) 529-6400 » Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.IllinoisAttorneyGeneral.gov eee] Mr. David Brink Ms. Bonnie Shadid December 20, 2024 Page 2 2024, Mr. Brink submitted a Request for Review to the Public Access Counselor alleging that IMRF had failed to respond to his FOIA request.” On November 8, 2024, an Assistant Attorney General (AAG) in the Public Access Bureau e-mailed a copy of the Request for Review to IMRF's FOIA Officer and asked for an opportunity to discuss the submission.’ Later that day, having received no response, this office again sent a copy of the Request for Review to IMRF's FOIA Officer together with a letter asking whether IMRF had received and responded to Mr. Brink's FOIA request.’ If IMRF had not responded to the request, the November 8, 2024, inquiry letter asked IMRF to do so and to provide a copy of its response to this office.> IMRF did not respond to the inquiry letter. On November 20, 2024, the AAG left a voicemail message for IMRF's FOIA Officer requesting an update on the status of IMRF's response to the request.° The FOIA Officer did not respond. On November 27, 2024, the Public Access Bureau sent IMRF's FOIA Officer an additional copy of the Request for Review and another letter stating that this office had not received a response to its November 8, 2024, inquiry letter, and reiterated the request for a response.’ Again, IMRF did not respond. On December 13, 2024, Mr. Brink sent a letter to the AAG stating that he had \"received no response in the 16 days since you sent the second letter.\"® As of the date of the issuance of this binding opinion, this office has not received confirmation or any indication from IMRF or Mr. Brink that IMRF has responded to Mr. Brink's October 28, 2024, FOIA request. E-mail from Dave Brink to Steven [Silverman] (November 5, 2024). 3E-mail from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to [Bonnie] Sha[d]id (November 8, 2024). ‘Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to Bonnie Shadid, Freedom of Information Officer, Illinois Municipal Retirement Fund (November 8, 2024), at 1. ‘Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to Bonnie Shadid, Freedom of Information Officer, Illinois Municipal Retirement Fund (November 8, 2024), at 1. *Voicemail message from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney, to Bonnie Shadid, Freedom of Information Officer, Illinois Municipal Retirement Fund (November 20, 2024). 7Letter from Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, to Bonnie Shadid, Freedom of Information Officer, Illinois Municipal Retirement Fund (November 27, 2024), at 1. 8E-mail from [David Brink] to Steven [Silverman] (December 13, 2024). ee Mr. David Brink Ms. Bonnie Shadid December 20, 2024 Page 3 ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2022), Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2022)), \"{a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2022)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). Section 3(e) of FOIA (5 ILCS 140/3(e) (West 2022)) permits a public body to extend its response time by no more than five business days for any of seven enumerated reasons. Any additional extension requires a written agreement between the requester and the public body. 5 ILCS 140/3(e) (West 2022). It is undisputed that IMRF did not timely respond and provide records responsive to Mr. Brink's October 28, 2024, FOIA request, deny the request in writing in whole or in part, extend the time for responding to the request by five business days, or reach a written agreement with Mr. Brink for a longer extension. IMRF's failure to comply with the requisite response procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On October 28, 2024, Mr. David Brink submitted a FOIA request to IMRF seeking certain information concerning FOIA requests submitted to IMRF since December 13, 2022. ee Mr. David Brink Ms. Bonnie Shadid December 20, 2024 Page 4 2) On November 5, 2024, Mr. Brink submitted a Request for Review to the Public Access Bureau alleging that IMRF had not responded to his FOIA request. Mr. Brink's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2023 Supp.)). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 3) On November 8, 2024, the Public Access Bureau forwarded a copy of the Request for Review to IMRF's FOIA Officer along with an e-mail message asking to discuss the matter. The FOIA Officer did not respond. Later that day, the Public Access Bureau sent another copy of the Request for Review to IMRF together with a letter asking whether IMRF had received and responded to Mr. Brink's FOIA request. IMRF did not respond. 4) On November 20, 2024, an Assistant Attorney General in the Public Access Bureau left IMRF's FOIA Officer a voicemail message asking for an update on the status of IMRF's response. The FOIA Officer did not respond. 5) On November 27, 2024, this office resent IMRF copies of the November 8, 2024, inquiry letter and Mr. Brink's Request for Review to along with another letter reiterating the request for a response. IMRF did not respond. 6) As of the date of the issuance of this binding opinion, this office has received no information indicating that IMRF has responded to Mr. Brink's October 28, 2024, FOIA request seeking records concerning FOIA requests submitted to IMRF since December 13, 2022. Therefore, it is the opinion of the Attorney General that IMRF has violated section 3(d) of FOIA by failing, within the statutory time period for responding to Mr. Brink's October 28, 2024, request, to provide copies of the requested records or to deny the request in writing in whole or in part. Accordingly, IMRF is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Brink with copies of all records responsive to his October 28, 2024, FOIA, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2023 Supp.), as amended by Public Act 103-605, effective July 1, 2024).? If IMRF determines that any portion of the responsive records is exempt from disclosure under section 7, it is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2022)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County *Because IMRF did not comply with the statutory requirements for responding to Mr. Brink's FOIA request, IMRF is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d) (West 2022). Mr. David Brink Ms. Bonnie Shadid December 20, 2024 Page 5 within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. David Brink as defendants. See 5 ILCS 140/11.5 (West 2022). Sincerely, KWAME RAOUL ATTORNEY GENERAL wat osboth Brent D. Stratton Chief Deputy Attorney General CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 24-015) upon: Mr. David Brink 1902 Long Ridge Court Plainfield, Illinois 60586 dabrink@gmail.com Ms. Bonnie Shadid Freedom of Information Officer Illinois Municipal Retirement Fund 2211 York Road Oak Brook, Illinois 60523-2337 FOJA@imrf.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on December 20, 2024. STEVE SILVERMAN Bureau Chief STEVE SILVERMAN Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street, 11th Floor Chicago, Illinois 60601 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. David Brink requested information from the Illinois Municipal Retirement Fund (IMRF) regarding previous FOIA requests, but the agency never responded to him. The Attorney General's office ruled that IMRF broke the law by ignoring the request entirely. IMRF is now required to provide a proper response to Mr. Brink as mandated by FOIA.","card_headline":"IMRF FOIA request logs since December 2022","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":193,"orig_master_id":19395,"dup_master_id":19167,"dup_sha256":"c20efd4e303637393fc3c3de07d831fbf6d984ccf3d78ea6b0fa0daa9cd3e75b","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-12-18","case_number":"2024 PAC 83650","request_numbers":null,"title":"Duty to Conduct Reasonable Search for Responsive Records; Duty to Disclose Public Records","filename":"PUBLIC ACCESS OPINION 24-014 (Request for Review 2024 PAC 83650).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 24-014 (Request for Review 2024 PAC 83650).pdf","word_count":2332,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request made by Mr. Sam Stecklow to the St. Clair County State's Attorney's Office, which was found to have violated FOIA requirements.","plain_summary":"The requester, a reporter, sought a county state's attorney's policies on police-involved shootings and in-custody deaths and all related reports issued since 2019, and the office first claimed no responsive records existed before belatedly disclosing one report and then refusing to search further, citing undue burden. The Public Access Counselor held that the office failed to demonstrate it had conducted a reasonable search and had not met the procedural prerequisites, including conferring with the requester, needed to deny the request as unduly burdensome. The office was directed to perform a new, diligent search, disclose all responsive records, and provide a written explanation of its search methodology.","holding":"The St. Clair County State's Attorney's Office violated FOIA by failing to conduct a reasonable search for records and improperly denying the request.","legal_question":"Did the St. Clair County State's Attorney's Office violate the Freedom of Information Act by failing to conduct a reasonable search for records and improperly denying a FOIA request?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 95 ILCS 140/7, 50 ILCS 727/1, 5 ILCS 140/3(g), 5 ILCS 140/1, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(f)","public_body":"St. Clair County State's Attorney's Office","requesting_party":"Stecklow and Mr. Perry","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought policies and reports regarding police-involved shootings and in-custody deaths.","ocr_status":"ok","ocr_quality":90.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/Binding%20Opinion%2024-014.pdf","sha256":"60972ecf527269e411ca35b7e04808a596111ccbe0af89c0f1aed6d39d55ee8e","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["reasonable search","police-involved shootings","FOIA request","public records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL December 18, 2024 PUBLIC ACCESS OPINION 24-014 (Request for Review 2024 PAC 83650) FREEDOM OF INFORMATION ACT: Duty to Conduct Reasonable Search for Responsive Records; Duty to Disclose Public Records Mr. Sam Stecklow Reporter, Invisible Institute Experimental Station 6100 South Blackstone A venue Chicago, Illinois 6063 7 Mr. Don Perry Assistant State's Attorney St. Clair County State's Attorney's Office 10 Public Square Belleville, Illinois 62220 Dear Mr. Stecklow and Mr. Perry: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2023 Supp.)). For the reasons discussed below, this office concludes that the St. Clair County State's Attorney's Office (\"State's Attorney's Office\" or \"SAO\") violated the requirements of FOIA by failing to conduct a reasonable search for records responsive to Mr. Sam Stecklow's October 15, 2024, FOIA request, and by improperly denying the request. BACKGROUND On October 15, 2024, Mr. Stecklow submitted a FOIA request to the State's Attorney's Office on behalf of the Invisible Institute seeking \"the St. Clair County State's Attorney's policies on police-involved shootings and in-custody deaths and all reports issued 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (6 I 8) 529-6400 • Fax: (6 I 8) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisAttorneyGeneral.gov Mr. Sam Stecklow Mr. Don Perry December 18, 2024 Page 2 from the State's Attorney's office regarding those cases since 2019.\" 1 (Emphasis added.) On October 18, 2024, the State's Attorney's Office responded that it \"performed a search of its records and found no records responsive to your request. \"2 On that same date, Mr. Stecklow replied by asking: \"The St. Clair County State's Attorney's Office has no policy about the investigation of fatal police shootings or in-custody deaths, and has not reviewed any such cases since 2019 - is this accurate?\"3 On October 21, 2024, the State's Attorney's Office responded: \"You are correct. The St. Clair County State's Attorney's Office has no written policy regarding fatal Police shootings, or in custody deaths. \"4 On that same date, Mr. Stecklow further asked: \"And it has not reviewed any such cases since 2019?\"5 The State's Attorney's Office responded: \"The FOIA statute requires a Public Body to release documents and records within their custody and control to the public. We do not answer questions. As stated previously we have no documents responsive to your request. \"6 Still on October 21, 2024, Mr. Stecklow submitted a new FOIA request to the State's Attorney's Office, this time seeking a copy of \"[a]ny records reflecting the findings of the St. Clair County State's Attorney as to whether to bring charges in the following cases: The police-involved death of Diwone Wallace on 4/2/21 [.]\"7 Mr. Stecklow provided a link to a news article concerning that matter. 8 The wording of this request differed somewhat from Mr. Stecklow's prior request in using \"records\" instead of \"reports,\" and specifically mentioning \"findings\" about \"bring[ing] charges.\" Approximately 20 minutes later, the State's Attorney's Office denied the request pursuant to section 7(1 )(f) of FOIA.9 Mr. Stecklow filed a Request for Review (2024 PAC 83563) contesting that denial.10 He argued that the State's Attorney's 1FOIA portal message from Sam Stecklow to St. Clair County States Attorney's Office (October 15, 2024). 2FOIA portal message from St. Clair County State's Attorney's Office to Requester (October 18, 2024). 3E-mail from Sam Stecklow, Invisible Institute, to [St. Clair County State's Attorney's Office] (October 18, 2024). 4E-mail from Don Perry (St. Clair County, IL) to [Sam Stecklow] (October 21, 2024). 5E-mail from Sam [Steck low] to [St. Clair County State's Attorney's Office] (October 21, 2024). 6E-mail from Don Perry (St. Clair County, IL) to Sam [Steck low] (October 21, 2024). 7FOIA portal message from Sam Steck low to St. Clair County States Attorney's Office (October 21, 2024). 8Carolyn P. Smith, Centreville police ask Illinois State Police to investigate 'officer-involved death,' Belleville News-Democrat (April 4, 2021, 8:45 AM), https://www .bnd.com/news/local/article2504 I 6336.htm I. 95 ILCS 140/7( I )(f) (West 2023 Supp.), as amended by Public Act I 03-605, effective July I, 2024. 10Letter from Sam Stecklow, Reporter, Invisible Institute, to Leah Bartelt, Public Access Counselor, Office of the Attorney General (October 21, 2024). Mr. Sam Stecklow Mr. Don Perry December 18, 2024 Page 3 Office's October 15, 2024, and October 21, 2024, responses were inconsistent, because the former asserted that there were no responsive records while the latter asserted that one such record was exempt from disclosure. 11 Mr. Stecklow conveyed that the type of record he identified in his October 21, 2024, request was the same type ofrecord he sought in his October 15, 2024, request, and disputed that any such records were exempt from disclosure pursuant to section 7(1)(f).12 On October 22, 2024, in response to correspondence from this office concerning Mr. Stecklow's Request for Review, the State's Attorney's Office disclosed to this office and to Mr. Stecklow a copy of the record pertaining to Mr. Wallace's death. 13 The record-a one-page letter from Mr. Daniel E. Lewis, First Assistant State's Attorney for the State's Attorney's Office, to Special Agent Colin Subick of the Illinois State Police (ISP)-briefly described a review of the evidence and concluded that \"there is no basis for a claim of excessive use of force nor is there any basis for criminal charges against any officer involved.\" 14 The State's Attorney's Office's FOIA officer stated that he did not discover the record until this office contacted him in connection with Mr. Stecklow's Request for Review: As we were not the investigative body regarding the death of Mr. [Wallace], but rather the State Police, I was not aware of any official findings by our office. Upon receipt of your letter I made further inquiry and was made aware of the following attached letter from our Office to the Illinois State Police notifying them that we would not be filing charges. I hope this puts this matter to rest.l15l 11Letter from Sam Stecklow, Reporter, Invisible Institute, to Leah Bartelt, Public Access Counselor, Office of the Attorney General (October 21, 2024), at I. 12Letter from Sam Stecklow, Reporter, Invisible Institute, to Leah Bartelt, Public Access Counselor, Office of the Attorney General (October 21, 2024), at I. 13E-mail from Don Perry, Assistant State's Attorney, St. Clair County, to Katherine Goldsmith, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General], and [Sam Stecklow] (October 22, 2024). 14Letter from Daniel E. Lewis, First Assistant State's Attorney, [St. Clair County State's Attorney's Office], to Special Agent Colin Subick, Illinois State Police (February I 0, 2022). 15E-mail from Don Perry, Assistant State's Attorney, St. Clair County, to Katherine Goldsmith, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General], and [Sam Stecklow] (October 22, 2024). Mr. Sam Stecklow Mr. Don Perry December 18, 2024 Page 4 Because the disclosure of the letter pertaining to Mr. Wallace resolved the allegation in Mr. Stecklow's October 21, 2024, Request for Review, this office closed that file.16 Nonetheless, as a result of the State's Attorney's Office's disclosure of that record, Mr. Stecklow further questioned the completeness of the State's Attorney's Office's response to his October 15, 2024, FOIA request. Mr. Stecklow asked the State's Attorney's [...] t locating and compiling any remaining records responsive to Mr. Stecklow's October 15, 2024, request would pose an undue burden that outweighs the significant public interest in records detailing prosecutors' reviews of police-involved shootings and in-custody deaths for criminal charges. Accordingly, the State's Attorney's Office improperly denied the request. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On October 15, 2024, Mr. Sam Stecklow submitted a FOIA request to the St. Clair County State's Attorney's Office on behalf of the Invisible Institute seeking a copy of the State's Attorney's Office's policy on police-involved shootings and in-custody deaths, and copies of all reports issued from the State's Attorney's office regarding those cases since 2019. 2) On October 18, 2024, the State's Attorney's Office responded that it possessed no responsive records. 3) On October 21, 2024, Mr. Stecklow submitted a follow-up FOIA request to the State's Attorney's Office for a copy of the report pertaining to the officer-involved death of Diwone Wallace. 4) On that same date, the State's Attorney's Office denied the request pursuant to section 7(1)(f) of FOIA. 5) On that same date, Mr. Stecklow submitted a Request for Review (2024 PAC 83563) disputing that denial. 6) On October 22, 2024, the State's Attorney's Office disclosed a copy of the responsive report pertaining to Mr. Wallace, resolving Request for Review 2024 PAC 83563. 7) On that same date, Mr. Stecklow asked the State's Attorney's Office to conduct a new search for the remaining records responsive to his October 15, 2024, request, but the State's Attorney's Office refused to do so. 8) In an e-mail transmitted to the Public Access Bureau on October 24, 2024, Mr. Stecklow submitted a Request for Review contesting the reasonableness of the State's Attorney's Office's search for reports responsive to his October 15, 2024, request, and its failure to disclose responsive records other than the belated disclosure of the report pertaining to Mr. Wallace. The Request for Review was timely filed and otherwise complies with the requirements of section Mr. Sam Stecklow Mr. Don Perry December 18, 2024 Page 13 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2023 Supp.)). Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 9) On October 29, 2024, the Public Access Bureau sent a copy of the Request for Review to the State's Attorney's Office. The Public Access Bureau also sent the State's Attorney's Office a letter asking for unredacted copies of the records responsive to Mr. Stecklow's October 15, 2024, FOIA request for this office's confidential review, together with a detailed written answer to the allegation that the State's Attorney's Office improperly withheld responsive records. The inquiry letter also asked the State's Attorney's Office to explain in detail how it searched for responsive records, specifying which recordkeeping systems it searched, what methods it used to search, who it consulted, and why. 10) On October 29, 2024, the State's Attorney's Office furnished only a written response in which it asserted that complying with the request would be unduly burdensome under section 3(g) of FOIA. 11) On that same date, Mr. Stecklow submitted a reply. 12) A public body must perform a reasonable search for records responsive to a FOIA request; a public body bears the burden of demonstrating that its search for records was reasonable. 13) The State's Attorney's Office failed to demonstrate that it performed a reasonable search for responsive records. 14) In order to treat a request as unduly burdensome under section 3(g) of FOIA, a public body must meet certain procedural prerequisites, including first extending to the person making the request an opportunity to confer with it in an attempt to reduce the request to manageable proportions. 15) The State's Attorney's Office did not meet the procedural requirements of section 3(g) of FOIA, and did not demonstrate that it otherwise properly denied the request under section 3(g) or for any other reason. Therefore, it is the opinion of the Attorney General that the St. Clair County State's Attorney's Office violated the requirements of FOIA by failing to perform a reasonable search for records responsive to Mr. Sam Stecklow's October 15, 2024, Freedom of Information Act request and by improperly denying the request. Accordingly, the State's Attorney's Office is hereby directed to take immediate and appropriate action to comply with this opinion by (1) performing a new, diligent search tailored to the full scope of Mr. Stecklow's October 15, 2024, FOIA request; (2) providing Mr. Stecklow with copies of any and all responsive records; and (3) furnishing to Mr. Stecklow a written explanation of the State's Attorney's Office's supplemental search for responsive records in sufficient detail to assess the adequacy of the State's Attorney's Office's search measures. If the State's Attorney's Office redacts any portion of the responsive Mr. Sam Stecklow Mr. Don Perry December 18, 2024 Page 14 records pursuant to any exemption(s) set out in FOIA, it shall issue a notice that fully complies with section 9 of FOIA (5 ILCS 140/9 (West 2022)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Sam Stecklow as defendants. See 5 ILCS 140/11.5 (West 2022). Very truly yours, KWAMERAOUL ATTORNEY GENERAL By: Brent D. Stratton Chief Deputy Attorney General CERTIFICATE OF SERVICE Steve Silverman, Bureau Chief, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 24-014) upon: Mr. Sam Stecklow Reporter, Invisible Institute Experimental Station 6100 South Blackstone Avenue Chicago, Illinois 60637 foia@invisibleinstitute.com Mr. Don Perry Assistant State's Attorney St. Clair County State's Attorney's Office 10 Public Square Belleville, Illinois 62220 Donyel.Perry@co.st-clair.il. us by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on December 18, 2024. ___________ ,/_/ ::::::::::,..__ ____ Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Sam Stecklow requested records from the St. Clair County State's Attorney's Office regarding their policies and reports on police-involved shootings and in-custody deaths. The Attorney General's office found that the State's Attorney's Office did not perform a proper search for these documents and wrongly denied the request. This means the office must now comply with the law and provide the requested information.","card_headline":"Policies and reports on police shootings and in-custody deaths","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":194,"orig_master_id":19396,"dup_master_id":19168,"dup_sha256":"b55fc9c79429e28767549bbbd2e2e3dec27a4cc92b7c3c472df3bd6c0bfee760","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-02-11","case_number":"2024 PAC 83751","request_numbers":null,"title":"Duty to Furnish Records in the Electronic Format Specified by the Requester if Feasible","filename":"PUBLIC ACCESS OPINION 25-001 (Request for Review 2024 PAC 83751).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-001 (Request for Review 2024 PAC 83751).pdf","word_count":2411,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request submitted by Mr. Derek Van Buer to the Housing Authority of the County of DeKalb, which was improperly denied.","plain_summary":"The requester sought Excel workbooks containing a housing authority's budget data, and the authority provided only password-protected, locked versions that hid formulas and prevented the unhiding of columns. The Public Access Counselor held that when nonexempt records are requested in a specified electronic format, section 6(a) of FOIA requires a public body to provide an unlocked version allowing full use of the software's functions unless it demonstrates that doing so is not feasible. The authority was directed to provide the requester with unlocked copies of the Excel workbooks.","holding":"The Housing Authority of the County of DeKalb violated FOIA by improperly denying Mr. Van Buer's request.","legal_question":"Did the Housing Authority of the County of DeKalb violate FOIA by denying the request for records?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(e), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/6(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Homing Attorney for the Housing Authority","requesting_party":"Van Buer and Mr. Homing","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"electronic records","subject_description":"The request sought FY24 and FY25 budget Excel workbooks and associated supporting file links.","ocr_status":"ok","ocr_quality":89,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-001.pdf","sha256":"fe9c1a73ab22d956836645d19e329c20dce5ac7e2aa89d8ddb2a611a69b5cf06","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["electronic format","budget records","FOIA request","public records"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL February 11, 2025 PUBLIC ACCESS OPINION 25-001 (Request for Review 2024 PAC 83751) FREEDOM OF INFORMATION ACT: Duty to Furnish Records in the Electronic Format Specified by the Requester if Feasible Mr. Derek Van Buer 230 Thombrook Road DeKalb, Illinois 60115 Mr. Timothy F. Homing Attorney for the Housing Authority of DeKalb Meyer and Homing P.C. 3400 North Rockton Avenue Rockford, Illinois 61103 Dear Mr. Van Buer and Mr. Homing: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(±) (West 2023 Supp.)). For the reasons discussed below, this office concludes that the Housing Authority of the County of DeKalb (Authority) violated the requirements of FOIA by improperly denying a FOIA request submitted by Mr. Derek Van Buer. BACKGROUND On September 30, 2024, Mr. Van Buer submitted a FOIA request to the Authority seeking copies of the \"FY24 and FY 25 Excel workbooks[]\" for the Authority's budgets, including the workbook links for supporting files. 1 On October 7, 2024, the Authority extended 1E-mail from Derek Van Buer to [David Siegel, Executive Director, Housing Authority of the County of DeKalb] (September 30, 2024). 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, lllinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (6 I 8) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisAttorneyGeneral.gov Mr. Derek Van Buer Mr. Timothy F. Homing February 11, 2025 Page 2 its time to respond to the request by five business days pursuant to section 3(e)(v) of FOIA (5 ILCS 140/3(e)(v) (West 2022)).2 On October 15, 2024, the Authority e-mailed Mr. Van Buer copies oflocked versions of the Excel workbooks.3 On October 16, 2024, Mr. Van Buer e-mailed an Assistant Attorney General (AAG) in the Public Access Bureau and copied the Authority's Executive Director; his e-mail stated that he believed the Authority improperly responded to his request by providing password protected workbooks with hidden columns.4 On October 29, 2024, the Authority provided Mr. Van Buer with copies of the workbooks with the previously hidden columns now viewable but still locked;5 the Authority also provided this office with a copy of that response.6 That same day, Mr. Van Buer reiterated in an e-mail to the AAG that he was seeking unlocked versions of the Excel workbooks, as he could not access formula information within the documents because they were locked. 7 On October 30, 2024, the AAG stated in an e-mail to the Authority's Executive Director that Mr. Van Buer was seeking the unlocked workbooks and asked if the Authority was willing to provide Mr. Van Buer with unlocked copies.8 On that same date, the Authority's Executive Director replied by stating: \"Our position is that we have fulfilled the request.\"9 On November 1, 2024, Mr. Van Buer submitted the above-referenced Request for Review contesting the Authority's response. 10 Specifically, Mr. Van Buer argued that the password-protected Excel workbooks \"effectively redacts information\" because the locked 2Letter from David Siegel, Executive Director - FOIA Officer, Housing Authority of the County of DeKalb, to Derek Van Buer (October 7, 2024 ). 3E-mail from FOIA Requests, Housing Authority, County of DeKalb, to Derek Van Buer (October 15, 2024). 4E-mail from Derek Van Buer to AAG [Benjamin] Silver, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (October 16, 2024). 5E-mail from FOIA Requests, Housing Authority of the County of DeKalb, to Derek Van Buer (October 29, 2024). 6E-mail from Dave [Siegel] to Ben [Silver, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (October 29, 2024). 7E-mail from Derek Van Buer to Ben [Silver, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (October 29, 2024 ). 8E-mail from Benjamin Silver, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General], to Dave [Siegel, Executive Director, Housing Authority of the County of DeKalb] (October 30, 2024). 9E-mail from Dave [Siegel, Executive Director, Housing Authority of the County of DeKalb], to Ben [Silver, Assistant Attorney General, Public Access Bureau] (October 30, 2024). 10E-mail from Derek Van Buer to Public Access [Bureau; Office of the Attorney General] (November 1, 2024). Mr. Derek Van Buer Mr. Timothy F. Homing February 11, 2025 Page 3 workbooks hide certain information and restrict the functionality of the records in comparison to the unlocked versions used by the Authority.11 Mr. Van Buer stated that \"the password prevents the cell contents from being examined for additional information like formulas or notes. The password also prevents the unhiding of hidden columns.\"12 On November 14, 2024, the Public Access Bureau sent a copy of the Request for Review to the Authority. The Public Access Bureau also sent the Authority a letter requesting a detailed factual and legal explanation for the Authority's assertion that the locked Excel workbooks constitute a complete response to Mr. Van Buer's request.13 The Public Access Bureau also asked the Authority to address whether its response was consistent with the holdings of the Illinois Appellate Court in Fagel v. Department of Transportation, 2013 IL App (1st) 121841.14 On December 8, 2024, counsel for the Authority provided this office with copies of locked versions of the records at issue along with a written response asserting that those records were properly furnished to Mr. Van Buer in the locked version in which they are maintained.15 On December 9, 2024, this office forwarded a copy of the Authority's answer to Mr. Van Buer and notified him of his opportunity to reply in writing.16 On December 16, 2024, he submitted a reply in which he maintained that \"[t]here is not a separate file format for an Excel file with a password from an Excel file without a password. The electronic format or file format is still xlsx.\" 17 On December 30, 2024, this office extended the time for issuing a binding opinion by 30 business days, to February 14, 2025, pursuant to section 9.5(f) of FOIA. 18 11 E-mail from Derek Van Buer to Public Access [Bureau, Office of the Attorney General] (November 1, 2024). 12E-mail from Derek Van Buer to Public Access Bureau, [Office of the Attorney General] (November I, 2024). 13Letter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to David Siegel, Executive Director, Housing Authority of the County of DeKalb (November I 4, 2024), at 2. 14Letter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to David Siegel, Executive Director, Housing Authority ofthe County of DeKalb (November 14, 2024), at 2. 15Letter from Timothy F. Homing, Meyer and Homing P.C., to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (December 8, 2024), at 3. 16Letter from Benjamin J. Silver, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Derek Van Buer (December 9, 2024). 17Letter from Derek Van Buer to AAG Benjamin J. Silver, Public Access Bureau, Office of the Illinois Attorney General (December 16, 2024), at 2. 18Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Derek Van Buer and Timothy F. Homing, Attorney for the Housing Authority of DeKalb, Meyer and Horning P.C. (December 30, 2024). Mr. Derek Van Buer Mr. Timothy F. Homing February 11, 2025 Page 4 ANALYSIS It is the public policy of the State of Illinois that \"all persons are entitled to full and complete information regarding [...] xempt records in a specified electronic format, such as an Excel spreadsheet, section 6(a) of FOIA requires a public body to provide an unlocked version of the records that allows the requester to fully access and exercise the functions of the specified software program unless it is not feasible to provide the records in that manner. Because the Authority did not dispute or demonstrate that it is not feasible to unlock the workbooks and provide unlocked copies to Mr. Van Buer, section 6(a) does not permit the Authority to provide exclusively locked versions of the records. Accordingly, the Authority's refusal to provide Mr. Van Buer with copies of the Excel workbooks in the electronic format he requested violated FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On September 30, 2024, Mr. Derek Van Buer submitted a FOIA request to the Authority seeking copies of the Excel workbooks for the Authority's fiscal year 2024 and 2025 budgets, including the workbook links for supporting files. 2) On October 15, 2024, the Authority provided Mr. Van Buer with copies of the requested Excel workbooks in a locked format. 3) On October 16, 2024, Mr. Van Buer e-mailed an AAG and copied the Authority's Executive Director to state that he believed the response was incomplete or improperly redacted because the Excel workbooks included hidden columns and were password protected. 4) On October 29, 2024, the Authority provided Mr. Van Buer with locked copies of the Excel workbooks with the hidden columns now viewable. 5) On that same date, Mr. Van Buer reiterated in an e-mail to an AAG that he was seeking unlocked copies of the Excel workbooks, as he could not access formula information within the documents because they were locked. 241n this matter, the Public Access Bureau did not request locked or unlocked versions of the workbooks-the Authority voluntarily submitted locked versions with its response. Mr. Derek Van Buer Mr. Timothy F. Horning February 11, 2025 Page 7 6) On October 30, 2024, the AAG stated in an e-mail to the Authority that Mr. Van Buer was seeking the unlocked workbooks and asked if the Authority was willing to provide Mr. Van Buer with unlocked copies. 7) On that same date, the Authority responded to the AAG by stating that it had fulfilled Mr. Van Buer's request. 8) In an e-mail on November 1, 2024, Mr. Van Buer submitted a Request for Review contesting the Authority's response. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2023 Supp.)). 9) On November 14, 2024, the Public Access Bureau sent a copy of the Request for Review to the Authority. The Public Access Bureau also sent the Authority a letter requesting a detailed factual and legal explanation for the Authority's assertion that the password protected Excel workbooks constitute a complete response to Mr. Van Buer's request. 10) On December 8, 2024, the Authority provided its response to this office. 11) On December 9, 2024, the Public Access Bureau forwarded to Mr. Van Buer a copy of the Authority's answer and notified him of his opportunity to reply. On December 16, 2024, he submitted a reply. 12) On December 30, 2024, this office properly extended the time within which to issue a binding opinion by 30 business days, to February 14, 2025, pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect • to this matter. 13) Section 6(a) of FOIA provides: \"When a person requests a copy of a record maintained in an electronic format, the public body shall furnish it in the electronic format specified by the requester, if feasible. If it is not feasible to furnish the public records in the specified electronic format, then the public body shall furnish it in the format in which it is maintained by the public body, or in paper format at the option of the requester.\" 14) Mr. Van Buer's request specified that it sought records in Excel format. 15) When nonexempt records are requested in an electronic format such as Excel, section 6(a) of FOIA requires a public body to provide an unlocked version of the records that allows the requester to fully access and exercise the functions of the software program unless it is not feasible to provide the records in that manner. 16) The Authority did not demonstrate that providing unlocked copies of the records was not feasible or that the unlocked copies were exempt from disclosure. Mr. Derek Van Buer Mr. Timothy F. Horning February 11, 2025 Page 8 Therefore, it is the opinion of the Attorney General that the Housing Authority of the County of DeKalb improperly denied Mr. Van Buer's September 30, 2024, Freedom of Information Act request by refusing to provide him with copies of responsive records in the format he specified. Accordingly, the Authority is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Van Buer with unlocked copies of the Excel workbooks. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 3 5 days of the date of this decision naming the Attorney General of Illinois and Mr. Derek Van Buer as defendants. See 5 ILCS 140/11.5 (West 2022). Very truly yours, KWAMERAOUL ATTORNEY GENERAL /!~jJdk_ By: 1~;;nt D. Stratton Chief Deputy Attorney General cc: Mr. David Siegel Executive Director Housing Authority of the County of DeKalb 310 North Sixth Street DeKalb, Illinois 60115 dsiegel@dekcohousing.com CERTIFICATE OF SERVICE Benjamin J. Silver, Supervising Attorney, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-001) upon: Mr. Derek Van Buer 230 Thombrook Road DeKalb, Illinois 60115 dvanbuer@gmail.com Mr. Timothy F. Homing Attorney for the Housing Authority of DeKalb Meyer and Homing P.C. 3400 North Rockton Avenue Rockford, Illinois 61103 thmeyerhoming@aol.com Mr. David Siegel Executive Director Housing Authority of the County of DeKalb 310 North Sixth Street DeKalb, Illinois 60115 dsiegel@dekcohousing.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on February 11, 2025. ~~- Supervising Attorney Benjamin J. Silver Supervising Attorney Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6021","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Derek Van Buer requested Excel budget workbooks from the Housing Authority of the County of DeKalb, but the agency provided locked, password-protected versions that prevented him from accessing formulas and hidden columns. The Illinois Attorney General's Public Access Opinion found that the agency violated FOIA because public bodies must provide records in the electronic format specified by the requester if feasible, and the agency did not show it was infeasible to provide unlocked copies. The opinion does not order the agency to take any specific action; it only states that the agency violated FOIA by improperly denying the request.","card_headline":"FY24 and FY25 budget Excel workbooks and supporting file links","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":195,"orig_master_id":19399,"dup_master_id":19169,"dup_sha256":"83af8c1dc175939ad124d5ccfa4473102f587e6e6e7c4ddd53b7d22058c1ca4b","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-04-29","case_number":"2025 PAC 85533","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 25-003 (Request for Review 2025 PAC 85533).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-003 (Request for Review 2025 PAC 85533).pdf","word_count":2450,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act (FOIA) request submitted by Mr. Conley Wouters to the Chicago Transit Authority (CTA). It concludes that the CTA violated FOIA by failing to appropriately respond to the request.","plain_summary":"The requester, an attorney and law professor, sought contracts, policies, and disciplinary and complaint records concerning a transit agency's use of a private security-canine vendor, and the agency failed to substantively respond despite months of follow-up. The Public Access Counselor held that the agency violated section 3(d) of FOIA by failing to comply with, deny, or properly respond to the request within the statutory period. The agency was directed to disclose all records responsive to the request, subject only to permissible redactions.","holding":"The Chicago Transit Authority violated section 3(d) of FOIA by failing to comply with the FOIA request.","legal_question":"Did the Chicago Transit Authority comply with the Freedom of Information Act in responding to a FOIA request?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/3(g), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Freedom oflnformation Compliance Chicago Transit Authority","requesting_party":"Wouters and Ms. Bevan","pac_outcome":"violation_found","pac_law_type":null,"subject_category":"duty to respond","subject_description":"The request sought contractual agreements with a security firm and policies regarding animal handling guidelines.","ocr_status":"ok","ocr_quality":89.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-003.pdf","sha256":"0220ac6fb04d393720a6bd2f6ca9f33cdeb5dad57390473cf4d37734506ffe43","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA request","duty to respond","Chicago Transit Authority","public records"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL April 29, 2025 PUBLIC ACCESS OPINION 25-003 (Request for Review 2025 PAC 85533) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Mr. Conley Wouters Assistant Professor University of Illinois Chicago School of Law 300 South State Street Chicago, Illinois 60604 Ms. Brigett R. Bevan Director, Freedom oflnformation Compliance Chicago Transit Authority 567 West Lake Street Chicago, Illinois 60661 Dear Mr. Wouters and Ms. Bevan: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(±) (West 2023 Supp.)). For the reasons discussed below, this office concludes that the Chicago Transit Authority (CTA) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2022)) by failing to comply with, deny in writing in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Mr. Conley Wouters. BACKGROUND On January 4, 2025, Mr. Wouters submitted a FOIA request to CTA seeking copies of the following records: 1. Any and all contractual agreements between CTA and Action K-9 Security, Inc., from the period January 1, 2020, to the present. 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (6 I 8) 529-6400 • Fax: (6 I 8) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. I II i noisA ttorneyGenera I.gov Mr. Conley Wouters Ms. Brigett R. Bevan April 29, 2025 Page 2 2. Any and all written policies, manuals, or animal handling guidelines relating to the use of any security canines in or on CTA property, from the period January 1, 2020, to the present. 3. Any and all employee disciplinary records relating to the use of any security canines in or on CT A property, from the period January 1, 2020, to the present. 4. Any and all any formal or informal reports relating to injuries incurred by canines owned by Action K-9 from the period January 1, 2020, to the present. 5. Any and all formal or informal reports relating to human injuries caused by canines owned by Action K-9 from the period January 1, 2020, to the present. 6. Any and all documents or communications relating to complaints from CT A customers or members of the public about Action K-9's on-duty canines or canine handlers from the period January 1, 2020, to the present.(Il Mr. Wouters prefaced the request by stating: \"In light of our previous correspondence and under 5 ILCS 140/3(d), I assume my August 23, 2024, records request was denied. I write to submit a new request.\"2 According to the materials he submitted to the Public Access Bureau, Mr. Wouters had first asked CTA 's FOIA office for copies of certain records concerning security canines on August 23, 2024.3 On September 6, 2024, CTA's FOIA office advised Mr. Wouters that it considered that request unduly burdensome under section 3(g) of FOIA (5 ILCS 140/3(g) (West 2022)) and offered him an opportunity to confer about narrowing the request to manageable proportions.4 On that same date, Mr. Wouters submitted a narrowed version of the request.5 On September 9, 2024, an employee in CTA's FOIA office responded: \"I think this is more manageable. I'll look into how many complaints there are and get back to you. \"6 1E-mail from Conley Wouters, Attorney at Law, Assistant Professor, UIC Law, to [Haley] Lowrance, [Senior Attorney, Compliance, Policy, and Risk, Chicago Transit Authority] (January 4, 2025). 2E-mail from Conley Wouters, Attorney at Law, Assistant Professor, UIC Law, to [Haley] Lowrance, [Senior Attorney, Compliance, Policy, and Risk, Chicago Transit Authority] (January 4, 2025). 3E-mail from Conley Wouters, Attorney at Law, to Brigett R. Bevan, Freedom of Information Officer, Chicago Transit Authority (August 23, 2024). 4E-mail from Haley Lowrance, Senior Attorney, Compliance, Policy, and Risk, [Chicago Transit Authority], to [Conley] Wouters (September 6, 2024). 5E-mail from Conley [Wouters], Assistant Professor, UIC Law, to [Haley] Lowrance, [Senior Attorney, Compliance, Policy, and Risk, Chicago Transit Authority] (September 6, 2024). 6E-mail from foia@transitchicago.com to Conley Wouters (September 9, 2024). Mr. Conley Wouters Ms. Brigett R. Bevan April 29, 2025 Page 3 On September 27, 2024, Mr. Wouters sent an e-mail to CTA's FOIA office noting that CTA's response to his request was overdue and stating that ifhe did not \"receive a response within the next business day or two,\" he would assume CTA had denied his September 6, 2024, request under section 3(d) of FOIA (5 ILCS 140/3(d) (West 2022)).7 8 On October 8, 2024, Mr. Wouters separately e-mailed Ms. Iliana Linares, CT A's General Manager of Purchasing, and asked for assistance with obtaining a copy of CT A's current contract with Action K-9 Security, Inc. because he had not heard from CT A's FOIA office.9 On that same date, Ms. Linares responded that she had contacted a named employee in CT A's FOIA office who confirmed that she was working on Mr. Wouters's request and would reach out to him.10 On October 22, 2024, CTA 's FOIA office e-mailed Mr. Wouters to ask what kind of incident report he was seeking because \" [o ]ur vendor needs a more specific term than 'incident report. 11i1 1 On that same date, Mr. Wouters answered the question and asked when CTA would be issuing its response.12 On January 4, 2025, Mr. Wouters again e-mailed Ms. Linares and copied other CTA employees, including the CTA FOIA e-mail address; he stated that he was following up on his e-mail from October because he had never received a copy of the contract, and noted that he had e-mailed CT A's FOIA office earlier that evening (with the FOIA request at issue in this binding opinion).13 On January 6, 2025, CTA's FOIA office informed Mr. Wouters: \"We are still working on your request and will try to get you a response as soon as possible. As Purchasing will not be releasing documents, please direct all further communications to the Law Department at this email address.\" 1 4 7Section 3(d) provides, in relevant part: \"Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request.\" 8E-mail from Conley Wouters to [Haley] Lowrance, [Senior Attorney, Compliance, Policy, and Risk, Chicago Transit Authority] (September 27, 2024). 9E-mail from Conley Wouters, Attorney at Law, Assistant Professor, UIC Law, to [Iliana] Linares, [General Manager, Purchasing, Chicago Transit Authority] (October 8, 2024). 10E-mail from Iliana Linares, General Manager, Purchasing, Chicago Transit Authority, to [Conley] Wouters (October 8, 2024). 11E-mail from foia@transitchicago.com to Conley Wouters (October 22, 2024). 12E-mail from Conley Wouters, Attorney at Law, Assistant Professor, UIC Law, to [Haley] Lowrance, [Senior Attorney, Compliance, Policy, and Risk, Chicago Transit Authority] (October 22, 2024). 13E-mail from Conley [Wouters] to [Iliana] Linares, [Ellen McCormack, Travis Marcum, and CTA FOIA] (January 4, 2025). 14E-mail from Haley Lowrance, Senior Attorney, Compliance, Policy, and Risk, [Chicago Transit Authority], to [Conley] Wouters (January 6, 2025). Mr. Conley Wouters Ms. Brigett R. Bevan April 29, 2025 Page 4 On March 3, 2025, Mr. Wouters submitted a Request for Review to the Public Access Counselor alleging that CTA had failed to respond to his January 4, 2025, FOIA request.15 On March 5, 2025, the Public Access Bureau sent a copy of the Request for Review to CTA together with a letter asking whether CTA had received and responded to Mr. Wouters's FOIA request.16 If CTA had received but not responded to the request, the March 5, 2025, inquiry [...] Illinois Attorney General's Office, to foia@transitchicago.com (March 17, 2025). 21E-mail from Conley [Wouters] to [Katie] Goldsmith, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (March 28, 2025). 22E-mail from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office, to [Conley Wouters] (March 31, 2025). Mr. Conley Wouters Ms. Brigett R. Bevan April 29, 2025 Page 5 ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2022). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2022)), \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2022)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection ( e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). Section 3(e) of FOIA (5 ILCS 140/3(e) (West 2022)) permits a public body to extend its response time by no more than five business days for any of seven enumerated reasons. Any additional extension requires a written agreement between the requester and the public body. 5 ILCS 140/3(e) (West 2022). It is undisputed that CT A did not timely respond and provide copies of records responsive to Mr. Wouters's January 4, 2025, FOIA request, deny the request in writing in whole or in part, or reach a written agreement with Mr. Wouters for an extension. CTA 's failure to comply with the requisite response procedures violated section 3(d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On January 4, 2025, Mr. Conley Wouters submitted a FOIA request to CTA seeking copies of certain records relating to CT A's contract with Action K-9 Security, Inc. Mr. Conley Wouters Ms. Brigett R. Bevan April 29, 2025 Page 6 2) On March 3, 2025, Mr. Wouters submitted a Request for Review to the Public Access Bureau alleging that CT A had failed to respond to his FOIA request. Mr. Wouters's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2023 Supp.)). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 3) On March 5, 2025, the Public Access Bureau forwarded a copy of the Request for Review to CTA along with a letter asking whether CTA had responded to Mr. Wouters's FOIA request. CTA did not respond. 4) On March 19, 2025, the Public Access Bureau sent CTA an e-mail advising that it was required to respond to Mr. Wouters and asking CTA to respond as soon as possible. 5) On March 28, 2025, Mr. Wouters e-mailed the Public Access Bureau to confirm that he still had not received a response to his request from CT A. 6) As of the date of the issuance of this binding opinion, this office has received no information indicating that CTA has responded to Mr. Wouters's January 4, 2025, FOIA request seeking copies of certain records relating to CT A's contract with Action K-9 Security, Inc. Therefore, it is the opinion of the Attorney General that CT A has violated section 3(d) of FOIA by failing, within the statutory time period for responding to Mr. Wouters's January 4, 2025, request, to provide copies of the requested records or to deny the request in writing in whole or in part. Accordingly, CT A is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Wouters with copies of all records responsive to his January 4, 2025, FOIA, request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2023 Supp.), as amended by Public Acts 103-605, effective July 1, 2024; 103-865, effective January 1, 2025).23 If CTA determines that any portion of the responsive records is exempt from disclosure under section 7, it is directed to issue a written denial that fully complies with the requirements of section 9(a) ofFOIA (5 ILCS 140/9(a) (West 2022)). 23Because CTA did not comply with the statutory requirements for responding to Mr. Wouters's FOIA request, CTA is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d) (West 2022). Mr. Conley Wouters Ms. Brigett R. Bevan April 29, 2025 Page 7 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 3 5 days of the date of this decision naming the Attorney General of Illinois and Mr. Conley Wouters as defendants. See 5 ILCS 140/11.5 (West 2022). Sincerely, KWAMERAOUL ATTORNEY GENERAL By: n ~~;;;tt.._ rent D. Stratton hief Deputy Attorney General CERTIFICATE OF SERVICE Joshua M. Jones, Bureau Chief, Public Access Bureau, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-003) upon: Mr. Conley Wouters Assistant Professor University of Illinois Chicago School of Law 300 South State Street Chicago, Illinois 60604 woutersconley@gmail.com Ms. Brigett R. Bevan Director, Freedom of Information Compliance Chicago Transit Authority 567 West Lake Street Chicago, Illinois 60661 FO IA@transi tchicago.c om by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on April 29, 2025. Joshua M. Jones Bureau Chief Public Access Bureau, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-8413","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Conley Wouters requested records from the Chicago Transit Authority (CTA) regarding security contracts and animal handling policies, but the CTA failed to provide a timely or proper response. The Illinois Attorney General ruled that the CTA violated the law by ignoring its duty to respond to the request. This means the CTA must now fulfill its legal obligations to process the request as required by FOIA.","card_headline":"Contractual agreements with a security firm and animal handling policies","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":196,"orig_master_id":19397,"dup_master_id":19170,"dup_sha256":"797863fe715f7a09d1b15617b7a415e5101319801946b68e315de8fe1d09e4b9","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-03-28","case_number":"2025 PAC 85063","request_numbers":null,"title":"Basis for Withholding Records Related to the Resignation or Termination of a Public Employee","filename":"PUBLIC ACCESS OPINION 25-002 (Request for Review 2025 PAC 85063).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-002 (Request for Review 2025 PAC 85063).pdf","word_count":2340,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a FOIA request made by Mr. Travis Lott for records related to the resignation or termination of police officers in Chester.","plain_summary":"The requester, a newspaper reporter, sought resignation and termination paperwork for police officers, which a police department withheld citing law-enforcement-proceeding, fair-trial, and police-training-database exemptions. The Public Access Counselor held that the department's conclusory assertions did not establish that any pending or contemplated proceeding would be interfered with, that a trial was imminent, or that the records were confidential Board-held data rather than the department's own records. The department was directed to disclose the withheld resignation and termination records.","holding":"The City of Chester Police Department improperly denied Mr. Lott's FOIA request.","legal_question":"Did the City of Chester Police Department properly deny the FOIA request for resignation or termination paperwork?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(1), 5 ILCS 140/1, 50 ILCS 705/9, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(d)","public_body":"City of Chester","requesting_party":"Lott and Mr. Coffey","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought resignation and termination paperwork for police officers employed by the City of Chester.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-002.pdf","sha256":"70d170b42dad4bc24796e986b4592702fd7e147876cefc5999136f86cc216b04","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police records","personnel records","FOIA","resignation","termination"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL March 28, 2025 PUBLIC ACCESS OPINION 25-002 (Request for Review 2025 PAC 85063) FREEDOM OF INFORMATION ACT: Basis for Withholding Records Related to the Resignation or Termination of a Public Employee Mr. Travis Lott County Journal 1101 East Pine Street Percy, Illinois 62272 Mr. Jason E. Coffey City Attorney City of Chester 600 State Street Chester, Illinois 62233 Dear Mr. Lott and Mr. Coffey: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(£) (West 2023 Supp.)). For the reasons discussed below, this office concludes that the City of Chester Police Department (Department) improperly denied Mr. Travis Lott's January 28, 2025, FOIA request. BACKGROUND On that date, Mr. Lott, on behalf of the County Journal, submitted a FOIA request to the Department seeking \"copies of resignation and/or termination paperwork for any Chester police officers from the months of December 2024 and January 2025[,]\" as well as the 500 South 2nd Street l l 5 South LaSalle Street l 745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, lllinois 60603 Carbondale, Illinois 62903 (217) 782-l 090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. l ll inoisAttorneyGeneral .gov Mr. Travis Lott Mr. Jason E. Coffey March 28, 2025 Page 2 Department's payroll history for those months.' On February 3, 2025, the Department provided the requested payroll history but denied Mr. Lott's request for resignation or termination paperwork pursuant to sections 7(1)(d)(i), 7(1)(d)(ii), 7(1)(d)(iii), and 7(1)(d-6) of FOIA (5 ILCS 140/7(1)(d)(i), (l)(d)(ii), (l)(d)(iii), (l)(d-6) (West 2023 Supp.), as amended by Public Acts 103- 605, effective July 1, 2024; 103-865, effective January 1, 2025).2 On February 3, 2025, Mr. Lott sent this office a copy of the Department's response attached to an e-mail disputing the Department's denial ofresignation or termination paperwork.3 On February 7, 2025, Mr. Lott completed his submission by e-mailing this office a copy of the underlying FOIA request.4 On February 13, 2025, the Public Access Bureau sent a copy of the Request for Review to the Department. The Public Access Bureau also sent the Department a letter requesting unredacted copies of any withheld records for this office's confidential review and a detailed written explanation of the legal and factual bases for the applicability of the asserted exemptions. 5 On February 18, 2025, the Department furnished those materials, including a complete version of its answer for this office's confidential review and a redacted copy for forwarding to Mr. Lott.6 On that same date, this office forwarded a copy of the Department's redacted answer to Mr. Lott7 and notified him of his opportunity to reply in writing. 8 Mr. Lott did not reply. On February 24, 2025, this office received from the Department additional correspondence with two attachments; most of those materials were provided confidentially.9 1E-mail from Travis Lott, Reporter, County Journal, to Bobby Helmers, Chief, Chester Police Department (January 28, 2025). 2Letter from Jason E. Coffey, FISHER, KERKHOVER, COFFEY & GREMMELS LAW OFFICE, to Travis Lott, County Journal (February 3, 2025). 3E-mail from Travis Lott, County Journal, to Leah Bartelt, Public Access Counselor Office of the Attorney General (February 3, 2025). 4E-mail from Travis Lott, Reporter, County Journal to [Teresa Lim] (February 7, 2025). 5Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Jason E. Coffey, City Attorney, City of Chester (February 13, 2025), at 2. 6Letter from Jason E. Coffey, FISHER, KERKHOVER, COFFEY & GREMMELS LAW OFFICE, to Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General (February 18, 2025). 7See 5 ILCS l40/9.5(d) (West 2023 Supp.) (\"The Public Access Counselor shall forward a copy of the answer to the person submitting the request for review, with any alleged confidential information to which the request pertains redacted from the copy.\"). 8Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Travis Lott, County Journal (February 18, 2025). 9E-mail from Jason E. Coffey, Fisher, Kerkhover, Coffey & Gremmels, to [Benjamin J.] Silver, [Supervising Attorney, Public Access Bureau, Office of the Attorney General] (February 24, 2025). Mr. Travis Lott Mr. Jason E. Coffey March 28, 2025 Page 3 ANALYSIS It is the public policy of the State of Illinois that \"all persons are entitled to full and complete information regarding the affairs of government.\" 5 ILCS 140/1 (West 2022). Under FOIA, \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2022). \"The public body satisfies its burden when it provides a detailed justification for the claimed exemption which addresses the specific documents requested and allows for adequate adversarial testing.\" Turner v. Joliet Police Department, 2019 IL App (3d) ,r 170819, 10. Sections 7(1)(d)(i) and 7(1)(d)(ii) of FOIA Sections 7(1)(d)(i) and 7(1)(d)(ii) of FOIA exempt from disclosure: (d ) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would: (i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request; [or] (ii) interfere with active administrative enforcement proceedings conducted by the public body that is the recipient of the request[.] (Emphasis added.) \"The classification of information as 'law enforcement' or 'investigatory' does not necessarily foreclose access unless it can be shown, in a particular case, that disclosure would interfere with law enforcement and would, therefore, not be in the public interest.\" Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530, 536 (1989). Conclusory statements that the disclosure of records would obstruct a law enforcement proceeding are insufficient to support the assertion of the pending law enforcement proceeding exemption. Day v. City of Chicago, 388 Ill. App. 3d 70, 76 (2009) (\"Simply saying there is an 'ongoing criminal investigation because the case has not been cleared,' with little additional explanation, is not 'objective indicia' sufficient to show the ongoing investigation exemption applies.\"); see also Ill. Att'y Gen. Pub. Acc. Op. No. 24- 006, issued April 1, 2024, at 8-9 ( explaining that a law enforcement agency must demonstrate with a detailed factual basis, rather than conclusory statements, how disclosure of all informatioµ in a police report would interfere with a law enforcement investigation to sustain its burden of proving the report is exempt from disclosure in its entirety pursuant to the section 7(1 )( d)(i) exemption). Likewise, to fall within the scope of the section 7(1)(d)(ii) exemption, a public body Mr. Travis Lott Mr. Jason E. Coffey March 28, 2025 Page 4 must prove that disclosure of the withheld record would interfere with \"active administrative enforcement proceedings[.]\" In addition, the record must be \"created in the course of administrative enforcement proceedings[.]\" 5 ILCS 140/7(1)(d) (West 2023 Supp.), as amended by Public Acts 103-605, effective July 1, 2024; 103-865, effective January 1, 2025). In its response to this office, the Department identified one record, labeled Exh [...] -6) of FOIA. 3) On February 7, 2025, Mr. Lott's completed the submission of his Request for Review contesting the Department's denial. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) ofFOIA (5 ILCS 140/9.5(a) (West 2023 Supp.)). Accordingly, the Attorney General may issue a binding opinion with respect to this matter. 4) On February 13, 2025, the Public Access Bureau sent a copy of the Request for Review to the Department and asked it to provide unredacted copies of the withheld records for this office's confidential review. This office also asked the Department to provide a detailed explanation of the factual and legal bases for its denial of Mr. Lott's request. 5) On February 18, 2025, the Department furnished the requested materials to this office, including a complete version of its answer for this office's confidential review and a redacted copy to forward to Mr. Lott. 6) On that same date, the Public Access Bureau forwarded a copy of the Department's written answer to Mr. Lott and notified him of his right to reply; he did not reply to that answer. 7) Section 7(1 )( d)(i) of FOIA exempts from disclosure records in the possession of a law enforcement agency for law enforcement purposes only to the extent that their disclosure would \"interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request[.]\" Section 7(1)(d)(ii) of FOIA exempts from disclosure records created in the course of administrative enforcement proceedings only to the extent that their disclosure would \"interfere with active administrative enforcement proceedings conducted by the public body that is the recipient of the request[.]\" 8) The Department stated that it withheld one record (labeled Exhibit A) pursuant to sections 7(1)(d)(i) and 7(1)(d)(ii). The Department did not explain with any specificity how disclosure of the record would interfere with any pending or contemplated law enforcement proceeding. The Department also did not identify an active administrative enforcement proceeding or demonstrate how disclosure of the record would interfere with such a proceeding. Further, the record was not created in the course of an administrative enforcement proceeding. Accordingly, the Department has not proven by clear and convincing evidence that the record is exempt from disclosure under sections 7(1)(d)(i) or 7(1)(d)(ii) of FOIA. Mr. Travis Lott Mr. Jason E. Coffey March 28, 2025 Page 9 9) Section 7(1 )( d)(iii) of FOIA exempts from disclosure law enforcement records when their disclosure would \"create a substantial likelihood that a person will be deprived of a fair trial or impartial hearing[.]\" 10) The Department did not demonstrate that a trial or adjudication related to the record identified as Exhibit A was imminent at the time of Mr. Lott's request, and the Department did not explain how or why disclosure of the record would deprive anyone of a fair trial or impartial hearing. Accordingly, the Department has not sustained its burden of demonstrating that the record is exempt from disclosure under section 7(1)(d)(iii) of FOIA. 11) Section 7(1)(d-6) of FOIA exempts from disclosure \"[r]ecords contained in the Officer Professional Conduct Database under Section 9.2 of the Illinois Police Training Act except to the extent authorized under that Section.\" 12) Section 9.2(c) of the Illinois Police Training Act provides that \"[t]he database, documents, materials, or other information in the possession or control of the Board that are obtained by or disclosed to the Board under this subsection shall be confidential by law and privileged[.]\" 13) Section 9 .2(g) of the Illinois Police Training Act provides that \" [n ]othing in this Section shall exempt a law enforcement agency from which the Board has obtained data, documents, materials, or other information or that has disclosed data, documents, materials, or other information to the Board from disclosing public records in accordance with the Freedom of Information Act.\" 14) The plain language of section 9 .2(g) of the Illinois Police Training Act provides that the confidentiality provisions in section 9.2(c) do not exempt a law enforcement agency that provided records to the Board from disclosing its own public records in accordance with FOIA. 15) The Department withheld two records (labeled Exhibits A and B) responsive to Mr. Lott's request for resignation or termination paperwork pursuant to section 7(1)(d-6) of FOIA. 16) Because those two records are the Department's own public records rather than records in the possession or control of the Board, section 9.2(g) of the Illinois Police Training Act provides that they are not subject to the confidentiality provisions of section 9.2(c) of the Act. Accordingly, the Department has not sustained its burden of demonstrating that the records are exempt from disclosure under section 7(1)(d-6) of FOIA. Therefore, it is the opinion of the Attorney General that the City of Chester Police Department improperly withheld two records in response to Mr. Travis Lott's January 28, 2025, Freedom of Information Act request for resignation or termination paperwork for police officers. Accordingly, the Department is hereby directed to take immediate and appropriate action to Mr. Travis Lott Mr. Jason E. Coffey March 28, 2025 Page 10 comply with this opinion by providing Mr. Lott with copies of the withheld records, labeled Exhibits A and B. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 3 5 days of the date of this decision naming the Attorney General of Illinois and Mr. Travis Lott as defendants. See 5 ILCS 140/11.5 (West 2022). Very truly yours, KWAMERAOUL ATTORNEY GENERAL &i~:~n-~- By: ' Chief Deputy Attorney General CERTIFICATE OF SERVICE Joshua M. Jones, Bureau Chief, Public Access Bureau, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-002) upon: Mr. Travis Lott County Journal 1101 East Pine Street Percy, Illinois 62272 cjournal@egpytian.net Mr. Jason E. Coffey City Attorney City of Chester 600 State Street Chester, Illinois 62233 attorneys@fkcglaw.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on March 28, 2025. Bureau Chief Joshua M. Jones Bureau Chief Public Access Bureau, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-8413","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A journalist requested records regarding the resignation or termination of police officers in Chester, but the city denied the request claiming various exemptions. The Illinois Attorney General's office reviewed the case and ruled that the city's denial was improper. This means the city must release the requested records because they did not provide a valid legal reason to keep them secret.","card_headline":"Resignation and termination paperwork for police officers","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":197,"orig_master_id":19400,"dup_master_id":19171,"dup_sha256":"49fa5dee435c72012989c590ce6b025defc2edc820939f6991d554ee4b083829","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-05-19","case_number":"2025 PAC 85201","request_numbers":null,"title":"Evidentiary Records Obtained During Investigation Not Exempt as Records Relating to an Adjudication","filename":"PUBLIC ACCESS OPINION 25-004 (Request for Review 2025 PAC 85201).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-004 (Request for Review 2025 PAC 85201).pdf","word_count":2334,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request made by Mr. Sam Stecklow for a video recording related to a police officer's DUI arrest. The opinion concludes that the Burr Ridge Police Department improperly withheld the requested video.","plain_summary":"The requester, a nonprofit journalism organization, sought video of a former deputy police chief's out-of-state DUI arrest, which a police department withheld in full as relating to the adjudication of an employee disciplinary case. The Public Access Counselor held that the video pre-dated and existed independently of any disciplinary adjudication, so it did not fall within the exemption for records relating to the adjudication of employee disciplinary cases. The department was directed to disclose the video recording.","holding":"The Burr Ridge Police Department violated FOIA by improperly withholding a video recording.","legal_question":"Whether the video recording requested under FOIA is exempt as a record relating to an adjudication.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 25 ILCS 140/7, 5 ILCS 140/1, 5 ILCS 140/3(a), 95 ILCS 140/7, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(n)","public_body":"Village of Burr Ridge","requesting_party":"Stecklow and Mr. Loftus","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought video footage of a former Deputy Chief's DUI arrest.","ocr_status":"ok","ocr_quality":90.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-004.pdf","sha256":"b0e0430ae26fbfa6b30ca76c02f35f08856cf5502603f9abd0923ddd63b34783","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police records","FOIA","video recording","adjudication exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL May 19, 2025 PUBLIC ACCESS OPINION 25-004 (Request for Review 2025 PAC 85201) FREEDOM OF INFORMATION ACT: Evidentiary Records Obtained During Investigation Not Exempt as Records Relating to an Adjudication Mr. Sam Stecklow Reporter Invisible Institute 6100 South Blackstone A venue Chicago, Illinois 60637 Mr. Marc Loftus Deputy Chief- FOIA Officer Burr Ridge Police Department 7700 County Line Road Burr Ridge, Illinois 60527 Dear Mr. Stecklow and Mr. Loftus: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(£) (West 2023 Supp.)). For the reasons discussed below, this office concludes that the Village of Burr Ridge (Village) Police Department (Department) violated the requirements of FOIA by improperly withholding a video recording responsive to Mr. Sam Stecklow's December 12, 2024, FOIA request. 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisAttorneyGeneral.gov . ,·. ., ... ., . - . = . .. . . ~ ~ Mr. Sam Stecklow Mr. Marc Loftus May 19, 2025 Page 2 BACKGROUND On December 12, 2024, Mr. Stecklow submitted a FOIA request, on behalf of the Invisible Institute, to the Department seeking a copy of\" [a ]ny video from former Deputy Chief Ryan Husarik's DUI arrest in Virginia in April 2024.\"1 On December 20, 2024, the Department denied the request in its entirety pursuant to section 7(1)(n) of FOIA.2 The Department asserted: This exemption applies to records relating to a public body's adjudication of employee grievances or disciplinary cases. It specifies that records concerning the adjudication process are exempt from disclosure, except for the final outcome of the case. The intent is to protect sensitive information related to internal personnel matters while still ensuring transparency regarding the ultimate resolution. (Emphasis in original.)l3l On February 11, 2025, Mr. Stecklow submitted a Request for Review contesting that denial. He contended that \"[a]s has been made clear in repeated Appellate Court decisions and PAC opinions [citation], 7(1)(n) only applies to records generated within the adjudicative process - not records considered during the adjudication of discipline, or records relating to a case that later resulted in an adjudicatory proceeding. The exemption is entirely inapplicable.\"4 On February 19, 2025, the Public Access Bureau sent a copy of the Request for Review to the Department. The Public Access Bureau also sent the Department a letter requesting an unredacted copy of the withheld video recording for this office's confidential review and a detailed written explanation of the legal and factual bases for the applicability of the asserted exemption. 5 On February 27, 2025, counsel for the Department provided an unredacted copy of the withheld video for this office's confidential review, and a written explanation for the 1FOIA portal message from Sam Stecklow, Invisible Institute, to [Village of Burr Ridge Police Department] (December 12, 2024). 25 ILCS 140/7(1 )(n) (West 2023 Supp.), as amended by Public Act I 03-605, effective July I, 2024. 3E-mail from Sam Ternes, Burr Ridge FOIA Officer, to Sam [Stecklow] (December 20, 2024). 4Letter from Sam Stecklow, Reporter, Invisible Institute, to Leah Bartelt, Public Access Counselor, Office of the Attorney General (February I I, 2025). 5Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Marc Loftus, Deputy Chief - FOIA Officer, Burr Ridge Police Department (February 19, 2025), at 2. Office of the Tllinois Attorney General Mr. Sam Stecklow Mr. Marc Loftus May 19, 2025 Page 3 applicability of the exemption in section 7(1)(n) of FOIA.6 On February 28, 2025, this office forwarded a copy of the Department's answer to Mr. Stecklow and notified him of his opportunity to reply in writing.7 He did not submit a written reply. On April 11, 2025, this office extended the time for issuing a binding opinion by 30 business days, to May 23, 2025, pursuant to section 9.5(f) of FOIA.8 ANALYSIS \"[I]t is the public policy of the State of Illinois that access by all persons to public records promotes the transparency and accountability of public bodies at all levels of government.\" 5 ILCS 140/1 (West 2022). To effectuate that public policy, FOIA provides that \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2022). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2022)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" The exemptions from disclosure contained in section 7 of FOIA9 are to be narrowly construed. Lieber v. Board of Trustees o_f Southern Illinois University, 176 Ill. 2d 401, 407 (1997). Section 7(1)(n) of FOIA Section 7(1)(n) ofFOIA exempts from disclosure \"[r]ecords relating to a public body's adjudication of employee grievances or disciplinary cases; however, this exemption shall not extend to the final outcome of cases in which discipline is imposed.\" While \"adjudication\" is not defined in FOIA, the Illinois Appellate Court has construed the term for purposes of section 7(1)(n) as a \"formalized legal process that results in a final and enforceable decision.\" Kalven v. City of Chicago, 2014 IL App (1st) 121846,, 13 (citing Black's Law Dictionary 42 (7th ed. 1999)), overruled in part on other grounds by Perry v. Department ofF inancial & Professional Regulation, 2018 IL 122349. 6Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (February 27, 2025). 7Letter from Matt Goodman, Assistant Attorney, Public Access Bureau, Office of the Attorney General, to Sam Stecklow, Reporter, Invisible Institute (February 28, 2025). 8Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Sam Stecklow, Reporter, Invisible Institute, and Marc Loftus, Deputy Chief- FOIA Officer, Burr Ridge Police Department (April 11, 2025). 95 ILCS 140/7 (West 2023 Supp.), as amended by Public Acts I 03-605, effective July 1, 2024; 103-865, effective January I, 2025. Office ofthc Tllinois Attorney General Mr. Sam Stecklow Mr. Marc Loftus May 19, 2025 Page 4 In Kalven, the Illinois Appellate Court considered whether section 7(1)(n) exempts from disclosure complaint register (CR) files documenting investigations of citizen complaints filed against Chicago Police Department (CPD) officers. In determining whether investigations of complaints constitute adjudications of employee disciplinary cases, the court described the CR process: When a public citizen files a complaint against a police officer, either CPD's internal affairs division (IAD) or the Independent Police Review Authority (IPRA) begin investigating the complaint. The CRs are an effort to gather factual information about the complaint, but they do not involve any formalized legal proceedings. While the record indicates that a substantiated complaint can result in disciplinary proceedings being instituted against an officer, those proceedings are a different matter entirely. The CRs are instead part of an investigatory process that is separate and distinct from disciplinary adjudications. Kalven, 2014 IL App (1st) 12184 [...] lating to' 10Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (February 27, 2025), at 2. 11 Letter from Thomas J. Hal leran, Storino, Ram el lo & Durkin, to Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (February 27, 2025), at 2. 12Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (February 27, 2025), at 2. 13Letter from Thomas J. Halleran, Storino, Ramello & Durkin, to Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (February 27, 2025), at 2. Office of the Tllinois Attorney General Mr. Sam Stecklow Mr. Marc Loftus May 19, 2025 Page 6 would give section 7(l)(n) an expansive interpretation and render a broad category of public documents immune to public scrutiny. That is contrary to the intent of FOIA.\" Kalven, 2014 IL App (1st) 121846, ~ 19. Instead, records can only \"relate to\" an adjudication within the meaning of section 7(l)(n) if they are created in the process of conducting the adjudication itself. It is axiomatic that records that pre-date or exist independently of an adjudication cannot \"relate to\" an adjudication because the adjudication has not been initiated and might never occur. The Department has offered no legal support for the notion that the initiation of an adjudication serves to retroactively shield any records that may have been the impetus for the adjudication. The withheld video recording, which documents a police officer's arrest for driving under the influence, plainly pre dates and exists independently of any adjudication. Therefore, Kalven and Peoria Journal Star compel the conclusion that the video recording does not fall within the scope of the section 7(l)(n) exemption. Accordingly, the Department has not sustained its burden of proving by clear and convincing evidence that the withheld video recording is exempt from disclosure under section 7(l)(n) ofFOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On December 12, 2024, Mr. Sam Stecklow, on behalf of the Invisible Institute, submitted a FOIA request to the Village of Burr Ridge Police Department seeking a copy of a video of former Deputy Chief Ryan Husarik's DUI arrest in Virginia in April 2024. 2) On December 20, 2024, the Department denied the request in its entirety pursuant to section 7(l)(n) of FOIA. 3) On February 11, 2025, Mr. Stecklow submitted a Request for Review contesting the Department's denial. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2023 Supp.)). 4) On February 19, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Department and asked it to provide unredacted copies of the requested records for this office's confidential review, together with a written explanation of the factual and legal basis for the applicability of section 7(1 )(n). Office of the fllinois Attorney General Mr. Sam Stecklow Mr. Marc Loftus May 19, 2025 Page 7 5) On February 27, 2025, the Department provided this office with an unredacted copy of the video recording and its written explanation. On February 28, 2025, the Public Access Bureau forwarded a copy of that answer to Mr. Stecklow and notified him of his opportunity to reply to that answer. Mr. Stecklow did not submit a reply. 6) On April 11, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 7) Section 7(1)(n) of FOIA exempts from disclosure \"[r]ecords relating to a public body's adjudication of employee grievances or disciplinary cases[.]\" 8) The Department did not demonstrate that the responsive video recording is a record \"relating to\" its adjudication of Officer Husarik's disciplinary case. Rather, the video recording plainly pre-dated and existed independently of the adjudication. Such records are not retroactively cloaked from public scrutiny by virtue of being used as evidence in a subsequent adjudicatory proceeding. Accordingly, this office concludes that the Department has not met its burden of proving that the withheld video recording is exempt from disclosure under section 7(1)(n) of FOIA. Therefore, it is the opinion of the Attorney General that the Village of Burr Ridge Police Department violated FOIA by withholding video footage responsive to Mr. Sam Stecklow's December 12, 2024, Freedom oflnformation Act request. Accordingly, the Department is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Stecklow with a copy of the video. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Sam Stecklow as defendants. See 5 ILCS 140/11.5 (West 2022). Sincerely, KWAMERAOUL TORNEYGENERAL By: Aarf:J.~ ent D. Stratton Chief Deputy Attorney General Office of the Tllinois Attorney General Mr. Sam Stecklow Mr. Marc Loftus May 19, 2025 Page 8 cc: Mr. Thomas J. Halleran Storino, Ramella & Durkin 9501 Technology Boulevard, Suite 4200 Rosemont, Illinois 60018 Office of the Tllinois Attorney General CERTIFICATE OF SERVICE Joshua M. Jones, Bureau Chief, Public Access Bureau, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-004) upon: Mr. Sam Stecklow Reporter Invisible Institute 6100 South Blackstone A venue Chicago, Illinois 6063 7 foia@invisibleinstitute.com Mr. Marc Loftus Deputy Chief- FOIA Officer Burr Ridge Police Department 7700 County Line Road Burr Ridge, Illinois 60527 policeadmin@burr-ridge.gov Mr. Thomas J. Halleran Storino, Ramello & Durkin 9501 Technology Boulevard, Suite 4200 Rosemont, Illinois 60018 thomas@srd-law.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on May 19, 2025. Joshua M. Jones Bureau Chief Public Access Bureau, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-8413","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Sam Stecklow requested a video of a police officer's DUI arrest from the Burr Ridge Police Department, but the Department denied the request claiming the video was exempt as a record relating to an adjudication. The Attorney General's office determined that the video was not exempt and that the Department violated FOIA by withholding it. This means the Department must release the requested video to the requester.","card_headline":"Police video of a former deputy chief's DUI arrest","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":198,"orig_master_id":19398,"dup_master_id":19172,"dup_sha256":"7ca47f78c6056507b5f06f04023680e21f6fb7795f29be6ec33999b217e72b99","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2024,"date_issued":"2024-12-27","case_number":"2024 PAC 83122","request_numbers":null,"title":"Basis for Withholding Letter from Current and Former Employees of One Public Body Asking Oversight Agency to Hold Vote ofNo Confidence","filename":"PUBLIC ACCESS OPINION 24-016 (Request for Review 2024 PAC 83122).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 24-016 (Request for Review 2024 PAC 83122).pdf","word_count":2326,"summary":"Attorney General Kwame Raoul issued a binding PAC opinion finding that the City of Chicago Community Commission for Public Safety and Accountability violated FOIA by withholding a letter from current and former employees requesting a no-confidence vote.","plain_summary":"The requester, a union counsel, sought a letter that current and former oversight agency employees had sent a city commission asking it to investigate the agency's chief administrator, which the commission withheld citing multiple exemptions including deliberative process, audit materials, and adjudication of disciplinary cases. The Public Access Counselor held that the commission failed to show the letter was predecisional deliberative material, an internal audit record, work created for law enforcement purposes, or related to an actual formalized adjudication. The commission was directed to disclose a copy of the letter.","holding":"The Commission violated FOIA; the letter was not properly exempt and should have been disclosed.","legal_question":"Whether the City of Chicago Commission properly withheld under FOIA a letter from current and former employees requesting a vote of no confidence in the Commission.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 25 ILCS 140/7(1), 5 ILCS 140/1, 345 ILCS 805/10, 50 ILCS 705/2, 415 ILCS 5/22, 5 ILCS 850/5, 50 ILCS 706/10, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)","7(1)(m)","7(1)(n)","7(1)(c)","7(1)(d)"],"public_body":"City of Chicago","requesting_party":"Dowd and Mr. Isaacs","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"A letter from current and former employees requesting a vote of no confidence in the Commission.","ocr_status":"ok","ocr_quality":91,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2024-Binding-PAC-Opinions/Binding%20Opinion%2024-016.pdf","sha256":"893c49462d21da5e5886d29575af7c3ae2a4d607de562090fd6237bd239f9e5a","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA","public records","no-confidence vote","transparency","personnel records"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL December 27, 2024 PUBLIC ACCESS OPINION 24-016 (Request for Review 2024 PAC 83122) FREEDOM OF INFORMATION ACT: Basis for Withholding Letter from Current and Former Employees of One Public Body Asking Oversight Agency to Hold Vote ofNo Confidence Ms. Donna M. Dowd Chicago Metro Counsel Police Benevolent & Protective Association - Labor Committee 1616 West Pershing Road Chicago, Illinois 60609 Mr. Charles Isaacs Assistant Director Community Commission for Public Safety and Accountability City of Chicago 2 North LaSalle Street, Suite 1600 Chicago, Illinois 60602 Dear Ms. Dowd and Mr. Isaacs: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2023 Supp.)). For the reasons discussed below, this office concludes that the City of Chicago (City) Community Commission for Public Safety and Accountability (Commission) violated the requirements of FOIA by improperly denying a FOIA request submitted by Donna M. Dowd. BACKGROUND On September 5, 2024, Ms. Dowd, as the Chicago Metro Counsel for the Police Benevolent & Protective Association - Labor Committee, submitted a FOIA request to the 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisAttomeyGeneral.gov Ms. Donna M. Dowd Mr. Charles Isaacs December 27, 2024 Page 2 Commission seeking a copy of a letter sent to the Commission by current and former Civilian Office of Police Accountability (COPA) employees on or around September 2, 2024, which asked the Commission to investigate COPA Chief Administrator Andrea Kersten.' On September 18, 2024, the Commission denied the request pursuant to sections 7(1)(f), 7(1)(m), and 7(l)(n) of FOIA.2 The Commission claimed as to section 7(1)(f): The record Ii sted in your request is part of the Commission's current work to perform its obligations under the Municipal Code of Chicago to exercise oversight over COPA, which includes evaluating the performance of the Chief Administrator of COPA. The record is deliberative because it is part of the process for the Commission to reach decisions on final actions, and the record is pre-decisional, in that it was generated prior to the Commission's potential final actions. [3J As to section 7(1)(m), the Commission contended that \"the records represent materials compiled with respect to an audit. The Commission had this record compiled under the expectation of privacy and privilege. \"4 The Commission also argued that the section 7(1 )(n) exemption applies because \"[u]nder the Municipal Code of Chicago, the Commission, a public body, is charged with oversight of the COPA and is therefore responsible for the review of complaints as it reviews the performance of the Chief Administrator of COPA.\"5 On September 19, 2024, Ms. Dowd submitted a Request for Review contesting the Commission's denial.6 On September 24, 1FOIA portal message from City of Chicago to [Donna Dowd] (September 5, 2024). Although the message indicated the request was submitted to the City of Chicago City Treasurer's Office, the Commission acknowledges receiving and denying the request. 25 ILCS 140/7(1)(t), (l)(m), (l)(n) (West 2023 Supp.), as amended by Public Act 103-605, effective July I, 2024. 3FOIA portal message from Charles Isaacs, Assistant Director, Community Commission for Public Safety and Accountability, to Donna Dowd (September 18, 2024). 4FOIA portal message from Charles Isaacs, Assistant Director, Community Commission for Public Safety and Accountability, to Donna Dowd (September 18, 2024). 5FOIA portal message from Charles Isaacs, Assistant Director, Community Commission for Public Safety and Accountability, to Donna Dowd (September 18, 2024). 6Letter from Donna M. Dowd, Chicago Metro Counsel, Policemen's Benevolent & Protective Association, to Leah Bartelt, Public Access Counselor, Illinois Attorney General's Office (September I 9, 2024). Ms. Donna M. Dowd Mr. Charles Isaacs December 27, 2024 Page 3 2024, she completed the submission of her Request for Review7 by providing this office with a copy of the underlying FOIA request.8 On September 30, 2024, the Public Access Bureau sent a copy of the Request for Review to the Commission. The Public Access Bureau also sent the Commission a letter requesting an unredacted copy of the withheld record for this office's confidential review and a detailed written explanation of the legal and factual bases for the applicability of the asserted exemptions.9 On October 18, 2024, the Commission furnished those materials, including a complete version of its answer for this office's confidential review10 and a redacted copy for forwarding to Ms. Dowd.11 The Commission maintained that it properly denied the request under sections 7(1)(£), 7(1)(m), and 7(1)(n), and additionally cited the exemptions in sections 7(1)(c), 7(1)(d)(iv), and 7(1)(d)(vi) of FOIA.12 On that same date, this office forwarded a copy of the Commission's answer to Ms. Dowd and notified her of her opportunity to reply in writing.13 On October 24, 2024, she submitted a reply.14 7Section 9.5(a) ofFOIA (5 ILCS 140/9.5(a) (West 2023 Supp.)) requires a signed Request for Review and copies of the FOIA request and any responses to the FOIA request to be submitted not later than 60 days after the date of the final denial of the request. Ms. Dowd's Request for Review did not include a copy of the FOIA request with her initial submission on September 19, 2024. 8E-mail from Donna M. Dowd, Chicago Metro Counsel, Police Benevolent & Protective Assoc. - Labor Committee, to Mariel Perales, [Administrative Clerk, Public Access Bureau, Office of the Attorney General] (September 24, 2024). 9Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Charles Isaacs, Assistant Director, Community Commission for Public Safety and Accountability (September 30, 2024). 10See 5 LLCS l40/9.5(d) (West 2023 Supp.) (\"The Public Access Counselor shall forward a copy of the answer to the person submitting the request for review, with any alleged confidential information to which the request pertains redacted from the copy.\"). 11Letter from Charles Isaacs, Assistant Director, Community Commission for Public Safety and Accountability, City of Chicago, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the lllinois Attorney General (October 18, 2024). 125 LLCS l40/7(1)(c), (l)(d)(iv), (l)(d)(vi) (West 2023 Supp.), as amended by Public Act 103-605, effective July 1, 2024. 13Letter from Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to Donna M. Dowd, Chicago Metro Counsel, Police Benevolent & Protective Association - Labor Committee (October 18, 2024). 14Letter from Donna M. Dowd, Chicago Metro Counsel, Police Benevolent & Protective Assoc. - Labor Committee, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the lllinois Attorney General (October 24, 2024). Ms. Donna M. Dowd Mr. Charles Isaacs December 27, 2024 Page 4 On November 20, 2024, this office extended the time for issuing a binding opinion by 30 business days, to January 8, 2025, pursuant to section 9.5(f) of FOIA.15 ANALYSIS It is the public policy of the State of Illinois that \"all persons are entitled to full and complete information regarding the affairs of government.\" 5 ILCS 140/1 (West 2022). Under FOIA, \"[a)ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convinci [...] ureau forwarded to Ms. Dowd a copy of the Commission's answer and notified her of her opportunity to reply. On October 24, 2024, she submitted a reply. 7) On November 20, 2024, this office properly extended the time within which to issue a binding opinion by 30 business days, to January 8, 2025, pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information.\" Section 7(1)(c) contains an exception providing that \"[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.\" 9) Because the letter bears on the public duties of public employees and because it does not consist of highly personal information that outweighs the legitimate public interest in disclosure, the Commission did not demonstrate that the letter is exempt from disclosure pursuant to section 7(1)(c). 10) Section 7(1)(d)(iv) of FOIA exempts from disclosure \"[r]ecords in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would * * * unavoidably disclose the identity of a confidential source, confidential information furnished only by the confidential source, or persons who file Ms. Donna M. Dowd Mr. Charles Isaacs December 27, 2024 Page 19 complaints with or provide information to administrative, investigative, law enforcement, or penal agencies[.]\" 11) The Commission did not demonstrate that the letter is exempt from disclosure under section 7(l)(d)(iv) because the Commission is not a law enforcement agency and it does not possess the letter for law enforcement purposes. 12) Section 7(l)(d)(vi) of FOIA exempts from disclosure \"[r]ecords in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would * * * endanger the life or physical safety of law enforcement personnel or any other person.\" 13) The Commission did not sustain its burden of proving that the letter is exempt from disclosure under section 7(1 )( d)(vi) because the Commission did not demonstrate or provide facts supporting the assertion that disclosure of the contents of the letter would endanger anyone's life or safety. 14) Section 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.\" 15) The Commission did not sustain its burden of proving that the letter is exempt from disclosure under section 7(1 )(f) because the Commission did not demonstrate that the letter is an inter- or intra-agency predecisional and deliberative communication. 16) Section 7(l)(m) of FOIA exempts from disclosure \"[c]ommunications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil, or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.\" 17) The Commission did not sustain its burden of proving that the letter is exempt from disclosure under section 7(1)(m) because the Commission did not demonstrate that the letter is an internal audit or material prepared or compiled with respect to an internal audit. 18) Section 7(1)(n) ofFOIA exempts from disclosure \"[r]ecords relating to a public body's adjudication of employee grievances or disciplinary cases; however, this exemption shall not extend to the final outcome of cases in which discipline is imposed.\" 19) The Commission did not sustain its burden of proving that the letter is exempt from disclosure under section 7(1 )(n) because the Commission did not demonstrate that Ms. Donna M. Dowd Mr. Charles Isaacs December 27, 2024 Page 20 the letter relates to a public body's \"adjudication\" of an employee grievance within the scope of the exemption. Accordingly, the Commission did not prove by clear and convincing evidence that the letter is exempt from disclosure in whole or in part under sections 7(l)(c), 7(l)(d)(iv), 7(l)(d)(vi), 7(1)(f), 7(l)(m), or 7(l)(n) of FOIA. Therefore, it is the opinion of the Attorney General that the City of Chicago Community Commission for Public Safety and Accountability violated the requirements of FOIA by improperly denying in its entirety Ms. Dowd's September 5, 2024, Freedom of Information Act request. Accordingly, the Commission is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. Dowd with a copy of the responsive letter. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 3 5 days of the date of this decision naming the Attorney General of Illinois and Ms. Donna M. Dowd as defendants. See 5 ILCS 140/11.5 (West 2022). Very truly yours, KWAMERAOUL ATTORNEY GENERAL By I~ ~::-- ~~\\ef Deputy Attorney General CERTIFICATE OF SERVICE I, Leah Bartelt, Public Access Counselor, hereby certify that I have served a copy of the foregoing Binding Opinion (Public Access Opinion 24-016) upon: Ms. Donna M. Dowd Chicago Metro Counsel Police Benevolent & Protective Association - Labor Committee 1616 West Pershing Road Chicago, Illinois 60609 ddowd@pbpa.org Mr. Charles Isaacs Assistant Director Community Commission for Public Safety and Accountability City of Chicago 2 North LaSalle Street, Suite 1600 Chicago, Illinois 60602 Charles.Isaacs@cityofchicago.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on December 27, 2024. LEAH BARTELT Public Access Counselor LEAH BARTELT Public Access Counselor Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6437","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A labor union requested a letter sent to the Chicago Community Commission for Public Safety and Accountability by current and former employees of the Civilian Office of Police Accountability (COPA). The letter asked the Commission to investigate COPA Chief Administrator Andrea Kersten. The Commission refused to release the letter, claiming it was exempt from public view. The Attorney General ruled that the Commission's refusal was improper and ordered them to release the document.","card_headline":"A letter requesting a vote of no confidence","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":199,"orig_master_id":19401,"dup_master_id":19173,"dup_sha256":"b68ca7c01a01aec372d967037467482420149281f769367f98ee87efb9bf3b20","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-06-06","case_number":"2025 PAC 86057","request_numbers":null,"title":"Duty to Respond to FOIA Requests","filename":"PUBLIC ACCESS OPINION 25-005 (Request for Review 2025 PAC 86057).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-005 (Request for Review 2025 PAC 86057).pdf","word_count":2448,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a Freedom of Information Act (FOIA) request submitted by Ms. Lynette Fisher to the Village of Lynwood, which was found to have violated FOIA by failing to respond appropriately.","plain_summary":"The requester, a resident, sought internal communications, payroll and budget records, meeting minutes, and resident complaints concerning a village mayor's salary increases, and the village never substantively responded despite repeated follow-up from the requester and this office. The Public Access Counselor held that the village violated section 3(d) of FOIA by failing to comply with, deny, or properly respond to the request within the statutory period. The village was directed to disclose all records responsive to the request, subject only to permissible redactions.","holding":"The Village of Lynwood violated section 3(d) of FOIA by failing to comply with or appropriately respond to the FOIA request.","legal_question":"Did the Village of Lynwood violate the Freedom of Information Act by failing to respond to a FOIA request?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(d), 5 ILCS 140/1, 5 ILCS 140/3(a), 5 ILCS 140/3(e), 5 ILCS 140/7, 5 ILCS 140/9(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Lynwood","requesting_party":"Fisher and Ms. Wingfield-Bond","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"duty to respond","subject_description":"The request sought internal communications regarding salary increases for the Village Mayor.","ocr_status":"ok","ocr_quality":89.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-005.pdf","sha256":"fe6966d2d40533ac16326c9c2e6b84381599812b14b4742b63da1d383739b634","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA","duty to respond","public records","Village of Lynwood"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL June 6, 2025 PUBLIC ACCESS OPINION 25-005 (Request for Review 2025 PAC 86057) FREEDOM OF INFORMATION ACT: Duty to Respond to FOIA Requests Ms. Lynette Fisher 2655 West 68th Street, Apartment 2 Chicago, Illinois 60629 The Honorable Karen Wingfield-Bond Village Clerk & FOIA Officer Village of Lynwood 21460 Lincoln Highway Lynwood, Illinois 60411 Dear Ms. Fisher and Ms. Wingfield-Bond: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2023 Supp.)). For the reasons discussed below, this office concludes that the Village of Lynwood (Village) violated section 3(d) of FOIA (5 ILCS 140/3(d) (West 2022)) by failing to comply with, deny in writing in whole or in part, or otherwise appropriately respond to a FOIA request submitted by Ms. Lynette Fisher. 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-64 I 6 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. l l l inoisA ttorneyGenera I. gov Ms. Lynette Fisher Ms. Karen Wingfield-Bond June 6, 2025 Page 2 BACKGROUND On March 19, 2025, 1 Ms. Fisher submitted a FOIA request to the Village seeking copies of the following records: 1. Internal Communications Regarding Mayor Jada Curry's Salary Increases • All emails, text messages, and memos from 2021 to present between the Mayor, Village Clerk, Finance Director, and Board of Trustees regarding: • Salary increases for Mayor Jada Curry • Discussions on whether such increases were legal under Illinois law • Concerns raised internally about the appropriateness or legality of these increases 2. Payroll & Budget Records • All payroll records from 2021 to present showing: • Salary payments made to Mayor Jada Curry • Documentation of who approved and processed these payments • All municipal budget records from 2021 to present indicating: • The officially approved salary for the Mayor each year • Any amendments or discussions regarding changes to the salary ordinance 3. Board Meeting Minutes & Ordinances • Copies of all Board of Trustees meeting minutes from 2021 to present where: • The Mayor's salary was discussed, voted on, or amended • Any trustees, staff, or officials raised concerns about salary discrepancies 1Because Ms. Fisher transmitted the request via e-mail after business hours at 8:52 p.m., the Village's \"receipt of the request[ ]\" was March 20, 2025, for purposes of calculating the time period to respond under section 3(d) of FOIA (5 ILCS l 40/3(d) (West 2022)). Ms. Lynette Fisher Ms. Karen Wingfield-Bond June 6, 2025 Page 3 • A copy of the current salary ordinance and any amendments from 2021 to present. 4. Resident Complaints & Public Concerns About Mayor's Salary Increases • All public records, emails, letters, or formal complaints submitted by residents from 2021 to present regarding concerns about: • Mayor Jada Curry's salary increases • Potential misuse of public funds • Pension fraud related to her reported earnings to IMRF • Copies of Board of Trustees meeting minutes where residents raised concerns about the Mayor's salary, including any responses given by village officials. • Any official responses from the Village Clerk, Finance Director, or Board of Trustees to residents or the public regarding these concerns. (21 On April 1, 2025, and April 8, 2025, Ms. Fisher submitted the records required to file a Request for Review with the Public Access Counselor alleging that the Village had failed to respond to her March 19, 2025, FOIA request.3 On April 15, 2025, the Public Access Bureau e-mailed4 a copy of the Request for Review to the Village's FOIA Officer together with a letter asking whether the Village had received and responded to Ms. Fisher's FOIA request. 5 The April 15, 2025, letter also requested that if the Village had received but not responded to Ms. Fisher, it do so and to provide a copy of its response to this office.6 The Village did not respond to the inquiry letter. On April 25, 2025, 2E-mail from Lynette Fisher to FOIA Officer, Village of Lynwood (March 19, 2025). 3E-mail from Lynette Fisher to Public Access Counselor, [Office of the Attorney General] (April I, 2025); E-mail from Lynette Fisher to Public Access Counselor, [Office of the Attorney General] (April 8, 2025). 4E-mail from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Karen] Wingfield-Bond, [FOIA Officer & Village Clerk, Village of Lynwood] (April 15, 2025). 5Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Karen Wingfield-Bond, FOlA Officer & Village Clerk, Village of Lynwood (April 15, 2025), at [ 1]. 6Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Karen Wingfield-Bond, FOIA Officer & Village Clerk, Village of Lynwood (April 15, 2025), at [I]. Ms. Lynette Fisher Ms. Karen Wingfield-Bond June 6, 2025 Page 4 Ms. Fisher informed the Public Access Bureau that she had not received a response from the Village.7 On April 28, 2025, Ms. Fisher sent an additional e-mail to this office stating that the Village still had not responded to her FOIA request.8 On April 28, 2025, an Assistant Attorney General (AAG) in the Public Access Bureau sent an e-mail to the Village's FOIA Officer following up on the April 15, 2025, letter, and asking for an update on the status of the Village's response.9 The Village did not respond to that e-mail. On May 1, 2025, the Public Access Bureau sent an additional copy of the Request for Review to the Village via both e-mail 10 and United States Postal Mail and again asked the Village to respond to the April 15, 2025, inquiry letter.11 The letter advised the Village that if it did not promptly respond to the request or assert that it did not receive the request, this office may issue a determination letter or a binding opinion concluding that the Village violated FOIA.12 On May 8, 2025, and May 12, 2025, Ms. Fisher sent additional e-mails to this office stating that the Village still had not responded to her FOIA request.13 As of the date of the issuance of this binding opinion, this office has not received any response from the Village, nor has it received any indication that the Village has responded to Ms. Fisher's March 19, 2025, FOIA request. 7E-mail from Lynette Fisher to [Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (April 25, 2025). 8E-mail from Lynette Fisher to [Michael J.] Knight, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (April 28, 2025). 9E-mail from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Karen] Wingfield-Bond, [FOIA Officer & Village Clerk, Village of Lynwood] (April 28, 2025). 10E-mail from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to [Karen] Wingfield-Bond, [FOIA Officer & Village Clerk, Village of Lynwood] (May I, 2025). 11Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Karen Wingfield-Bond, FOIA Officer & Village Clerk, Village of Lynwood (May I, 2025), at [I]. 12Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Karen Wingfield-Bond, FOIA Officer & Village Clerk, Village of Lynwood (May I, 2025), at [I]. 13E-mail from Lynette Fisher to [Michael J.] Knight, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (May 8, 2025); [...] ttorney General, Public Access Bureau, Office of the Attorney General] (May 12, 2025). Ms. Lynette Fisher Ms. Karen Wingfield-Bond June 6, 2025 Page 5 ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS 140/1 (West 2022). Under section 1.2 ofFOIA (5 ILCS 140/1.2 (West 2022)), \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying.\" Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2022)) provides that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" Section 3(d) of FOIA further provides: Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection ( e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g). Section 3(e) of FOIA (5 ILCS 140/3(e) (West 2022)) permits a public body to extend its response time by no more than five business days for any of seven enumerated reasons. Any additional extension requires a written agreement between the requester and the public body. 5 ILCS 140/3(e) (West 2022). It is undisputed that the Village did not respond to Ms. Fisher's March 19, 2025, FOIA request within five business days after its receipt by either complying with her request, extending the time for its response pursuant to section 3 (e ) of FO IA, or denying the request in writing in whole or in part. The Village's failure to comply with the requisite response procedures violated section 3( d) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) After business hours on March 19, 2025, Ms. Lynette Fisher submitted a FOIA request to the Village seeking copies of certain records related to Village's budget, salaries, and payroll. Ms. Lynette Fisher Ms. Karen Wingfield-Bond June 6, 2025 Page 6 2) On April 8, 2025, Ms. Fisher completed the submission of her Request for Review to the Public Access Bureau alleging that the Village had failed to respond to her FOIA request. Ms. Fisher's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) ofFOIA (5 ILCS 140/9.5(a) (West 2023 Supp.)). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 3) On April 15, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Village along with a letter asking whether the Village had received and responded to Ms. Fisher's FOIA request. On April 28, 2025, the Public Access Bureau sent the Village an e-mail following up on the April 15, 2025, letter, and asking for an update on the status of the Village's response. The Village did not respond to the April 15, 2025, letter or the April 28, 2025, e-mail. 4) On May 1, 2025, the Public Access Bureau sent an additional copy of the Request for Review and a second letter to the Village, via e-mail and United States Postal Mail, asking the Village to promptly respond to Ms. Fisher's request or notify this office if it had not received the request. The Village did not respond. 5) As of the date of the issuance of this binding opinion, this office has received no information indicating that the Village has responded to Ms. Fisher's March 19, 2025, FOIA request. Therefore, it is the opinion of the Attorney General that the Village has violated section 3(d) of FOIA by failing, within the statutory time period for responding to Ms. Fisher's March 19, 2025, request, to provide copies of the requested records or to deny the request in writing in whole or in part. Accordingly, the Village is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. Fisher with copies of all records responsive to her March 19, 2025, FOIA request, subject only to permissible redactions, if any, under section 7 of FOIA (5 ILCS 140/7 (West 2023 Supp.), as amended by Public Acts 103-605, effective July 1, 2024; 103-865, effective January 1, 2025).14 If the Village determines that any portion of the responsive records is exempt from disclosure under section 7, it is directed to issue a written denial that fully complies with the requirements of section 9(a) of FOIA (5 ILCS 140/9(a) (West 2022)). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County 14Because the Village did not comply with the statutory requirements for responding to Ms. Fisher's FOIA request, the Village is precluded from treating the request as unduly burdensome or imposing copying fees for the responsive records. 5 ILCS 140/3(d) (West 2022). Ms. Lynette Fisher Ms. Karen Wingfield-Bond June 6, 2025 Page 7 within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Lynette Fisher as defendants. See 5 ILCS 140/11.5 (West 2022). Sincerely, KWAMERAOUL ATTORNEY GENERAL il--r By: Ji..~ I i ~ent D. Stratton Chief Deputy Attorney General CERTIFICATE OF SERVICE Joshua M. Jones, Bureau Chief, Public Access Bureau, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-005) upon: Ms. Lynette Fisher 2655 West 68th Street, Apartment 2 Chicago, Illinois 60629 lynettefisher84@gmail.com The Honorable Karen Wingfield-Bond Village Clerk & FOIA Officer Village of Lynwood 21460 Lincoln Highway Lynwood, Illinois 60411 kwinbond@vi l lageoflynwood.net by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on June 6, 2025. Bureau Chief Joshua M. Jones Bureau Chief Public Access Bureau, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-8413","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Ms. Lynette Fisher requested records from the Village of Lynwood regarding salary increases for the Mayor, but the Village failed to provide a response. The Illinois Attorney General's office determined that the Village violated the law by ignoring the request. This means the Village is legally required to respond to the requester as mandated by the Freedom of Information Act.","card_headline":"Internal communications about a mayor's salary increases","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":200,"orig_master_id":19403,"dup_master_id":19174,"dup_sha256":"2157d143a41fbf66556979b5d60c9bf433cac33040d3e9690d888ff0f8095d44","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-06-18","case_number":"2025 PAC 85693","request_numbers":null,"title":"Basis for Withholding Records Related to Settlement Agreement","filename":"PUBLIC ACCESS OPINION 25-006 (Request for Review 2025 PAC 85693).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-006 (Request for Review 2025 PAC 85693).pdf","word_count":2358,"summary":"This document is a binding public access opinion regarding a Freedom of Information Act request made by Mr. Pete Czosnyka to the City of Chicago Department of Finance, concerning the withholding of records related to a settlement agreement.","plain_summary":"The requester sought records showing an $87,500 city payment toward a settlement in a lawsuit against a named alderman, which a city department withheld in part as an attorney-client communication not subject to discovery. The Public Access Counselor held that the record was a settlement document signed by the alderman and a city attorney rather than a confidential communication seeking or giving legal advice, and that records showing the use of public funds are subject to FOIA and the state constitution's public-funds disclosure guarantee. The department was directed to disclose the withheld record.","holding":"The City of Chicago Department of Finance improperly withheld a record responsive to Mr. Czosnyka's FOIA request.","legal_question":"Whether the City of Chicago Department of Finance properly withheld records in response to a FOIA request.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140, 5 ILCS 140/7(1), 5 ILCS 140/1, 5 ILCS 140/2, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(m)","public_body":"City of Chicago Department of Finance","requesting_party":"Czosnyka and Mr. Davis","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"settlement agreement","subject_description":"The request sought records concerning an $87,500 payment to an Alderman and documentation regarding a settlement agreement.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-006.pdf","sha256":"d5562fa813f58db96a1a38f10ba491af53926d6492d36b1a316f9f6995c1d437","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["settlement agreement","public payment","FOIA request","City of Chicago"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL June 18, 2025 PUBLIC ACCESS OPINION 25-006 (Request for Review 2025 PAC 85693) FREEDOM OF INFORMATION ACT: Basis for Withholding Records Related to Settlement Agreement Mr. Pete Czosnyka 5745 North Menard Avenue Chicago, Illinois 60646 Mr. Frank Davis Assistant Director City of Chicago Department of Finance 121 North LaSalle Street, Room 700 Chicago, Illinois 60602 Dear Mr. Czosnyka and Mr. Davis: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that the City of Chicago (City) Department of Finance (Department) improperly withheld a record responsive to Mr. Pete Czosnyka's February 22, 2025, FOIA request. On that date, Mr. Czosnyka submitted a FOIA request to the Department seeking: \"A copy of the record of the $87,500 payment to Alderman Gardiner* * * AND documents sufficient to show the nature and extent of the 'settlement' * * * AND documents sufficient to show the definition of a 'Contribution Claim.\"' 1 (Emphasis in original.) On February 24, 2025, the Department extended its time to respond to Mr. Czosnyka's request by five business days 1F OIA portal message from City of Chicago Finance Department acknow Ie dging receipt of FOIA request submitted by Peter Czosnyka (February 22, 2025). 500 South 2nd Street I I 5 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, lllinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 8 I 4-3000 • Fax: (3 I 2) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisAttorneyGeneral.gov Mr. Pete Czosnyka Mr. Frank Davis June 18, 2025 Page 2 pursuant to section 3(e)(vii) of FOIA (5 ILCS 140/J(e)(vii) (West 2024)).2 On March 11, 2025, the Department granted the request in part and denied it in part pursuant to sections 7(1)(b), 7(1)(c), 7(1)(m), and 7(1)(kk) ofFOIA (5 ILCS 140/7(1)(b), (l)(c), (l)(m), (l)(kk) (West 2024)).3 On that same date, Mr. Czosnyka submitted the above-referenced Request for Review contesting the Department's response.4 On March 27, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Department, accompanied by a letter requesting unredacted copies of any withheld records for this office's confidential review and a detailed written explanation of the legal and factual bases for the applicability of the asserted exemptions. 5 This office also asked the Department to provide a detailed description of its search for responsive records.6 On April 8, 2025, the Department furnished those materials, including a complete version of its answer for this office's confidential review and a copy with confidential information redacted7 for forwarding to Mr. Czosnyka. 8 On that same date, this office forwarded a copy of the Department's redacted answer to Mr. Czosnyka9 and notified him of his opportunity to reply in writing. 10 Mr. Czosnyka replied on that same date.11 On April 9, 2025, Mr. Czosnyka clarified 2FOIA portal message from Frank Davis, FOIA Officer/Assistant Director P&L, Department of Finance, to Peter Czosnyka (February 24, 2025). 3Letter from Frank Davis, FOIA Officer/ Assistant Director P&L, Department of Finance, to Peter Czosnyka (March I I, 2025). 4E-mail from Pete Czosnyka to Illinois Attorney General Public Access Counselor (PAC) (March 11, 2025). 5Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Frank Davis, FOIA Officer, City of Chicago Department of Finance (March 27, 2025), at 2. 6Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Frank Davis, FOIA Officer, City of Chicago Department of Finance (March 27, 2025), at 2. 7Section 9.5(d) of FOIA (5 ILCS 140/9.5(d) (West 2024)) provides that \"[t]he Public Access Counselor shall forward a copy of the answer to the person submitting the request for review, with any alleged confidential information to which the request pertains redacted from the copy.\" 8Letter from Frank Davis, FOlA Officer, Department of Finance, City of Chicago, to Ben Silver, Supervising Attorney, Public Access Bureau, Office of the Illinois Attorney General (April 8, 2025). 9See 5 ILCS l40/9.5(d) (West 2024) (\"The Public Access Counselor shall forward a copy of the answer to the person submitting the request for review, with any alleged confidential information to which the request pertains redacted from the copy.\"). 10Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Pete Czosnyka (April 8, 2025). 11E-mail from Pete Czosnyka to [Benjamin] Silver, [Supervising Attorney Public Access Bureau, Office of the Attorney General] (April 8, 2025). Mr. Pete Czosnyka Mr. Frank Davis June 18, 2025 Page 3 for this office that he wanted to limit the scope of his Request for Review to the withholding of records under section 7(1 )(m) of FOIA.12 On May 6, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to June 24, 2025, pursuant to section 9.5(f) of FOIA.13 BACKGROUND The record at issue in this matter relates to a class action lawsuit that Mr. Czosnyka and other plaintiffs filed against the City and Alderman Jim Gardiner. The plaintiffs alleged that: ( 1) Alderman Gardiner violated their constitutional rights by blocking them from his official Facebook page and/or deleting comments they posted; and (2) the City failed to reprimand Alderman Gardiner for that conduct. Czosnyka v. Gardiner, 2021 U.S. Dist. Lexis 205041, at *2 (N.D. Ill. October 25, 2021). On October 25, 2021, the court granted the City's motion to dismiss the City from the lawsuit. Czosnyka v. Gardiner, 2021 U.S. Dist. Lexis 205041, at *5 (N.D. Ill. October 25, 2021). On September 25, 2023, the court granted the plaintiffs' motion for summary judgment against Alderman Gardiner, enjoined him from blocking the plaintiffs on his Facebook page, and indicated that a trial would be scheduled to determine damages. Czosnyka v. Gardiner, 2023 U.S. Dist. Lexis 170294, at *18 (N.D. Ill. September 25, 2023). The news media reported that the case subsequently was settled for $157,500, with the City contributing $87,500 to the settlement \"even though U.S. District Judge Sharon Coleman dismissed the claims against the city[.]\" 14 The Department's redacted response to the FO IA request referenced a check that the City issued to Nat han & Kamionski LLP, 15 which represented Alderman Gardiner in the lawsuit.16 The record that the Department withheld under 12E-mail from Pete Czosnyka to [Benjamin] Silver, [Supervising Attorney, Public Access Bureau, Office of the Attorney General] (April 9, 2025). 13Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Pete Czosnyka and Frank Davis, Assistant Director, City of Chicago Department of Finance (May 6, 2025). 14Heather Cherone, Chicago Taxpayers to Pay $87,500 to Settle Lawsuit Claiming Aid. Jim Gardiner Violated First Amendment by Blocking Critics from Official Facebook Page, WTTW (January 7, 2025), https://news. wttw .com/2025/0 l /07 /ch icago-taxpayers-pay-87 500-settle-lawsuit-claim ing-ald-j im-gard iner-vio lated first. 15Letter from Frank Davis, FOIA Officer, Department of Finance, City of Chicago, to Ben Silver, Supervising Attorney, Public Access Bureau, Office of the lllinois Attorney General (April 8, 2025), at 2. 16Heather Cherone, Federal Judge Who Ruled Aid. Gardiner Violated First Amendment Admonishes Him for Approaching Her, WTTW (August 30, 2024), https://news.wttw.com/2024/08/30/federal judge-who-ru led-ald-gardiner-vio lated-first-amendment-admonishes-him-approaching. Mr. Pete [...] 0-0-0-2600022#JD _ Ch .2-60. Mr. Pete Czosnyka Mr. Frank Davis June 18, 2025 Page 6 addresses. The confidential information that the Department provided to this office does not establish that City attorneys represented Alderman Gardiner in connection with the withheld record. Further, article VIII, section 1( c ) of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VIII,§ l(c)) provides that \"[r]eports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law.\" The constitutional right to information regarding the use of public funds is incorporated into the provisions of FOIA. 5 ILCS 140/2.5 (West 2024) (\"All records relating to the obligation, receipt, and use of public funds of the State, units of local government, and school districts are public records subject to inspection and copying by the public.\"). The public has a right to know the purposes for which public funds are expended. Because the withheld record relates to such a purpose and because it is not a communication protected by the attorney-client privilege, this office concludes that the Department did not sustain its burden of proving that the record is exempt from disclosure under section 7(1)(m) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On February 22, 2025, Mr. Pete Czosnyka submitted a FOIA request to the City of Chicago Department of Finance seeking, in relevant part, \" [a] copy of the record of the $87,500 payment to Alderman Gardiner * * * AND documents sufficient to show the nature and extent of the 'settlement'[.]\" 2) On February 24, 2025, the Department extended its time to respond to Mr. Czosnyka's request by five business days pursuant to section 3(e)(vii) of FOIA. 3) On March 11, 2025, the Department granted the request in part and denied it in part pursuant to sections 7(1)(b), 7(1)(c), 7(1)(m), and 7(1)(kk) of FOIA. 4) On that same date, Mr. Czosnyka submitted the above-referenced Request for Review contesting the Department's response. 5) On March 27, 2025, the Public Access Bureau sent a copy of the Request for Review to the Department and asked it to provide unredacted copies of the contested records for this office's confidential review. This office also asked the Department to provide a detailed explanation of the factual and legal bases for its partial denial of Mr. Czosnyka's request and the measures that were taken to search for responsive records. Mr. Pete Czosnyka Mr. Frank Davis June 18, 2025 Page 7 6) On April 8, 2025, the Department furnished the requested materials to this office, including a complete version of its answer for this office's confidential review and a redacted copy to forward to Mr. Czosnyka. 7) On that same date, the Public Access Bureau forwarded a copy of the Department's written answer to Mr. Czosnyka and notified him of his right to reply. 8) On April 8, 2025, Mr. Czosnyka replied to the Department's answer. On April 9, 2025, Mr. Czosnyka clarified for this office that the scope of his Request for Review is limited to the Department's assertion of section 7(1 )(m) of FOIA. 9) On May 6, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 10) The one record withheld by the Department pursuant to the section 7(1 )(m) exemption consists of a document concerning the settlement of a class action lawsuit that had been filed against Alderman Gardiner and the City. The City had been dismissed from the case, but the plaintiffs obtained summary judgment against Alderman Gardiner. 11) Section 7(1 )(m) of FOIA exempts from disclosure \"[c]ommunications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil, or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.\" 12) The record at issue does not reflect Alderman Gardner seeking legal advice or a City attorney rendering legal advice. The City has not demonstrated that it had an attorney client relationship with Alderman Gardiner in connection with the withheld record. That record is a document concerning the settlement which is signed by Alderman Gardiner and an attorney with the City's Law Department. Accordingly, this office concludes that the Department has not met its burden of proving that the withheld record is exempt from disclosure under section 7(1)(m) of FOIA. Therefore, it is the opinion of the Attorney General that the City of Chicago Department of Law improperly withheld the contested record in response to Pete Czosnyka's February 22, 2025, Freedom oflnformation Act. Accordingly, the Department is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Czosnyka with a copy of the withheld record. Mr. Pete Czosnyka Mr. Frank Davis June 18, 2025 Page 8 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Pete Czosnyka as defendants. See 5 ILCS 140/1 l .5 (West 2024). Very truly yours, KWAMERAOUL ATTORNEY GENERAL By: J j_., \\JcJ.j__ .UALS,J [11-tllov---________ Brent D. Stratton , Chief Deputy Attorney General CERTIFICATE OF SERVICE Joshua M. Jones, Bureau Chief, Public Access Bureau, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-006) upon: Mr. Pete Czosnyka 5745 North Menard Avenue Chicago, Illinois 60646 petczosnyka@comcast.net Mr. Frank Davis Assistant Director City of Chicago Department of Finance 121 North LaSalle Street, Room 700 Chicago, Illinois 60602 DOFfoia@cityofchicago.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on June 18, 2025. . J::v O::::ua M. Jones Bureau Chief Joshua M. Jones Bureau Chief Public Access Bureau, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-8413","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Czosnyka requested records from the City of Chicago Department of Finance about an $87,500 payment and the details of a settlement agreement. The City withheld the records, citing the attorney-client privilege exemption under FOIA. The Illinois Attorney General's office concluded that the City did not prove the exemption applied, because the record related to public funds and was not a privileged communication. The opinion directs the City to comply with FOIA, which may require releasing the record.","card_headline":"Records of a payment to an alderman and a settlement agreement","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":201,"orig_master_id":19404,"dup_master_id":19175,"dup_sha256":"a44014db31c7ca775a4371d8882db6d202bcfcdad1cce762794e81900443444a","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-06-24","case_number":"2025 PAC 85894","request_numbers":null,"title":"Informal Committee of City is Subsidiary Body","filename":"PUBLIC ACCESS OPINION 25-007 (Request for Review 2025 PAC 85894).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-007 (Request for Review 2025 PAC 85894).pdf","word_count":2412,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a complaint about the City of Peru's Pool Committee allegedly violating the Open Meetings Act by holding private meetings.","plain_summary":"The requester, a resident, alleged that a city's pool-building committee, composed of city officials and citizens appointed by the mayor, had been meeting privately without complying with the Open Meetings Act. The Public Access Counselor held that, based on the governmental function the committee performed and the degree of city control over it, the committee was a subsidiary body of the city subject to all of OMA's requirements. The committee was directed to ensure future meetings comply with OMA, including proper notice, minutes, and public comment, and to complete OMA training.","holding":"The City of Peru Pool Committee is a subsidiary body subject to the requirements of the Open Meetings Act.","legal_question":"Whether the City of Peru Pool Committee is a subsidiary body subject to the Open Meetings Act.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/1, 65 ILCS 5/1, 65 ILCS 5/11, 5 ILCS 120/2, 735 ILCS 5/3, 5 ILCS 120/7","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"City of Peru","requesting_party":"Riordan and Mr. Schweickert","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The committee held private meetings to discuss the construction of a new municipal pool without providing public access.","ocr_status":"ok","ocr_quality":90.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-007.pdf","sha256":"3dc485b1e58a45efa5220a100d1870e77f7d6ca185ee6ae523c773947d39bd22","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["Open Meetings Act","subsidiary body","public access","committee meetings"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL June 24, 2025 PUBLIC ACCESS OPINION 25-007 (Request for Review 2025 PAC 85894) OPEN MEETINGS ACT: Informal Committee of City is Subsidiary Body Mr. Tom Riordan 1527 Eighth Street Peru, Illinois 61354 Mr. Scott J. Schweickert Corporation Counsel City of Peru 1901 Fourth Street Peru, Illinois 61354 Dear Mr. Riordan and Mr. Schweickert: This binding opinion is issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this office concludes that the City of Peru (City) Pool Committee (Committee) is a subsidiary body subject to the requirements of OMA. BACKGROUND On March 23, 2025, Mr. Tom Riordan submitted a Request for Review alleging that the Committee violated OMA by improperly holding private meetings: 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 8 I 4-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisAttomeyGeneral.gov .. ,. .... • r,.-o .. ::;: --· .oos Mr. Tom Riordan Mr. Scott J. Schweickert June 24, 2025 Page 2 The city of Peru has been holding committee meetings but they are closed to the public. The committee was appointed by the mayor[], contains city officials, and city citizens. It's to discuss building a new pool because we passed a referendum to instruct the city to build a pool. They've been meeting for several months now without access for the public to attend_[IJ On March 24, 2025, Mr. Riordan further stated that the Committee met on March 10, 2025,2 and several other times since the referendum passed in November 2024.3 He alleged that \"[f]inancial reports were given on the status of the general fund as it pertains to a pool and use of tax dollars[,]\" and \"[d]esigns and locations were discussed[,]\" but the Committee did not compile meeting minutes or otherwise adhere to the requirements of OMA.4 On March 26, 2025, the Public Access Bureau sent a copy of the Request for Review to City Mayor Ken Kolowski along with a letter5 requesting, for this office's confidential review, copies of any notices, agendas, minutes, and recordings .of any Committee meetings that were held within 60 days of the submission of Mr. Riordan's Request for Review. This office also requested that the City provide a written response to Mr. Riordan's allegation that the Committee improperly held private meetings that were required to be open to the public pursuant to OMA. In particular, this office asked the City to address specific factors that courts have used to analyze whether an entity constitutes an advisory body or subsidiary body.6 On April 3, 2025, City Corporation Counsel Scott Schweickert provided this office with a written response, maintaining that the Committee is an \"informal advisory 1E-rnail from Torn Riordan to Public Access [Bureau, Office of the Attorney General] (March 23, 2025). 2Section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2024)) generally requires a Request for Review to be submitted \"not later than 60 days after an alleged violation\" of the Act. Because Mr. Riordan submitted his Request for Review within 60 days of the March I 0, 2025, meeting, section 3.5(a) of OMA authorizes this office to review whether the Committee violated OMA. 3E-rnail from Torn Riordan to Christopher Boggs, [Deputy Public Access Counselor, Public Access Bureau, Office of the Attorney General] (March 24, 2025). 4E-rnail from Torn Riordan to Christopher Boggs, [Deputy Public Access Counselor, Public Access Bureau, Office of the Attorney General] (March 24, 2025). 5Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable Ken Kolowski, Mayor, City of Peru (March 26, 2025), at 1-2. 6Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable Ken Kolowski, Mayor, City of Peru (March 26, 2025), at 1-2. Office of the Tllinois Attorney General Mr. Tom Riordan Mr. Scott J. Schweickert June 24, 2025 Page 3 committee\" that does not qualify as a subsidiary or advisory body. 7 That same day, the Public Access Bureau forwarded a copy of the City's written response to Mr. Riordan and notified him of his opportunity to reply.8 On April 7, 2025, Mr. Riordan submitted a reply.9 On May 16, 2025, the Public Access Bureau extended the time in which to issue a binding opinion by 21 business days, to June 24, 2025, pursuant to section 3.5(e) of OMA.10 ANALYSIS \"In order that the people shall be informed, the General Assembly finds and declares that it is the intent of [OMA] to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2024). Section 1.02 of OMA (5 ILCS 120/1.02 (West 2024)) defines the term \"public body\" to include, in relevant part: [A]ll legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, except the General Assembly and committees or commissions thereof. (Emphasis added.) Under the plain language of this definition, committees of cities are subsidiary bodies subject to OMA. The City argues that the Committee has an informal nature that excludes it from the requirements of OMA. Accordingly, this office will examine the four primary factors that courts consider in determining whether an entity is a \"subsidiary body\" of a public body: \"(1) the extent to which the entity has a legal existence independent of government 7Letter from Scott J. Schweickert, Corporation Counsel, City of Peru, to Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (April 3, 2025), at 3. 8Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Tom Riordan (April 3, 2025). 9E-mail from Tom Riordan to [Katie] Goldsmith, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (April 7, 2025). 10Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Tom Riordan and Scott J. Schweickert, Corporation Counsel, City of Peru (May 16, 2025). Office of the fllinois Attorney General Mr. Tom Riordan Mr. Scott J. Schweickert June 24, 2025 Page 4 resolution, (2) the degree of government control exerted over the entity, (3) the extent to which the entity is publicly funded, and ( 4) the nature of the functions performed by the entity.\" Better 1 Government Ass 'n v. Illinois High School Ass 'n, 2017 IL 121124, 26. \"[N]o single factor is determinative or conclusive, but as the definition indicates, the key distinguishing factors are government creation and control.\" Better Government Ass'n, 2017 IL 121124, 126. While the City's response to this office did not include any materials documenting Committee meetings, the City did not dispute the allegation that the Committee had been meeting in private, including on March 10, 2025. The City explained the history of efforts to build a new City pool since 2013.11 The City stated that replacing the municipal pool \"has been a topic of significant public debate[,]\" and that \" [c ]ertain community members, * * * colloquially known as 'Friends of the Peru Pool,' have advocated in favor of constructing a new municipal pool.\"12 The City also explained that City [...] e. The function of the Committee is inherently the type of work that is performed by the City as a corporate authority. Indeed, various City officials and employees participate in the Committee's meetings and activities. Additionally, the Illinois Municipal Code (65 ILCS 5/1-1 et seq. (West 2024)) provides that the development of a municipal pool is a governmental function: The corporate authorities of the municipality, or the specified board when designated, has the power to provide, maintain, equip, and operate swimming pools as a part of such a recreation system or playgrounds or recreation centers in any public park or land or building dedicated or set apart as provided in this Division 95. The corporate authorities or the specified board 32Letter from Scott J. Schweickert, Corporation Counsel, City of Peru, to Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (April 3, 2025), at 2. Office of the Tllinois Attorney General Mr. Tom Riordan Mr. Scott J. Schweickert June 24, 2025 Page 10 shall provide for the sanitation of these swimming pools and shall provide proper protection for the public in the use thereof. They may charge and collect reasonable fees for the use of these swimming pools to cover the cost of operation thereof. 65 ILCS 5/11-95-2 (West 2024). Because the City is using the Committee to perform this function, the Committee's work is governmental in nature. Based on the above application of the factors recognized as relevant by the Illinois Supreme Court in Better Government Ass'n-most notably the governmental function performed by the Committee and the degree of control exercised by the City-the Committee is a subsidiary body of the City that is subject to all of the requirements of OMA.33 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the arguments presented, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On March 23, 2025, Mr. Tom Riordan submitted a Request for Review alleging that the Committee improperly held meetings that did not comply with the requirements of OMA. Mr. Riordan alleged that the Committee held one such improper meeting on March 10, 2025. It is undisputed that Mr. Riordan's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA. 2) On March 26, 2025, the Public Access Bureau sent a copy of the Request for Review to the City. The Public Access Bureau also sent the City a letter requesting copies of any notices, agendas, minutes (in draft form if necessary), and recordings of any meetings that occurred within the 60 days before Mr. Riordan submitted his Request for Review. The inquiry letter also requested a detailed written answer to the allegation that the Committee improperly held meetings that were not open to the public in accordance with OMA during that time period. 3) On April 3, 2025, the City Corporation Counsel provided this office with a written answer. 4) On April 3, 2025, the Public Access Bureau forwarded a copy of the City's written answer to Mr. Riordan and notified him of his opportunity to reply. On April 7, 2025, Mr. Riordan submitted a reply. 33Because the Committee is a subsidiary body subject to the requirements of OMA, this office need not analyze whether the Committee is also an advisory body. Office of the Tllinois Attorney General Mr. Tom Riordan Mr. Scott J. Schweickert June 24, 2025 Page 11 5) On May 16, 2025, the Public Access Bureau properly extended the time within which to issue a binding opinion by 21 business days, to June 24, 2025, pursuant to section 3.5(e) of OMA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter. 6) A \"public body\" for purposes of OMA is defined to include advisory and subsidiary bodies of cities, such as committees. 7) The Committee has held multiple meetings, including one on March 10, 2025, since City residents voted in the November 2024 general election to approve a referendum supporting the development of a City-owned pool. It is undisputed that the Committee meetings have not been open to the public. 8) Based on an analysis of the factors that the Illinois Supreme Court recognized as relevant in Better Government Ass'n, the Committee is a subsidiary body of the City and therefore must follow all of the requirements of OMA, including providing advance notice of its meetings (5 ILCS 120/2.02 (West 2024)), keeping written minutes (5 ILCS 120/2.06(a) (West 2024)), and providing members of the public with an opportunity to address Committee members (5 ILCS 120/2.06(g) (West 2024)). 9) Accordingly, the Attorney General concludes that the Committee violated the requirements of OMA in connection with the March 10, 2025, meeting, by not complying with the requirements of OMA. In accordance with these findings of fact and conclusions of law, the Committee is directed to take immediate and appropriate action to comply with this opinion by taking measures to ensure all future meetings comply with the requirements of OMA, including properly posting meeting notices and agendas, allowing opportunity for public comment, and preparing meeting minutes. Committee members shall also complete the OMA electronic training curriculum. 5 ILCS 120/1.05(b) (West 2024). Office of the Tllinois Attorney General Mr. Tom Riordan Mr. Scott J. Schweickert June 24, 2025 Page 12 This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Tom Riordan as defendants. See 5 ILCS 120/7.5 (West 2024). Very truly yours, KWAMERAOUL ATTORNEY GENERAL (!:~t:~ By: Chief Deputy Attorney General Office of the Tllinois Attorney General CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-007) upon: Mr. Tom Riordan 1527 Eighth Street Peru, Illinois 61354 mrplowinc@comcast.net Mr. Scott J. Schweickert Corporation Counsel City of Peru 1901 Fourth Street Peru, Illinois 61354 sschweickert@peru.il. us by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on June 24, 2025. ~ ~ - - Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A resident complained that the City of Peru's Pool Committee was holding private meetings to discuss a new city pool project without allowing public access. The Illinois Attorney General ruled that because the committee was appointed by the mayor and includes city officials, it is a 'subsidiary body' that must follow the Open Meetings Act. This means the committee is now legally required to provide public notice of its meetings and allow the public to attend.","card_headline":"Closed meetings of a municipal pool committee","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":202,"orig_master_id":19402,"dup_master_id":19176,"dup_sha256":"6f0a05cab4529d73362d3d6e1ecfc2bad091a3bc2d80f5445fae7c168e62a49f","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-08-05","case_number":"2025 PAC 86731","request_numbers":null,"title":"Obligation to Identify Applicant for Public . Office Before Voting on Appointment","filename":"PUBLIC ACCESS OPINION 25-009 (Request for Review 2025 PAC 86731).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-009 (Request for Review 2025 PAC 86731).pdf","word_count":4547,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a violation of the Open Meetings Act by the Village of Sauk Village Board of Trustees related to the appointment of a trustee.","plain_summary":"The requester, a village resident, alleged that a village board violated the Open Meetings Act by voting on a mayoral appointment to fill a board vacancy without publicly naming the proposed appointee before the vote. The Public Access Counselor held that the board's rejection of the unnamed nominee was still a \"final action\" subject to section 2(e)'s public-recital requirement, and that failing to identify the proposed appointee deprived the public of information essential to understanding the board's decision. The board was directed to amend its approved meeting minutes to include the name of the proposed appointee.","holding":"The Village of Sauk Village Board of Trustees violated the Open Meetings Act by failing to provide an adequate public recital before voting on an appointment.","legal_question":"Did the Village of Sauk Village Board of Trustees violate the Open Meetings Act by not identifying the applicant before voting on the appointment?","disposition":"violation_found","primary_statute":["5 ILCS 120/2(e)"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Sauk Village Board of Trustees","requesting_party":"Mr. David Smith","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"meeting notice","subject_description":"The failure of a public body to identify an appointee to a vacant trustee position during an open meeting prior to voting.","ocr_status":"ok","ocr_quality":91.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-009.pdf","sha256":"8dc17badce0b1803082d3199839c20e050aecbcb6685ac53dfac32f3bdeb0cf5","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["Open Meetings Act","public appointment","transparency","board of trustees","voting"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nKWAME RAOUL\nATTORNEY GENERAL\nAugust 5, 2025\nPUBLIC ACCESS OPINION 25-009\n(Request for Review 2025 PAC 86731)\nOPEN MEETINGS ACT:\nObligation to Identify Applicant for Public .\nOffice Before Voting on Appointment\nMr. David Smith\n[street address redacted for site publication -- see original PDF]\nThe Honorable Marva Campbell-Pruitt.\nMayor :\nVillage of Sauk Village\n21801 Torrence Avenue\nSauk Village, Illinois 60411\nDear Mr. Smith and Ms. Campbell-Pruit:\nThis binding opinion is issued pursuant to section 3.5(e) of the Open Meetings\nAct (FOIA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this office\nconcludes that the Village of Sauk Village Board of Trustees (Board) violated OMA by failing to\nprovide an adequate public recital before voting on an appointment to fill a vacancy on the\nBoard. ; ;\nOn May 8, 2025, Mr. David Smith submitted a Request for Review asserting that\nduring its April 28, 2025, meeting, the Board violated section 2(e) of OMA (5 ILCS 120/2(e)\n(West 2024)) in connection with its vote to appoint an individual to fill a vacant trustee position!\nSpecifically, Mr. Smith asserted: \"When the mayor made the motion to appoint an official fora\ntwo-year term to fill the vacant Trustee position she did not state the name of the individual that\n'E-mail from David Smith to Public Access [Bureau, Office of the Attorney General] (May 8,\n2025). ; :\n500 South 2°4 Street, Springfield, Illinois 62701 (217) 782-1090 © Fax: (217) 782-7046\n115 South LaSalle Street, Chicago Illinois 60603, * (312) 814-3000 « Fax: (312) 814-3806\n1745 Innovation Drive, Suite C, Carbondale, Illinois 62903 © (618) 529-6400 *-Fax: (618) 529-6416\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. *G@=>~\nMr. David Smith\nThe Honorable Marva Campbell-Pruitt\nAugust 5, 2025\nPage 2\nshe intended to appoint. The motion was moved and seconded and brought up for vote.\" The\nRequest for Review included an internet link to a recording oft he meeting.?\nOn May 16, 2025, the Public Access Bureau sent the Board a copy oft he Request\nfor Review along with a letter asking it to provide copies of the agenda, minutes and any audio\nor video recording of the Board's April 28, 2025, meeting if the Village possessed such a\nrecording.’ This office also asked the Board to provide a written response to Mr. Smith's\nallegation which specified the wording of the public recital that preceded the vote on the\nappointment to fill the vacancy on the Board.> On May 22, 2025, counsel for the Board\nfurnished a written response that asserted the recording of the meeting referenced in Mr. Smith's\nRequest for Review was \"dispositive of this matter.\"® The Board's response stated that the video\nshowed \"the motion in question failed. [Citation.] Accordingly, there is no violation of OMA\nbecause no action was taken.\"’ On May 30, 2025, this office sent a copy of the written response\nto Mr. Smith.’ On June 30, 2025, Mr. Smith submitted a reply asserting that \"[t]he action that\nwas taken was a denial of the unnamed appointment. * * *. There was a public vote that was not\npreliminary or temporary therefore it should be considered final.\"?\nOn July 7, 2025, this office extended the time within which to issue a binding\nopinion by 21 business days, to August 5, 2025, pursuant to section 3.5(e) of OMA\\!?\n?E-mail from David Smith.to Public Access [Bureau, Office of the Attorney General] (May 8,\n2025).\nVillage of Sauk Village Board of Trustees, Meeting, April 28, 2025, Video Recording,\nps“ drive.google.com/file/d/! HrZp-CMrchwT2OTRX-3ckEINV129a8NO/edit.\n“Letter from Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, Office\nof the Attorney General, to The Honorable Marva Campbell-Pruitt, Mayor, Village of Sauk Village (May 16, 2025),\nat 2,\nSLetter from Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, Office\nof the Attorney General, to The Honorable Marva Campbell-Pruitt, Mayor, Village of Sauk Village (May 16, 2025),\nat2 .\nSLetter from Jayman A. Avery III, Odelson, Murphy, Frazier & McGrath, Ltd., to Steve Silverman\n(May 22, 2025), at 2.\n\"Letter from Jayman A. Avery II, Odelson, Murphy, Frazier & McGrath, Ltd., to Steve Silverman\n(May 22, 2025), at |.\n‘Letter from Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, to\nDavid Smith (May 30, 2025).\nLetter from David Smith to Steve Silverman (June 6, 2025), at 2.\n‘Letter from Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, Office\noft he Attorney General, to David Smith and Jayman A. Avery, Senior Counsel, Odelson, Murphy, Frazier &\nMcGrath, Ltd. July 7, 2025).\nMr. David Smith\nThe Honorable Marva Campbell-Pruitt .\nAugust 5, 2025 \"\nPage 3\nANALYSIS |\nAs a threshold matter, section 3.1-10-50(e) of the Municipal Code (65 ILCS\n5/3.1-10-50(e) (West 2024)) provides that a mayor ofa municipality with a population under\n500,000 must appoint a qualified person to fill a vacancy on a board of trustees within 60 days\nafter the vacancy occurs. If the board oft rustees does not consent to a mayor's first appointment\nofa qualified person to fill a vacancy, the mayor must submit a second appointment. 65 ILCS\n5/3.1-10-50(e) (West 2024). Ifa board of trustees also does not consent to the second\nappointment, “then the mayor or president or acting mayor or acting president, without the\nadvice and consent of the corporate authorities, may make a temporary appointment from those\npersons who were appointed but whose appointments failed to receive the advice and consent of\nthe corporate authorities.\" 65 ILCS 5/3.1-10-50(e) (West 2024). In his reply to the Board's\nresponse, Mr. Smith contended that \"[t]he Mayor failed to name the first ‘qualified person’ that\nshe wanted to appoint as Trustee. This is a Mandatory requirement according to (65 ILCS 5/3.1-\n10-50 (e). Failure to meet the mandatory requirements should be grounds to invalidate the\nappointment.\"'' (Emphasis in original.) According to Mr. Smith, on May 27, 2025, the Board\ntabled a motion to appoint Ms. Tonyia Winston to fill the vacancy on the Board.'? He argued\n_ that the vote on Ms. Winston's appointment should be considered the first rather than the second\nappointment vote under the Municipal Code because the Mayor did not publicly name the\nindividual whose appointment was considered by the Board at its April 28, 2025, meeting.\"\n. The Public Access Counselor's authority is limited to reviewing alleged violations\nof the Freedom ofI nformation Act'* and OMA. 15 ILCS 205/7 (West 2024). Mr. Smith's\nRequest for Review presents two legal questions: (1) whether section 2(e) of OMA required the\nBoard to recite the name of the candidate considered for appointment to the Board prior to the\nBoard's public vote; and if so, (2) whether the appropriate remedy for the Board's alleged non-\ncompliance with those provisions legally invalidates the Board's action on the first appointment\nunder section 3.1-10-50(e) of the Municipal Code. Because the second question is governed by\nthe Municipal Code rather than OMA, the Public Access Counselor is not authorized to\ndetermine whether failing to publicly state the name oft he individual whose appointment the\nBoard considered at the April 28, 2025, meeting rendered the Board's vote on that appointment\ninvalid under the Municipal Code. Therefore, this opinion is limited to reviewing whether the\nBoard violated OMA and, if so, whether there is any necessary action for the Board to take to\ncomply with the directive oft his opinion. 5 ILCS 120/3.5(e) (West 2024).\n''Letter from David Smith to Steve Silverman (June 6, 2025), at 1.\nLetter from David Smith to Steve Silverman (June 6, 2025), at 1.\nLetter from David Smith to Steve Silverman (June 6, 2025), at 2.\n45 ILCS 140/1 et seg. (West 2024).\nMr. David Smith\nThe Honorable Marva Campbell-Pruitt\nAugust 5, 2025\nPage 4\nFinal Action\nThe public policy of this State, as declared in section 1 of OMA (S ILCS 120/1\n(West 2024)), is \"that public bodies exist to aid in the conduct oft he people's business and that\nthe people have a right to be informed as to the conduct oft heir business.\" Section 2(e) of OMA\neffectuates that public policy by providing: \"No final action may be taken at a closed meeting.\nFinal action shall be preceded by a public recital of the nature of the matter being considered and\nother information that will inform the public of the business being conducted.\"\nIn its response to this office, the Board contended that it did not violate OMA\nbecause the Board did not approve the appointment motion at the April 28, 2025, meeting. The\nBoard stated that only five members were present at the meeting because of a vacancy on the\nBoard,'° and that section 1.02 of OMA (5 ILCS 120/1.02 (West 2024)) provides that \"the\naffirmative vote of3 members [ofa 5-member public body]i s necessary to adopt any motion,\nresolution, or ordinance, unless a greater number is otherwise required.\" Therefore, the Board\nasserted that \"[t]he 3-2 vote here against the Motion does not and cannot constitute an\n‘affirmative vote of3 members to adopt the Motion.’ Thus, there is no affirmative action taken\nhere that can be 'undone.'”'® In support oft hat argument, the Board cited Howe v. The\n— Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago, 2013 IL App (Ist)\n122446,\nIn Howe, a pension board held a meeting and voted by a margin of 5-2 against a\nmotion to approve an application for a disability benefit, and then mailed the applicant a written\ndecision denying the application three weeks later without conducting a subsequent vote to deny\nthe application. Howe, 2013 IL App (Ist) 122446, 9 13-14. The court rejected the pension\nboard's argument that it reached a final decision by voting against the motion to approve the\napplication, emphasizing \"that the written decision must be prepared and provided to each board\nmember at or before the time the Board votes to take final action on the application. The Board's\nOnly decisioni s the written version, since thati s the decision setting forth its findings of fact,\nreasoning, and analysis that judges consider during the administrative review process.\" Howe,\n2013 IL App (Ist) 122446, | 25. The court added that \"{nJo public bodyi n Illinois subject to the\nOpen Meetings Act can take final action by merely circulating some document for signature and\nnot voting on it publicly.\" Howe, 2013 IL App (1st) 122446, ]27. Because the pension board\ndid not approve the written decision denying the application during a meeting, the court held that\n“(t]he Board never took final action under the Open Meetings Act[.]\" Howe, 2013 IL App (lst)\n122446, q 32.\n'SLetter from Jayman A. Avery III, Odelson, Murphy, Frazier & McGrath, Ltd., to Steve\nSilverman (May 22, 2025), at2 .\n'SLetter from Jayman A. Avery III, Odelson, Murphy, Frazie&r McGrath, Ltd., to Steve\nSilverman (May 22, 2025), at 2.\nMr. David Smith\nThe Honorable Marva Campbell-Pruitt\nAugust 5, 2025\nPage S\nContrary to the Board's argument, the court in Howe did not find that only votes\nto adopt motions or approve actions are final actions subject to the requirements of section 2(e)\nof OMA. The ruling turned on specific requirements for pension board decisions on applications\nfor disability benefits. Referencing the section of the Pension Code that governed the pension\nboard's proceedings and required \"the affirmative vote ofa majority of the total membership of\nthe board\"'’ to grant a disability benefit along with the board's own rules requiring it to issue\nwritten decisions'® like the one that was ultimately sent to the applicant, the court held that the\nfailed approval vote could not be construed as final action to issue a written decision denying the\ndisability benefit. Howe has no relevance to whether the Board's vote on an appointment to fill a\nvacancy on the Board constituted a \"final action\" subject to the requirements of section 2(e) of\nOMA.\nThe Board also cited Binding Opinion 19-004, in which this office concluded that\na school board violated section 2(e) of OMA by failing to provide an adequate public recital ofa\nmotion to approve a notice of remedy issued to an unidentified teacher and directed the school\nboard to reconsider and re-vote on the underlying resolution. Ill. Att'y Gen. Pub. Acc. Op. No.\n19-004, issued May 17, 2019, at 6-7. The Board argued: \"Since no affirmative action to adopt\n,the Motion in our case happened, there is nothing to reconsider or re-vote on.\"!? (Emphasis in\noriginal.) Although the motion at issue in Binding Opinion 19-004 was approved and the notice\n“of remedy was issued to the teacher, nothing in that opinion limits the application of section 2(e)\nof OMA solely to final action votes that succeed.\na The Board's argument to this office appears to conflate the question of whether\nsection 2(e) of OMA applied to the Board's April 28, 2025, vote with the question of whether\nthere is a potential remedy to address a violation that may have occurred at that meeting. As\ndiscussed above, Mr. Smith's request to invalidate the vote on the appointment at the April 28,\n2025, meeting for purposes of section 3.1-50(e) of the Municipal Code is beyond the scope of the\nPublic Access Counselor's authority. Further, ordering a public body to revote is a discretionary\nremedy rather than a remedy that must be imposed to conclude that a public body violated OMA.\nSee 5 ILCS 120/3(c) (West 2024) (authorizing a court that determines a public body violated\nOMA to \"grant such relief as it deems appropriate[.]\"). Whether an allegedly improper final\naction was approved or denied or may be invalidated does not preclude a finding that the Board's\nvote constituted a \"final action\" to which section 2(e) of OMA applied.\nThe requirements of section 2(e) of OMA apply to all final actions taken by a\npublic body. The Act does not define \"final action.” In considering whether a public body took\nfinal action in closed session by polling members before holding a vote in open session, the ~\nIllinois Appellate Court emphasized that final actions must be taken openly to ensure that\n''40 ILCS 5/6-178 (West 2010).\n'8Howe, 2013 IL App (Ist) 122446, 4 19.\n\"Letter from Jayman A. Avery Ill, Odelson, Murphy, Frazier & McGrath, Ltd., to Steve\nSilverman (May 22, 2025), at 2.\nMr. David Smith\nThe Honorable Marva Campbell-Pruitt\nAugust 5, 2025\nPage 6\nmembers of public bodies are accountable to the public for their decisions: \"Since a public roll\ncall vote allows the people to know the positions taken by the individual members of the Board,\nso such members can be held accountable for their actions, we feel that the ‘final action’ is the\nroll call vote.“ Jewell v. Board of Education of Community Unit School District No. 300, 19 Ml.\nApp. 3d 1091, 1094 (1974). The appellate court also has held that reaching a consensus in\nclosed session to request mediation to resolve a labor dispute did not constitute final action\nbecause it was \"not an end in itself, but rather, a means to an end. Negotiations and mediations\nare made up of many ‘unilateral’ decisions, such as what to offer or counteroffer, and to hold that\neach of the unilateral strategical decisions that make up the constituent parts ofa negotiation is in\nand ofi tself final action is unreasonable.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 176 (1989).\nCollectively, and when considered in conjunction with the purpose of OMA, these cases stand\nfor the proposition that decisions which bring matters to a resolution—regardless of the outcome\nof the vote—constitute final actions that must be made transparently because the public has a\nright to know how public officials conducted themselves.\nThe Board's April 28, 2025, vote on the proposed appointee resolved whether or\nnot that individual would fill the vacancy on the Board. While the Board did not make a final\ndecision on filling the vacancy at that meeting, it did decide not to fill the vacancy with the\nproposed appointee, Because that vote constituted a final action subject to the requirements of\nsection 2(e) of OMA, this office must determine whether the Board provided an adequate public\nrecital before voting.\nPublic Recital\nIn Board of Education of Springfield School District No. 186 v. Altorney General,\n2017 IL 120343q, 64, the Illinois Supreme Court held that \"under section 2(e) of the Open\nMeetings Act, a public recital must take place at the open meeting before the matter is voted\nupon; the recital must announce the nature of the matter under consideration, with sufficient\ndetail to identify the particular transaction or issue, but need not provide an explanation of its\nterms or its significance.” In that case, a school board's public recital ofa separation agreement\nwith its superintendent consisted of the school board president stating that the board was\nconsidering an agenda item for \"approval of a resolution regarding the separation agreement[,]\"\"\nas well as reciting the entire text of the resolution itself. Springfield School District, 2017 IL\n120343, | 81. The Court concluded that the school board's public recital was sufficient, stating:\n\"The Board president recited the general nature of the matter under consideration—a separation\nagreemeanndt release—and specific detail sufficient to identify the particular transaction—the\nThis office also notes that section 2(e) is not the only provision of OMA that notifies the public\nof final actions. Section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2024)) also requires each public body to post\nan agenda before each meeting that \"set(s} forth the general subject matter of any resolution or ordinance that will be\nthe subject of final action at the meeting.” (Emphasis added.) If only those resolutions and ordinances approved at\nmeetings constituted final actions, this requirement would be unworkable because public bodies could not determine\nwhich resolutions and ordinances to include on agendas without knowing the outcome of its votes in advance.\nMr. David Smith\nThe Honorable Marva Campbell-Pruitt\nAugust 5, 2025\nPage 7\nseparation agreement was between Dr. Milton and the Board.\" Springfield School District, 2017\nIL 120343, 4 83.\nIn contrast, the Attorney General has issued a binding opinion that concluded a\nschool board violated section 2(e) by voting to dismiss an employee identified as “Employee A\"\nin the motion that preceded the vote. Ill. Att'y Gen. Pub. Acc. Op. No. 13-016, issued September\n24, 2013, at 4. Although the Board disclosed the \"general nature of the matter being considered\nfrom the motion,\" the Attorney General explained that \"the public was deprived of any\nmeaningful information concerning the practical effect of the Board's decision. * * * By\ndeclining to identify the subject of the dismissal by name, the Board did not fully comply with\nthe requirements of section 2(e) of OMA that it inform the public of the business being\nconducted. Ill. Att'y Gen. Pub. Acc. Op. No. 13-016, at 4.\nThis office has reviewed the minutes of the Board's April 28, 2025, meeting and\nthe recording provided by Mr. Smith which the Board relied upon in its response to this office.\nThe minutes indicate the following exchange before the Board voted on the proposed appointee:\n\"Mayor Marva asked for a motion to appoint an official to a two-year term to fill the vacant\ntrustee position. The motion was moved by Trustee Aretha Burns and seconded by trustee Diane\nSapp.\"2! In the recording, the mayor stated that there was a vacancy because a Board member\nhad been elected village clerk. The mayor then stated: \"So I would like to call for a motion to\nappoint an official for a two-year term to fill the vacant trustee position. May | have the\nmotion?” A Board member made the motion and it was seconded. The mayor then asked if\n“there are any questions for debate.\" No one responded. The Board held an initial vote, after\nwhich a trustee indicated that they wanted to change their vote. The Board then held a second\nvote and rejected the unnamed proposed appointee by a 3-2 vote.”\nThe public recital that preceded the Board's vote indicated only that the Board .\nwould consider whether to appoint an individual to fill a vacancy on the Board. Although the\nreference to the appointment of a trustee announced the general nature of the matter under\nconsideration, the public recital lacked information that was essential to inform the public oft he\nparticular \"business being conducted.\" Because the recital did not name or identify in any\nmanner the individual whose appointment the Board considered, the public was left in the dark\nas to whom the mayor proposed to fill the vacancy and whose appointment the Board rejected.\nThe failure to identify that individual precluded the public from assessing the mayor's proposed\nappointee and the Board's decision to reject them. It also precluded the public from comparing\nthe unnamed individual's qualifications to the second proposed appointee that the Board tabled at\nthe May 27, 2025, meeting. In light of OMA's intent of ensuring that the public is \"informed as\n2!Village of Sauk Village Board ofT rustees, Special Board Meeting of the Corporate Authorities,\nApril 28, 2025, Minutes [2].\nVillage of Sauk Village Board of Trustees, Meeting, April 28, 2025, Video Recording,\nhttps://drive.google.com/file/d/] HrZp-CMrchwT2OTRX-3ckEINV129a8NO/edit.\nMr. David Smith\nThe Honorable Marva Campbell-Pruitt\nAugust 5, 2025\n.Page 8\nto the conduct of their business[,]\"?? it would be absurd to construe section 2(e) of OMA as\npermitting a public body to vote on whether to appoint an individual to a’ public office without\npublicly identifying that individual. People v. Latona, 184 Ill. 2d 260, 269 (1998) (a reviewing\nbody \"has a duty to avoid a construction oft he statute that would defeat the statute's purpose or\nyield an absurd or unjust result.\"). Accordingly, this office concludes that the Board violated\nsection 2(e) of OMA.\nFINDINGS AND CONCLUSIONS\nAfter full examination and giving due consideration to the information submitted,\nthe Public Access Counselor's review, and the applicable law, the Attorney General finds that:\n1) On May 8, 2025, Mr. David Smith submitted a Request for Review alleging\nthat the Village of Sauk Village Board of Trustees violated OMA by improperly taking final\naction during its April 28, 2025, meeting. Specifically, Mr. Smith alleged that the Board voted\non an appointment to fill a vacancy on the Board without naming or otherwise identifying the\nproposed appointee. Mr. Smith included an internet link to a recording of the meeting.\n2) On May 16, 2025, the Public Access Bureau sent a copy oft he Request for\nReview to the Board and asked it to provide copies of the agenda, minutes, and any audio or\nvideo recording of the April 28, 2025, meeting along with a written response to Mr. Smith's\nallegation.\n3) On May 22, 2025, counsel for the Board provided a written response that\nstated no meeting minutes had been compiled. The response asserted that the recording oft he\nmeeting that Mr. Smith submitted with his Request for Review demonstrated that the Board did\nnot improperly take action in violation OMA because it showed that the Board did not approve\nthe motion to appoint the individual to fill the vacancy on the Board.\n4) On May 30, 2025, the Public Access Bureau forwarded a copy oft he District's\nwritten response to Mr. Smith and notified him of his right to reply.\n5) On June 6, 2025, Mr. Smith submitted a reply.\n6) On July 7, 2025, the Public Access Bureau extended the time within which to\nissue a binding opinion by 21 business days pursuant to section 3.5(e) of OMA. Accordingly,\nthe Attorney General may properly issue a binding opinion with respect to this matter.\n7) Section 2(e) of OMA provides: \"No final action may be taken at a closed\nmeeting. Final action shall be preceded by a public recital of the nature of the matter being”\nconsidered and other information that will inform the pubolf itche business being conducted.\"\n235 ILCS 120/1 (West 2024).\nMr. David Smith\nThe Honorable Marva Campbell-Pruitt\nAugust 5, 2025\nPage 9\n8) For purposes of section 2(e), \"final action\" is a decision that resolves a matter,\nregardless of whether the public body votes in favor or against the underlying motion.\n9) Because the Board's vote on the proposed appointment during the April 28,\n2025, meeting resolved whether or not that individual would fill the vacancy on the Board, the\nvote constituted a \"final action\" subject to the requirements of section 2(e) of OMA.\n10) Section 2(e) requires that a public body provide a public recital that identifies\nthe general nature of the matter under consideration and specific detail sufficient to identify the\nparticular transaction or issue that is the subject of final action.\n11) The public recital that preceded the Board's vote indicated only that the\nBoard would consider whether to appoint an individual to fill a vacancy on the Board. The\npublic recital did not name or identify the proposed appointee in any manner. Although the\nBoard identified the general nature of the matter under consideration, the failure to identify the\nproposed appointee rendered the public recital inadequate because it deprived the public of a\ndetail that was essential to inform the public of the business being conducted.\n12) Therefore, the Attorney General concludes that the Board violated the\nrequirements of section 2(e) of OMAi n connection with its April 28, 2025, meeting.\nIn accordance with these findings of fact and conclusions of law, the Board is\ndirected to take immediate and appropriate action to remedy its violation of section 2(e) of OMA\nby amending the approved minutes of the April 28, 2025, meeting to include the name of the\nproposed appointee.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2024). An aggrieved party may obtain judicial review oft he decision by filing a\ncomplaint for administrative review with the Circuit Court of Cook or Sangamon County within\n35 days oft he date oft his decision naming the Attorney General of Illinois and Mr. David Smith\nas defendants. See 5 ILCS 120/7.5 (West 2024),\nVery truly yours,\nKWAME RAOUL\nATTORNEY GENERAL\nNathalina Hudson\nChief of Staff\nMr. David Smith\nThe Honorable Marva Campbell-Pruitt\nAugust 5, 2025\nPage 10\nce: Mr. Jayman A. Avery\nSenior Counsel\nOdelson, Murphey, Frazier & McGrath, Ltd.\n3318 West 95th Street\nEvergreen Park, Illinois 60805\nCERTIFICATE OF SERVICE\nCaleb L. Briscoe, Assistant Attorney General, Public Access Bureau, hereby\ncertifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-\n009) upon:\nMr. David Smith\n2050 216th Street\nSauk Village, Illinois 60411\nDsmith_2345@yahoo.com\nThe Honorable Marva Campbell-Pruitt\nMayor\nVillage of Sauk Village\n21801 Torrence Avenue\nSauk Village, Uhnois 60411\nMcampbell-pruitt@saukvillage.org\nMr. Jayman A. Avery\nSenior Counsel\n) Odelson, Murphey, Frazier & McGrath, Ltd.\n3318 West 95th Street\n; Evergreen Park, Illinois 60805\n-\" javery@omfmlaw.com\nby causing a true copy thereof to be sent electronically to the addresses as listed above and by\ncausing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be\ndeposited in the United States mail at Springfield, Illinois on August 5, 2025.\nAssistant Attorney General\nCaleb L. Briscoe\nAssistant Attorney General\nPublic Access Bureau\nOffice of the Attorney General\n500 South 2nd Street\nSpringfield, Illinois 62701\n(217) 782-9054","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A resident of Sauk Village complained that the Village Board of Trustees voted on an appointment to fill a vacant trustee position without publicly stating the name of the candidate. The Illinois Attorney General ruled that the Board violated the Open Meetings Act because the vote was a final action that required a public recital of the matter being considered, including the candidate's name. The motion to appoint failed, but the Board still violated the law by not providing adequate information to the public before the vote.","card_headline":"Vote on an unidentified trustee appointee","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":203,"orig_master_id":19406,"dup_master_id":19177,"dup_sha256":"7d480b44253801061ec6bd14595f6d26c151861c51d53b52d00997f0e3e4df6c","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-07-15","case_number":"2025 PAC 86098","request_numbers":null,"title":"Basis for Withholding Communication From Former Attorney","filename":"PUBLIC ACCESS OPINION 25-008 (Request for Review 2025 PAC 86098).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-008 (Request for Review 2025 PAC 86098).pdf","word_count":2370,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request made by David Giuliani for records from Hinsdale Township High School District 86, which were improperly withheld.","plain_summary":"The requester, a reporter, sought an attachment to a school board president's email forwarding a former law firm's correspondence to board members, which a school district withheld citing attorney-client, deliberative-process, and other exemptions. The Public Access Counselor held that the record did not reflect legal advice sought from or given by the district's former attorney, did not represent the district's own predecisional deliberations, and was not otherwise shown to be legally confidential. The district was directed to disclose a copy of the withheld attachment.","holding":"Hinsdale Township High School District 86 improperly withheld a record responsive to Mr. David Giuliani's FOIA request.","legal_question":"Did Hinsdale Township High School District 86 improperly withhold records requested under the Freedom of Information Act?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 35 ILCS 140/7(1), 5 ILCS 140/7, 5 ILCS 140/1, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(m)","7(1)(a)","7(1)(f)","7(1)(t)"],"public_body":"Leslie Quade Kennedy Attorney for Hinsdale Township High School District","requesting_party":"Giuliani and Ms. Kennedy","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(m)","subject_description":"The request concerned email attachments sent between members of the District's Board of Education.","ocr_status":"ok","ocr_quality":89.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-008.pdf","sha256":"7d3bb90992e9415c1ff3831e537da2c5869ec5dec2b0390ae44ebc9dde2ed040","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["FOIA","email attachments","school district","public records","attorney-client privilege"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILUNOIS KWAME RAOUL ATTORNEY GENERAL July 15, 2025 PUBLIC ACCESS OPINION 25-008 (Request for Review 2025 PAC 86098) FREEDOM OF INFORMATION ACT: Basis for Withholding Communication From Former Attorney Mr. David Giuliani Reporter Patch 1024 East Bonner Road Wauconda, Illinois 60084 Ms. Leslie Quade Kennedy Attorney for Hinsdale Township High School District 86 Senior Partner Odelson, Murphey, Frazier & McGrath, Ltd. 3318 West 95th Street Evergreen Park, Illinois Dear Mr. Giuliani and Ms. Kennedy: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that Hinsdale Township High School District 86 (District) improperly withheld a record responsive to Mr. David Giuliani's March 17, 2025, FOIA request. Olil that date, Mr. Giuliani, on behalf of Patch, submitted a FOIA request to the District seeking \"the Robbins Schwartz attachment\" to a December 9, 2024, e-mail sent from Catherine Greenspon, the president of the District's Board of Education (Board), to the rest of the Board's members and the attachment to another specified e-mail.1 On March 24, 2025, the 1FOIA portal messagIe from David Giuliani to Hinsdale TowIn ship High School District 86 (March 17, 2025). 500 South 2nd Street 115 South LaSalle Stret!t I 745 Innovation Dnve, Suite C Sprinl!field. Illinois 62701 Chicago, Illinois b0603 Carbondale, Illinois 62903 (217) 782-t 090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 81-1-]806 (6 I 8) 529-6-100 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisAttomcyGcneral.gov Mr. David Giuliani Ms. Leslie Quade Kennedy July 15, 2025 Page 2 District denied Mr. Giuliani's FOIA request2 pursuant to sections 7(1)(a), 7(1)(f), 7(1)(m), and 7.5(r) of FOIA.3 On April 3, 2025, Mr. Giuliani submitted the above-referenced Request for Review contesting the District's denial of the attachment to the December 9, 2024, e-mail.4 On April 4, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the District, accompanied by a letter requesting an unredacted copy of the contested record for this office's confidential review and a detailed written explanation of the legal and factual bases for the applicability of the asserted exemptions.5 On May 27, 2025, counsel for the District furnished those materials, including a complete version of its answer for this office's confidential review and a copy with confidential information redacted6 for forwarding to Mr. Giualiani.7 The response clarified that the District asserted the December 9, 2024, e-mail attachment was exempt from disclosure pursuant to sections 7(1 )(a), 7(1 )(f), and 7(1 )(m) of FOIA and that section 7.5(r) of FOIA applied only to portions of the other record,8 which is not at issue in this matter.9 On May 28, 2025, this office forwarded a copy of the Department's redacted answer to Mr. Giuliani and notified him of his opportunity to reply in writing. 10 Mr. Giuliani replied on that same date.11 2Letter from Debra Kedrowski, FOIA Officer, Hinsdale Township High School District 86, to David Giuliani (March 24, 2025). 35 ILCS 140/7(1)(a), (l)(t), (l)(m) (West 2024); 5 ILCS 140/7.5(r) (West 2024). 4E-mail from David Giuliani, Reporter, Patch, to Public Access [Bureau, Office of the Attorney General] (April 3, 2025). 5Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Debra Kedrowski, FOIA Officer, Hinsdale Township High School District 86 (April 4, 2025), at 2. 6Section 9.5(d) ofFOIA (5 ILCS 140/9.5(d) (West 2024)) provides that \"[t]he Public Access Counselor shall forward a copy of the answer to the person submitting the request for review, with any alleged confidential information to which the request pertains redacted from the copy.\" 7Letter from Leslie Quade Kennedy, Odelson, Murphey, Frazier & McGrath, Ltd., to Benjamin J. Silver, Supervising Attorney, Illinois Attorney General's Office: Public Access Bureau (May 27, 2025). 8Letter from Leslie Quade Kennedy, Odelson, Murphey, Frazier & McGrath, Ltd., to Benjamin J. Silver, Supervising Attorney, Illinois Attorney General's Office: Public Access Bureau (May 27, 2025), at 9. 9Because Mr. Guiliani did not dispute the denial of that record, this binding opinion does not analyze the section 7.5(r) exemption. 10Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to David Giuliani, Reporter, Patch.com (May 28, 2025). \"E-mail from David Giuliani, Reporter, Patch, to [Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General] (May 28, 2025). Mr. David Giuliani Ms. Leslie Quade Kennedy July 15, 2025 Page 3 On May 29, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to July 16, 2025, pursuant to section 9.5(f) of FOIA.12 ANALYSIS It is the public policy of the State of Illinois that \"all persons are entitled to full and complete information regarding the affairs of government.\" 5 ILCS 140/1 (West 2024). Under FOIA, \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convinciing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2024). Section 7(1)(m) of FOIA Section 7(l)(m) of FOIA exempts from disclosure: Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies. Communications protected by the attorney-client privilege are within the scope of section 7(1 )(m). People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 ( 1997). A party asserting that a communication to an attorney is protected by the attorney-client privilege \"must show that (1) a statement originated in confidence that it would not be disclosed; (2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and (3) it remained confidential.\" (Emphasis added.) Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 (2006). Documents protected by the attorney-client privilege must contain confidential communications in which legal advice is requested or provided. See Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 408-09 (1998) (finding the attorney-client privilege inapplicable because the documents at issue did not show that the client was seeking legal advice). \"The privilege applies not only to the communications of a client to his attorney, but also to the advice of an attorney to his client.\" In re Marriage ofG ranger, 197 Ill. App. 3d 363, 3 74 (1990). A public body that withholds records under section 7(1 )(m) \"can meet its burden only by providing some objective indicia that the exemption is applicable under the circumstances.\" (Emphasis in original.) Illinois Education Ass'n v. Illinois State Board of Education, 204 Ill. 2d 456, 470 (2003). 12Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to David Giuliani, Reporter, Patch.com, Debra Kedrowski, FOIA Officer, Hinsdale Township High School District 86, and Leslie Quade Kennedy, Odelson, Murphey, Frazier & McGrath, Ltd. (May 29, 2025). Mr. David Giuliani Ms. Leslie Quade Kennedy July 15, 2025 Page 4 Mr. Giuliani's Request for Review included a copy of the December 9, 2024, e mail chain underlying his FOIA request. The e-mail chain shows [...] intra-agency deliberative record. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 25Black's Law Dictionary 966 ( I Ith ed. 2019). 26Black's Law Dictionary 985 (11th ed. 2019). 27Letter from Leslie Quade Kennedy, Odelson, Murphey, Frazier & McGrath, Ltd., to Benjamin J. Silver, Supervising Attorney, lllinois Attorney General's Office: Public Access Bureau (May 27, 2025), at 8. 28Letter from Leslie Quade Kennedy, Odelson, Murphey, Frazier & McGrath, Ltd., to Benjamin J. Silver, Supervising Attorney, lllinois Attorney General's Office: Public Access Bureau (May 27, 2025), at 8. Mr. David Giuliani Ms. Leslie Quade Kennedy July 15, 2025 Page 10 1) On March 17, 2025, Mr. David Giuliani, on behalf of Patch, submitted a FOIA request to Hinsdale Township High School District 86 seeking, in relevant part, the attachment to a December 9, 2024, e-mail sent to Ms. Catherine Greenspan. 2) On March 24, 2025, the District denied the request pursuant to sections 7(l)(a), 7(l)(f), 7(1)(m), and 7.5(r) ofFOIA. 3) On April 3, 2025, Mr. Giuliani submitted the above-referenced Request for Review contesting the denial of the portion of the request seeking the December 9, 2024, e-mail attachment. 4) On April 4, 2025, the Public Access Bureau sent a copy of the Request for Review to the District and asked it to provide a copy of the contested e-mail attachment for this office's confidential review. This office also asked the District to provide a detailed explanation of the factual and legal bases for its denial of that record. 5) On May 27, 2025, the District furnished the requested materials to this office, including a complete version of its answer for this office's confidential review and a redacted copy to forward to Mr. Giuliani. 6) On May 28, 2025, the Public Access Bureau forwarded a copy of the District's written answer to Mr. Giuliani and notified him of his right to reply. 7) On that same date, Mr. Giuliani replied. 8) On May 29, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 10) The record at issue in this Request for Review is a communication from the District's former attorney at Robbins Schwartz to the District's Board of Education. The correspondence was attached to a December 9, 2024, e-mail with the subject line, \"Follow up - Invoices for Legal Services[.]\" 11) Section 7(l)(m) ofFOIA exempts from disclosure \"[c]ommunications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil, or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.\" 12) The record at issue does not contain or reference any legal advice sought by or given to the District by the District's former attorney or otherwise reveal substantive details of any legal work performed for the District. Accordingly, this office concludes that the District Mr. David Giuliani Ms. Leslie Quade Kennedy July 15, 2025 Page 11 has not met its burden of proving that the withheld record is exempt from disclosure under section 7(1)(m) of FOIA. 13) Section 7(1)(a) exempts from disclosure \"[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" 14) Rules 1.4, 1.6, and 1.9 of the Illinois Supreme Court Rules of Professional Conduct do not contain any specific prohibitions on the disclosure of records by an attorney's client or former client. Because the District is the former client and. recipient of the request, the District has not met its burden of proving that the withheld record is exempt from disclosure under section 7(1)(a) of FOIA. 15) Section 7( I )(f) of FOIA exempts from inspection and copying, in relevant part, \"[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are fornmlated[.]\" For the exemption to extend to a third party hired by a public body, the third party must represent the interest of the public body and not its own interest or that of another client. 16) The record at issue reflects the interests of the District's former attorney. Those interests are independent of the District's interests in the content of the communication. Accordingly, this office concludes that the District has not met its burden of proving that the withheld record. is exempt from disclosure under section 7(1 )(f) of FOIA. Therefore, it is the opinion of the Attorney General that Hinsdale Township High School District 86 improperly withheld the contested record in response to David Giuliani's March 17, 2025, Freedom of Information Act. Accordingly, the District is hereby directed to take immediate and. appropriate action to comply with this opinion by providing Mr. Giuliani with a copy of the withheld record. Mr. David Giuliani Ms. Leslie Quade Kennedy July 15, 2025 Page 12 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. David Giuliani as defendants. See 5 ILCS 140/11.5 (West 2024). Very truly yours, KWAMERAOUL ATTORNEY GENERAL ~~J.~::- By: Chief Deputy Attorney General CERTIFICATE OF SERVICE Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, Chicago, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-008) upon: Mr. David Giuliani Reporter Patch 1024 East Bonner Road Wauconda, Illinois 60084 David.giuliani@patch.com Ms. Leslie Quade Kennedy Attorney for Hinsdale Township High School District 86 Senior Partner Odelson, Murphey, Frazier & McGrath, Ltd. 3318 West 95th Street Evergreen Park, Illinois lkennedy@omfmlaw.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on July 15, 2025. ______ Edie Steinberg _, Senior Assistant Attorney Gener Edie Steinberg Senior Assistant Attorney General Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-5201","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"David Giuliani requested specific email attachments from Hinsdale Township High School District 86. The District refused to provide the records, claiming they were exempt. The Attorney General's office reviewed the case and determined the District did not have a valid legal basis to withhold the documents and must release them.","card_headline":"Email attachments between school board members","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":204,"orig_master_id":19178,"dup_master_id":19405,"dup_sha256":"d8bba1fe81814f42b6f0e7340a976d0a34777118bdab16cc184e5cf6ba1c0a61","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-08-11","case_number":"2025 PAC 86670","request_numbers":null,"title":"Records Relating to the Resignation or Termination of a Government Employee Are Subject to Disclosure","filename":"PUBLIC ACCESS OPINION 25-010 (Request for Review 2025 PAC 86670).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 25-010 (Request for Review 2025 PAC 86670).pdf","word_count":2248,"summary":"Attorney General: City of Chicago violated FOIA by denying reporter's FOIA request for records pertaining to separation of a police officer from the Chicago Police Department (CPD) Officer Pierre Tyler's separation from the CPD was denied in its entirety on April 28, 2025 .","plain_summary":"The requester, a journalism student working with a nonprofit newsroom, sought records concerning a police officer's separation from the department, which a city public safety office withheld in full as private information and an invasion of personal privacy. The Public Access Counselor held that a public employee's separation records are not \"private information\" in their entirety and that disclosure of records bearing on a public employee's duties does not constitute an unwarranted invasion of privacy. The office was directed to disclose the separation records, subject only to redaction of the employee identification number and signatures.","holding":"The City of Chicago violated FOIA by improperly denying the request for records pertaining to the separation of a police officer from the Chicago Police Department.","legal_question":"Whether the City of Chicago properly denied a FOIA request for records relating to the separation of a police officer from the Chicago Police Department under the Freedom of Information Act.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/2, 45 ILCS 140/3(e), 55 ILCS 140/7(1), 65 ILCS 140/2, 5 ILCS 140/7(1), 5 ILCS 140/1, 245 ILCS 140/7(1), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"City of Chicago Office of Public Safety Administration","requesting_party":"Stecklow and Ms. McNeal-Dawkins","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"personnel records","subject_description":"The records concern the separation, resignation, or termination of a Chicago police officer.","ocr_status":"ok","ocr_quality":88.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-010.pdf","sha256":"c9a177f28baeeba60ca1229b90d30c4fc3093cc93e46552f7570e2daf66c75e5","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police records","personnel records","FOIA","termination","resignation"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":")) Ac a) 4Z4i SNRSSSSSSS OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL August 11, 2025 PUBLIC ACCESS OPINION 25-010 (Request for Review 2025 PAC 86670) FREEDOM OF INFORMATION ACT: Records Relating to the Resignation or Termination of a Government Employee Are Subject to Disclosure Mr. Sam Stecklow Reporter Invisible Institute 6100 South Blackstone Avenue Chicago, I]linois 60637 Ms. Naomi McNeal-Dawkins FOIA Officer Freedom of Information Office City of Chicago Office of Public Safety Administration 3510 South Michigan Avenue, 3rd Floor Chicago, Illinois 60653 Dear Mr. Stecklow and Ms. McNeal-Dawkins: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that the Office of Public Safety Administration (OPSA) of the City of Chicago (City) violated FOIA by denying Ms. Rachel Heimann Mercader's FOIA request for records pertaining to the separation of a police officer from the Chicago Police Department (CPD). 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 * Fax: (312) 814-3806 (618) 529-6400 ¢ Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.IllinoisAttorneyGeneral.gov o cbt coh» 400s Mr. Sam Stecklow Ms. Naomi McNeal-Dawkins August 11, 2025 Page 2 BACKGROUND On April 7, 2025, Ms. Mercader submitted a FOIA request to OPSA via e-mail seeking copies of \"any records relating to Officer Pierre Tyler's separation from the Chicago Police department. Whether that be resignation, termination or other means.\"! Ms. Mercader's e-mail signature identified her as a journalist at Northwestern University's Medill School.” On April 14, 2025, OPSA extended its time to respond by five business’ days pursuant to sections 3(e)(v) and 3(e)(vii) of FOIA.* On April 28, 2025, OPSA denied the request in its entirety pursuant to section 7(1)(b) of FOIA.” OPSA asserted that the withheld records consist of \"private Information\" as defined in section 2(c-5) of FOIA,° but quoted that definition imprecisely. OPSA stated: \"Private information\" is defined in Section 2(c-5) as: \"unique identifiers, including social security numbers, file numbers, CHIPPs numbers, license plate numbers, employee identification numbers, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plate, except as otherwise provided by law or when compiled without possibility of attribution to any person\" (5 ILCS 140/2(C-5).'”) (Emphasis in original.) However, section 2(c-5) instead defines \"private information[,]\" in relevant part as: 'FOIA request from Rachel Heimann Mercader, Journalist, Medill School, Northwestern University, to PPAFOIARequests@cityofchicago.org (April 7, 2025). 2FOIA request from Rachel Heimann Mercader, Journalist, Medill School, Northwestern University, to PPAFOIARequests@cityofchicago.org (April 7, 2025). 3Letter from Naomi McNeal-Dawkins, Freedom of Information Office, Office of Public Safety Administration, to Rachel Heimann [Mercader] (April 14, 2025). 45 ILCS 140/3(e)(v), (e)(vii) (West 2024). 55 ILCS 140/7(1)(b) (West 2024). 65 ILCS 140/2(c-5) (West 2024). \"Letter from Naomi McNeal-Dawkins, Freedom of Information Officer, Office of Public Safety Administration, to Rachel Heimann [Mercader] (April 28, 2025). Mr. Sam Stecklow Ms. Naomi McNeal-Dawkins August 11, 2025 Page 3 unique identifiers, including a person's social security number, driver's license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person. Additionally, OPSA argued that \"[t]he sharing or disclosure of the records could invade Officer Tyler's personal privacy. Therefore, OPSA FOIA will not disclose members[’] letters of resignation or letters of termination.\"® By using the language \"personal privacy,” OPSA appears to have invoked the exemption in section 7(1)(c) of FOIA? which contains that term. On May 6, 2025, Mr. Sam Stecklow, on behalf of the Invisible Institute, submitted a Request for Review that identified Ms. Mercader as \"an extern with Invisible Institute through the Medill School of Journalism at Northwestern University[.]\"!° In contesting the withholding of the separation records, Mr. Stecklow argued: [T]his is an improper denial — both procedurally and in content. Section 7(1)(b) exempts \"private information,\" defined in Section 2(c-5) as containing data points from Social Security Numbers to license plates to biometric identifiers to home phone numbers. Nowhere in the exemption or definition of \"private information\" is there a reference to exclusively professional material, such as a alia for a public employee's separation from a public job. Mr. Stecklow also disputed the applicability of section 7(1)(c), arguing that the exception in the exemption for information that bears on the public duties of public employees is fatal to OPSA's argument: “All we seek is information that bears on the public duties of a public employee.\"” 8Letter from Naomi McNeal-Dawkins, Freedom of Information Officer, Office of Public Safety Administration, to Rachel Heimann (April 28, 2025). °5 ILCS 140/7(1)(c) (West 2024). 10. etter from Sam Stecklow, Reporter, Invisible Institute, to Leah Bartelt, Public Access Counselor, Office of the Attorney General (May 6, 2025), at [1]. \"Letter from Sam Stecklow, Reporter, Invisible Institute, to Leah Bartelt, Public Access Counselor, Office of the Attorney General (May 6, 2025), at [1]. 127e tter from Sam Stecklow, Reporter, Invisible Institute, to Leah Bartelt, Public Access Counselor, Office of the Attorney General (May 6, 2025), at [1-2]. Mr. Sam Stecklow Ms. Naomi McNeal-Dawkins August 11, 2025 Page 4 On May 8, 2025, an Assistant Attorney General in the Public Access Bureau e- mailed Mr. Stecklow to seek verification of whether Ms. Mercader submitted the FOIA request on behalf of the Invisible Institute.!’ On that same date, Mr. Stecklow forwarded! to this office Ms. Mercader's e-mail confirming that she submitted her FOIA request \"[o]n behalf of the Invisible Institute[.]\"!> On May 9, 2025, the Public Access Bureau forwarded a copy of the Request for Review to OPSA together with a letter asking for unredacted copies of the contested records for this office's confidential review. The letter also requested a detailed explanation of the factual and legal bases for the assertion that the records are exempt from disclosure in their entireties'©. | In a letter dated May 29, 2025, OPSA provided the requested materials.'’ On the same day, this office forwarded a copy of OPSA's response letter to Mr. Stecklow and Ms. Mercader.'® On May 29, 2025, Mr. Stecklow submitted a reply.!? On June 27, 2025, the Public Access Bureau extended the time within which to issue a binding opinion to August 11, 2025, pursuant to section 9.5(f) of FOIA.”° '3E-mail from Matthew G. Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Sam] Stecklow, [Reporter, Invisible Institute] (May 8, 2025). '4E-mail from [Sam Stecklow, Reporter, Invisible Institute] to [Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (May 8, 2025). '5E-mail from Rachel Heimann Mercader, Journalist, Medill School, Northwestern Un [...] l, Public Access Bureau, Office of the Attorney General] (May 29, 2025), at 2. Mr. Sam Stecklow Ms. Naomi McNeal-Dawkins August 11, 2025 Page 8 officer's right to privacy against the public interest in disclosure of the separation records.”° Accordingly, this office concludes that the withheld separation records are not exempt from disclosure pursuant to section 7(1)(c) of FOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On April 7, 2025, Ms. Rachel Heimann Mercader submitted a FOIA request to the Office of Public Safety Administration of the City of Chicago seeking copies of records related to the separation of a police officer from the Chicago Police Department. 2) On April 28, 2025, OPSA denied the request in its entirety pursuant to section 7(1)(b) of FOTIA; the response also appeared to assert that the information was exempt from disclosure pursuant to section 7(1)(c) of FOIA by reciting some of the statutory language of that exemption. 3) On May 6, 2025, Mr. Sam Stecklow, on behalf of the Invisible Institute, submitted a Request for Review contesting the withholding of the termination or resignation records. Mr. Stecklow's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2024)). 4) On May 8, 2025, this office received confirmation that Ms. Mercader submitted her FOIA request on behalf of the Invisible Institute. 5) On May 9, 2025, the Public Access Bureau forwarded a copy of the Request for Review to OPSA together with a letter asking for unredacted copies of the disputed separation records for this office's confidential review. The letter also requested a detailed explanation of the factual and legal bases for the applicability of the specific exemptions under which OPSA withheld the records. 6) On May 29, 2025, OPSA's FOIA officer furnished the requested materials. The written response asserted that records were exempt from disclosure pursuant to sections 7(1)(b) and 7(1)(c) of FOIA. 7) On May 29, 2025, this office forwarded a copy of OPSA's response letter to 26A public body's assertion that the release of information would constitute a clearly unwarranted invasion of personal privacy generally is evaluated on a case-by-case basis. Chicago Journeymen Plumbers' Local Union 130 v, Department of Public Health, 327 Ill. App. 3d 192, 196 (2001). The phrase \"clearly unwarranted invasion of personal privacy\" evinces a strict standard to claim the exemption, and the burden is on the public body having charge of the record to prove that standard has been met. Schessler v. Department of Conservation, 256 Ill. App. 3d 198, 202 (1994), Mr. Sam Stecklow Ms. Naomi McNeal-Dawkins August 11, 2025 Page 9 Mr. Stecklow. On the same day, Mr. Stecklow submitted a written reply. 8) On June 27, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by fewer than 30 business days, to August 11, 2025. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 9) Section 7(1)(b) exempts from disclosure \"private information,\" which the Act defines to include \"unique identifiers\" such as home addresses, personal telephone numbers, and social security numbers. A public employee's separation records are not defined as a form of \"private information.\" Because the separation records do not solely consist of \"unique identifiers,\" they are not exempt from disclosure in their entireties pursuant to section 7(1)(b) of FOIA. Only the discrete private information in the records—an employee identification number and signatures—may be redacted under the exemption. 10) Section 7(1)(c) exempts from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.\" Section 7(1)(c) expressly provides that \"[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.\" 11) Disclosure of records concerning the separation of the public employee would not constitute a clearly unwarranted invasion of personal privacy because the information directly bears on the public employee's public duties, if not also the public duties of other public employees. 12) Accordingly, OPSA has not sustained its burden of proving that the separation records are exempt from disclosure pursuant to sections 7(1)(b) or 7(1)(c) of FOIA. Therefore, it is the opinion of the Attorney General that the Office of Public Safety Administration of the City of Chicago has violated FOIA by improperly withholding from the Invisible Institute records responsive to Ms. Rachel Heimann Mercader's FOIA request. Accordingly, OPSA is hereby directed to take immediate and appropriate action to comply with this opinion by disclosing copies of the separation records in a supplemental response to Ms. Mercader's request, subject only to the redaction of the employee identification number and signatures under section 7(1)(b). Mr. Sam Stecklow Ms. Naomi McNeal-Dawkins August 11, 2025 Page 10 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois, Ms. Rachel Heimann Mercader, Mr. Sam Stecklow, and the Invisible Institute as defendants. See 5 ILCS 140/11.5 (West 2024). Sincerely, KWAME RAOUL ATTORNEY GENERAL R. Douglas Rees Chief Deputy Attorney General CERTIFICATE OF SERVICE Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 25- 010) upon: Mr. Sam Stecklow Reporter Invisible Institute 6100 South Blackstone Avenue Chicago, Illinois 60637 foia@invisibleinstitute.com Ms. Naomi McNeal-Dawkins FOIA Officer Freedom of Information Office City of Chicago Office of Public Safety Administration 3510 South Michigan Avenue, 3rd Floor Chicago, Illinois 60653 PSAFOIARequests@cityofchicago.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on August 11, 2025. fli ELAN Edie Steinberg — Senior Assistant Attorney General Edie Steinberg Senior Assistant Attorney General Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Ilinois 60603 (312) 814-5201","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested records about why a Chicago police officer left the department, but the City denied the request entirely. The Illinois Attorney General ruled that the City was wrong to withhold these records, confirming that information regarding the resignation or termination of public employees is generally public. The City must now provide the requested documents.","card_headline":"A police officer's separation records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":205,"orig_master_id":19179,"dup_master_id":19409,"dup_sha256":"4c4451c5ef8666c61b2906f802fdeb47a2a9983b87756cae404d6db83ff56138","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-11-14","case_number":"2025 PAC 89267","request_numbers":null,"title":"Improper Basis for Assessing Fees for Copies of Records Maintained in an Electronic Format","filename":"PUBLIC ACCESS OPINION 25-013 (Request for Review 2025 PAC 89267).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 25-013 (Request for Review 2025 PAC 89267).pdf","word_count":2263,"summary":"State of Illinois Attorney General KWame Raoul issued binding opinion on request for police report . City of Markham, Illinois, denied Joshua Golden's request, saying he wanted to receive the record via e-mail . City directed this office to fees listed on City's website .","plain_summary":"The requester sought an emailed copy of his own police report, and a city charged him a flat per-report fee based on residency rather than providing the electronic copy at no cost. The Public Access Counselor held that because the city could furnish the report electronically without any recording medium, and the city identified no statute authorizing the flat fee for electronic copies, the fee violated section 6(a) of FOIA. The city was directed to provide the report without assessing a fee.","holding":"The City of Markham violated FOIA by assessing an improper fee for an electronic copy of a police report that it maintained in an electronic format.","legal_question":"Whether a public body may charge a fee for providing public records via e-mail when those records are maintained in an electronic format.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7, 5 ILCS 140/3(b), 5 ILCS 140/6(b), 5 ILCS 140/6(a), 125 ILCS 140/6(b), 135 ILCS 140/6(a), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Markham","requesting_party":"Golden and Ms. Sanchez","pac_outcome":"UNCLEAR","pac_law_type":"FOIA","subject_category":"fees","subject_description":"The assessment of fees for the electronic delivery of police reports requested under FOIA.","ocr_status":"ok","ocr_quality":90.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-013.pdf","sha256":"6608374b430a7993ec937dfe6642684f5cef7b5af1b3e7647b9aaf4df0f062c8","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","fees","electronic records","FOIA request"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL November 14, 2025 PUBLIC ACCESS OPINION 25-013 (Request for Review 2025 PAC 89267) FREEDOM OF INFORMATION ACT: Improper Basis for Assessing Fees for Copies of Records Maintained in an Electronic Format Mr. Joshua Golden 3114 West 163rd Street Markham, Illinois 60428 Ms. Anita Sanchez Office Associate for the Mayor's Office City of Markham 16313 South Kedzie Avenue Markham, Illinois 60428 Dear Mr. Golden and Ms. Sanchez: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that the City of Markham (City) assessed an improper fee in response to Mr. Joshua Golden's September 8, 2025, FOIA request. On that date, Mr. Golden submitted a FOIA request to the City seeking a copy of the call for service or police report that he filed earlier that day; he specified that he wished to receive the record via e-mail.' On September 16, 2025, the City denied the request, stating that ‘E-mail from Josh Golden to foia@cityofmarkham.net (September 8, 2025). 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 « Fax: (312) 814-3806 (618) 529-6400 « Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www .IllinoisAttorneyGeneral.gov Mr. Joshua Golden Ms. Anita Sanchez November 14, 2025 Page 2 Mr. Golden should contact the Markham Police Records Department to purchase the report at a cost of $5 for residents and $10 for non-residents.” On September 17, 2025, this office received Mr. Golden's complete Request for Review contesting the City's response.° On September 26, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the City, accompanied by a letter requesting a detailed written explanation of the legal and factual basis for the fee referenced by the City, as well as a detailed explanation for any FOIA exemptions that the City asserted to be applicable to the requested record.* On October 7, 2025, a City employee stated in a telephone conversation with a Supervising Attorney in the Public Access Bureau that the City was searching for the City ordinance upon which it based the fee and was still preparing a response. On October 14, 2025, having not received the City's response, this office sent a second copy of the Request for Review to the City, again requesting a written explanation of its response to Mr. Golden's FOIA request.> On October 17, 2025, the City furnished its response, which did not assert that any exemptions in section 7 of FOIA (5 ILCS 140/7 (West 2024)) permitted the City to deny the request. Instead, the City directed this office to fees listed on the City's website.° On that same date, this office forwarded a copy of the City's answer to Mr. Golden and notified him of his opportunity to reply in writing.’ Mr. Golden replied on that same date, asserting that FOIA did not permit the City to charge him a fee for the record.° ANALYSIS Section 3(b) of FOIA (5 ILCS 140/3(b) (West 2024)) provides: \"Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person *Letter from FOIA Officer, City of Markham, to [Joshua Golden] (undated and transmitted via e- mail on September 16, 2025) 3FOIA — REQUEST FOR REVIEW BY PUBLIC ACCESS COUNSELOR (PAC) from Joshua Golden (undated). ‘Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Anita Sanchez, Office Associate for the Mayor's Office, City of Markham (September 26, 2025), at 1. Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Anita Sanchez, Office Associate for the Mayor's Office, City of Markham (October 14, 2025), at 1. °E-mail from [FOIA Officer, City of Markham], to [Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General] (October 17, 2025). ‘Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Joshua Golden (October 17, 2025). 8E-mail from Joshua Golden to [Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General] (October 17, 2025). Mr. Joshua Golden Ms. Anita Sanchez November 14, 2025 Page 3 who submits a request, a copy of any public record required to be disclosed by subsection (a) of this Section and shall certify such copy if so requested.\" Section 6(b) of FOIA (5 ILCS 140/6(b) (West 2024)) further provides: \"Except when a fee is otherwise fixed by statute, each public body may charge fees reasonably calculated to reimburse its actual cost for reproducing and certifying public records and for the use, by any person, of the equipment of the public body to copy records.\" (Emphasis added.) Section 6(a) of FOIA (5 ILCS 140/6(a) (West 2024)), in turn, addresses fees for records maintained in electronic format: When a person requests a copy of a record maintained in an electronic format, the public body shall furnish it in the electronic format specified by the requester, if feasible. If it is not feasible to furnish the public records in the specified electronic format, then the public body shall furnish it in the format in which it is maintained by the public body, or in paper format at the option of the requester. A public body may charge the requester for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium. * * * Except to the extent that the General Assembly expressly provides, statutory fees applicable to copies of public records when furnished in a paper format shall not be applicable to those records when furnished in an electronic format. (Emphasis added.) In Sage Information Services v. Humm, 2012 IL App (Sth) 110580, § 18, the Illinois Appellate Court observed that section 6(a) of FOIA \"does not allow a fee in excess of the cost of the electronic medium for the reproduction of electronic records unless another statute expressly provides that the fees for producing paper records also apply to electronic copies.\" In its response to this office, the City stated that the fees for reports such as the requested record could be found on the City website and included a screenshot showing a portion of the Police Department's section of the \"FAQs\" page of the website.” That portion states: \"Incident Reports are $10 for non-residents and $5 for Markham Residents. All accident reports are $5.\"!° The City did not, however, cite any provision of FOIA or any other law that establishes fees for incident reports. The City sent its response to this office via e-mail and attached an electronic copy of the record responsive to Mr. Golden's FOIA request in Portable Document Format.'' Because it is apparent that the City could fulfill Mr. Golden's request in the manner he requested, via e-mail, without the need for a recording medium, the City may assess a °E-mail from [FOIA Officer, City of Markham], to [Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General] (October 17, 2025). OMarkham, Illinois, FAQs, Police Department, 3. How Much are Incident/Accident Reports? https://www.cityofmarkham.net/FAQ.aspx (last visited October 19, 2025). E-mail from [FOIA Officer, City of Markham], to [Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General] (October 17, 2025). Mr. Joshua Golden Ms. Anita Sanchez November 14, 2025 Page 4 copying fee for the incident report only if: (1) the fee is fixed by a statute other than FOIA; ” and (2) the General Assembly has expressly provided that the fee applies to the report \"when furnished in an electronic format.\" The City has not identified a statute that authorizes it to charge a $5 fee for incident reports requested by residents and a $10 fee for incident reports requested by non- residents. Even if the City has adopted a municipal ordinance establishing those fees, a municipal ordinance is not a statute. Naperville v. Lerch, 198 Ill. App. 3d 578, 583-84 (1990) (distinguishing a municipal ordinance from a statute and holding that a trial court improperly awarded attorneys' fees pursuant to a municipal ordinance when \"the absence of a statute or an agreement of the parties precludes the recovery of attorney fees|.|\"). Because the General Assembly has not expressly authorized a statutory fee in excess of the cost of the recording medium for electronic copies of incident reports and because the City does not need a recording medium to furnish the incident report at issue to Mr. Golden via e-mail, as he requested, the City is precluded from assessing Mr. Golden a fee for the requested report. Accordingly, the City violated section 6(a) of FOIA.4 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On September 8, 2025, Mr. Joshua Golden submitted a FOIA request to the City of Markham seeking a copy of the call for service or police report that he filed earlier that day, specifying that he wished to receive the record via e-mail. 2) On September 16, 2025, the City denied the request and stated that Mr. Golden should contact the Markham Police Records Department to purchase the report at a cost of $5 for residents and $10 for non-residents. 3) On September 17, 2025, this office recetved Mr. Golden's complete Request for Review contesting the City's response. 4) On September 26, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the City, accompanied bya letter requesting a detailed written explanation of the City's response to Mr. Golden's FOIA request, including a detailed legal and factual basis 125 ILCS 140/6(b) (West 2024). 135 ILCS 140/6(a) (West 2024). '4For future reference, this office notes that when an incident report is requested in a format that requires the City to provide a copy on a recording medium, the same fee should apply to residents and non-residents under section 6(a) of FOIA because the City's \"actual cost of purchasing the recording medium[]\" is not dependent on where the requester resides. Mr. Joshua Golden Ms. Anita Sanchez November 14, 2025 Page 5 for the fee assessed by the City. Having received no response, this office sent follow-up correspondence to the City on October 14, 2025. 5) On October 17, 2025, the City furnished its written response via e-mail, along with a copy of the requested report in Portable Document Format. 6) On that same date, the Public Access Bureau forwarded a copy of the City's written answer to Mr. Golden and notified him of his right to reply. 7) On that same date, Mr. Golden replied. 8) Section 6(b) of FOIA provides: \"Except when a fee is otherwise fixed by statute, each public body may charge fees reasonably calculated to re1mburse its actual cost for reproducing and certifying public records and for the use, by any person, of the equipment of the public body to copy records.\" Section 6(a) of FOIA, which governs fees for copies of electronic records, provides that a public body may only charge a requester \"for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium[,]\" unless \"the General Assembly expressly provides[]\" otherwise. 9) The City maintains the requested record in electronic format and can provide it to Mr. Golden via e-mail in Portable Document Format, with no cost for a recording medium. 10) The General Assembly has not established any other fees for the requested record. Therefore, it is the opinion of the Attorney General that the City of Markham assessed an improper fee in response to Mr. Joshua Golden's September 8, 2025, Freedom of Information Act request. Accordingly, the City is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Golden with a copy of the withheld record without the assessment of a fee. Mr. Joshua Golden Ms. Anita Sanchez November 14, 2025 Page 6 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Joshua Golden as defendants. See 5 ILCS 140/11.5 (West 2024). Very truly yours, KWAME RAOUL ATTORNEY GENERAL By: py Veo R. Douglas Rees Chief Deputy Attorney General CERTIFICATE OF SERVICE Leah Bartelt, Public Access Counselor, Public Access Bureau, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-013) upon: Mr. Joshua Golden 3114 West 163rd Street Markham, Illinois 60428 deathproof76@gmail.com Ms. Anita Sanchez Office Associate for the Mayor's Office City of Markham 16313 South Kedzie Avenue Markham, Illinois 60428 foia@cityofmarkham.net by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Ilinois on November 14, 2025. Pol port st— Leah Bartelt Public Access Counselor LEAH BARTELT Public Access Counselor Public Access Bureau Office of the Attorney General 115 South LaSalle Street, 30th Floor Chicago, Illinois 60603 (312) 814-6437","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Golden requested a police report from the City of Markham via e-mail, but the City told him he had to pay a fee of $5 for residents or $10 for non-residents. The Attorney General's office ruled that because the City maintained the report in an electronic format and could provide it via e-mail without a recording medium, and because no statute authorized a fee for electronic copies, the City violated FOIA by assessing that fee. The opinion does not state that the report must be provided for free in all circumstances, only that the City could not charge the fee it attempted to impose.","card_headline":"Fees for electronic delivery of police reports","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":206,"orig_master_id":19408,"dup_master_id":19180,"dup_sha256":"477fe6954cac0f6c8797c8cbf30aa0235fda852559e96bcd8f8ea5d03e8d28a1","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-09-02","case_number":"2025 PAC 87009","request_numbers":null,"title":"Construction-Related Technical Documents for Projects Not Built with Public Funds Are Exempt from Disclosure under Section 7(1)(k)","filename":"PUBLIC ACCESS OPINION 25-012 (Request for Review 2025 PAC 87009).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-012 (Request for Review 2025 PAC 87009).pdf","word_count":2352,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request related to construction-related technical documents for a proposed commercial solar facility. It concludes that the Will County Land Use Department did not violate FOIA by withholding certain documents.","plain_summary":"The requester sought a private solar-energy developer's application materials submitted to a county land use department, which withheld two engineering technical submissions in their entirety as construction-related technical documents. The Public Access Counselor held that because the project was not being constructed or developed with public funds, section 7(1)(k) of FOIA exempted the engineering submissions from disclosure regardless of whether disclosure would compromise security. The department's withholding of the two records was upheld and no violation was found.","holding":"The Will County Land Use Department did not violate FOIA by withholding engineers' technical submissions.","legal_question":"Are construction-related technical documents for projects not built with public funds exempt from disclosure under Section 7(1)(k) of FOIA?","disposition":"no_violation","primary_statute":"5 ILCS 140/9, 5 ILCS 140/1, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(k)","public_body":"Will County Land Use Department","requesting_party":"Becker and Mr. Duesing","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(k)","subject_description":"Construction-related technical documents submitted for a special use permit for a commercial solar facility.","ocr_status":"ok","ocr_quality":90.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-012.pdf","sha256":"3b7ad4e2c184ad02181bed0401e0ffab02338c251b75160cfe3deaa1120d3c78","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["construction documents","public funds","exemption 7(1)(k)","solar facility","technical submissions"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL September 2, 2025 PUBLIC ACCESS OPINION 25-012 (Request for Review 2025 PAC 87009) FREEDOM OF INFORMATION ACT: Construction-Related Technical Documents for Projects Not Built with Public Funds Are Exempt from Disclosure under Section 7(1)(k) Mr. Jeffrey Becker 7600 West Monee-Manhattan Road Monee, Illinois 60449 Mr. Colin Duesing FOIA Officer Will County Land Use Department 5 8 East Clinton Street, Suite 100 Joliet, Illinois 60432 Dear Mr. Becker and Mr. Duesing: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that the Will County Land Use Department (Department) did not violate FOIA by withholding engineers' technical submissions related to a proposed commercial solar facility in response to Mr. Jeffrey Becker's May 20, 2025, FOIA request. BACKGROUND On May 20, 2025, Mr. Becker submitted a FOIA request to the Department seeking a copy of \"the filed application, with all of its related documents, submitted by Possibility Place Nursery, Tristan Shaw or a Shaw family member, Zaroka Solar LLC, or 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (2 I 7) 782-I 090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. l II i noisA ttomeyGenera I. gov • ,. ___ , ...... ~ 400S Mr. Jeffrey Becker Mr. Colin Duesing September 2, 2025 Page 2 Cultivate Power, LLC for a Special Use Permit for a Commercial Solar Energy facility, located at 7548 West Monee-Manhattan Rd. Monee IL 60449.\"1 On May 21, 2025, the Department granted the request in part and denied the request in part. The Department disclosed copies of numerous responsive records, such as an application, data sheets, studies, letters, reports, deeds, and agreements, but made certain redactions under sections 7(1)(b), 7(1)(d), 7(1)(f), 7(1)(g), and 7(1)(k) of FOIA;2 the Department also withheld two records in their entireties pursuant to section 7(1)(k). Specifically, the Department stated: Documents removed in their entirety in accordance with Section 7[1](k) include: • Project # 02500376.001 by Farnsworth Group of Lisle, Illinois • Project # 268262051 by Kimley Horn of Deerfield, Illinois These documents, or their subsequent replacement/revisions, may become part of the public record during the public approval process. If entered into the public record at that time, they may be requested for public review.Pl On May 23, 2025, Mr. Becker submitted a Request for Review contesting the Department's assertion of section 7(1)(k) to withhold those two records. Specifically, he contended that: The Department has failed to set forth any basis on which the disclosure of these reports regarding the design of a proposed solar facility on agricultural land \"would compromise security.\" Unlike all of the government buildings and large enclosed structures specifically enumerated in subsection (k), there are no buildings involved in this project. Moreover, the Department has already disclosed, as a part of its FOIA response, the precise identity of the transformers and utility-scale inverters to be employed in the project. If there were any security concerns, these components would not have been publicly disclosed. In short, there is nothing in these engineering designs that would \"compromise security\" if disclosed. The proposed solar facility will be conspicuous to everyone in the area and will be composed of thousands of solar panels mounted on frames. 1F reedom of Information Act Request Form, Will County Land Use Department, submitted by Jeffrey Becker to Will County Land Use Department (May 20, 2025). 25 ILCS I 40/7( I )(b ), ( I )(d), ( I )(f), ( I )(g) ( I )(k) (West 2024). 3E-mail from Colin Duesing, Certified FOIA Officer, to Jeffrey Becker (May 21, 2025). Office of the fllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing September 2, 2025 Page 3 If there is any portion of these that \"would compromise security,\" the Department has failed to identify it. And even if there were conceivably something in the reports that would compromise security, the plain language of subsection (k) permits the Department to withhold the contents of the reports \"only to the extent that disclosure would compromise security. \"[4l On June 3, 2025, the Public Access Bureau sent a copy of the Request for Review to the Department. The Public Access Bureau also sent the Department a letter requesting unredacted copies of the withheld records for this office's confidential review and a detailed written explanation of the legal and factual bases for the applicability of the asserted exemption. 5 On June 5, 2025, the Department provided this office with the requested materials, maintaining that it properly withheld the disputed records under section 7(1)(k) of FOIA.6 On the same date, this office forwarded a copy of the Department's answer to Mr. Becker and notified him of his opportunity to reply in writing.7 He did not submit a written reply. On June 9, 2025, the Department sent this office and Mr. Becker a brief e-mail clarifying a portion of its answer.8 On July 21, 2025, this office extended the time for issuing a binding opinion by 30 business days, to September 3, 2025, pursuant to section 9.5(f) of FOIA.9 4Letter from Jeffrey Becker to Public Access Counselor, Office of the Attorney General (May 23, 2025), at 2. 5Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Colin Duesing, FOIA Officer, Will County Land Use Department (June 3, 2025). 6E-mail from Colin Duesing, Certified FOIA Officer, [Will County Land Use Department], to [Matt] Goodman, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (June 5, 2025). 7Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Jeffrey Becker (June 5, 2025). 8E-mail from Colin Duesing Certified FOIA Officer, [Will County Land Use Department], to [Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] and [Jeffrey Becker] (June 9, 2025). 9Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Jeffrey Becker and Colin Duesing, FOIA Officer, Will County Land Use Department (July 21, 2025). Office of the Tllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing September 2, 2025 Page 4 ANALYSIS In section 1 of FOIA (5 ILCS 140/1 (West 2024)), \"it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act.\" Accordingly, courts have explained that \"the core purpose of the FOIA is to expose what the government is doing, not what its private citizens are up to.\"' Chicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188,211 (2004) (quoting Lakin Law Firm, P.C. v. FTC, 352 F.3d 1122, 1124 (7th Cir. 2003)). Section 1.2 of FOIA (5 ILCS 140/1.2 (West 2024)) provides that \" [a )11 records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" Section 7(1)(k) of FOIA Section 7(1)(k) of FOIA exempts from disclosure: Architects' plans, engineers' technical submissions, and other construction related technical documents for projects [...] 13Letter from Ashlyn Kirby, Development Analyst I, Will County Illinois Land Use Department, to Emily Carroll (May 2 I, 2025). 14E-mail from Colin Duesing, Certified FOIA Officer, [Will County Land Use Department], to [Matt] Goodman, [Assistant Attorney General, Public Access Bureau] (June 5, 2025). Office of the Tllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing September 2, 2025 Page 6 \"[a]rchitects' plans, engineers' technical submissions, and other construction related technical documents, but only to the extent that disclosure would compromise security.\" Plainly, the General Assembly chose to apply different standards to projects constructed or developed in whole or in part with public funds as opposed to projects that did not receive public funding, in keeping with FOIA's purpose of ensuring that \"all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act.\"15 The General Assembly chose to make building plans for publicly funded buildings public to the extent disclosure would not compromise security, while creating a blanket exemption for privately-funded building plans. As noted above, in response to Mr. Becker's FOIA request, the Department disclosed a substantial volume of records pertaining to the private party seeking to develop the proposed solar farm and the governmental review of the project. The Department withheld only two documents from Mr. Becker, and this office's confidential review confirmed that the withheld documents are construction-related technical documents commissioned by the private company pursuing this commercial solar farm. It is these types of records, whether for private homeowners or larger-scale private developers, that section 7(l)(k) is intended to protect. Because public funds are not being used to construct or develop the project, the plain language of section 7(l)(k) exempts those records from disclosure regardless of whether disclosure would compromise security. Accordingly, the Department has sustained its burden of proving by clear and convincing evidence that the contested records are exempt from disclosure under section 7(l)(k) ofFOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On May 20, 2025, Mr. Jeffrey Becker submitted a FOIA request to the Will County Land Use Department seeking copies of records pertaining to the proposed development of a private solar facility. 2) On May 21, 2025, the Department granted the request in part but, in relevant part, denied two construction-related technical documents pursuant to section 7(l)(k) of FOIA. 3) On May 23, 2025, Mr. Becker submitted a Request for Review contesting the Department's denial of two construction-related technical documents. The Request for Review 155 lLCS 140/1 (West 2024). Office of the fllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing September 2, 2025 Page 7 was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2024)). 4) On June 3, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Department and asked it to provide unredacted copies of the disputed records for this office's confidential review, together with a written explanation of the factual and legal basis for the applicability of section 7(1 )(k). 5) On June 5, 2025, the Department provided this office with unredacted copies of the withheld records and its written explanation. On the same date, the Public Access Bureau forwarded a copy of that answer to Mr. Becker and notified him of his opportunity to reply to that answer. On June 9, 2025, the Department sent this office and Mr. Becker an e-mail correcting a scrivener's error in its response. Mr. Becker did not submit a reply. 6) On July 21, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to September 3, 2025, pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 7) Section 7(l)(k) of FOIA exempts from disclosure \"[a]rchitects' plans, engineers' technical submissions, and other construction related technical documents for projects not constructed or developed in whole or in part with public funds[.]\" The exemption applies to the same type of records \"for projects construed or developed with public funds, * * *, but only to the extent that disclosure would compromise security.\" 8) The Department sustained its burden by proving by clear and convincing evidence that the section 7(l)(k) exemption applies because the withheld records are construction-related technical documents pertaining to a project that will not be constructed or developed with public funds. Therefore, it is the opinion of the Attorney General that the Will County Land Use Department did not violate the requirements of FOIA by partially denying Mr. Jeffrey Becker's Freedom of Information Act request as to those two records. Office of the Tllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing September 2, 2025 Page 8 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and the Will County Land Use Department as defendants. See 5 ILCS 140/11.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEYGENJRJ\\)11 ~ By: /L-~ --L-/01~ R. Dougta: Re« Chief Deputy Attorney General Office of the fllinois Attorney General CERTIFICATE OF SERVICE Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 25- 012) upon: Mr. Jeffrey Becker 7600 West Monee-Manhattan Road Monee, Illinois 60449 jjbstudly@aol.com Mr. Colin Duesing FOIA Officer Will County Land Use Department 58 East Clinton Street, Suite 100 Joliet, Illinois 60432 foia@willcounty land use. com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on September 2, 2025. Eaie Steinberg Senior Assistant Attorn~ 4,i(l~mt-- Edie Steinberg Senior Assistant Attorney General Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-5201","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under FOIA Section 7(1)(k), construction-related technical documents submitted to a public body as part of a permit application are exempt from disclosure when the underlying project is not built with public funds. The decisive fact was that the proposed solar facility was a private commercial development, with no evidence of any public funding for its construction. Therefore, the Department properly withheld the engineers' technical submissions without needing to consider other claimed exemptions.","card_headline":"Construction documents for a solar facility permit","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":207,"orig_master_id":19407,"dup_master_id":19181,"dup_sha256":"d9ed4eef48886c44175846fad4568f6f25b6674794d03135729d61d8aa11a381","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-08-12","case_number":"2025 PAC 86835","request_numbers":null,"title":"Improper Private Meeting","filename":"PUBLIC ACCESS OPINION 25-011 (Request for Review 2025 PAC 86835).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-011 (Request for Review 2025 PAC 86835).pdf","word_count":2384,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a complaint about the Washington County Board's violation of the Open Meetings Act by holding an improper private meeting.","plain_summary":"The requester alleged that a county board held an improper private meeting when a majority of a quorum of its members attended an informational presentation on a proposed energy project hosted by a private company. The Public Access Counselor held that because the members engaged in an interactive discussion with the company about a project affecting the county, the gathering constituted a \"meeting\" subject to the Open Meetings Act despite lacking formal notice. The board was directed to generate minutes summarizing the presentation or have the company recreate it at a properly noticed open meeting.","holding":"The Washington County Board violated the Open Meetings Act by holding an improper private meeting on April 30, 2025.","legal_question":"Did the Washington County Board violate the Open Meetings Act by holding an improper private meeting?","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/1, 5 ILCS 120/2, 5 ILCS 140/1, 735 ILCS 5/3, 5 ILCS 120/7","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Washington County Board","requesting_party":"Czajkowski and Mr. Meyer","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board attended an informational meeting hosted by a private company without providing public notice or keeping minutes as required by the Open Meetings Act.","ocr_status":"ok","ocr_quality":90.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-011.pdf","sha256":"01e385010ea702fc22ed10451ab85176d689f36ff217791b817779ac68c3f7bf","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","meeting notice","public meeting","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL August 12, 2025 ATTORNEY GENERAL PUBLIC ACCESS OPINION 25-011 (Request for Review 2025 PAC 86835) OPEN MEETINGS ACT: Improper Private Meeting Ms. Mary Czajkowski 26005 Highline Road Ashley, Illinois 62808 The Honorable David Meyer, Chairman Washington County Board 101 East St. Louis Street Nashville, Illinois 62263 Dear Ms. Czajkowski and Mr. Meyer: This binding opinion is issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this office concludes that the Washington County Board (Board) violated OMA by holding an improper private meeting on April 30, 2025. BACKGROUND On May 15, 2025, Ms. Mary Czajkowski submitted a Request for Review to the Public Access Bureau alleging that the Board improperly held a meeting on April 30, 2025, without following the requirements of OMA. 1 In particular, she asserted that the Board did not post an agenda or prepare minutes of an informational meeting hosted by Pattern Energy, a 1OMA- Request for Review by Public Access Counselor (PAC) form submitted by Mary Czajkowski (May 15, 2025). 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. II I i noisA ttomeyGenera I. gov Ms. Mary Czajkowski The Honorable David Meyer August 12, 2025 Page 2 private company, which Board members attended.2 On May 22, 2025, the Public Access Bureau sent a copy of the Request for Review to the Board and asked it to respond to Ms. Czajkowski's allegations and address whether a majority of a quorum of Board members attended the April 30, 2025, event.3 This office asked the Board to explain whether the subjects discussed at the event constituted discussions of public business regarding Washington County and to provide copies of any notice, agenda, meeting minutes, and recordings of the event.4 On May 30, 2025, the Washington County State's Attorney submitted a written response on behalf of the Board. 5 On that same date, this office forwarded a copy of the Board's response to Ms. Czajkowski and notified her of her opportunity to reply.6 Ms. Czajkowski did not submit a reply. On July 1, 2025, the Public Access Bureau sent a second letter to the Board asking for a detailed description of what occurred at the April 30, 2025, event, including how Pattern Energy presented information and how Board members participated in the gathering. 7 This office also asked the Board to provide a list of attendees, copies of any notes taken by the attendees, and copies of any information Pattern Energy provided to the attendees.8 This office also requested copies of any correspondence to or from any Board members related to the April 30, 2025, event, and minutes of any Board or committee meetings where the April 30, 2025, event, Pattern Energy, or the Kaskaskia Renewables project were discussed.9 2OMA - Request for Review by Public Access Counselor (PAC) form submitted by Mary Czajkowski (May 15, 2025). 3Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board (May 22, 2025), at I. 4Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board (May 22, 2025), at I. 5Letter from Crystal May, Washington County State's Attorney, to Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (May 30, 2025). 6Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Mary Czajkowski (May 30, 2025). 7Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board, and The Honorable Crystal May, Washington County State's Attorney (July I, 2025), at 2. 8Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board, and The Honorable Crystal May, Washington County State's Attorney (July I, 2025). 9Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board, and The Honorable Crystal May, Washington County State's Attorney (July I, 2025). Ms. Mary Czajkowski The Honorable David Meyer August 12, 2025 Page 3 On July 11, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 21 business days, to August 12, 2025, pursuant to section 3.5(e) of OMA (5 ILCS 120/3.5(e) (West 2024)). ,o On July 14, 2025, the Board provided a written answer in response to this office's July 1, 2025, correspondence, as well as copies of the Board's March 11, 2025, meeting agenda and minutes, and copies of five e-mails pertaining to the April 30, 2025, event. 11 On July 16, 2025, this office forwarded a copy of the Board's additional response to Ms. Czajkowski. 12 On July 20, 2025, Ms. Czajkowski submitted a reply.13 On July 22, 2025, this office requested that the Board provide a copy of the rules that it referenced in its May 30, 2025, response. 14 Later that day, the Board provided via e-mai 1 a copy of Chapter 1 of the Washington County Code, which covers, among other things, Board procedures. 15 ANALYSIS \"It is the public policy of this State that public bodies exist to aid in the conduct of the people's business and that the people have a right to be informed as to the conduct of their business.\" 5 ILCS 120/1 (West 2024). \"The Open Meetings Act provides that public agencies exist to aid in the conduct of the people's business and that the intent of the Act is to assure that agency actions be taken openly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989). For the requirements of OMA to apply, a gathering must constitute a \"meeting\" as defined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2024)): \"Meeting\" means any gathering, whether in person or by video or audio conference, telephone call, electronic means (such 10Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Mary Czajkowski, and The Honorable Crystal May, Washington County State's Attorney (July 11, 2025). 11Letter from Crystal May, State's Attorney, Washington County, to Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (July 14, 2025). 12Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Mary Czajkowski (July 16, 2025). 13Letter from Mary Czajkowski to Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (July 20, 2025). 14E-mail from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to State's Attorney [Crystal] May (July 22, 2025). 15E-mail from Crystal May, State's Attorney, Washington County, Illinois, to [Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (July 22, 2025), attaching Washington County Code, Chapter I, Administration (May 2024). Ms. Mary Czajkowski The Honorable David Meyer August 12, 2025 Page 4 as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication, of a majority of a quorum of the membe [...] ose of collecting information. See 5 ILCS 120/1 (West 2024) (\"The General Assembly further declares it to be the public policy of this State that its citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in any way.\") (Emphasis added.) Under these circumstances, this office concludes that the gathering of seven Board members on April 30, 2025, constituted a \"meeting\" subject to the requirements of OMA. Accordingly, because the Board did not provide advance public notice of the April 30, 2025, meeting or otherwise follow OMA's procedures and requirements, the Board violated OMA on that date. FINDINGS AND CONCLUSIONS After full examination based on the evidence available, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On April 30, 2025, seven members of the Washington County Board attended an informational presentation hosted by Pattern Energy. 2) On May 15, 2025, Ms. Mary Czajkowski submitted a Request for Review to the Public Access Bureau alleging that the Board violated OMA by attending the informational presentation without adhering to the advance notice requirements of OMA. Ms. Czajkowski's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2024)). 3) On May 22, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Board and asked it to provide copies of any notices, agendas, minutes, and recordings from the April 30, 2025, presentation. This office also requested a written response to the allegation that this gathering constituted an improper private meeting, including an explanation of the extent to which the Board discussed the transaction of public business. 4) On May 30, 2025, the Board furnished its written response. The same day, this office forwarded a copy of the Board's response to Ms. Czajkowski; she did not reply. 5) On July 1, 2025, the Public Access Bureau requested additional information from the Board regarding the April 30, 2025, informational presentation. 42E-mail from Daniel R. Luna Fuller, Washington County Board [Member], District I, to [Crystal May, State's Attorney, Washington County] (July 8, 2025). Ms. Mary Czajkowski The Honorable David Meyer August 12, 2025 Page 11 6) On July 11, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 21 business days, to August 12, 2025, pursuant to section 3.5(e) of OMA (5 ILCS 120/3.5(e) (West 2024)). 7) On July 14, 2025, the Board provided an additional written response, copies of e-mail correspondence related to the presentation, and the agenda and minutes from the March 11, 2025, Board meeting, where a Board member mentioned the opportunity to attend a presentation hosted by Pattern Energy. 8) On July 16, 2025, this office forwarded a copy of the Board's additional response to Ms. Czajkowski; she replied on July 20, 2025. 9) Section 1.02 of OMA defines a \"meeting\" in relevant part, as \"any gathering * * * of a majority of a quorum of the members of a public body held for the purpose of discussing public business[.]\" The full Board consists of 15 members. Accordingly, eight Board members constitute a quorum and five members are a majority of a quorum. 10) If a gathering of public body members is determined to be a \"meeting,\" then all the requirements of OMA apply, including proper posting of notice and an agenda, holding the meeting at a specified time and place that is convenient and open to the public, keeping minutes, and allowing public comment. 11) Seven members of the Board attended the April 30, 2025, presentation, in which Board members engaged in an interactive discussion with representatives from Pattern Energy about its proposed Kaskaskia Renewables energy project, a subject which constitutes public business of the Board with potentially wide ranging impacts on Washington County. 12) Because discussions of public business for the purpose of collecting information are the collective inquiry of the deliberative process, the April 30, 2025, presentation constituted a \"meeting\" subject to the requirements of OMA. In accordance with these findings of fact and conclusions of law, the Public Access Bureau concludes that the Board violated OMA by holding a meeting on April 30, 2025, without providing advance public notice or complying with the other requirements of OMA. The Board is directed to generate and approve written minutes for the meeting. Alternatively, if the Board determines that generating minutes that thoroughly summarize the information presented and discussed is unfeasible due to a lack of notes and other documentation of the meeting, the Board may invite Pattern Energy to recreate the presentation during an open meeting that fully complies with the requirements of OMA. The Board is also directed to ensure that future gatherings in which five or more of its members engage in deliberative discussions of public business are held in full compliance with the requirements of OMA. This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 Ms. Mary Czajkowski The Honorable David Meyer August 12, 2025 Page 12 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Ms. Mary Czajkowski as defendants. See 5 ILCS 120/7.5 (West 2024). Very truly yours, KWAMERAOUL ATTORNEY GENERAL 72 / L, By: R. Douglas Rees Chief Deputy Attorney General cc: The Honorable Crystal May State's Attorney Washington County, Illinois 125 East Elm Street Nashville, Illinois 62263 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-011) upon: Ms. Mary Czajkowski 26005 Highline Road Ashley, Illinois 62808 czajkowskimc@gmail.com The Honorable David Meyer, Chairman Washington County Board 101 East St. Louis Street Nashville, Illinois 62263 ddmeyerfarms@att.net The Honorable Crystal May State's Attorney Washington County, Illinois 125 East Elm Street Nashville, Illinois 62263 Crystal.May@washingtonco.illinois.gov by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on August 12, 2025. Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A resident complained that the Washington County Board held a private meeting with a private company without following public meeting rules. The Attorney General's office investigated and found that because a majority of the Board attended the informational session, it constituted a public meeting that required proper notice, an agenda, and minutes. The Board violated the law by failing to treat this gathering as an official public meeting.","card_headline":"A county board's private informational meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":208,"orig_master_id":19182,"dup_master_id":19410,"dup_sha256":"195dff3e0c66946a94e9b1b6ed11ee64eee95313ec722fcefe879dc7680c3331","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-12-03","case_number":"2025 PAC 88767","request_numbers":null,"title":"Improper Basis for Assessing Fees for Copies of Video Footage Maintained in an Electronic Format","filename":"PUBLIC ACCESS OPINION 25-014 (Request for Review 2025 PAC 88767).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 25-014 (Request for Review 2025 PAC 88767).pdf","word_count":2400,"summary":"Attorney General: Mattoon Police Department assessed improper fee in response to Nicholas T. Diener's FOIA request . Request for Review was issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act .","plain_summary":"The requester sought body-worn and dashboard camera footage of an incident involving himself, and a police department demanded pre-payment of a per-minute redaction fee before releasing the video. The Public Access Counselor held that FOIA authorizes a public body to charge only the actual cost of the recording medium for electronic copies, and that the cost of performing redactions is not a chargeable fee under the Act. The department was directed to provide the video footage subject to appropriate redactions and a fee no greater than the actual cost of the recording medium.","holding":"The Mattoon Police Department violated FOIA by assessing an improper fee for the redaction of electronic video records.","legal_question":"Whether a public body may assess a fee for the time spent redacting electronic video records pursuant to a FOIA request.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/6(b), 5 ILCS 140/1, 5 ILCS 140/3(b), 5 ILCS 140/6(a), 235 ILCS 140/6(a), 5 ILCS 140/7(1), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Mattoon Police Department","requesting_party":"Diener and Mr. Jones","pac_outcome":"UNCLEAR","pac_law_type":"FOIA","subject_category":"fees","subject_description":"The assessment of fees for the redaction of body-worn and dashboard camera footage.","ocr_status":"ok","ocr_quality":88.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-014.pdf","sha256":"4d28cd436609e998292b7a55a51c3cc4e7c0a1b4cf30c4cb0facd885ced31dc1","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["fees","police records","body camera","redaction","FOIA"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL December 3, 2025 PUBLIC ACCESS OPINION 25-014 (Request for Review 2025 PAC 88767) FREEDOM OF INFORMATION ACT: Improper Basis for Assessing Fees for Copies of Video Footage Maintained in an Electronic Format Mr. Nicholas T. Diener 212 West Jefferson Street Arcola, Illinois 61910 Mr. Daniel C. Jones City Attorney Smith, Pappas & Jones Ltd. | 622 Jackson Avenue Charleston, Hlinois 61920 Dear Mr. Diener and Mr. Jones: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that the Mattoon Police Department (Department) assessed an improper fee in response to Mr. Nicholas T. Diener's August 13, 2025, FOIA request. BACKGROUND On August 13, 2025, Mr. Diener submitted a FOIA request to the Department seeking records concerning an incident on July 1, 2025, in which he was involved, including 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 * Fax: (312) 814-3806 (618) 529-6400 ¢ Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. IllinoisAttorneyGeneral.gov pe ED RS ints Mr. Nicholas T. Diener Mr. Daniel C. Jones December 3, 2025 Page 2 copies of all \"body-worn camera footage and dashboard camera footage[.]\"! On August 18, 2025, the Department e-mailed Mr. Diener to inform him that the responsive video recordings consist of approximately four to five hours of footage \"that must have redactions made[]\"* to certain portions before disclosure. The Department informed Mr. Diener that \"[t]his will be costly, but we must follow FOIA guidelines on exemptions. Prior to making redactions to the footage, we require pre-payment.\"? The Department asked Mr. Diener if he preferred to narrow his request to a specific portion of the footage to reduce the cost.4 Mr. Diener replied by requesting \"a written itemized estimate of any fees the [D]epartment intendtso charge for the production of these records, including a breakdown of labor, material, and any other claimed costs.\"> Mr. Diener's e-mail to the Department indicated that he \"wish[ed] to proceed with my original request, pending review of the detailed cost estimate.\"° In an August 20, 2025, letter, the Department responded that the \"video requests total 4.5 hours of video[,]\" or 270 minutes, and that it charges \"$2.58 per minute to redact.\"’ The Department informed Mr. Diener that pursuant to section 6(b) of FOIA (5 ILCS 140/6(b) (West 2024)), he was required to pay a fee of $696.60 to obtain the requested video footage.® On August 21, 2025, Mr. Diener submitted a Request for Review to the Public Access Counselor contesting that fee.? Mr. Diener argued that the Department's \"demand [for fees] is based entirely on redaction costs, which are non-chargeable by statute.\"!° 'E-mail from Nicholas T. Diener to FOIA Officer, [Mattoon Police Department] (August 13, 2025). E-mail from Heather Smith, Administrative Assistant, Mattoon Police Department, to [Nicholas T. Diener] (August 18, 2025). E-mail from Heather Smith, Administrative Assistant, Mattoon Police Department, to [Nicholas T. Diener] (August 18, 2025). ‘E-mail from Heather Smith, Administrative Assistant, Mattoon Police Department, to [Nicholas T. Diener] (August 18, 2025). 5E-mail from Nicholas Diener to [Heather] Smith (undated). °E-mail from Nicholas Diener to [Heather] Smith (undated). 7Letter from Ryan Hurst, Deputy Chief of Police, Mattoon Police Department, to Nicholas T. Diener (August 20, 2025). *Letter from Ryan Hurst, Deputy Chief of Police, Mattoon Police Department, to Nicholas T. Diener (August 20, 2025). °E-mail from Nicholas T Diener to Public Access Counselor (August 21, 2025). '°F-mail from Nicholas T Diener to Public Access Counselor (August 21, 2025). Office of the Illinois Attorney General Mr. Nicholas T. Diener Mr. Daniel C. Jones December 3, 2025 Page 3 On September 8, 2025, the Public Access Bureau sent a copy of the Request for Review to the Department.'! The Public Access Bureau also e-mailed the Department a letter requesting a detailed written explanation of the legal and factual bases for assessing the $696.60 fee for the requested video recordings!. On September 11, 2025, the Department's legal counsel provided a written answer to the Public Access Bureau.'? On September 18, 2025, this office forwarded a copy of the Department's answer to Mr. Diener and notified him of his opportunity to reply in writing.'* He did not submit a written reply. On October 20, 2025, this office extended the time for issuing a binding opinion by 30 business days, to December 3, 2025, pursuant to section 9.5(f) of FOIA.\"° ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act.\" 5 ILCS 140/1 (West 2024). FOIA should be \"liberally construe[d] * * * in favor of ease of access to public records on the part of any interested citizen.\" Sage Information Services v. Humm, 2012 IL App (Sth) 110580, 4 19. Section 3(b) of FOIA (5 ILCS 140/3(b) (West 2024)) provides: \"Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person who submits a request, a copy of any public record required to be disclosed by subsection (a) of this Section and shall certify such copy if so requested.\" ''E-mail from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Ryan] Hurst, [Deputy Chief of Police, Mattoon Police Department] (September 8, 2025). \"7 etter from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Ryan Hurst, Deputy Chief of Police, Mattoon Police Department (September 8, 2025), at 2. '3Letter from Daniel C. Jones, City Attorney, [City of Mattoon], Smith, Pappas & Jones, Ltd., to [Shannon] Barnaby, [Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (undated). '4Letter from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Nicholas T. Diener (September 18, 2025). 'SLetter from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Nicholas T. Diener and Daniel C. Jones, City Attorney, [City of Mattoon], Smith, Pappas & Jones, Ltd. (October 20, 2025), at 1. Office of the Mlinois Attorney General Mr. Nicholas T. Diener Mr. Daniel C. Jones December 3, 2025 Page 4 Section 6(a) of FOIA (5 ILCS 140/6(a) (West 2024)) provides: When a person requests a copy of a record maintained in an electronic format, the public body shall furnish it in the electronic format specified by the requester, if feasible. If it is not feasible to furnish the public records in the specified electronic format, then the public body shall furnish it in the format in which it is maintained by the public body, or in paper format at the option of the requester. A public body may charge the requester for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium. Ifa request is not a request for a commercial purpose or a voluminous request, a public body may not charge the requester for the costs of any search for and review of the records or other personnel costs associated with reproducing the records. Except to the extent that the General Assembly expressly provides, statutory fees applicable to copies of public records when furnished in a paper format shall not be applicable to those records when furnished in an electronic format. (Emphasis added.) Section 6(b) of FOIA provides, in pe [...] s furthers the public policy underlying a specific exemption.” 5 ILCS 140/1 (West 2024). Further, the General Assembly anticipated circumstances in which a public body would make redactions to documents before disclosing the remaining information. Section 7(1) of FOIA (5 ILCS 140/7(1) (West 2024)) provides: When a request is made to inspect or copy a public record that contains information that is exempt from disclosure under this Section, but also contains information that is not exempt from disclosure, the public body may elect to redact the information that is exempt. The public body shall make the remaining information available for inspection and copying, (Emphasis added.) If the General Assembly had intended to allow a public body to charge fees to reimburse the actual cost it incurred to make redactions to copies of records in electronic format, it would have expressly authorized such a fee in section 6(a) of FOIA. Requiring a requester to reimburse a public body for expenses such as the cost of using redaction software cannot be reconciled with the plain language of sections 6(a) and 6(b) of FOIA and constitutes a restraint on access to information that contradicts the intent of FOIA. Therefore, this office concludes that the Department improperly assessed Mr. Diener $696.60 to obtain the video footage that he requested. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On August 13, 2025, Mr. Nicholas T. Diener submitted a FOIA request to the Mattoon Police Department seeking copies of video recordings pertaining to an incident involving himself and police officers. >Letter from Daniel C. Jones, City Attorney, [City of Mattoon], Smith, Pappas & Jones, Ltd., to [Shannon] Barnaby, [Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (undated), at [2]. Office of the Illinois Attorney General Mr. Nicholas T. Diener Mr. Daniel C. Jones December 3, 2025 Page 9 2) On August 18, 2025, the Department informed Mr. Diener that it had approximately four to five hours of responsive footage, portions of which were subject to redactions under FOIA. The Department told Mr. Diener he would need to pre-pay the costs for those redactions before the footage would be disclosed to him. The Department asked Mr. Diener if he preferred to narrow his request to specific portions of the footage to reduce the cost. Mr. Diener declined to limit the scope of his request at that time and asked the Department to provide a full accounting of the estimated fees. 3) On August 20, 2025, the Department assessed Mr. Diener $696.60 to obtain the requested video footage, based on a per-minute fee of $2.58 to perform the redactions to four and one-half hours of responsive footage. 4) On August 21, 2025, Mr. Diener submitted a Request for Review asserting that the Department constructively denied his request by improperly assessing fees associated with the redactions. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2024)). 5) On September 8, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Department and requested a detailed explanation of the Department's legal and factual bases for the fee it assessed to Mr. Diener. 6) On September 11, 2025, the Department provided this office with its written explanation. 7) On September 18, 2025, the Public Access Bureau forwarded a copy of that answer to Mr. Diener and notified him of his opportunity to reply. Mr. Diener did not submit a reply. 8) On October 20, 2025, this office extended the time for issuing a binding opinion by 30 business days, to December 3, 2025, pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 9) Section 6(a) of FOIA, which governs fees for copies of electronic records, provides that a public body may only charge a requester \"for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium[,]\" unless \"the General Assembly expressly provides[]\" otherwise. 10) Section 6(b) of FOIA, which governs fees for copies of records maintained in paper format, permits a public body to \"charge fees reasonably calculated to reimburse its actual cost for reproducing the records[,]\" such as \"copies in color or in a size other than letter or legal[.]\" Office of the Illinois Attorney General Mr. Nicholas T. Diener Mr. Daniel C. Jones December 3, 2025 Page 10 11) Because the Department maintains the requested video footage in electronic format, section 6(a) of FOIA limits the copying fee to the actual cost of the recording medium. Therefore, it is the opinion of the Attorney General that the Mattoon Police Department assessed an improper fee in response to Mr. Nicholas T. Diener's August 13, 2025, Freedom of Information Act request. Accordingly, the Department is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Diener with a copy of the withheld video footage, subject to appropriate redactions, and assessing him a fee of no more than the actual cost of purchasing a recording medium. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Nicholas T. Diener as defendants. See 5 ILCS 140/11.5 (West 2024). Sincerely, KWAkit TD SOL, WAIVIE, NRAUU [PegGEN E By: f,a it;t a Chief Deputy Attorney General ce: Mr. Ryan Hurst Deputy Chief of Police Mattoon Police Department 1710 Wabash Avenue Mattoon, Illinois 61938 Office of the Illinois Attorney General CERTIFICATE OF SERVICE Joshua M. Jones, Bureau Chief, Public Access Bureau, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-014) upon: Mr. Nicholas T. Diener 212 West Jefferson Street Arcola, Illinois 61910 Nick_diener@yahoo.com Mr. Daniel C. Jones City Attorney Smith, Pappas & Jones Ltd. 622 Jackson Avenue Charleston, Illinois 61920 jones@spjlaw.net by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on December 3, 2025. Toshi M. Jones Bureau Chief Joshua M. Jones Bureau Chief Public Access Bureau, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-8413","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Diener requested police video footage, and the Mattoon Police Department tried to charge him a fee to cover the time spent redacting the videos. The Attorney General's office ruled that this fee was illegal because FOIA does not allow public bodies to charge for the labor costs associated with redacting records. The Department must provide the records without charging for redaction time.","card_headline":"Police fee assessment for redacting camera footage","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":209,"orig_master_id":19411,"dup_master_id":19183,"dup_sha256":"4a36d9ffc65912dc30a7cabfbb7145d7af7afd40c5c786fc0da14c01695fc39b","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-12-31","case_number":"2025 PAC 89395","request_numbers":null,"title":"Disclosure of Village Clerk's Termination Letter","filename":"PUBLIC ACCESS OPINION 25-016 (Request for Review 2025 PAC 89395).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-016 (Request for Review 2025 PAC 89395).pdf","word_count":2345,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request made by Ms. Tania Vucsko for the termination letter of the Village Clerk, which was initially denied by the Village of Thomasboro.","plain_summary":"The requester sought an unredacted copy of a village clerk's termination letter, which the village withheld citing personnel-record and workplace-privacy statutes and FOIA's personal-privacy and disciplinary-adjudication exemptions. The Public Access Counselor held that no cited statute prohibited disclosure of the letter, that it concerned the performance of public duties rather than private affairs, and that the village had not shown any formal adjudication occurred. The village was directed to disclose an unredacted copy of the termination letter.","holding":"The Village of Thomasboro improperly withheld the termination letter responsive to Ms. Tania Vucsko's FOIA request.","legal_question":"Did the Village of Thomasboro properly withhold the termination letter under FOIA?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 35 ILCS 140/7(1), 75 ILCS 140/7(1), 5 ILCS 140/1, 185 ILCS 140/7, 820 ILCS 40/2(a), 820 ILCS 40/7(4), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":["7(1)(a)","7(1)(c)","7(1)(n)"],"public_body":"Village of Thomasboro","requesting_party":"Vucsko and Mr. Miller","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought the termination letter issued by the Mayor to the Village Clerk.","ocr_status":"ok","ocr_quality":90.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20opinion%2025-016.pdf","sha256":"1be5a0397b513c844c454ea105a493515f98422a16c0601570fa3716dcd42eed","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["termination letter","personnel records","FOIA request","Village Clerk"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL ST ATE OF ILLINOIS KWAMERAOUL A'lTORNEY GENERAL December 31, 2025 PUBLIC ACCESS OPINION 25-016 (Request for Review 2025 PAC 89395) FREEDOM OF INFORMATION ACT: Disclosure of Village Clerk's Termination Letter Ms. Tania Vucsko 300 South Jacobsen Drive Thomasboro, Illinois 61878 Mr. Marc R. Miller Miller and Hendren 2504 Galen Drive, Suite 101 Champaign, Illinois 61821 Dear Ms. Vucsko and Mr. Miller: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(±) (West 2024)). For the reasons discussed below, this office concludes that the Village of Thomasboro (Village) improperly withheld the termination letter responsive to Ms. Tania Vucsko's August 11, 2025, FOIA request. On that date, Ms. Vucsko submitted a FOIA request to the Village via e- mail seeking \"a complete and unredacted copy of the termination letter issued by the Mayor of the Village of Thomasboro to the Village Clerk, Tana Ward, dated August 7th, 2025.\"1 On August 18, 2025, the Village denied the request2 pursuant to section 7(l)(a) ofFOIA3 based on 1E-mail from Tania Vucsko to [Village of Thomasboro FOIA Officer and others] (August 11, 2025). 2Letter from Village of Thomasboro to Tania Vucsko (August 18, 2025), at [1-2]. 35 ILCS 140/7(1)(a) (West 2024). 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62 70 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisi\\ttomeyGeneral.gov Ms. Tania Vucsko Mr. Marc R. Miller December 31, 2025 Page 2 section 7(1) of the Personnel Record Review Act (PRRA),4 the Right to Privacy in the Workplace Act,5 and the Workplace Transparency Act.6 The Village also asserted that the termination letter was exempt from disclosure under sections 7(l)(c) and 7(l)(n) ofFOIA.7 On August 19, 2025, Ms. Vucsko submitted a follow-up FOIA request to the Village via e-mail seeking a copy of the same termination letter as well as copies of any supplemental documents related to the termination or separation of the Village Clerk. 8 On August 26, 2025, the Village denied the request, relying on the same exemptions it asserted in response to Ms. Vucsko's August 11, 2025, FOIA request.9 On September 21, 2025, Ms. Vucsko submitted Requests for Review challenging the Village's responses to each FOIA request, including the applicability of the exemptions the Village asserted to deny the termination letter. 10 The Public Access Bureau opened a Request for Review concerning the denial of the termination letter in response to the August 11, 2025, FOIA request (2025 PAC 89395), and a separate Request for Review concerning the denial of any records responsive to the August 19, 2025, FOIA request (2025 PAC 89397). On September 30, 2025, the Public Access Bureau sent the Village's attorney a copy of each Request for Review and a consolidated inquiry letter that requested the Village provide unredacted copies of all withheld records for this office's confidential review, as well as a detailed written explanation of the factual and legal bases for the applicability of the asserted exemptions.11 On October 8, 2025, the Village e-mailed this office12 an unredacted copy of the 4820 ILCS 40/7(1) (West 2024). 5820 ILCS 55/1 et seq. (West 2024). 6820 ILCS 96/1-1 et seq. (West 2024). 75 ILCS 140/7(1)(c), (l)(n) (West 2024). 8E-mail from Tania Vucsko to [Village of Thomasboro FOIA Officer] (August 19, 2025). 9Letter from Village of Thomasboro to Tania Vucsko (August 26, 2025), at [ 1-2). 10E-mail from Tania Vucsko to Public Access Counselor, [Office of the Attorney General] (September 21, 2025). 11Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Marc R. Miller, Miller and Hendren (September 30, 2025). 12E-mail from Marc R. Miller, Miller & Hendren, to [Katie] Goldsmith, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (October 8, 2025). Ms. Tania Vucsko Mr. Marc R. Miller December 31, 2025 Page 3 termination letter. The next day, the Village e-mailed this office13 its written response in which it relied on only the PRRA and sections 7(1)(c) and 7(1)(n) of FOIA to withhold the termination letter.14 On October 10, 2025, this office forwarded a copy of the Village's response to Ms. Vucsko and notified her of her opportunity to reply.15 On October 12, 2025, Ms. Vucsko submitted a reply, maintaining her objections to the asserted exemptions. 16 On November 20, 2025, the Public Access Bureau extended the time within which to issue a binding opinion to January 8, 2026, pursuant to section 9.5(f) of FOIA.17 This binding opinion addresses only the denial of the termination letter sought by Ms. Vucsko in the FOIA request that underlies 2025 PAC 89395. ANALYSIS It is the public policy of the State of Illinois that \"all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of' FOIA. 5 ILCS 140/1 (West 2024). Under FOIA, \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2024). Section 7.S(q) of FOIA and the PRRA To withhold the letter pursuant to the PRRA, the Village cited section 7(1)(a) of FOIA, which exempts from disclosure \"[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" The more specific exemption, however, is section 7 .5( q) of FOIA, 18 which exempts from disclosure \"[i]nformation prohibited from being disclosed by the Personnel Record Review Act.\" The 13E-mail from Marc R. Miller, Miller & Hendren, to [Katie] Goldsmith, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] and Gavin Gunter [Miller & Hendren) (October 9, 2025). 14Memorandum from Marc R. Miller[,] Attorney[,] and R. Gavin Gunter[,] Law Clerk[,] both of Miller & Hendren Law Office, to Katie Goldsmith, Assistant Attorney General, Public Access Bureau (undated). 15Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Tania Vucsko (October 10, 2025). 16Letter from Tania Vucsko to Katie Goldsmith, Assistant Attorney General, Public Access Bureau, lllinois Attorney General's Office (October 12, 2025). 17Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Tania Vucsko and Marc R. Miller, Miller and Hendren (November 20, 2025). 185 ILCS 140/7.5(q) (West 2024), as amended by Public Acts 104-010, effective June 16, 2025; 104-018, effective June 30, 2025; 104-417, effective August 15, 2025; I 04-428, effective August 18, 2025. Ms. Tania Vucsko Mr. Marc R. Miller December 31, 2025 Page 4 Illinois Appellate Court has observed that \"an exemption restricting the expansive nature of the FOIA's disclosure provisions must be explicitly stated--that is, such a proposed disclosure must be specifically prohibited.\" (Emphasis in original.) Better Government Ass'n v. Blagojevich, 386 Ill. App. 3d 808, 816 (2008). In its response to this office, the Village noted that section 7(1) of the PRRA provides that \" [a ]n employer ... shall not divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party ... without written notice as provided in this [S]ection.\" 19 The Village asserted: [T]he purpose behind the Personnel Record Review Ac [...] arrowly.\" Kalven, 2014 IL App (1st) 121846,, 22. In its response to this office, the Village argued that \"the termination letter relates to the 'adjudication of employee grievances or disciplinary cases' because it includes the reasoning behind the ultimate termination and not merely the 'final outcome' of the termination.\"29 Ms. Vucsko's reply30 contended that the Village did not conduct an adjudication pertaining to the Village Clerk's dismissal. Indeed, the Village provided no facts supporting the assertion that it conducted an adjudication of the matter that resulted in the termination letter, as opposed to a more informal decision-making process. See Ill. Att'y Gen. Pub. Acc. Op. No. 13- 011, issued June 11, 2013, at 8 (city failed to prove records pertaining to an employee's disciplinary suspension were exempt under section 7(1)(n) where there was no indication that the matter culminated in an adjudicatory proceeding). Accordingly, the Village did not meet its burden of demonstrating by clear and convincing evidence that the termination letter is exempt pursuant to section 7(1)(n) ofFOIA. 29Memorandum from Marc Miller[,] Attorney[,] and R. Gavin Gunter[,] Law Clerk[,] both of Miller & Hendren Law Office, to Katie Goldsmith, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (undated), at [2-3]. 30Letter from Tania Yucsko to [Katie] Goldsmith, Assistant Attorney General, Public Access Bureau, lllinois Attorney General's Office (October 12, 2025), at 2. Ms. Tania Vucsko Mr. Marc R. Miller December 31, 2025 Page 8 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On August 11, 2025, Ms. Tania Vucsko submitted a FOIA request to the Village of Thomasboro seeking a copy of the Village Clerk's termination letter of August 7, 2025. 2) On August 18, 2025, the Village denied the request pursuant to section 7(1)(a) of FOIA in connection with various State statutes, including the PRRA, as well as sections 7(1)(c) and 7(1)(n) of FOIA. 3) On September 21, 2025, Ms. Vucsko submitted the Request for Review at issue contesting the withholding of the termination letter. Ms. Vucsko's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) ofFOIA (5 ILCS 140/9.5(a) (West 2024)). 4) On September 30, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Village together with a letter asking for an unredacted copy of the termination letter for this office's confidential review. The letter also requested a detailed explanation of the factual and legal bases for the applicability of the specific exemptions under which the Village withheld the letter. 5) On October 8, 2025, and October 9, 2025, the Village furnished the requested materials to this office. The Village's written response asserted that the requested termination letter was exempt from disclosure pursuant to only the PRRA and sections 7(1)(c) and 7(1)(n) of FOIA. 6) On October 10, 2025, this office forwarded a copy of the Village's response letter to Ms. Vucsko. On October 12, 2025, Ms. Vucsko submitted a written reply. 7) On November 20, 2025, the Public Access Bureau extended the time within which to issue a binding opinion 30 business days, to January 8, 2026. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 7(1)(a) of FOIA exempts from disclosure \"[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" More specifically, section 7.5(q) of FOIA exempts from disclosure \"[i]nformation prohibited from being disclosed by the Personnel Record Review Act.\" 9) Because no provision of the PRRA prohibited the Village from disclosing the termination letter, the Village failed to prove that section 7(1)(a) or section 7.5(q) ofFOIA applies. Ms. Tania Vucsko Mr. Marc R. Miller December 31, 2025 Page 9 10) Section 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.\" Section 7(1)(c), however, provides that \"[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.\" 11) Because the termination letter concerns the performance of public duties by a public employee or official and not private affairs, section 7(1)(c) of FOIA does not apply. 12) Section 7(1)(n) ofFOIA exempts from disclosure \"[r]ecords relating to a public body's adjudication of employee grievances or disciplinary cases; however, this exemption shall not extend to the final outcome of cases in which discipline is imposed.\" 13) Because the Village did not demonstrate that the termination letter related to an \"adjudication,\" the Village did not prove that the record is exempt from disclosure under section 7(1 )(n) of FOIA. Therefore, it is the opinion of the Attorney General that the Village of Thomasboro has violated FOIA by improperly withholding the termination letter responsive to Ms. Vucsko's FOIA request. Accordingly, the Village is hereby directed to take immediate and appropriate action to comply with this opinion by disclosing an unredacted copy of the termination letter in a supplemental response to Ms. Vucsko's request. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Tania Vucsko as defendants. See 5 ILCS 140/11.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEY GENERAL (L- -7}iv, By: R. Dou~l~s Ree/ Chief Deputy Attorney General CERTIFICATE OF SERVICE Leah Bartelt, Public Access Counselor, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-016) upon: Ms. Tania Vucsko 300 South Jacobsen Drive Thomasboro, Illinois 61878 tl vucsko@gmail.com Mr. Marc R. Miller Miller and Hendren 2504 Galen Drive, Suite 101 Champaign, Illinois 61821 MRM@mhlawoffice.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on December 31, 2025. Leah Bartelt Public Access Counselor Leah Bartelt Public Access Counselor Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6437","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Ms. Tania Vucsko requested a copy of the Village of Thomasboro's termination letter for the Village Clerk, but the Village refused to provide it. The Illinois Attorney General's office reviewed the case and ruled that the Village did not have a valid legal reason to keep the letter secret. The Village is now required to release the document to the requester.","card_headline":"A mayor's termination letter to a village clerk","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":210,"orig_master_id":19413,"dup_master_id":19184,"dup_sha256":"e4f8a5ebd02211fea753f5b9358b3f76dae5a1b339747472342fde287296ad61","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-01-21","case_number":"2025 PAC 90575","request_numbers":null,"title":"Rules for Public Comment; Opportunity to Address Public Officials","filename":"PUBLIC ACCESS OPINION 26-001 (Request for Review 2025 PAC 90575).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 26-001 (Request for Review 2025 PAC 90575).pdf","word_count":2360,"summary":"This document is a binding public access opinion regarding a complaint filed by Ms. Francine Anderson against the Village of Sauk Village Board of Trustees for violating the Open Meetings Act by improperly limiting her opportunity to address public officials.","plain_summary":"The requester, a resident, alleged that a village mayor improperly interrupted her public comment, cut off the microphone, and threatened to have her removed after she stated the names of trustees during a board meeting. The Public Access Counselor held that because the board had no established, recorded rule against naming trustees during public comment, the mayor's interference violated the Open Meetings Act's guarantee of an opportunity to address public officials. The board was directed to ensure future meetings comply with OMA by restricting public comment only under properly established and recorded rules.","holding":"The Village of Sauk Village Board of Trustees violated the Open Meetings Act.","legal_question":"Did the Village of Sauk Village Board of Trustees violate the Open Meetings Act by interfering with Ms. Francine Anderson's public comment?","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2, 735 ILCS 5/3, 5 ILCS 120/7","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Sauk Village","requesting_party":"Anderson","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"public comment","subject_description":"The Board of Trustees improperly interrupted and limited a citizen's public comment during a Committee of the Whole meeting.","ocr_status":"ok","ocr_quality":90.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding%20Opinion%2026-001.pdf","sha256":"2009d78e52e7de9ec2d2cba61b4293d3b33a63a382c08d5f45bbb3a121cf38c0","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["public comment","Open Meetings Act","citizen rights","board meeting"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL January 21, 2026 PUBLIC ACCESS OPINION 26-001 (Request for Review 2025 PAC 90575) OPEN MEETINGS ACT: Rules for Public Comment; Opportunity to Address Public Officials Ms. Francine Anderson 1606 216th Street Sauk Village, Illinois 60411 The Honorable Marva Campbell-Pruitt Mayor Village of Sauk Village 21801 Torrence Avenue Sauk Village, Illinois 60411 Dear Ms. Anderson and Ms. Campbell-Pruitt: This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this office concludes that the Village of Sauk Village (Village) Board of Trustees (Board) violated OMA by improperly limiting and interfering with Ms. Francine Anderson's opportunity to address public officials during the Board's November 4, 2025, Committee of the Whole meeting. BACKGROUND On November 10, 2025, Ms. Anderson submitted a Request for Review alleging that the Board violated section 2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2024)) during its 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. l l l in oisA ttomeyGenera I. gov ,,r,,J __ . _ , , 7 . . : . f ., ,: , . ••~ ~ Ms. Francine Anderson The Honorable Marva Campbell-Pruitt January 21, 2026 Page 2 November 4, 2025, meeting by interrupting her public comment.' Ms. Anderson alleged that the Mayor interrupted her to state that she could not say the names of Village trustees, and then turned off the audio system before removing the microphone from the lectern. 2 Ms. Anderson further alleged that the Mayor asked the Village's Police Chief to remove her from the meeting, and stated that she was unable to complete her public comment without interference from the Mayor even though she was permitted to remain in the meeting room.3 Ms. Anderson's submission included an internet link to a video of her public comment. 4 On November 19, 2025, the Public Access Bureau e-mailed5 a copy of the Request for Review to the Board together with a letter asking the Board to provide a written response to Ms. Anderson's allegation, a copy of the Board's rules regarding public comment, and the agenda, minutes, and any recordings of the open session portion of the November 4, 2025, meeting. 6 On December 1, 2025, counsel for the Board e-mailed this office a written response, a copy of the meeting agenda, and a copy of the Board's rules on public comment.7 The response stated that the Board did not possess any \"official\" audio or video recordings of the meeting, and that the meeting minutes were still being drafted.8 On December 1, 2025, the 1E-mail from Francine Anderson to Public Access Counselor, Office of the Attorney General (November I 0, 2025). 2E-mail from Francine Anderson to Public Access Counselor, Office of the Attorney General (November I 0, 2025), at I. 3E-mail from Francine Anderson to Public Access Counselor, Office of the Attorney General (November I 0, 2025), at I. 4Village of Sauk Village Board of Trustees, November 4, 2025, Committee of the Whole Meeting, YouTube, (November 4, 2025), https://www.youtube.com/watch?v=zs I ObygXtlM. 5E-mail from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Marva] Campbell-Pruitt, [Mayor, Village of Sauk Village] (November 19, 2025). 6Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to the Honorable Marva Campbell-Pruitt, Mayor, Village of Sauk Village (November 19, 2025), at 1-2. 7E-mail from Arlene F. Cabana, Senior Counsel, Odelson, Murphey, Frazier & McGrath, Ltd., to Michael [J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (December I, 2025). 8Letter from Arlene F. Cabana, Senior Counsel, Odelson, Murphey, Frazier & McGrath, Ltd., to Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (December I, 2025), at I. Ms. Francine Anderson The Honorable Marva Campbell-Pruitt January 21, 2026 Page 3 Public Access Bureau forwarded a copy of the Board's written response to Ms. Anderson and notified her of her opportunity to reply.9 She submitted a reply on December 8, 2025. 10 On January 7, 2026, this office extended the time for issuing a binding opinion by 21 business days, to February 10, 2026, pursuant to section 3.5(e) ofOMA.11 ANALYSIS Section 2.06(g) of OMA provides that \"[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.\" This provision \"generally precludes a public body from imposing restrictions on public comment that are not set out in its established and recorded rules.\" Ill. Att'y Gen. Pub. Acc. Op. No. 23-013, issued September 13, 2023, at 3; see also Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, issued September 4, 2014, at 7 (public body \"violated section 2.06(g) of OMA by placing a condition on the making of a public comment that is not part of its established and recorded rules.\"); Ill. Att'y Gen. Pub. Acc. Op. No. 19-002, issued January 9, 2019, at 7 (public body \"violated section 2.06(g) of OMA by imposing an unestablished and unrecorded rule limiting public comment to 15 minutes[.]\"). This office has reviewed the video recording to which Ms. Anderson provided an internet link. The recording shows that at the beginning of her public comment, Ms. Anderson stated that she was glad that a specific trustee, whom she identified by name, had asked a particular question; this did not appear to cause a disruption in the audience, but the Mayor interrupted Ms. Anderson to say, \"please do not call names.\"12 A short time later, Ms. Anderson stated the names of three trustees in order to offer her congratulations to those trustees for organizing a holiday event.13 Immediately before Ms. Anderson completed stating the name of the first trustee, the Mayor again interjected, \"please do not call names.\" 14 Ms. Anderson 9Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to Francine Anderson (December 1, 2025). 10Letter from Francine Anderson, Sauk Village Resident, to Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (December 8, 2025). 11 Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Francine Anderson and Arlene F. Cabana, Odelson, Murphey, Frazier, & McGrath, Ltd. (January 7, 2026). 12Village of Sauk Village Board of Trustees, November 4, 2025, Committee oft he Whole Meeting, YouTube, (November 4, 2025), https://www .youtube.com/watch?v=zs I ObygXflM, at 0: 12-0:22. 13Village of Sauk Village Board of Trustees, November 4, 2025, Committee oft he Whole Meeting, YouTube, (November 4, 2025), https://www.youtube.com/watch?v=zs 1O bygXflM, at I: 14-1 :21. 14Village of Sauk Village Board of Trustees, November 4, 2025, Committee of the Whole Meeting, You Tube, (November 4, 2025), https://www.youtube.com/watch?v=zs I ObygXflM, at 1: 17-1: 18. Ms. Francine Anderson The Honorable Marva Campbell-Pruitt January 21, 2026 Page 4 proceeded to name the trustees and continued her public comment, objecting to the Mayor trying to restrict her from stating the names of trustees.15 The Mayor unplugged the public comment audio system so that no sound came through the speakers as Ms. Anderson continued to speak into the microphone, and then approached the lectern and removed the microphone. 16 As Ms. Anderson objected more vehemently, the Mayor stood cl [...] lic officials from criticism, courts have deemed restrictions on such criticism during open meetings to be unconstitutional. See e.g., Leventhal v. Vista Unified School District, 973 F. Supp 951, 954, 960-61 (S.D. Cal. 1997) (concluding that a school district violated the first amendment to the United States Constitution by enforcing a content-based public comment rule that prohibited Ms. Francine Anderson The Honorable Marva Campbell-Pruitt January 21, 2026 Page 8 speakers from making complaints against individual public employees unless the employee consented). 35 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On November 10, 2025, Ms. Francine Anderson submitted a Request for Review alleging that during its November 4, 2025, Committee of the Whole meeting, the Village of Sauk Village Board of Trustees improperly restricted her right to public comment pursuant to section 2.06(g) of OMA. Ms. Anderson's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA. 2) On November 19, 2025, the Public Access Bureau sent a copy of the Request for Review to the Board. The Public Access Bureau also sent the Board a letter requesting copies of the Board's public comment rules, the agenda, minutes, and any recordings of the Board's November 4, 2025, meeting, and a written response to the allegations in Ms. Anderson's Request for Review. 3) On December I, 2025, the Board provided this office with a written response to the allegations, along with a copy of the meeting agenda, the Board's public comment rules, and select portions of Robert's Rules of Order. 4) On that same date, the Public Access Bureau forwarded a copy of the Board's written answer to Ms. Anderson and notified her of her opportunity to reply. She replied on December 8, 2025. 5) On January 7, 2026, this office extended the time for issuing a binding opinion by 21 business days, to February 10, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 6) Section 2.06(g) of OMA provides that \"[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.\" 35Broad limitations on speech that, on their face, do not restrict speakers from expressing a particular viewpoint may still constitute impermissible content-based restrictions if they are applied in a manner that stifles criticism of public officials. See Moore v. Asbury Park Board of Education, 2005 U.S. Dist. Lexis 18372, at *33-35 (N.J. Dist. 2005) (holding that a rule prohibiting comments that are \"personally directed\" was an unconstitutional restraint on speech); see also Turner Broadcasting System Inc., v. FCC, 512 U.S. 622, 645 (1994) (\"even a regulation neutral on its face may be content-based if its manifest purpose is to regulate speech because of the message it conveys.\"). Ms. Francine Anderson The Honorable Marva Campbell-Pruitt January 21, 2026 Page 9 7) During the Board's November 4, 2025, meeting, the Mayor interrupted Ms. Anderson's public comment to tell her not to state the names of trustees. 8) When Ms. Anderson proceeded to offer her congratulations to individual trustees by name, the Mayor turned off the public comment audio system, removed the microphone from the lectern, stated that Ms. Anderson's time was up, and called the Police Chief up to the lectern. 9) The Board has not established and recorded a rule that prohibits speakers from addressing individual trustees by name. Even if it had, public comment rules must tend to accommodate, rather than unreasonably restrict, the right to address public officials. A rule that prohibits speakers from stating the names of trustees to which they direct comments would be incompatible with that standard and the language of section 2.06(g) of OMA that guarantees members of the public \"an opportunity to address public officials[.]\" 10) Ms. Anderson did not disrupt the meeting by stating the names of trustees. Therefore, the interruption and interference with Ms. Anderson's public comment was not a valid exercise of the Board's inherent authority to run an orderly meeting. 11) Accordingly, the Attorney General concludes that the Board violated section 2.06(g) of OMA by impermissibly restricting Ms. Anderson from addressing public officials during the Board's November 4, 2025, Committee of the Whole meeting. In accordance with these findings of fact and conclusions of law, the Board is directed to take immediate and appropriate action to comply with this opinion by taking measures to ensure all future meetings comply with the requirements of OMA. In particular, the Board generally may only restrict public comment in accordance with established and recorded rules that are designed to accommodate the public's statutory right to address the Board within an orderly and efficient meeting. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County Ms. Francine Anderson The Honorable Marva Campbell-Pruitt January 21, 2026 Page 10 within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Francine Anderson as defendants. See 5 ILCS 120/7.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEY GENERAL By: /l-~ ~ R. Douglas Rees Chief Deputy Attorney General cc: Ms. Arlene F. Cabana Odelson, Murphy, Frazier & McGrath, Ltd. 3318 West 95th Street Evergreen Park, Illinois 60805 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-001) upon: Ms. Francine Anderson 1606 216th Street Sauk Village, Illinois 60411 Frana216@yahoo.com The Honorable Marva Campbell-Pruitt Mayor Village of Sauk Village 21801 Torrence Avenue Sauk Village, Illinois 60411 Mcamp bell-prui tt@saukvillage.org Ms. Arlene F. Cabana Odelson, Murphy, Frazier & McGrath, Ltd. 3318 West 95th Street Evergreen Park, Illinois 60805 acabana@omfmlaw.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on January 21, 2026. ~ : § (_ _ _ Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Ms. Francine Anderson complained that the Village of Sauk Village Board of Trustees unfairly stopped her from speaking during a public meeting. The Illinois Attorney General's office reviewed the case and ruled that the Board violated the Open Meetings Act by interfering with her right to address public officials. This means the Board must ensure that public comment rules are applied fairly and do not improperly silence citizens.","card_headline":"A board's interruption of a citizen's public comment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":211,"orig_master_id":19412,"dup_master_id":19185,"dup_sha256":"9f6c7abe6a3eeff492b1e2d4bf54876e5123383befb52e1804ce201671816ad1","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-12-23","case_number":"2025 PAC 89024","request_numbers":null,"title":"Basis for Withholding Police Officer Witness Questionnaires","filename":"PUBLIC ACCESS OPINION 25-015 (Request for Review 2025 PAC 89024).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-015 (Request for Review 2025 PAC 89024).pdf","word_count":2247,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a FOIA request made by Max Blaisdell for police officer witness questionnaires. It concludes that the Cook County State's Attorney's Office improperly redacted the requested documents.","plain_summary":"The requester, a journalist, sought police officer witness questionnaires used to identify potential Brady/Giglio disclosure obligations, which a county state's attorney's office redacted to remove the officers' names, arrest-history answers, and additional-information sections. The Public Access Counselor held that the redacted information bore directly on the officers' public duties, was purely factual rather than deliberative, and did not reflect legal advice or attorney work product. The office was directed to provide unredacted copies of the questionnaires.","holding":"The Cook County State's Attorney's Office improperly redacted the questionnaires.","legal_question":"Whether the Cook County State's Attorney's Office properly redacted documents in response to a FOIA request.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 35 ILCS 140/2, 5 ILCS 140/7(1), 20 ILCS 2605/55, 20 ILCS 2605/2605, 125 ILCS 140/7(1), 5 ILCS 140/1, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(f)","7(1)(m)"],"public_body":"Cook County State's Attorney's Office","requesting_party":"Blaisdell and Ms. Callaway","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought records identifying law enforcement officers who were flagged for potential disclosure requirements under Brady/Giglio protocols.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-015.pdf","sha256":"4dfa8e2305ab2d980bb1fa4f6babb47f6c359f95f94031f9d18f5a90c5c88ce4","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police records","Brady disclosure","FOIA","public records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL December 23, 2025 PUBLIC ACCESS OPINION 25-015 (Request for Review 2025 PAC 89024) FREEDOM OF INFORMATION ACT: Basis for Withholding Police Officer Witness Questionnaires Mr. Max Blaisdell Invisible Institute 5534 South Dorchester A venue, Unit 1 Chicago, Illinois 60637 Ms. Charita Callaway FOIA Officer Cook County State's Attorney's Office 50 West Washington Street Chicago, Illinois 60602 Dear Mr. Blaisdell and Ms. Callaway: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that Cook County State's Attorney's Office (State's Attorney's Office) improperly redacted questionnaires responsive to Mr. Max Blaisdell's August 11, 2025, FOIA request. On that date, Mr. Blaisdell, on behalf of the Invisible Institute, submitted a FOIA request to the State's Attorney's Office via its online FOIA portal seeking copies of \"records sufficient to show: -all law enforcement officers or other law enforcement experts who have been identified as potentially requiring disclosure via the Brady/Giglio Form (meaning a yes answer was written in response on one of the included questions) from July 8, 2025 through the date this request is processed.\" 1 On August 14, 2025, the State's Attorney's Office responded to 1FOIA portal message from Max Blaisdell to Cook County State's Attorney's Office (August 11, I I 2025). 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisAttorneyGeneral.gov Mr. Max Blaisdell Ms. Charita Callaway December 23, 2025 Page 2 Mr. Blaisdell by providing him with copies of four police officer witness questionnaires but redacting the following information from each: (i) the police officer's name (in the \"Witness Name\" field); (ii) the police officer's answer to the question of whether they had ever been arrested, charged with, or convicted of a criminal offense; and (iii) the section for \"Additional Information\" (except for the one questionnaire in which this section is blank).2 The State's Attorney's Office cited sections 2.15(b) and 7(1)(c) ofFOIA as its bases for the redactions,3 and also claimed that the requested records are not public records or otherwise available, providing an outdated citation to a provision of the Department of State Police Law.4 On September 4, 2025, Mr. Blaisdell submitted the above-referenced Request for Review contesting the State's Attorney's Office's redactions to the four police officer witness questionnaires. 5 He asserted: The records at issue are Brady/Giglio disclosure questionnaires completed by law enforcement officers and experts for use in criminal proceedings. These forms are not private \"rap sheets\" or general \"criminal history reports,\" but rather sworn attestations by public officials about professional misconduct, credibility, and disciplinary history. Such information is created and maintained for the purpose of informing courts, defense counsel, and prosecutors, and thus falls squarely within the scope of public business.[ 6l Mr. Blaisdell additionally asserted: \"These records concern the professional honesty and integrity of law enforcement officers who testify in court- a matter of profound public interest and accountability.\"7 2Letter from Charita Callaway, FOIA Officer, Office of the State's Attorney, Cook County, Illinois, to Max Blaisdell, Invisible Institute/Hyde Park Herald/South Side Weekly (August 14, 2025). 35 ILCS 140/2.15(b) (West 2024); 5 ILCS 140/7(1)(c) (West 2024). 4 See 20 ILCS 2605/55a(5)(c) (2000) (providing that the Department of State Police has a duty to \"procure and file criminal history records as is necessary and helpful to plan programs of crime prevention, law enforcement and criminal justice\"). Public Act 91-239, effective January I, 2000, renumbered section 55a(5) as section 2605-300 of the Department of State Police Law (20 ILCS 2605/2605-300). Public Act 102-538, effective August 20, 2021, then repealed section 2605-300 and added the subject language to section 2605-200(a)(9) of the Illinois State Police Law (20 ILCS 2605/2605-200(a)(9) (West 2024)), where it presently is located. 5E-mail from Max Blaisdell to Public Access Counselor (September 4, 2025). 6E-mail from Max Blaisdell to Public Access Counselor (September 4, 2025). 7E-mail from Max Blaisdell to Public Access Counselor (September 4, 2025). Mr. Max Blaisdell Ms. Charita Callaway December 23, 2025 Page 3 On September 17, 2025, the Public Access Bureau e-mailed a copy of the Request for Review to the State's Attorney's Office, 8 accompanied by a letter requesting unredacted copies of the questionnaires for this office's confidential review and a detailed written explanation of the legal and factual bases for the applicability of the section 7(1)(c) exemption.9 On September 22, 2025, the State's Attorney's Office furnished unredacted copies of the questionnaires and its written answer to this office's letter.10 Also on that date, the State's Attorney's Office issued a revised response to Mr. Blaisdell in which it expanded on the reasons for its partial denial. 11 In particular, the State's Attorney's Office asserted the redactions were also proper pursuant to sections 7(1)(f) and 7(1)(m) of FOIA.12 On September 23, 2025, this office forwarded a copy of the State's Attorney Office's answer to Mr. Blaisdell and notified him of his opportunity to reply in writing.13 On September 29, 2025, Mr. Blaisdell replied by maintaining his objections to the redactions.14 On November 7, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to December 24, 2025, pursuant to section 9.5(f) ofFOIA. 15 On December 5, 2025, an Assistant Attorney General (AAG) in the Public Access contacted the State's Attorney's Office to clarify its citations of section 2.15(b) ofFOIA and section 55a(5)( c) of the Department of State Police Law.16 In a December 8, 2025, telephone 8E-mail from Matthew G. Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Charita] Calloway (September 17, 2025). 9Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Charita Callaway, FOIA Officer, Cook County State's Attorney's Office (September 17, 2025), at 2. 10Letter from Charita Callaway, FOIA Officer, Office of the State's Attorney, Cook County, Illinois, to Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (September 22, 2025). 11Letter from Charita Callaway, FOfA Officer, Office of the State's Attorney, Cook County, Illinois, to Max Blaisdell, lnvisible Institute/Hyde Park Herald/South Side Weekly (September 22, 2025). 125 ILCS 140/7(1)(t), (l)(m) (West 2024). 13Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Max Blaisdell, Journalist, Invisible Institute (September 23, 2025). 14E-mail from Max Blaisdell to [Matt] Goodman, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (September 29, 2025). 15Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Max Blaisdell, Journalist, Invisible Institute, and Charita Callaway, FOIA Officer, Cook County State's Attorney's Office (November 7, 2025). 16E-mail from Matthew G. Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Charita] Callaway (December 5, 2025). Mr. M [...] ral, Public Access Bureau (December 9, 2025). Mr. Max Blaisdell Ms. Charita Callaway December 23, 2025 Page 9 2) On August 14, 2025, the State's Attorney's Office provided Mr. Blaisdell with copies of four police officer witness questionnaires with redactions pursuant to sections 2.15(b) and 7(1 )( c) of FOIA. The State's Attorney's Office also claimed that the requested records are not public records or otherwise available, citing a former provision of the Department of State Police Law (20 ILCS 2605/55a(5)(c)). 3) On September 8, 2025, Mr. Blaisdell submitted the above-referenced Request for Review contesting the State's Attorney's Office's redaction of the four questionnaires. 4) On September 17, 2025, the Public Access Bureau sent a copy of the Request for Review to the State's Attorney's Office and asked it to provide unredacted copies of the contested questionnaires for this office's confidential review. This office also asked the State's Attorney's Office to provide a detailed explanation of the factual and legal bases for redacting those records. 5) On September 22, 2025, the State's Attorney's Office furnished the requested materials to this office. 6) On September 23, 2025, the Public Access Bureau forwarded a copy of the State's Attorney's Office's written answer to Mr. Blaisdell and notified him of his right to reply. 7) On September 29, 2025, Mr. Blaisdell replied. 8) On November 7, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 9) On December 11, 2025, the State's Attorney's Office issued an amended answer to Mr. Blaisdell and to this office, asserting that the redacted information is exempt only pursuant to sections 7(1)(c), 7(1)(f), and 7(l)(m) of FOIA. 10) The records at issue in this Request for Review consist of four police officer witness questionnaires with the following information redacted: (i) the police officer's name; (ii) the police officer's answer to the question pertaining to whether they had ever been arrested, charged with, or convicted of a criminal offense; and (iii) a section for \"Additional Information.\" 11) Section 7(1)(c) exempts from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.\" Section 7(1)(c) expressly provides that \"[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.\" Mr. Max Blaisdell Ms. Charita Callaway December 23, 2025 Page 10 12) Disclosure of the redacted information would not constitute a clearly unwarranted invasion of personal privacy because the information directly bears on the police officers' public duties. Accordingly, this office concludes that the State's Attorney's Office has not met its burden of proving that the redacted information is exempt from disclosure under section 7(1)(c) of FOIA. 13) Section 7(1)(f) of FOIA exempts from inspection and copying, in relevant part, \"[p ]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated[.]\" Purely factual information is not within the scope of this exemption unless it is inextricably intertwined with predecisional deliberative material. 14) The redacted portions of the questionnaires are purely factual in nature, and the State's Attorney's Office did not demonstrate that disclosure would expose the substance of predecisional deliberations. Accordingly, this office concludes that the State's Attorney's Office has not met its burden of proving that the redacted information is exempt from disclosure under section 7(1)(f) of FOIA. 15) Section 7(1)(m) of FOIA exempts from disclosure \"[c]ommunications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil, or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.\" In addition to the attorney-client privilege, the section 7(1)(m) exemption encompasses the work-product doctrine, which protects the theories, mental impressions, or litigation plans of a party's attorney. 16) The questionnaires at issue do not contain or reference any legal advice sought by police officers or given by the State's Attorney's Office, or reveal the theories, mental impressions, or litigation plans of the State's Attorney's Office. Accordingly, this office concludes that the State's Attorney's Office has not met its burden of proving that the redacted information is exempt from disclosure under section 7(1 )(m) of FOIA. Therefore, it is the opinion of the Attorney General that the Cook County State's Attorney's Office improperly redacted the questionnaires responsive to Max Blaisdell's August 11, 2025, Freedom of Information Act request. Accordingly, the State's Attorney's Office is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Blaisdell with unredacted copies of the questionnaires. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within Mr. Max Blaisdell Ms. Charita Callaway December 23, 2025 Page 11 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Max Blaisdell as defendants. See 5 ILCS 140/11.5 (West 2024). Very truly yours, KWAMERAOUL ATTORNEY GENERAL !Z - By: R. Douglas Rees Chief Deputy Attorney General CERTIFICATE OF SERVICE Joshua M. Jones, Bureau Chief, Public Access Bureau, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-015) upon: Mr. Max Blaisdell Invisible Institute 5534 South Dorchester Avenue, Unit 1 Chicago, Illinois 60637 Max.Blaisdell@gmail.com Ms. Charita Callaway FOIA Officer Cook County State's Attorney's Office 50 West Washington Street Chicago, Illinois 60602 SAO.FOIA@CookCountySAO.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on December 23, 2025. Joshua M. Jones Bureau Chief Public Access Bureau, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-8413","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Max Blaisdell requested records from the Cook County State's Attorney's Office identifying police officers who might require disclosure under Brady/Giglio rules. The Attorney General's office determined that the State's Attorney's Office did not have a valid legal basis to redact the information in the questionnaires. This means the office must release the unredacted records to the requester.","card_headline":"Records identifying officers flagged under Brady/Giglio protocols","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":212,"orig_master_id":19418,"dup_master_id":19186,"dup_sha256":"c4ebfb4a138612553c06256965b6bb717ccf95047a4528b72674390d37062503","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-02-10","case_number":"2025 PAC 90290","request_numbers":null,"title":"Disclosure of Termination Letter Where Public Employee Criminally Charged with Official Misconduct","filename":"PUBLIC ACCESS OPINION 26-002 (Request for Review 2025 PAC 90290).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 26-002 (Request for Review 2025 PAC 90290).pdf","word_count":2291,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request for the disclosure of a termination letter related to a public employee charged with official misconduct.","plain_summary":"The requester, a newspaper reporter, sought communications regarding the employment status of a state's attorney's office employee, and the office withheld her termination letter as interfering with a pending criminal prosecution and jury selection. The Public Access Counselor held that the letter was a personnel record not possessed for a law enforcement purpose and that the office's generalized assertions did not show disclosure would interfere with any proceeding or deprive anyone of a fair trial. The office was directed to disclose the termination letter, subject to redaction of private information and personal identifying details.","holding":"The Will County State's Attorney's Office improperly withheld the termination letter.","legal_question":"Whether the termination letter was subject to disclosure under the Freedom of Information Act.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(e), 5 ILCS 140/7(1), 5 ILCS 140/1, 5 ILCS 140/9, 735 ILCS 5/3, 5 ILCS 140/11, 5 ILCS 140/7","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)","7(1)(b)","7(1)(c)"],"public_body":"Will County State's Attorney's Office","requesting_party":"Sarver and Mr. Meyers","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The disclosure of a termination letter for a public employee facing criminal charges for official misconduct.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding%20Opinion%2026-002.pdf","sha256":"412cdd79fa2a727e7291dbfd58e6fc98a0a0ae540d8efe5cd5b58b7126883c93","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["personnel records","termination letter","official misconduct","privacy exemption","FOIA"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL f ebruary 10, 2026 PUBLIC ACCESS OPINION 26-002 (Request for Review 2025 PAC 90290) FREEDOM OF INFORMATION ACT: Disclosure of Termination Letter Where Public Employee Criminally Charged with Official Misconduct Mr. Felix Sarver Reporter The Herald-News 1100 Essington Road, Suite 4 Joliet, Illinois 60435 Mr. Kevin J. Meyers Assistant State's Attorney Will County State's Attorney's Office 57 North Ottawa Street, 6th Floor Joliet, Illinois 60432 Dear Mr. Sarver and Mr. Meyers: This binding opinion is issued by the Attorney General pursuant to sec6on 9.5(:f) of the Freedom oflnformation Act (FOIA).1 For the reasons discussed below, this office concludes that the Will County State's Attorney's Office (State's Attorney's Office) improperly withheld the termination letter responsive to Mr. Felix Sarver's October 10, 2025, FOIA request. On that date, Mr. Sarver, on behalf of The Herald-News, submitted a FOIA request to the State's Attorney's Office via e-mail seeking, in relevant part, electronic copies of \"(r]ecords showing any written and electronic communication issued to Amy Burgett-Masse 15 ILCS 140/9.S(f) (West 2024), as amended by Pubiic Act 104-438, effective January I, 2026. 500 South 2nd Street I 115 South LaSalle Street I 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. I II inoisA llorneyGenera I. gov Mr. Felix Sarver Mr. Kevin J. Meyers February I 0, 2026 Page 2 regarding the status of her employment, such as suspensions, resignations or terminations. \"2 On October 20, 2025, the State's Attorney's Office extended its time to respond to the request by five business days pursuant to three subsections of section 3(e) of FOIA (5 ILCS 140/3(e)(ii), (e)(v), (e)(vi) (West 2024)).3 On October 28, 2025, the State's Attorney's Office responded by withholding Ms. Burgett-Masse's termination letter pursuant to sections 7(l)(d)(i) and 7(l)(d)(iii) of FOIA.4 The State's Attorney's Office asserted that the letter \"contains non-public information about the events leading to her termination, which would interfere with the pending criminal prosecution and picking of ajury.\"5 On October 29, 2025, Mr. Sarver submitted the above referenced Request for Review challenging the withholding of the termination letter.6 On November 6, 2025, the Public Access Bureau sent the State's Attorney's Office an e-mail7 with a copy of the Request for Review and an inquiry letter asking the State's Attorney's Office to provide an unredacted copy of the withheld termination letter for this office's confidential review, as well as a detailed written explanation of the factual and legal bases for the applicability of the asserted exemptions.8 Having received no response, this office sent an additional letter to the State's Attorney's Office via e-mail9 on November 25, 2025, 10 and attached a copy of the November 6, 2025, letter as well as another copy of the Request for Review. On December 8, 2025, the State's Attorney's Office provided this office with the 2E-mail from Felix Sarver, The Herald-News, Joliet, Illinois, to [Will County State's Attorney's Office FOIA Officer] (October 10, 2025). 3Letter from Toni M. Renken, Assistant State's Attorney, State's Attorney of Will County, to Felix Sarver, The Herald-News, Joliet, Illinois (October 20, 2025). 45 ILCS 140/7(1)(d)(i), (l)(d)(iii)(West 2024). 5Letter from Kevin Meyers, Assistant State's Attorney, State's Attorney of Will County, to Felix Sarver (October 28, 2025). 6E-mail from Felix Sarver, The Herald-News, to Public Access [Bureau], [Office of the Attorney General] (October 29, 2025). 7E-mail from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office, to [Kevin Meyers, Assistant State's Attorney, State's Attorney of Will County] (November 6, 2025). 8Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Kevin Meyers, Assistant State's Attorney, Will County State's Attorney's Office (November 6, 2025), at 2. 9E-mail from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office, to [Kevin Meyers, Assistant State's Attorney, State's Attorney of Will County] (November 25, 2025). 10Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Kevin Meyers, Assistant State's Attorney, Will County State's Attorney's Office (November 25, 2025). Mr. Felix Sarver Mr. Kevin J. Meyers February 10, 2026 Page 3 requested materials, 11 including a written answer for this office to forward to Mr. Sarver12 as well as information provided confidentially for this office's consideration.13 On December 10, 2025, this office forwarded a copy of the State's Attorney's Office's non-confidential response to Mr. Sarver and notified him of his opportunity to reply.14 Mr. Sarver did not reply. On December 23, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days to February 10, 2026, pursuant to section 9.5(f) of FOIA.15 ANALYSIS It is the public policy of the State of Illinois that \"all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of' FOIA. 5 ILCS 140/1 (West 2024). Under FOIA, \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2024). Sections 7(1)(d)(i) and 7(1)(d)(iii) of FOIA Sections 7(1)(d)(i) and 7(1)(d)(iii) ofFOIA exempt from disclosure: ( d) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would: 11E-mail from Kevin Meyers to [Katie] Goldsmith (December 8, 2025). 12Letter from Kevin J. Meyers, Assistant State's Attorney, State's Attorney of Will County, to AAG Katie Goldsmith, Illinois Attorney General's Office (undated). 13 See 5 ILCS 140/9.5(d) (West 2024), as amended by Public Act 104-438, effective January I, 2026 (\"The Public Access Counselor shall forward a copy of the answer to the person submitting the request for review, with any alleged confidential infonnation to which the reques.t pertains redacted from the copy.\"). 14Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Felix Sarver, The Herald-News (December IO, 2025). 15Letter from Katie Goldsmith, Assistant Ai-torney General, Public Access Bureau, Office of the Attorney General, to Felix Sarver, The Herald-News, and Kevin Meyers, Assistant State's Attorney, Will County State's Attorney's Office (December 23, 2025). Mr. Felix Sarver Mr. Kevin J. Meyers February I 0, 2026 Page 4 (i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request; [or] * * * (iii) create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing[.] (Emphasis added.) In construing a statute, the primary objective is to ascertain and give effect to the intent of the General Assembly. Southern Illinoisan v. Illinois Department ofP ublic Health, 218 Ill. 2d 390, 415 (2006). \"[T]he surest and most reliable indicator of'' legi [...] e Request for Review to the State's Attorney's Office together with a letter asking for an umedacted copy of the termination letter for this office's confidential review. The letter also requested a detailed written explanation of the factual and legal bases for the applicability of the specific exemptions under which the State's Attorney's Office withheld the letter. 6) Having received no response, on November 25, 2025, the Public Access Bureau sent an additional letter to the State's Attorney's Office requesting an unredacted copy of the termination letter and the State's Attorney's Office's written explanation for withholding the letter. The Public Access Bureau attached a copy of the November 6, 2025, letter as well as another copy of the Request for Review. Mr. Felix Sarver Mr. Kevin J. Meyers February 10, 2026 Page 10 7) On December 8, 2025, the State's Attorney's Office furnished the requested materials to this office, including a complete version of its answer for this office's confidential review and a non-confidential version to forward to Mr. Sarver. 8) On December 10, 2025, this office forwarded a copy of the State's Attorney's Office's non-confidential response letter to Mr. Sarver and notified him of his opportunity to reply. Mr. Sarver did not reply. 9) On December 23, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to February 10, 2026, pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 10) To quality for any exemption in section 7(l)(d) of FOIA, a record must either be (1) created in the course of administrative enforcement proceedings, or (2) possessed by \"any law enforcement or correctional agency for law enforcement purposes[.]\" 11) The State's Attorney's Office has not asserted or provided any indication that the termination letter was created in the course of an administrative enforcement proceeding. 12) Although the State's Attorney's Office is a law enforcement agency that investigates and prosecutes crimes, the termination letter was not created for such a law enforcement purpose. Instead, the letter is a personnel record that documents the termination of Ms. Burgett-Masse's employment. Because the termination letter is not a record possessed by the State's Attorney's Office for a law enforcement purpose, it does not satisfy the threshold requirement to be exempt under section 7(1)(d)(i) or section 7(1)(d)(iii) ofFOIA. 13) Section 7(l)(d)(i) ofFOIA exempts from disclosure law enforcement records only to the extent that disclosure would \"interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request[.]\" 14) The State's Attorney's Office's generalized arguments about section 7(l)(d){i) of FOIA do not demonstrate that the exemption applijes to the termination letter. Accordingly, the State's Attorney's Office has not sustained its burden of proving that the termination letter is exempt from disclosure under section 7(1 )(d )(i) of FOIA. 15) Section 7(l)(d)(iii) ofFOIA exempts from disclosure law enforcement records only to the extent that disclosure would \"create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing[.]\" 16) The State's Attorney's Office did not demonstrate that disclosure of the termination letter would deprive Ms. Burgett-Masse or any other party of a fair trial or impartial Mr. Felix Sarver Mr. Kevin J. Meyers February 10, 2026 Page 11 hearing. Therefore, the State's Attorney's Office did not prove that the termination letter is exempt from disclosure under section 7(1)(d)(iii) ofFOIA. 17) The information the State's Attorney's Office provided in its confidential response does not support the State's Attorney's Office's assertion that the termination letter is exempt from disclosure. Therefore, it is the opinion of the Attorney General that the Will County State's Attorney's Office has violated FOIA by improperly withholding the termination letter responsive to Mr. Sarver's FOIA request. Accordingly, the State's Attorney's Office is hereby directed to take immediate and appropriate action to comply w,ith this opinion by disclosing a copy of the termination letter in a supplemental response to Mr. Sarver's request. Pursuant to section 7(1 )(b) of FOIA,27 the State's Attorney's Office may properly redact as \"private information\" the home address, personal e-mail address, and individual's signature that appear in the termination letter.28 Pursuant to section 7(1)(c) of FOIA,29 the State's Attorney's Office also may redact the name of the person listed in section (2)b of the letter. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Felix Sarver as defendants. See 5 ILCS 140/11.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEY GENERAL By: R. Douglas Rees Chief Deputy Attorney General 275 ILCS 140/7( I )(b) (West 2024) (e xempting from disclosure \"[p]rivate information, unless disclosure is required by another provision of this Act, a State or federal law, or a court order.\"). 28The Public Access Bureau has consistently concluded that a person's signature is a unique identifier, which may be redacted pursuant to section 7( I) (b) of FOIA. See Ill. Att'y Gen. Pub. Acc. Op. No. 14- 0 I 5, issued November 25, 2014, at 11. 295 IL CS 140/7(1 )(c) (West 2024) (exempting from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]\"). CERTIFICATE OF SERVICE Benjamin J. Silver, Supervising Attorney, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-002) upon: Mr. Felix Sarver Reporter The Herald-News 1100 Essington Road, Suite 4 Joliet, Illinois 60435 fsarver@gmai I. com Mr. Kevin J. Meyers Assistant State's Attorney Will County State's Attorney's Office 57 North Ottawa Street, 6th Floor Joliet, Illinois 60432 kmeyers@willcountysao.gov by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on February 10, 2026. Supervising Attorney Benjamin J. Silver Supervising Attorney Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6021","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested a termination letter for a public employee who had been criminally charged with official misconduct. The Will County State's Attorney's Office refused to release it, claiming the letter was exempt under FOIA sections 7(1)(d)(i) and 7(1)(d)(iii) because disclosure would interfere with pending criminal prosecution and deprive the employee of a fair trial. The Attorney General ruled that the termination letter was not a law enforcement record and therefore did not qualify for those exemptions, concluding that the office improperly withheld the letter.","card_headline":"A termination letter for a public employee","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":213,"orig_master_id":19414,"dup_master_id":19187,"dup_sha256":"731d34be8024372e24ac97c11402859e7cc62a4231959c1c3dce0d1393edb752","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-05-13","case_number":"2026 PAC 92498","request_numbers":null,"title":"Improper Closed Session Discussion of City Hall Building Under the Exception for Purchasing or Leasing Real Property","filename":"PUBLIC ACCESS OPINION 26-004 (Request for Review 2026 PAC 92498).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 26-004 (Request for Review 2026 PAC 92498).pdf","word_count":2430,"summary":"This document is a binding public access opinion regarding a violation of the Open Meetings Act by the City Council of Lebanon, which improperly discussed topics in closed session that were not authorized by law.","plain_summary":"The requester alleged that a city council improperly discussed the future of its existing City Hall building in closed sessions that were justified as covering the potential purchase of other real property. The Public Access Counselor held that the council's discussions of the current building's condition and disposition were a separate topic not authorized by the real-property-acquisition exception under which the meetings were closed. The council was directed to disclose the portions of the closed-session recordings and minutes concerning the current City Hall building.","holding":"The City of Lebanon City Council violated section 2(a) of the Open Meetings Act.","legal_question":"Did the City Council violate the Open Meetings Act by discussing topics in closed session that are not authorized?","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 55 ILCS 120/2(c), 155 ILCS 120/2(b), 195 ILCS 120/2(c), 5 ILCS 120/7, 235 ILCS 120/7","foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(5)"],"public_body":"City of Lebanon","requesting_party":"Holmam and Mr. Grob","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The City Council improperly discussed the acquisition or leasing of real property during closed sessions.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding%20Opinion%2026-004.pdf","sha256":"8d393d3c75097488fcfeeeb60906e38f91634d8d5f999c205184faeff83f184f","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","Open Meetings Act","real property","city council"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL May 13, 2026 ATTORNEY GENERAL PUBLIC ACCESS OPINION 26-004 (Request for Review 2026 PAC 92498) OPEN MEETINGS ACT: Improper Closed Session Discussion of City Hall Building Under the Exception for Purchasing or Leasing Real Property Mr. Carl Holman 611 Janet Drive Lebanon, Illinois 62254 The Honorable Paul Grob City Clerk, City of Lebanon 405 North Madison Street Lebanon, Illinois 62254 Dear Mr. Holmam and Mr. Grob: This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For tlhe reasons discussed below, this office concludes that the City of Lebanon (City} City Council (Council) violated section 2(a) of OMA1 during its December 22, 2025, and February 9, 2026, regu[ar meetings by discussing topics in closed session that are not authorized by any of the exceptions to the general requirement that public bodies conduct public business openly. BACKGROUND 01 February 20, 2026, Mr. Carl Hoilman submitted a Request for Review to the Public Access Bureau alleging, in pertinent paii, that the Council violated OMA at its December 22, 2025, and February 9, 2026, meetings by improperly entering into closed session to discuss 15 l LCS l 20/2(a) (West 2024), as amended by Public Act I 04-438, effective January 1, 2026. I I 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, lllillois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (2 I 7) 782-1090 • Fax· (2 I 7) 782-7046 (312) 814-3000 • Fax: (312) 8 I 4-3806 (6 I 8) 529-6400 • Fax: (6 I 8) 529-64 I 6 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisAttomeyGeneral.gov Mr. Carl Holman The Honorable Paul Grob May 13, 2026 Page 2 its future plans for its City Hall building.2 Mr. Holman stated that the Council began taking steps to inspect the bui~ding in August of 2025, and had discussed during October meetings whether the building was inhabitable.3 He asserted that since then, the Council \"has never openly discussed in any City Council Committee nor Regular Council meetings how much it would cost to renovate the former city hall, or what are the plans for the future city hall building.\"4 Mr. Holman indicated that the Council relied on section 2(c)(6) of OMA5 to close the December 22, 2025, and February 9, 2026, meetings, saying the Council entered closed session \"under Item 6 of the Closed Meeting Exceptions\" related to \"Setting a price for sale or lease of property.\"6 On March 16, 2026, the Public Access Bureau e-mailed7 a copy of the Request for Review to the Council, together with a letter asking the Council to provide a written response to Mr. Holman's allegation as well as copies of the Council's agenda, minutes, and any recordings of the Council's December 22, 2025, and February 9, 2026, meetings.8 On March 23, 2026, the Council's attorney e-mailed this office9 the requested meeting agendas and minutes10 along with a written response. On that same date, the Public Access Bureau forwarded a copy of the 2OMA - Request for Review by Public Access Counselor (PAC) form submitted by Carl Holman (February 20, 2026), at [2]. Mr. Holman's Request for Review also a,lleged that the Council failed to conduct a semi annual review of its closed session meeting minutes and failed to vote to approve closed session minutes at its regular meetings. These all gations are addressed in a separate Request for Review: 2026 PAC 92499. 3OMA - Request for Review by Public Access Counselor (PAC) form submitted by Carl Holman (February 20, 2026), at [2]. 4OMA - Request for Review by Public Access Counselor (PAC) form submitted by Carl Holman (February 20, 2026), at [2]. 55 ILCS 120/2(c)(6) (West 2024), as amended by Public Act 104-438, effective January I, 2026. Under this section of OMA, a public body may hold closed meetings \"to consider * * * [t]he setting of a price for sale or lease of property owned by the public body.\" 6OMA - Request for Review by Public Access Counselor (PAC) form submitted by Carl Holman (February 20, 2026), at [2]. 7E-mail from Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office, to [Paul Grob, City Clerk, City of Lebanon] (March 16, 2026). 8Letter from Christina Lucente-McCullough Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to the Honorable Paul Grob, City Clerk, City of Lebanon (March 16, 2026), at 1-2. 9E-mail from !Luke A. Behme, Bruckert, Behme & Long, P.C., to [Christina] Lucente McCullough, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (March 23, 2026). 10Letter from and Luke A. Behme, Attorney for City of Lebanon, Bruckert, Behme & Long, P.C., to Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (March 23, 2026). Mr. Carl Holman The Honorable Paul Grob May 13, 2026 Page 3 Council's written response to Mr. Holman and notified him of his opportunity to reply.11 He submitted a reply on March 24, 2026.12 On March 30, 2026, the Council's attorney e-mailed this office copies of the closed session recordings from the December 22, 2025, and February 9, 2026, meetings.13 On April 20, 2026, this office extended the time for issuing a binding opinion by 21 business days, to May 20, 2026, pursuant to section 3.5(e) of OMA.I4 ANALYSIS Section 2(a) of OMA provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" Such exceptions \"are in derogation of the requirement that public bodies meet in the open, and therefore, the exceptions are to be strictly construed, extending only to subjects clearly within their scope.\" 15 (Emphasis added.) The Board's response to this office16 and the minutes of the December 22, 2025,17 and February 9, 2026, 18 meetings indicate that the Board entered closed session at both meetings pursuant to section 2(c)(5) of OMA, 19 rather than section 2(c)(6) as Mr. Holman asserted. The section 2(c)(5) exception applies to \"[t]he purchase or lease ofreal property for the use of the 11 Letter from Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Carl Holman (March 23, 2026). 12E-mail from Carl Holman to Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (March 24, 2026). 13E-mails from Luke A. Behme, Bruckert, Behme & Long, P.C., to [Christina] Lucente McCullough, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (March 30, 2026). 14Letter from Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Carl Holman and Luke A. Behme, Bruckert, Behme & Long, P.C. (April 20, 2026). 155 ILCS 120/2(b) (West 2024), as amended by Public Act 104-438, effective January I, 2026. 16Letter from and Luke A. Behme, Attorney for City of Lebanon, Bruckert, Behme & Long, P.C., to Christina Lucente-McCullough, Assistant Attorney Gener.al, Public Access Bureau, Office of the Attorney General (March 23, 2026), at [I]. 17Lebanon City Council, Meeting, December 22, 2025, Minutes [2]. 18Lebanon City Council, Meeting, February 9, 2026, Minutes [2]. 195 ILCS 120/2(c)(5) (West 2024), as amended by Public Act 104-438, effective January I, 2026. Mr. Carl Holman The Honorable Paul Grob May 13, 2026 Page 4 public body, including meetings held for the purpose of discussing whether a particular parce] should be acquired.\" The Illinois Appellate Comt analyzed the scope of section 2( c) ( 5) of OMA in Galena Gazette Publications, Inc. v. County ofJ o Daviess, 375 Ill. App. 3d 338, 344-45 (2007). There, a public body held a closed session meeting to discuss the possibility of leasing a specific property for [...] tion of its own property, this office concludes that those portions of the Council's December 22, 2025, and February 9, 2026, closed session discussions violated OMA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On February 20, 2026, Mr. Carl Holman submitted a Request for Review alleging that on December 22, 2025, and February 9, 2026, the City of Lebanon City Council improperly discussed in closed session its future plans for its City Hall building. Mr. Holman's Request for Review was timely filed and otherwise complies with the requirements of section 21 Letter from Luke A. Behme, Brucken, Behme & Long, P.C., to Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (March 23, 2026), at [I]. Mr. Carl Holman The Honorable Paul Grob May 13, 2026 Page 6 3.5(a) of OMA.22 2) On March 16, 2026, the Public Access Bureau sent a copy of the Request for Review to City Clerk Paul Grob and asked the Council to provide for this office's confidential review copies of the agenda, minutes, and any avaiiable recordings from the Council's December 22, 2025, and February 9, 2026, open and closed meetings. This office also asked the Council to respond in writing to the allegation that it violated OMA by discussing its future plans for its City Hall building in closed session. 3) On March 23, 2026, the Council's attorney provided the Public Access Bureau with its written response as well as copies of the December 22, 2025, and February 9, 2026, meeting agendas and minutes. In this response, the Council explained that it entered closed session during both meetings pursuant to section 2(c )(5) of OMA. 4) On that same date, the Public Access Bureau forwarded a copy of the Council's written response to Mr. Holman and notified him of his opportunity to reply. He replied on March 24, 2026. 5) On March 30, 2026, the Council's attorney provided the Public Access Bureau with copies of the closed session recordings from the December 22, 2025, and February 9, 2026, meetings. 6) On April 20, 2026, this office extended the time for issuing a binding opinion by 21 business days, to May 20, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 7) Section 2(a) of OMA requires that all meetings of public bodies be open to the public unless the subject of the meeting is covered by one· of the limited exceptions enumerated in section 2( c) . Section 2( c) (5), which the Council relied on to enter closed session at both meetings, permits a public body to close a portion of a meeting to discuss \"[t]he purchase or lease of real property for the use of the public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired.\" 8) Portions of the closed session discussions at the Council's December 22, 2025, and February 9, 2026, meetings concerned the merits of properties that the City potentially could purchase. Section 2( c) (5) of OMA authorized the Council to discuss those properties in closed sess10n. 22Section 3.5(a) of OMA provides that a Request for Review generally must be filled \"not later than 60 days after the alleged violation.\" February 20, 2026, was the 60th day after the Board's December 22, 2025, meeting. Therefore, Mr. Holman timely submitted his Request for Review on that date. Mr. Carl Holman The Honorable Paul Grob May 13, 2026 Page 7 9) However, the section 2(c)(5) exception did not authorize the Council to also discuss in closed session its future plans for the cmTent City Hall building. The Council's deliberations about the condition and possible disposition of that existing property, and related financial matters, were independent of the discussions about the potential purchase of other properties. Because the topics were not intertwined in the context in which they were discussed by the Council, considering them separately would not have precluded the Council from fully considering the potential acquisition of property as permitted by the section 2( c )(5) exception under which the Council entered closed session. 10) Accordingly, the Council violated OMA during its December 22, 2025, and February 9, 2026, meetings by improperly discussing the existing City Hall building in closed session. In accordance with these findings of fact and conclusions of law, the Council is directed to remedy this violation by disclosing to Mr. Holman and making publicly available the portions of the December 22, 2025, and February 9, 2026, closed session verbatim recordings and closed session minutes that directly concern the current City Hall building. The Council may redact the portions of these recordings and minutes that concern the potential acquisition of other properties. As required by section 3.5(e) of OMA, the Council shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA.23 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law.24 An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 3 5 days of the date of this decision naming the Attorney General of Illinois and Mr. Carl Holman as defendants. See 5 ILCS 120/7.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEY GENERAL By: R. Douglas Rees Chief Deputy Attorney General 235 ILCS 120/7.5 (West 2024). 24735 lLCS 5/3-10 I et seq. (West 2024). Mr. Carl Holman The Honorable Paul Grob May 13, 2026 Page 8 cc: Mr. Luke A. Behme Bruckert, Behme & l ong, P.C. 201 East Hanover New Bad n, Illinois 62265 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chiet~ Public Access & Opinions Division, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-004) upon: Mr. Carl Holman 611 Janet Drive Lebanon, Illinois 62254 loricarl23@att.net The Honorable Paul Grob City Clerk, City of Lebanon 405 North Madison Street Lebanon, Illinois 62254 clerk@lebanonil.org Mr. Luke A. Behme Bruckert, Behme & Long, P.C. 201 East Hanover New Baden, Illinois 62265 lab@bblattorneys.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on May 13, 2026. ---- ;?? ~ Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The City of Lebanon City Council held closed-door meetings to discuss city hall building matters, claiming it was allowed under real estate exceptions. The Attorney General's office ruled that these discussions did not actually fit into any legal exceptions for closed meetings and therefore violated the Open Meetings Act, which requires public business to be conducted in public.","card_headline":"Closed-session discussion of real property acquisition","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":214,"orig_master_id":19188,"dup_master_id":19415,"dup_sha256":"19dfcc0dbe230914c58e3152997c771e8619f0990e136f21d1c6a4dce0d3f79f","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-04-17","case_number":"2026 PAC 91898","request_numbers":null,"title":"Improper Closed Session Discussion of Overdue Loans","filename":"PUBLIC ACCESS OPINION 26-003 (Request for Review 2026 PAC 91898).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 26-003 (Request for Review 2026 PAC 91898).pdf","word_count":2423,"summary":"The Attorney General issued a binding opinion on January 21, 2026 . The Board of Trustees violated the Open Meetings Act by failing to follow the proper procedure for entering closed session and by holding a closed session discussion not authorized by any of the exceptions to the general requirement that public bodies conduct public business openly .","plain_summary":"The requester, a village trustee, alleged that a village board's mayor cited a \"personnel\" closed-session exception but then discussed businesses' overdue tax-increment-financing loans instead. The Public Access Counselor held that the board violated the Open Meetings Act's procedure for entering closed session by failing to publicly cite and record the actual exception relied upon, and that the loan discussion was not shown to involve probable or imminent litigation as later claimed. The board was directed to make the closed-session recording of that discussion publicly available.","holding":"The Village of Caseyville Board of Trustees violated the Open Meetings Act by entering a closed session without following proper procedure and by discussing matters not permitted under any OMA closed-session exception.","legal_question":"Whether the Village of Caseyville Board of Trustees violated the Open Meetings Act by entering a closed session without proper procedure and discussing matters not authorized by the Act's exceptions.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 35 ILCS 120/2(c), 5 ILCS 120/1, 5 ILCS 120/2, 5 ILCS 120/2(c), 135 ILCS 120/2(a), 85 ILCS 120/2(b), 5 ILCS 120/7, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)"],"public_body":"Village of Caseyville Board","requesting_party":"Buckley and Mr. Luebbers","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"closed session","subject_description":"The Board improperly held a closed session to discuss overdue loans under the pretext of personnel issues.","ocr_status":"ok","ocr_quality":90.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding%20Opinion%2026-003.pdf","sha256":"545b08de351e13784954843f19544abc586560cdee761970ce305bf3ef91c79c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","Open Meetings Act","public business","transparency"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"STATE OF ILLINOIS KWAME RAOUL . ATTORNEY GENERAL April 17, 2026 PUBLIC ACCESS OPINION 26-003 (Request for Review 2026 PAC 91898) OPEN MEETINGS ACT: Improper Closed Session Discussion of Overdue Loans The Honorable John Buckley, Trustee Village of Caseyville Board 909 South Main Street Caseyville, Illinois 62232 The Honorable Kent Luebbers, Mayor Village of Caseyville 909 South Main Street Caseyville, Illinois 62232 Dear Mr. Buckley and Mr. Luebbers: This binding opinion is issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this office concludes that the Village of Caseyville (Village) Board of Trustees (Board) violated OMA during its January 21, 2026, meeting by failing to follow the proper procedure for entering closed session and by holding a closed session discussion that was not authorized by any of the exceptions to the general requirement that public bodies conduct public business openly. BACKGROUND On January 22, 2026, Mr. John Buckley, a Village trustee, submitted a Request for Review to the Public Access Bureau alleging that the Village's mayor called for a closed session for \"personnel issues[]\" at the Board's January 21, 2026, meeting, but the Board did not 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 « Fax: (312) 814-3806 (618) 529-6400 * Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.IllinoisAttorneyGeneral.gov Sralsen eoumei> 4005 The Honorable John Buckley The Honorable Kent Luebbers April 17, 2026 Page 2 actually discuss personnel issues during the closed session.! He asserted: \"When the board went into Executive Session the discussion was related to businesses with outstanding T.I.F[.] loans. I strongly feel this is deceiving to board members and also to citizens at the meeting.\"” On February 4, 2026, the Public Access Bureau sent a copy of the Request for Review to the Board and asked it to respond to Mr. Buckley's allegation and to identify the exception in section 2(c) of OMA? that served as the basis for the Board entering closed session during the January 21, 2026, meeting. The Public Access Bureau also asked the Board to address how the closed session discussion fell within the scope of that exception and to provide copies of the meeting's agenda, open and closed session minutes, and verbatim recording of the closed session.” Having received no response, the Public Access Bureau sent a second letter to the Board on February 20, 2026, again asking it to respond.® On February 27, 2026, counsel for the Board submitted via e-mail a written answer, the full minutes, and verbatim recordings of the full meeting, including the closed session.’ In its written answer, dated February 26, 2026, the Board identified \"the litigation exception\" as the basis for entering closed session and asserted that the Mayor misspoke by instead citing \"the personnel exception[.]\"* The Board's response stated that the discussion concerned \"Tax Increment Financing loans that were in arrears and owed to the Village.\" On March 3, 2026, the Public Access Bureau forwarded a copy of the written answer to Mr. ‘E-mail from John Buckley, Caseyville Village Trustee, to Public Access [Bureau, Office of the Attorney General] (January 22, 2026). E-mail from John Buckley, Caseyville Village Trustee, to Public Access [Bureau, Office of the Attorney General] (January 22, 2026). 35 ILCS 120/2(c) (West 2024), as amended by Public Act 104-438, effective January 1, 2026. ‘Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Kent Luebbers, Mayor, Village of Caseyville (February 4, 2026), at 1. Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Kent Luebbers, Mayor, Village of Caseyville (February 4, 2026), at 1. °Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Kent Luebbers, Mayor, Village of Caseyville (February 20, 2026). \"E-mail from Michael L. Wagner, Partner, Clayborne & Wagner, LLC, to Teresa Lim (F ebruary 21,2026), *Letter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Illinoi[s}] Attorney General (February 26, 2026), at [1]. *Letter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Illinoi[s] Attorney General (February 26, 2026), at [1]. The Honorable John Buckley The Honorable Kent Luebbers April 17, 2026 Page 3 Buckley.!° On March 5, 2026, Mr. Buckley replied to this office, asserting that \"T.I.F. loans were Clearly the subject[]\" of the closed session and that \"[l]awsuits and litigations were not discussed.\"!! On March 20, 2026, this office extended the time for issuing a binding opinion by 21 business days, to April 21, 2026, pursuant to section 3.5(e) of OMA.!” ANALYSIS OMA is intended \"to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2024). Section 2(a) of OMA)? provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" Section 2a of OMA Section 2a of OMA (5 ILCS 120/2a (West 2024)) provides that \"[a] public body may hold a meeting closed to the public, or close a portion of a meeting to the public, upon a majority vote of a quorum present, taken at a meeting open to the public for which notice has been given as required by this Act.\" The provision further provides that \"[t]he vote of each member on the question of holding a meeting closed to the public and a citation to the specific exception contained in Section 2 of this Act which authorizes the closing of the meeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of the meeting.\" (Emphasis added.) In its answer to this office, the Board stated that the Mayor \"misspoke when he cited the Personnel exception as the reason for entering the closed session.\"!* The Board stated that the Mayor \"should have stated that the discussion would be about litigation, which would have been allowable under 5 ILCS 120/2(c)(11).\"\" Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable John Buckley, Trustee, Village of Caseyville (March 3, 2026). ''E-mail from John Buckley, Caseyville Village Trustee, to [Teresa] Lim (March 5, 2026). \"Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable John Buckley, Trustee, Village of Caseyville, and The Honorable Kent Luebbers, Mayor, Village of Caseyville (March 20, 2026). 135 ILCS 120/2(a) (West 2024), as amended by Public Act 104-438, effective January 1, 2026. ‘Letter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, I[linoi[s] Attorney General (February 26, 2026), at [1]. 'SLetter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Illinoi[s] Attorney General (February 26, 2026), at [1]. The Honorable John Buckley The Honorable Kent Luebbers April 17, 2026 Page 4 It is undisputed that the Board's closed session discussion did not pertain to personnel issues. Moreover, this office's review of the Board's recording of the meeting's open session revealed that the Board did not publicly disclose \"personnel\" or any other issue as the basis for closing the meeting; the Board simply appeared to approve a motion for a closed session.!® In addition, the meeting minutes of the open session [...] (5 ILCS 120/3.5(a) (West 2024)). “Village of Caseyville, Regular Board Meeting, January 21, 2026, Executive Session Minutes. 5Letter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, IIlinoi[s] Attorney General (February 26, 2026). 6Village of Caseyville, Regular Board Meeting, January 21, 2026, Video File (on file with Public Access Bureau, Office of the Attorney General) (labeled \"Executive Session 1.21.26\"). The Honorable John Buckley The Honorable Kent Luebbers April 17, 2026 Page 8 3) On February 4, 2026, the Public Access Bureau sent a copy of the Request for Review to the Village's mayor along with a letter asking the Board to provide a written answer to Mr. Buckley's OMA allegation, and copies of the meeting agenda, open and closed session minutes, and closed session verbatim recording for this office's confidential review. 4) On February 20, 2026, the Public Access Bureau sent a second letter to the Board, again requesting a response. This office included copies of this office's February 4, 2026, correspondence and the Request for Review. 5) On February 27, 2026, counsel for the Board furnished a written answer and the open and closed session minutes and verbatim recordings of the open and closed session portions of the January 21, 2026, meeting. 6) On March 3, 2026, this office sent a copy of the Board's answer to Mr. Buckley. Mr. Buckley replied on March 5, 2026, maintaining that the Board's closed session discussion was improper. 7) On March 20, 2026, this office extended the time for issuing a binding opinion by 21 business days, to April 21, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 2(a) of OMA provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" 9) Section 2a of OMA provides that \"[t]he vote of each member on the question of holding a meeting closed to the public and a citation to the specific exception contained in Section 2 of this Act which authorizes the closing of the meeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of the meeting.\" 10) The minutes of the open session portion of the Board's January 21, 2026, meeting state, with respect to the Executive Session: \"Need to discuss Personnel, will meet after Committee Meeting.\" 11) In its written answer, the Board did not dispute that it did not discuss personnel matters in the closed session. The Board stated that it discussed TIF loans that were in arrears and owed to the village. 12) The recording of the open session portion of the meeting reflects that the Board did not cite a specific exception enumerated in section 2(c) as a basis for closing its January 21, 2026, meeting. The Board also did not record and enter into the minutes the exception authorizing it to close a portion of the meeting. Accordingly, the Board violated section 2a of OMA. The Honorable John Buckley The Honorable Kent Luebbers April 17, 2026 Page 9 13) The Board argued that section 2(c)(11) of OMA authorized its closed session discussion because it related to litigation. 14) Section 2(c)(11) of OMA permits a public body to close a portion of a meeting to discuss \"[l]itigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting.\" 15) If litigation is not pending, section 2(c)(11) authorizes a closed session discussion only when the public body has reasonable grounds to believe that litigation is more likely than not to be instituted or that such an occurrence is close at hand. 16) The Board failed to determine or find that litigation was probable or imminent or record and enter into the closed session minutes the basis for such a finding, as required by section 2(c)(11). 17) The Board's January 21, 2026, closed session discussion concerning the overdue TIF loans did not pertain to pending, probable, or imminent litigation. Although the Board stated it was considering litigation as an option to recover the remaining balances of the TIF loans, there is no indication that such litigation was probable or imminent. Accordingly, the Board violated section 2(a) of OMA by discussing in closed session matters outside the scope of section 2(c)(11) of OMA. In accordance with these findings of fact and conclusions of law, the Board is directed to remedy this violation by making publicly available the closed session verbatim recording of its January 21, 2026, meeting. As required by section 3.5(e) of OMA, the Board shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA. 5 ILCS 120/7.5 (West 2024). The Honorable John Buckley The Honorable Kent Luebbers April 17, 2026 Page 10 This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Buckley as defendants. See 5 ILCS 120/7.5 (West 2024). Very truly yours, KWAME RAOUL ATTORNEY GENERAL R. Douglas Rees Chief Deputy Attorney General ec; Mr. Michael L. Wagner Clayborne & Wagner LLP 525 West Main Street, Suite 105 Belleville, [llinois 62220 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-003) upon: The Honorable John Buckley, Trustee Village of Caseyville Board 909 South Main Street Caseyville, Illinois 62232 jbuckley@caseyville.org The Honorable Kent Luebbers, Mayor Village of Caseyville 909 South Main Street Caseyville, Illinois 62232 kluebbers@caseyville.org Mr. Michael L. Wagner Clayborne & Wagner LLP 525 West Main Street, Suite 105 Belleville, Illinois 62220 mwagner@claybornewagner.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on April 17, 2026. Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Village of Caseyville Board of Trustees held a closed-door meeting to discuss overdue loans, claiming it was for 'personnel issues.' The Attorney General ruled this was illegal because the Board did not follow the required steps to enter a closed session and because discussing financial loans is not a valid reason to exclude the public from a meeting. This means the Board failed to conduct public business in an open and transparent manner as required by law.","card_headline":"A village board's closed-session discussion of overdue loans","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":215,"orig_master_id":19189,"dup_master_id":19416,"dup_sha256":"3ae38b60f73996111d815bb5682e7e46e21d3cfc14883f39f82ec3eaf786c66d","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-05-15","case_number":"2026 PAC 92914","request_numbers":null,"title":"Taking Final Action on Matter Not Sufficiently Identified on Meeting Agenda","filename":"PUBLIC ACCESS OPINION 26-005 (Request for Review 2026 PAC 92914).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 26-005 (Request for Review 2026 PAC 92914).pdf","word_count":2426,"summary":"The Village of Okawville (Village) Board of Trustees (Board) violated OMA in connection with its February 23, 2026, meeting by failing to provide the public with advance notice of its vote to terminate the employment of a Village police officer . Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service .","plain_summary":"The requester alleged that a village board voted to terminate a police officer's employment under a meeting agenda item that listed only \"Personnel issues\" without identifying the employee's category or type of personnel action. The Public Access Counselor held that this generic listing failed to satisfy the Open Meetings Act's requirement that an agenda set forth the general subject matter of anticipated final action with sufficient detail to inform the public. The board was directed to re-vote on the termination after posting an agenda that identifies the category of employee and type of personnel action.","holding":"The Board violated section 2.02(c) of the Open Meetings Act by failing to provide the public with advance notice of its final action to terminate the employment of a Village police officer.","legal_question":"Whether a public body violates the Open Meetings Act by taking final action on a matter that was not sufficiently identified on the meeting agenda.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/1, 5 ILCS 120/2, 135 ILCS 120/2, 205 ILCS 120/2, 225 ILCS 120/2(c), 5 ILCS 120/2(b), 5 ILCS 120/7, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Okawville","requesting_party":"Marver and Mr. Jasper","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"meeting notice","subject_description":"The adequacy of an agenda item description regarding the termination of a public employee.","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding%20Opinion%2026-005.pdf","sha256":"4f54b42fc7dec8c364f306c6b34851d29adc1073c1b93c39de8777a3d78f6753","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["meeting agenda","public notice","personnel termination","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL May 15, 2026 PUBLIC ACCESS OPINION 26-005 (Request for Review 2026 PAC 92914) OPEN MEETINGS ACT: Taking Final Action on Matter Not Sufficiently Identified on Meeting Agenda Mr. Todd Marver 317 West Main Street Carlinville, Illinois 62626 The Honorable David Jasper Village President Village of Okawville 304 North Front Street P.O. Box 483 Okawville, Illinois 62271 Dear Mr. Marver and Mr. Jasper: This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this office concludes that the Village of Okawville (Village) Board of Trustees (Board) violated OMA in connection with its February 23, 2026, meeting by failing to provide the public with advance notice of its vote to terminate the employment of a Village police officer. 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 * Fax: (312) 814-3806 (618) 529-6400 * Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.|llinoisAttorneyGeneral.gov Mr. Todd Marver The Honorable David Jasper May 15, 2026 Page 2 BACKGROUND On March 12, 2026, Mr. Todd Marver submitted a Request for Review alleging that the Board violated OMA during its February 23, 2026, meeting by voting to terminate the employment of a Village police officer without setting forth the general subject matter of that final action on the agenda.' Mr. Marver included a copy of the meeting agenda, which listed \"Personnel issues\" under a \"POLICE & LIQUOR\" heading; he argued that the agenda provided insufficient notice of the termination because it did not include the category of employee or type of personnel transaction that the Board intended to act upon.? On March 27, 2026, the Public Access Bureau e-mailed’ a copy of the Request for Review to the Board together with a letter asking the Board to provide a written response to Mr. Marver's allegation, as well as copies of the agenda, minutes, and any available recordings of the February 23, 2026, meeting.” On April 7, 2026, counsel for the Board e-mailed the minutes and recordings to this office® along with a written response that acknowledged this office previously received the agenda of the February 23, 2026, meeting. On that same date, the Public Access Bureau forwarded a copy of the Board's written response to Mr. Marver and notified him of his opportunity to reply.’ He replied the same day.® On May 11, 2026, this office extended the time for issuing a binding opinion by 21 business days, to June 10, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the 'E-mail from Todd Marver to Public Access [Bureau, Office of the Attorney General] (March 12, 2026). Village of Okawville, unnumbered Agenda Item, Village Board Meeting (February 23, 2026). 3E-mail from Todd Marver to Public Access [Bureau, Office of the Attorney General] (March 12, 2026). ‘E-mail from Benjamin Silver, Supervising Attorney, Public Access Bureau, Office of the Illinois Attorney General, to [David] Jasper, [Village President, Village of Okawville] (March 27, 2026). ‘Letter from Benjamin Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to the Honorable David Jasper, Village President, Village of Okawville (March 27, 2026), at 1-2. °E-mail from Kiersten R. Stensland, Paralegal, Baker Sterchi Cowden & Rice LLC, to [Benjamin] Silver, [Supervising Attorney, Public Access Bureau, Office of the Attorney General] (April 7, 2026). Letter from Benjamin Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Todd Marver (April 7, 2026). 8E-mail from Todd Marver to [Benjamin Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General] (April 7, 2026). Mr. Todd Marver The Honorable David Jasper May 15, 2026 Page 3 Attorney General may properly issue a binding opinion with respect to this matter.” ANALYSIS The intent of OMA is \"to protect the citizen's right to know[.|\" 5 ILCS 120/1 (West 2024). Thus, the General Assembly \"declares it to be the public policy of this State that its citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in any way.\" 5 ILCS 120/1 (West 2024). Section 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2024)) provides that \"[a]n agenda for each regular meeting shall be posted at the principal office of the public body and at the location where the meeting is to be held at least 48 hours in advance of the holding of the meeting.\" Further, section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2024)) provides that \"{a]ny agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.\" (Emphasis added.) The Board's February 23, 2026, meeting agenda listed \"Personnel issues\" under a heading for \"POLICE & LIQUOR[.]\"'® In its response to this office, the Board argued that \"the public was aware that the Village Board was to consider an employ [sic] or personnel matter that fell under the Police Department. (There are no Liquor employees in the Village.)[.]\"'! The Board further argued that it was not \"necessary under the Open Meetings Act to describe which department, which employee, nor if it was an adverse action.\"!* The Board cited In re Foxfield Subdivision v, Village of Campton Hills, 396 Ill. App. 3d 989 (2009), in support of its argument that the Board's February 23, 2026, agenda included sufficient description of its final action terminating a police officer's employment. In Foxfield, the Illinois Appellate Court analyzed whether the agenda item \"Discussion and Consideration of potential annexation of property’ provided sufficient advance notice that a village board would take action at a special meeting to annex a property. Foxfield, Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office oft he Attorney General, to Todd Marver and David B. Schneidewind, Baker Sterchi Cowden & Rice LLC (May 11, 2026). 'Village of Okawville, unnumbered Agenda Item, Village Board Meeting (February 23, 2026). \"Letter from David B. Schneidewind, Attorney for the Village of Okawville, Baker Sterchi Cowden & Rice, LLC, to Benjamin J. Silver, Supervising Attorney, Office of the Attorney General, State of Illinois, Public Access Bureau (April 7, 2026), at 2. Letter from David B. Schneidewind, Attorney for the Village of Okawville, Baker Sterchi Cowden & Rice, LLC, to Benjamin J. Silver, Supervising Attorney, Office of the Attorney General, State of Illinois, Public Access Bureau (April 7, 2026), at 2. Mr. Todd Marver The Honorable David Jasper May 15, 2026 Page 4 396 Ill. App. 3d at 995-97. The version of section 2.02(a) of OMA! that was in effect at the time of the meeting provided, in relevant part, that \"[p]ublic notice of any special meeting * * * shall be given at least 48 hours before such meeting, which notice shall also include the agenda forthe special * * * meeting, but the validity of any action taken by the public body which is germane to a subject on the agenda shall not be affected by other errors or omissions in the agenda.\" (Emphasis added.) Interpreting this earlier version of section 2.02, the court noted that \"loJur Open Meetings Act does not require that an agenda be specifically detailed or that it be tailored to reach those specific individuals whose private interests are most likely to be affected by the actions of the public body. It requires only that the action taken at a special meeting be germane to the agenda listed in the notice.\"'* Accordingly, the court concluded that a village board provided sufficient advance notice under the plain language of section 2.02(a) [...] inois, Public Access Bureau (April 7, 2026), at 2. 205 ILCS 120/2a (West 2024). *!Village of Okawville, unnumbered Agenda Item, Village Board Meeting (February 23, 2026). 225 ILCS 120/2(c)(1) (West 2024), as amended by Public Act 104-438, effective January 1, 2026. *3The exceptions that permit public bodies to close meetings to the public \"are in derogation of the requirement that public bodies meet in the oPpp en, and therefore, the excepPptions are to be strictly construed, extending only to subjects clearly within their scope.\" 5 ILCS 120/2(b) (West 2024), as amended by Public Act 104-438, effective January 1, 2026. Mr. Todd Marver The Honorable David Jasper May 15, 2026 Page 7 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On March 12, 2026, Mr. Todd Marver submitted a Request for Review alleging that during its February 23, 2026, meeting, the Village of Okawville Board of Trustees voted to terminate the employment of a Village police officer without listing the general subject matter of that action on its meeting agenda. Mr. Marver's Request for Review, which included a copy of the meeting agenda, was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2024)). 2) On March 27, 2026, the Public Access Bureau sent a copy of the Request for Review to the Board. The Public Access Bureau also sent the Board a letter requesting copies of the agenda, minutes, and any recordings of the Board's February 23, 2026, meeting, and a written response to the allegations in Mr. Marver's Request for Review. 3) On April 7, 2026, the Board provided this office with a written response to the allegations and the requested minutes and recordings; the response acknowledged that this office previously received a copy of the meeting agenda. 4) On that same date, the Public Access Bureau forwarded a copy of the Board's written response to Mr. Marver and notified him of his opportunity to reply. He replied the same day. 5) On May 11, 2026, this office extended the time for issuing a binding opinion by 21 business days, to June 10, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 6) Section 2.02(c) of OMA requires that a meeting agenda \"set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.\" This provision requires public bodies to include on agendas sufficient detail to notify members of the public of the types of final actions that public bodies anticipate taking at their meetings. 7) The term \"general subject matter\" is ambiguous. The Senate debate on House Bill No. 4687, which as Public Act 97-827, effective January 1, 2013, added section 2.02(c) to OMA, indicates that the General Assembly intended this provision to ensure that agendas provide sufficient detail to notify members of the public of the types of final actions public bodies anticipated taking at their meetings. By choosing the language \"general subject matter,\" the General Assembly signified that it intended a public body to provide the public with more detailed advance notice of its upcoming actions than the previous version of OMA, which required only that an action be \"germane to a subject on the agenda.\" Mr. Todd Marver The Honorable David Jasper May 15, 2026 Page 8 8) The Board's February 23, 2026, meeting agenda listed \"Personnel issues\" under a heading for \"POLICE & LIQUOR.\" The Board's meeting agenda also included a reference to holding a closed session to discuss \"personnel\" under the exception in section 2(c)(1) of OMA. 9) During the meeting, the Board voted to terminate the employment of a Village police officer. 10) The meeting agenda did not set forth the general subject matter of the Board's vote to terminate the employment of a Village police officer. The agenda item identified neither the category of employee at issue nor the type of personnel transaction to be considered. Because a member of the public who read the agenda before the meeting would not have generally known what the Board would be acting upon, the Board failed to provide sufficient advance notice for the termination of a police officer's employment as required by section AOAC), In accordance with these findings of fact and conclusions of law, the Board is directed to remedy this violation by re-voting on the termination of the employee after posting a meeting agenda that provides sufficient detail to identify the general subject of that final action. Ata minimum, the relevant agenda item should identify the category of employee and the type of personnel action to be considered. As required by section 3.5(e) of OMA, the Board shall either take the necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA. 5 ILCS 120/7.5 (West 2024). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seg. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Todd Marver as defendants. See 5 ILCS 120/7.5 (West 2024). Sincerely, KWAME RAOUL ATTORNEY GENERAL By: (Pry We R. Douglas Rees Chief Deputy Attorney General Mr. Todd Marver The Honorable David Jasper May 15, 2026 Page 9 oc Mr. David B. Schneidewind Baker Sterchi Cowden & Rice LLC 23 Public Square, Suite 400 Belleville, Illinois 62220-1627 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-005) upon: Mr. Todd Marver 317 West Main Street Carlinville, Illinois 62626 tdmarve@outlook.com The Honorable David Jasper Village President Village of Okawville 304 North Front Street P.O. Box 483 Okawville, Illinois 62271 villageofokawville@gmail.com Mr. David B. Schneidewind Baker Sterchi Cowden & Rice LLC 23 Public Square, Suite 400 Belleville, Illinois 62220-1627 david.schneidewind@bakersterchi.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on May 15, 2026. ie ites. Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Village of Okawville Board of Trustees voted to fire a police officer during a meeting, but their agenda only listed \"Personnel issues\" as a topic. The Attorney General ruled that this was too vague and violated the Open Meetings Act, which requires public bodies to provide clear notice of the specific actions they intend to take so the public knows what is being discussed.","card_headline":"A village board's agenda description of an employee termination","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":216,"orig_master_id":19417,"dup_master_id":19190,"dup_sha256":"fe93e724ccd4da8854dc3c2f9855807ddbe6f6da32ad54fc7121402c65992915","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2010-02-23","case_number":"2010 PAC 5688","request_numbers":null,"title":"Duty of Public Body to Furnish Copies","filename":"PUBLIC ACCESS OPINION No. 10-001 (Request for Review 2010 PAC 5688).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION No. 10-001 (Request for Review 2010 PAC 5688).pdf","word_count":1551,"summary":"This document is a Public Access Opinion regarding a Freedom of Information Act request made by Edward Fleck to the Village of Wapella for a copy of his water meter card. The Village responded that they are only obligated to provide the documents for inspection and photocopying, not to furnish copies.","plain_summary":"The requester, a member of the public, sought copies of his water meter readings, and a village refused to provide copies at all, insisting it was only obligated to make records available for inspection during a narrow one-hour window. The Public Access Counselor held that FOIA's plain language requires a public body to provide copies of nonexempt records upon request and does not allow a public body to limit requesters to on-site inspection alone. The village was directed to immediately provide copies of the requested records, subject to permissible fees.","holding":"The Village of Wapella violated FOIA by refusing to provide copies of requested public records, as Section 3(b) mandates that public bodies must furnish copies when requested.","legal_question":"Whether the Village of Wapella is obligated to provide copies of documents requested under the Freedom of Information Act.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(b), 5 ILCS 140/11, 735 ILCS 5","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Wapella c","requesting_party":"Justice","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The Village of Wapella refused to provide physical copies of water meter records to a requester, asserting that it was only obligated to allow inspection.","ocr_status":"ok","ocr_quality":90.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2010-Binding-PAC-Opinions/2010-001.pdf","sha256":"1ab824747811ecc05819d30749b4f37632eda0adfa60406f44465238bed5b84e","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["copies of records","inspection of records","FOIA request","public records access"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNE\\' (;ENERAL March 29, 2010 PUBLIC ACCESS OPINION No. 10-001 (Request for Review 2010 PAC 5688) FREEDOM OF INFORMATION ACT: Duty of Public Body to Furnish Copies Jeff Justice Village Attorney Village of Wapella c/o Shade & Justice 132 South Water Street 515 Millikin Court Decatur, Illinois 62523 Dear Mr. Justice: This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act (hereinafter \"FOIA\") (5 ILCS 140/9.5(f)). Findings of Fact On January 6, 20 I0, Edward Fleck (\"Requester\") sent a letter to the Village of Wapella (\"Wapella\") requesting a copy of the Requester's \"water meter card\" showing all readings from June 2009 through December 2009. In a letter dated January 12, 2010, Vernon Meadows, Village President of Wapella, responded that Wapella required five additional business days to gather the requested information. In addition, Mr. Meadows stated: Please be advised that there is no obligation on the part of the Village to make copies for you. The Village is only obligated to make the documents available for inspection and photocopying. These documents will be available for inspection and photocopying at the Wapella Village Hall. (Emphasis added.) 500 South Second Street, Springfield, Illinois 62706 • (217) 7t\\2-1090 • Try (tl77) 1544-5461 • Fax: (217) 7t\\2-7046 lOO West Randolph Street, Chicago, IIlinnis 60601 • (312) 1514-3000 • Try (HOO) 964-30J3 • F~x: (,\\12) 1514-.3806 1001 East i'vlain, Carbondale, 11linois 62901 • (618) 529-6400 • 'ITY: (877) 675-9339 • Fax: (618) 529-6416 - - ------------- Jeff Justice Village of Wapella March 29, 2010 Page 2 On January 19, 2010, Mr. Meadows sent a second letter to the Requester stating that the Requester's FOIA request was denied. He again reiterated that \"[t]here is no obligation on the part of the Village to make copies for you. The Village is only obligated to make the document available for inspection and photocopying.\" Mr. Meadows further stated that the requested documents would be available for inspection and copying by the Requester on Friday, January 22, 2010, between 9 am and 10 am at the Wapella Village Hall. The Requester filed a Request for Review regarding his January 6, 2010, FOIA request to Wapella, which was received by the Public Access Counselor (\"the PAC\") on February 3,2010. The Requester stated that Wapella was not justified in requesting an additional 5 days for response because there are \"no more than 300 water meter cards for the whole village, contained in three 2-ring binders[.]\" The Requester also stated that he was not allowed to inspect his original water meter card, instead being shown a copy of his card, which, according to the Requester, was more difficult for him to read. Ultimately, the Requester copied his meter card during the limited time that the documents were available for inspection. On February 16, 2010, we sent a letter to Mr. Meadows notifying Wapella of the receipt of the Requester's Request for Review and advising that further inquiry was necessary to determine whether a violation ofFOIA had occurred. Pursuant to Section 9.5(c) ofFOIA (5 ILCS 140/9.5(c)), we requested that Wapella respond to the allegations included in the Request for Review within 7 working days after receipt. On February 24, 2010, Jeff Justice, an attorney representing Wapella, sent a letter to the PAC responding to the allegations set forth in the Request for Review. In his letter, Mr. Justice stated that Wapella had requested a 5-day extension to the FOIA request because Wapella has no full-time or part-time administrative or secretarial personnel. With respect to the allegation that the Requester was not allowed to inspect his original water meter card, Mr. Justice responded that because the Requester never specified that he wanted to view original documents, his request was fulfilled by producing a copy for inspection. Further, Mr. Justice stated that due to the large number of FOIA requests Wapella receives and its lack of support staff, Wapella \"exercised [its] rights under paragraph 3 of [FOIA] to make documents available for inspection and photocopying on a machine provided by the village in the same room.\" Applicable Statutes The authority of the Public Access Counselor to issue a binding opinion is set out in Section 9.5 of the Freedom of Information Act (5 ILCS 140/9.5). Pursuant to Section 9.5, a person whose request to inspect or copy a public record has been denied by a public body may, not later than 60 days after the date of the final denial, file a written request for review with the Public Access Counselor established in the Office of the Jeff Justice Village of Wapella March 29,2010 Page 3 Attorney General. If the Public Access Counselor determines that the alleged violation warrants further review, the Attorney General shall examine the issues and the records, shall make findings of fact and conclusions of law, and shall issue to the requester and the public body an opinion in response to the request for review. The opinion shall be binding upon both the requester and the public body, subject to administrative review. We find that the Request for Review was timely filed and otherwise complies with the requirements of Section 9.5 ofFOIA. With respect to the specific issue raised in this Request for Review, Section 3(b) of FOIA (5 ILCS 140/3(b)) provides as follows: (b) Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person who submits a request, a copy of any public record required to be disclosed by subsection (a) of this Section and shall certify such copy if so requested. (Emphasis added.) When the language of a statute is clear and unambiguous, it must be given effect as written. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). The language of Section 3(b) is clear and unambiguous: it is the duty of a public body, when requested and upon payment of applicable fees, if any, to provide the requester with a copy of any record that is not exempt from disclosure under FOIA. Section 3(b) does not provide a public body with the option to decline to provide copies when copies are requested. Although a public body may offer the requester an opportunity to inspect and make copies if he or she elects to do so, it may not properly refuse to provide copies if requested to do so. Conclusions of Law Wapella has taken the position with respect to this FOIA request and several others' that it is under no obligation to provide copies of public documents to requesters. It has I We have received numerous requests for review of FOIA responses from Wapella in which the village refused to furnish copies of public records to requesters and, instead, informed the requesters that they could view documents and make copies between 9:00 am and 10:00 am on a specified date. Wapella responded in this way, for example, to FOIA requests dated January 3 and 6, 2010, seeking copies of village bank statements (2010 PAC 5490); January 5, 20 I0, seeking copies of receipts and deposit records for specific village payments as well as records relating to pubIicly-owned materials discarded as scrap (2010 PAC 5496); January 4, 20 I0, seeking a copy of the village's year end financial report (20 to PAC 5621); January 20 and February 3, 20 I0, seeking water rate reports, a water meter card and account history for the requester, the treasurer's check register and specific invoices to the village (20 10 PAC 5881); and Jeff Justice Village of Wapella March 29, 2010 Page 4 asserted that FOIA provides public bodies the option of simply making public records available for inspection and copying. Wapella's interpretation is unsupported by law. To the contrary, Section 3(b) of FOIA clearly requires public bodies to furnish copies of 2 records in response to requests therefore. We find and conclude that the Village of Wapella has violated Section 3(b) of FOIA by refusing to provide copies of public records to Edward Fleck upon his request. In accordance with this Opinion, the Village of Wapella is directed to immediately provide copies of the records requested by Mr. Fleck, subject only to the payment of any fee properly imposed pursuant to FOIA. Under Section 9.5(f) of FOIA, the Village of Wapella shall either take necessary action immediately to comply with this opinion or shall initiate administrative review under Section 11.5 of FOIA (5 ILCS 140/11.5). This opInIOn shall be considered a final decision of an administrative agency, for purposes of administrative review under the Administrative Review Law, 735 ILCS 5/Art. III. Sincerely, LISA MADIGAN By: Cara Smith Public Access Counselor cc: Edward Fleck 13 Thomas Court Wapella, IL 61777 February J2, 2010, seeking one page of the water deposit receipt report for specific months (20 I0 PAC 6051). 2 More recently, Wapella has responded to FOJA requests by refusing to furnish copies of public records and informing requesters that the responsive records are available for viewing on the village website. (Wapella response to February 23, 2010 FOJA request, 2010 PAC 6 J10; Wapella response to March 7, 20 I0 FOIA request, 20 I0 PAC 6335). This approach also is unsupported by the law and violates Section 3(b)'s express requirement that public bodies furnish copies ofrecords when requesters seek copies.","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A resident asked the Village of Wapella for copies of his water meter records, but the Village told him he could only come to the office to look at them himself. The Attorney General's office ruled that the Village was wrong and that FOIA requires public bodies to provide copies of records when a person asks for them.","card_headline":"A village's water meter records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":217,"orig_master_id":19191,"dup_master_id":19420,"dup_sha256":"a6797b4c6bf8c365fb1a44027c2f35c025828aa127e40da520ea2ea51d92bb93","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2010-04-27","case_number":"2010 PAC 5745","request_numbers":null,"title":"No Authority for Public Body to Charge for Copies for Its Files","filename":"PUBLIC ACCESS OPINION No. 10-002 (Request for Review 2010 PAC 5745).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION No. 10-002 (Request for Review 2010 PAC 5745).pdf","word_count":2144,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a request for review under the Freedom of Information Act concerning the City of Kankakee's authority to charge for copies of public records.","plain_summary":"The requester sought copies of certified payroll and contract records for numerous city contractors, and the city charged him for a second, duplicate set of copies it said it needed to retain in its own FOIA files. The Public Access Counselor held that FOIA requires a public body to bear the cost of maintaining its own recordkeeping copies and does not authorize shifting that cost to the requester as a copying fee. The city was directed to provide the records for a single copying fee or refund the portion of fees attributable to the city's retained duplicate.","holding":"The City of Kankakee has no authority to charge for copies of its files.","legal_question":"Does the City of Kankakee have the authority to charge for copies of public records under the Freedom of Information Act?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3, 5 ILCS 140/6, 5 ILCS 140/1, 5 ILCS 140/11, 735 ILCS 5","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Kankakee","requesting_party":"Power","pac_outcome":"Improperly charged copying fees","pac_law_type":null,"subject_category":"fees","subject_description":"The City of Kankakee attempted to charge a FOIA requester for the cost of producing duplicate copies of records for the City's own retention.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2010-Binding-PAC-Opinions/2010-002.pdf","sha256":"903e915d3f1fb58e20af1839eaf6848ebe867aa2c9b2f2d4464e26eef457e61c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["fees","copying costs","FOIA request","public records"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan April 27, 2010 ATTORNEY GENERAL PUBLIC ACCESS OPINION No. 10-002 (Request for Review 2010 PAC 5745) FREEDOM OF INFORMATION ACT: No Authority for Public Body to Charge for Copies for Its Files Mr. L. Patrick Power _ Assistant City Attorney City of Kankakee 304 South Indiana Avenue Kankakee, Illinois 60901-3904 Dear Mr. Power: This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act (hereinafter FOIA) (5 ILCS 140/9.5(f), added by Public Act Public Act 96-542, effective January 1, 2010). | Findings of Fact On January 6, 2010, Mr. Terry Taylor submitted 15 separate FOIA requests to the City of Kankakee (City). Each FOIA request sought “[c]Jopies of certified payroll from May 1, 2008 to April 30, 2009” and “[c]lopies of contracts from May 1, 2008 to April 30, 2009” for a specified contractor.' On J anuary 8, 2010, Assistant City Attorney L. Patrick Power sent a letter to Mr. Taylor stating that the City would require “an additional five (5) days to respond” to the FOJA Requests. : On January 14, 2010, Mr. Power sent a second letter to Mr. Taylor, stating, in part: ' The 15 contractors included Tri-City Construction; Hoerr Construction, Inc.; Sanchez Environmental; Robert F. Smith Construction; Rick Jones Construction; Lead Abatement Associate; John Burns Construction; Gibson Custom Homes, Inc.; Eubanks Sewer Service; Einfeldt Construction, Inc.; Calhoun Construction; Bittman Tree Service; Ace Remodeling; Pat Hatting; and Pommier Construction Co. 500 South Second Street, Springfield, Illinois 62706 © (217) 782-1090 © TTY: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 ¢ (312) 814-3000 © ‘ITY: (800) 964-3013 ¢ Fax: (312) 814-3806 1001 East Main, Carbondale, Illinois 62901 ¢ (618) 529-6400 © TTY: (877) 675-9339 © Fax: (618) 529-6416 *Gap— a Mr. L. Patrick Power | City of Kankakee April 27, 2010 | Page 2 , | . | With regard to your request for copies of contracts, as well as statements of non- employee compensation, said copies are ready for you to pickup at the City of Kankakee Administration Building, Adjudication Dept. 2\" Floor. .. Enclosed is an Invoice from the City of Kankakee Community Development Agency for the above referred to copies. |Also enclosed is a second invoice for reproducing copies that need to be retained in the FOIA Department. Please bring a check with you when you pickup the above referred to copies.” (Emphasis added.) Pursuant to Section 9.5(a) of FOIA (5 ILCS 140/9.5(a)), on January 28, 2010, Mr. Taylor submitted a Request for Review (RFR) to the Public Access Counselor seeking our review of the City’s authority to require a requester to pay for copies of duplicate records to be retained by the City. On February 9, 2010, we sent a letter to Mr. Taylor and Mr. Power seeking to resolve the matter informally. In the letter, we noted that double chargingi s not proper for one set of records. Mr. Power responded by letter dated February 11, 201 0, and explained the City’s approach to this issue: | The Request for Review may indicate that Mr. Taylor was double charged, however, thati s not what occurred. As I read 5/ILCS 140/6(a) and (b), the Cityi s entitled to charge for documents 15¢ per page in excess of 50 pages of the copying of all black and white letter or legal size documents. In addition, our FOIA office must maintain a complete copy of all documents forwarded in response to any request. In essence, when a person requests records containing 50 pages, 100 pages must be copies [sic] in order for the City to comply. It’s our position that the bill sent to Mr: Taylor was in compliance with the statutes as we have interrupted it [sic]. | Applicable Statutes The authority of the Public Access Counselor to issue a binding opinion is set out in Section 9.5 of the Freedom of Information Act. Pursuant to Section 9.5, a person whose request to inspect or copy a public record has been denied by a public body may, not later than 60 days after the ? In its January 14 Letter, the City indicated that it had responsive documents for only nine of Mr. Taylor’s FOIA Requests. According to a January 13, 2010, invoice, the City’s Community Development Agency charged a total of $146.55 for 977 pages of documents. The City’s Freedom of Information (FOIA) Department’s additional invoice reflects a total charge of $148.05 for duplicate copies. Mr. L. Patrick Power City of Kankakee # April 27, 2010 Page 3 date of the final denial, file a written request for review with the Public Access Counselor establishedi n the Office of the Attorney General. if the Public Access Counselor determines that the alleged violation warrants further review, the Attorney General shall examine thei ssues and the records, shall make findings of fact and conclusions of law, and shalli ssue to the requester and the public body an opinion in response to the request for review. The opinion shall be binding upon both the requester and the public body, subject to administrative review. We find that the Request for Review was timely filed and otherwise complies with the requirements of Section 9.5 of FOIA. 3 | With respect to the substantive issue raised by Mr. Taylor’s Request For Review, Section 3 of FOIA (5 ILCS 140/3 (West 2008, as amended by Public Act 96-542, effective January 1, 2010), provides: (a) Each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act. * KK ; (b) Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person who submits a request, a copy of any public record required to be disclosed by subsection (a) of this Section and shall certify such copy if so requested. (Emphasis added.) Section 6 of FOIA (5 ILCS 140/6 (West 2008, as amended by Public Act 96- 542, effective January 1, 2010), provides: | (b) Except when a fee is otherwise fixed by statute, each public body may charge fees reasonably calculated to reimburse its actual cost for reproducing and certifying public records and for the use, by any person, of the equipment of the public body to copy records. No fees shall be charged for the first 50 pages of ~ black and white, letter or legal sized copies requested by a requester. The fee for . black and white, letter or legal sized copies’ shall not exceed 15 cents per page. * * * The City has interpreted FOIA to require that a public body must, in every case, maintain an additional, separate copy of all documents furnished to a requester and may charge the requester a fee for creating this separate copy. Section 3.5 of FOIA (5 ILCS 140/3.5, added by Public Act - 96-542, effective January 1, 2010), provides: Upon receiving a request for a public record, the Freedom of Information officer shall: (1) note the date the public body receives the written request; (2) compute the day on which the period for response will expire and make a notation of that date on the written request; Mr. L. Patrick Power City of Kankakee April 27, 2010 Page 4 (3) maintain an electronic or paper copy of a written request, including all documents submitted with the request until the request has been complied with or denied; and (4) create a file for the retention of the original request, a copy of the response, a record of written communications with the requester, and a copy of . other communications. (Emphasis added.) This section requires that a Freedom of Information Officer (FOIA Officer) retain “a copy of the response” together with the original request. The term “a copy of the response” clearly includes the written document or documents responding to a FOIA request, which may grant the request, or deny it in whole or in part. Section 3.5 does not expressly require that a FOIA Officer retain an additional, separate copy of the documents furnished pursuant to a request. Rather, as long as the FOIA Officer maintains the specified information and communications, Section 3.5 of FOIA will be satisfied. As a practical matter, the FOIA Officer should be prepared to adequately identify and produce, if requested at a later time, the documents that the public body has furnished. For example, if a person requested copies of the minutes of all city council meetings for the previous year, the FOIA Officer is not required to keep a duplicate copy of the minutes that were furnished. Instead, it would be sufficient under the Act for the FOIA Officer to note in the response the specific documents that the public body produced and to maintain a copy of that response. If the FOIA Officer keeps a copy of the response sent to the requester and can identify with certainty the records furnished to the requester and locate those records in the files of the public body, Section 3.5 does not also require the public body to retain a duplicate copy of all of the documents furnished to the requester. We acknowledge that in certain circumstances it will be necessary for a FOIA Officer to retain a copy of a document that has been produced. For instance, where the public body redacts information from a record, retaining a copy of the redacted record would provide the best evidence of what was actually furnished. That does not mean, however, that the public body may shift the cost of preparing the duplicate record to the requester. Section 3(b) of FOIA requires the public body to provide the requester with a copy of any record, and Section 6(b) allows the public body to charge for the cost of reproducing the records. These provisions do not authorize a public body to charge a requester for preparing a duplicate record to maintain in its files. Section | of FOIA (5 ILCS 140/1 (West 2008, as amended by Public Act 96-542, effective January 1, 2010) provides: The General Assembly recognizes that this Act imposes fiscal obligations on public bodies to provide adequate staff and equipment to comply with its requirements. The General Assembly declares that providing records in compliance with the requirements of this Act is a primary duty of public bodies to Mr. L. Patrick Power City of Kankakee April 27, 2010 Page 5 the people of this State, and this Act should be construed to this end, fiscal obligations notwithstanding. The General Assembly clearly recognized in Section 1 that there are costs associated with the duties imposed by FOIA, and that those costs would rest primarily on public bodies. One of the obligations of a public body under Section 3.5 of FOIA is to keep necessary records of the body’s compliance with its requirements. The language of Section 3.5, along with language relating to copies and fees in Sections 3 and 6, does not support an interpretation that allows the public body to charge the requester a fee to create a duplicate set of records for the public body to maintain. As with other records required by law to be maintained by public bodies, the cost of creating and maintaining those records is borne by the public body. Had the General Assembly intended for a public body to be able to shift the costs of its recordkeeping to the requester, it could have expressly done so. It did not. | Conclusions of Law The Public Access Counselor finds and concludes that the City of Kankakee has violated Section 6 of the Freedom of Information Act by improperly charging a copying fee to Mr. Terry Taylor for the production of duplicate records for the use of the City. In accordance with this opinion, the City of Kankakee is directed: (1) to immediately provide copies of the records requested by Mr. Taylor, subject only to the payment of the fee properly imposed pursuant to FOIA for a single copy of each record (in excess of 50 pages); or (2) alternatively, if Mr. Taylor has paid the disputed fee, to refund to Mr. Taylor the amount of the copying fees attributable to copies produced for retention by the City. The City of Kankakee should discontinue its practice of charging copying fees to a requester for copies to be retained by the City. Under Section 9.5(f) of FOIA, the City of Kankakee shall either take necessary action immediately to comply with this opinion or shall initiate administrative review under Section 11.5 of FOIA (5 ILCS 140/11.5). This opinion shall be considered a final decision of an administrative agency, for purposes of administrative review under the Administrative Review Law, 735 ILCS 5/Art. III. Sincerely, Lisa Madigan Attorney General By: Cara Smith Public Access Counselor","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A citizen requested public records from the City of Kankakee, but the City attempted to charge him for the cost of making extra copies for the City's own internal records. The Attorney General ruled that the City cannot pass the cost of its own administrative record-keeping onto the person making the FOIA request. The City was ordered to provide the records without these extra fees or refund the requester if he had already paid them.","card_headline":"A city's charge for duplicate copies for its own retention","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":218,"orig_master_id":19192,"dup_master_id":19425,"dup_sha256":"76661634f177e8497879f5e19db724e59dc7b754b88384673b38b23f13ee6171","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2010-10-25","case_number":"2010 PAC 11568","request_numbers":null,"title":"Disclosure of Number of Police Officers Assigned to Districts","filename":"PUBLIC ACCESS OPINION No. 11-002 (Request for Review - 2010 PAC 11568).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION No. 11-002 (Request for Review - 2010 PAC 11568).pdf","word_count":1732,"summary":"This document is a Public Access Opinion regarding a FOIA request submitted by Joseph Mahr of the Chicago Tribune for the number of police officers assigned to districts, which was initially denied by the Chicago Police Department.","plain_summary":"The requester, a newspaper reporter, sought the current total number of sworn police officers assigned to each police district, which a police department withheld in full as a vulnerability assessment or security measure. The Public Access Counselor held that the exemption applies only to measures designed to prevent attacks that could destroy or contaminate a community's population or infrastructure, and the department failed to show that disclosing district staffing totals would jeopardize any such security measure. The department was directed to provide the requested staffing records.","holding":"The Department's denial of the FOIA request was not justified under the exemption claimed.","legal_question":"Whether the Chicago Police Department's denial of the FOIA request for the number of sworn officers assigned to each district was justified.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(1), 5 ILCS 140/1, 735 ILCS 4/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(v)","public_body":"Chicago Police Department","requesting_party":"Joseph Mahr, Chicago Tribune","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The disclosure of the number of sworn police officers assigned to specific police districts.","ocr_status":"ok","ocr_quality":91.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2011-Binding-PAC-Opinions/11-002.pdf","sha256":"38fb68693f9dbdf6a6110c09cfba05b05c53db5a3a22708d354d35182b4ef020","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police records","FOIA request","public disclosure","police staffing"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL February 25, 2011 Officer Christopher Bove #8230 Assistant FOIA Officer Chicago Police Department 3510S. Michigan Ave. Chicago, IL 60653 PUBLIC ACCESS OPINION No. 11-002 (Request for Review 2010 PAC 11568) FREEDOM OF INFORMATION ACT: Disclosure of Number of Police Officers Assigned to Districts Dear Officer Bove: This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(, added by Public Act 96-542, effective January 1, 2010). Background On October 25, 2010, Joseph Mahr, a reporter with the Chicage Tribune (Tribune) submitted a FOIA request to the Department which sought records that contain the current sum of the number of sworn officers assigned to each district. On November 1, 2010, the Department denied this FOIA request, citing the Section 7(1)(v) (5 ILCS 140/7(1)(v)) exemption. On December 28, 2010, this Office received the 7ribune’s Request for Review. On January 7, 2011, we notified the Department that we would require additional information in order to determine whether the Department’s response complied with FOIA. Since that time, we have received a written response from the Department (including a partially redacted affidavit of Deputy Superintendent Ernest T. Brown, dated January 25, 2011) as well as additional correspondence from the Tribune, all of which we have considered in making a determination regarding this matter. Section 1.2 of FOIA (5 ILCS 140/1.2) provides that “[a]ll records in the custody or possession of a public body are presumed to be open to inspection and copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.” Therefore, in the context of a Request for Review, the 500 South Second Street, Springfield, Illinois 62706 © (217) 782-1090 © TTY: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 ©* (312) 814-3000 © ‘TTY: (800) 964-3013 © Fax: (312) 814-3806 1001 East Main, Carbondale, [Minois 62901 © (618) 529-6400 © TTY: (877) 675-9339 ¢ Fax: (618) 529-6416 \n\nBased on the information that you provided and a review of the information on\nyour website, it is clear that you are seeking information derived from data in the requested\nPTAX-203 forms to develop a system listing appraised properties for which access will be\nlimited to paying members. Because you intend to sell access to this information derived from\nthe|public records you are seeking from the Department, your request falls squarely within the\ndefinition of a request made for a \"commercial purpose” in section 2(c-10) of FOIA. To the\nextent that you may also use data to disseminate information to the public on the internet, that\ndoés not appear to be the \"principal purpose\" of your request, therefore your request would still\nbe made for a \"commercial purpose\".\n\nBecause your FOIA request has a commercial purpose, this office is unable to\nreview your allegation that the Department improperly denied your FOIA request. Please note\n\nthat you have the option of filing suit for injunctive or declaratory relief pursuant to section 11 of\nFOIA (5 ILCS 140/11 (West 2012)).\n\nIf you have any questions, please contact re at (312) 814-6756. This letter shall\nserve to close this matter.\n\ntruly yours\n\nSTEVE\n\nAssistant Bureau Chief\nPublic Access Bureau\n34157 £31 comm req sa\n\nce: Via electronic mail\n\nMs. Abbie Reynolds\n\nFreedom of Information Officer\nIllinois Department of Revenue\n101 West Jefferson Street\nSpringfield, Illinois 62702\nREV.FOIAG@illinois.gov\n\n4Vertin Valuation Services, http://vertinvaluation.com/mls_app (last visited March 25, 2015).\n\nSLetter from Steve Vertin to Sarah Pratt, Public Access Counselor, Office of the Attorney General\n(March 14, 2015), at 2.\n\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"PTAX-203 real estate transfer declaration forms","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":853,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-07-19","case_number":null,"request_numbers":["34218"],"title":"First Fire Protection District improperly withheld budget documents under 7(1)(f)","filename":"34218, issued July 19, 2018.pdf","rel_path":null,"word_count":2425,"summary":"The requester sought a budget document presented by the District Administrator during a board meeting, which the District denied as a preliminary draft. The PAC determined the District failed to prove the document was exempt and ordered its disclosure.","plain_summary":"A citizen requested a budget document that was presented during a public fire district meeting. The district refused to release it, claiming it was a 'preliminary draft' that might confuse the public. The Attorney General's office disagreed, ruling that the district did not provide enough evidence to justify keeping the document secret and ordered them to release it.","holding":"The First Fire Protection District of Antioch Township improperly withheld the requested budget documents under section 7(1)(f) of FOIA.","legal_question":"Whether budget documents presented to a public body during a meeting qualify as exempt 'preliminary drafts' under section 7(1)(f) of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7(1)(f)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"First Fire Protection District of Antioch Township","requesting_party":"Anonymous (redacted in source)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"budget records","subject_description":"The request concerned a budget comparison document presented by the District Administrator to the Board of Trustees during a public meeting.","ocr_status":"ok","ocr_quality":95.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_e/34218%2C%20issued%20July%2019%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["budget","preliminary draft","fire district","public records"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF' ILLINOIS\n\nJuly 19, 2018\n\nLisa Madigan\n\nORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Lori Kikos\n\nFOIA Officer\n\nFirst Fire Protection District of Antioch Township\n835 Holbeck Drive\n\nAntioch, Illinois 60002\n\nIkikos@antiochfire. org\n\nRE: FOIA Request\n\nfor Review — 2015 PAC 34218\n\nDear\n\nand Ms. Kikos: \n\nThis determination is issued pursuant to section 9. 5( 1) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the First Fire Protection District of Antioch Township\nDistrict) improperly denied\n\nMarch 11, 2015, FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the District seeking a copy\n\nof the budget that the District Administrator, Mr. Ted Jozewiak, provided to the District' s\ntrustees during the District' s February 12, 2015, Board of Trustees ( Board) meeting. On March\n16, 2015, the District denied the request under section 7( 1)(\n\nf) of FOIA ( 5 ILCS 140/ 7( 1)(\n\nf) \n\nWest 2013 Supp.), as amended by Public Act 98- 695, effective July 3, 2014), stating: \" The\nrequested documents although they may have been discussed at the meeting were not approved; \nin fact no action was taken for or against them. Providing copies of preliminary drafts of the\nrequested documents would only serve to confuse the public and imply that action had been\ntaken.\"' On March 17, 2015, \n\nsubmitted this Request for Review disputing the\n\n16, 2015). \n\nLetter from Lori Kikos, FOIA Officer, First Fire District of Antioch, to\n\nMarch\n\n500 South Second Street, Springfield, Illinois 62706 • (\n\n217) 782- 1090 • TTY: (877) 844- 5461 • Fax: (217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • (\n\n312) 814- 3000 • VEY: (800) 964- 3013 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • (\n\n618) 529- 6400 • TTY: ( 877) 675- 9339 • \n\nFax: ( 618) 529- 6416 - e\n\n\fMs. Lori Kikos\n\nJuly 19, 2018\nPage 2\n\nDistrict' s denial. He stated that Administrator Jozewiak had referenced the budgetary records\n\nduring the meeting. \n\nfor Review to the\n\nOn March 30, 2015, this office sent a copy of the Request\nreview, \nDistrict and requested unredacted copies of the responsive records for our confidential\ntogether with a detailed explanation for its assertion of section 7( 1)(\nf). In particular, this office\nasked the District to address whether the withheld records had been publicly cited and identified\nby the head of the District. On April 3, 2015, the District furnished those records and a written\nresponse, maintaining that its denial was proper. On June 16, 2015, this office sent a follow up\nletter to the District, asking it to explain whether the person with the title of \"District\nAdministrator\" is the \" head of the public body\" under section 2( e) of FOIA ( 5 ILCS 140/ 2( e) \nWest 2012), as amended by Public Acts 98- 806, effective January 1, 2015; 98- 1129, effective\nDecember 3, 2014). On June 23, 2015, the District responded. \n\ndid not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" \nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 ( West 2016). \n\n5 ILCS 140/ 1. 2 ( West 2016). A public body \" has the burden of\n\nSection 7( 1)(\n\nt) of FOIA\n\nSection 7( 1)(\n\nf) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nthat a specific record or relevant portion of a record shall not be\n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except\nexempt when the record is publicly cited and identified by the head of the public body.\" Section\n2( e) of FOIA defines \" head of the public body\" as \" the president, mayor, chairman, presiding\nofficer, director, superintendent, manager, supervisor or individual otherwise holding primary\nexecutive and administrative authority for the public body, or such person' s duly authorized\ndesignee.\" Section 7( 1)(\nf) applies to \" inter- and intra -agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 ( 1st Dist. 2003). The exemption\nis \" intended to protect\namong agency employees before a final decision is made.\" Harwood, 344 I11. App. 3d at 248. \n\nthe communications process and encourage frank and open discussion\n\nThe District stated that the withheld records pertained to a referendum that was on\n\nthe ballot for the April 7, 2015, election, and that \"[ aft the February 12, 2015, meeting the\nDistrict Administrator, Ted Jozefiak, gave the District Trustees rough drafts of budgets he had\n\n\fMs. Lori Kikos\n\nJuly 19, 2018\nPage 3\n\nprepared, one as if the referendum passed and one as if referendum failed.\" 2 Administrator\nJozefiak merely handed out the budgets, according to the District; \"There was no analysis or\ndiscussion of the contents by the Trustees nor at any time were the drafts publicly cited by the\nTrustees.\" 3 The District asserted that the budgets were properly withheld as preliminary drafts so\nthat they would not \" be mistakenly interpreted as the District's plans for the future[.]\"^ \n\nThis office has reviewed unredacted copies of the withheld budgets as well as the\n\nminutes of the February 12, 2015, meeting during which the District Administrator passed the\nbudgets out to the trustees. The pertinent portion of the minutes provides, in full: \n\nTed handed out copies of the first drafted budget of 2015- \n2016 with numbers that reflect if the referendum passes or fails, \nplease look over. Ted mentioned that chief sent out an e- mail\nlease is ending and the district will be out\nregarding the Denali\n962. 00 a month. Ted also mentioned that a Lake County sheriff\n\nhad wondered if they can store one of their special\nresponse\nvehicles at station 3, as they need to get it out of the old lake\ncounty fairgrounds location. Trustees asked that Ted look into a\nmonthly fee to be charged and chief will need to know who needs\naccess to the building to give them a key fob if this is approved. \nTed also looked into a loan of $750, 000 at 3- 31/ 2%. Trustee Van\nPatten stated she looked into a line of credit instead of a loan as she\nfeels this would work out better for the district of only borrowing\nwhat they would need, and is checking on the rates. A lengthy\ndiscussion ensued regarding the amount of crews the district would\nbe able to pay for if the referendum failed. In summary the\ntrustees said they would pay for 3 employees and 1 metro\n\npersonne1J51\n\nThus, it appears that Administrator Jozefiak led the trustees in a substantial discussion of the\nprojected budgetary impact of the impending referendum. \n\n2Letter from Daniel B. Venturi, Law Offices of Daniel B. Venturi Ltd., to Josh Jones, Assistant\n\nAttorney General, Office of the Attorney General ( April 3, 2015), at\n\n1. \n\nLetter from Daniel B. Venturi, Law Offices of Daniel B. Venturi Ltd., to Josh Jones, Assistant\n\nAttorney General, Office of the Attorney General ( April 3, 2015), at\n\n1. \n\nLetter from Daniel B. Venturi, Law Offices of Daniel B. Venturi Ltd., to Josh Jones, Assistant\n\nAttorney General, Office of the Attorney General ( April 3, 2015), at 2. \n\n5First Fire Protection District of Antioch Township, Meeting, February 12, 2015, Minutes 3. \n\n\fMs. Lori Kikos\n\nJuly 19, 2018\nPage 4\n\nIn response to this office' s inquiry about whether Administrator Jozefiak qualified\n\nas the head of the District, the District' s counsel explained: \n\nThe administrator has no such authority. \n\nThe district administrator position is a part time position\nthat acts as a liaison between the Fire Chief, who runs the day to\nday operations, and the Board of Trustees of the District. The\nadministrator does not have any authority to contract on behalf of\nthe District, all such authority is exclusively vested in the Board of\nTrustees and has not been delegated. t61\n\nThe District' s counsel also provided this office with a copy of the job description for the District\nAdministrator position, which, conversely, describes the District Administrator as \" the chief\nexecutive\" of the District. \nIn light of that label and the rest of his job description, it appears that\nAdministrator Jozefiak held primary executive and administrative authority for the District or, at\na minimum, was the duly authorized designee of the Board of Trustees. Accordingly, the issue is\nwhether he \" publicly cited and identified\" the budgetary documents within the meaning of\nsection 7( 1)( f). \n\nIn Dumke v. City of Chicago, 2013 IL App ( 1st) 121668, 994 N. E. 2d 573 ( 2013), \n\nthe Illinois Appellate Court considered whether a public statement by the mayor of the City of\nf). The plaintiff\nChicago \" publicly cited and identified\" a record for purposes of section 7( 1)(\nalleged that then -Mayor Richard Daley waived the section 7( 1)(\nf) exemption with respect to a\nstudy prepared for the Chicago Police Department by an outside consulting firm when he\nreferred to the study during a press conference and in an ensuing press release. Dumke, 2013 IL\nApp ( 1st) 121668, 716, 17, 994 N.E. 2d at 576. At the outset, the court noted that \"[ s] ection\n7( 1)(\nf) does not provide any guidance on how much or how little needs to be said or done to\nconstitute an effective waiver. The parties have not advanced or presented any legislative history\nor citation to any legal authority, nor has our research found any, that assists us in determining\nwhat minimum conduct amounts to public citation and identification.\" Dumke, 2013 IL App\n1st) 121668, ¶ 18, 994 N. E. 2d at 579. In the absence of authority, the court turned to the plain\nlanguage of section 7( 1)(\n\nf) and found it to be unambiguous: \n\nLetter\n\nfrom Daniel B. Venturi, Law Offices of Daniel B. Venturi Ltd., to Josh Jones, Assistant\n\nAttorney General, Office of the Attorney General ( June 23, 2015). \n\nJob Description, District Administrator — Antioch First Fire Protection District ( undated). \n\n\fMs. Lori Kikos\n\nJuly 19, 2018\nPage 5\n\nBoth \" cite\" and \" identify\" have a plain and ordinary meaning, as\nwell as a common understanding. \" Cite\" is defined as, \"[\nmention or bring forward as support, illustration, or proof.\" \nCitation.] \"\n\nIdentify\" means to \" 1 a: to cause to be or become\n\nt] o\n\nidentical b: to conceive as united ( as in spirit, outlook, or principle) \ngroups that are identified with conservation> 2 a: to establish the\nidentity of b: to determine the taxonomic position of (a biological\nspecimen) \" establish the identity of: show or prove the sameness\nof.\" [ Citation.] ( Emphasis in original.) Dumke, 2013 IL App ( 1st) \n121668, ¶ 20, 994 N. E. 2d at 580. \n\nEmploying those definitions, the court determined: \n\nThe mayor cited and identified the report as a \" management\n\nfor his reorganization\n\nstudy requested by Superintendent Weis earlier this year\" and its\npurpose as \" the study of police administration staffing.\" He cited\nthe report and he identified it as support\nplan. Specifically, he stated that Superintendent Weis requested\nthe management study, and as a result of the study, 130 more\npolice officers would be on the streets keeping the city safe. * * * \nThe mayor identified the individuals and businesses that conducted\nthe study and issued the resulting report. He stated that \" the study\nof police administration staffing\" began in 2010 and was\nconducted pro bono by the Civic Consulting Alliance with the\nassistance of Ryan Faye. Mayor Daley also stated that A. T. \nKearney helped with various parts of the review. Mayor Daley not\nonly identified the study and the key players, but personally\nthanked them. The mayor also indicated that the report \" offers\nmany findings and ways that the department will\nimprove its\nmanagement.\" There is no question that the mayor cited and\nin public given that it occurred during a press\nidentified the report\nconference that was later available on the mayor' s YouTube page, \na summary of which was released in printed form. Dumke, 2013\nIL App ( 1st) 121668, ¶ 24, 994 N.E. 2d at 582. \n\nThe court went on to conclude that because the mayor commended the authors of the\nmanagement study and directly referred to the management study to support the reorganization\nplan, the section 7( 1)( f) exemption was waived. Dumke, 2013 IL App ( 1st) 121668, ¶ 28, 994\nN. E. 2d at 583. \n\n\fMs. Lori Kikos\n\nJuly 19, 2018\nPage 6\n\nIn this instance, the evidence is less extensive than it was in Dumke; this office\n\nf). The minutes indicate that during\n\nlacks the benefit of a recording or transcript of the Board's February 12, 2015, meeting. \nNonetheless, it appears that Administrator Jozewiak publicly cited and identified the budget\ncomparisons he prepared within the meaning of section 7( 1)(\nopen session, Administrator Jozewiak cited and identified the documents he passed out to the\ntrustees as showing a comparison of budgetary figures based on whether the referendum passed\nor failed. The minutes further indicate that Administrator Jozewiak discussed the ramifications\nof his budgetary comparison with the trustees, as they considered \" the amount of crews the\ndistrict would be able to pay for if the referendum failed.\" 8 Rather than momentarily\nacknowledging the existence of the budget comparison documents, it appears that Administrator\nJozewiak publicly cited and identified them as showing the consequences in the event that the\nreferendum failed. Under these circumstances, the District did not sustain its burden of\ndemonstrating by clear and convincing evidence that the withheld budgets are exempt\ndisclosure pursuant\n\nf). This office requests that the District provide copies of\n\nto section 7( 1)(\n\nfrom\n\nthose records to\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have questions, you may contact me at\n312) 814- 8413 or jjones@atg. state. il.us. This letter serves to close the matter. \n\nVery truly yours, \n\nOSHJONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n34218 f 71f improper fd\n\nCc: \n\nVia electronic mail\n\nMr. Daniel B. Venturi\n\nLaw Offices of Daniel B. Venturi Ltd. \n\n146 Cedar Avenue\n\nP. O. Box 1107\n\nLake Villa, Illinois 60046\n\ndan@venturilaw. com\n\nFirst Fire Protection District of Antioch Township, Meeting, February 12, 2015, Minutes 3. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A budget comparison document presented to a board","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":854,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-01-13","case_number":null,"request_numbers":["34503"],"title":"Illinois Department of Corrections must disclose contractor-held prescription drug records","filename":"34503, Issued January 13, 2016.pdf","rel_path":null,"word_count":1516,"summary":"The Chicago Tribune requested records of prescription drug orders placed by the Illinois Department of Corrections through private vendors, which the Department initially failed to provide. The PAC determined that the Department must obtain and disclose these records from its contracted healthcare provider, subject to redactions for inmate privacy.","plain_summary":"A reporter requested records of prescription drug orders made by the Illinois Department of Corrections through private vendors. The Attorney General's office ruled that the Department must get these records from its vendor and provide them to the reporter. The Department is allowed to remove personal information that would identify specific inmates to protect their medical privacy.","holding":"The Illinois Department of Corrections is obligated under FOIA to disclose records concerning prescription drug orders held by its contracted healthcare provider.","legal_question":"Whether records of prescription drug orders held by a private contractor on behalf of a public body are subject to disclosure under FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Illinois Department of Corrections","requesting_party":"Ms. Angela Caputo, Chicago Tribune","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"contractor records","subject_description":"Records detailing prescription drug orders placed by the Illinois Department of Corrections through private healthcare vendors.","ocr_status":"ok","ocr_quality":96.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2.5/34503%2C%20Issued%20January%2013%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["contractor records","medical privacy","prescription drugs","inmate records"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nJanuary 13, 2016\n\nVia electronic mail\n\nMs. Angela Caputo, Reporter\nChicago Tribune\n\n[street address redacted for site publication -- see original PDF]\nacaputo@tribune.com\n\nVia electronic mail\n\nMr. Joel Diers\n\nLegal Counsel\n\nIllinois Department of Corrections\n1301 Concordia Court\n\nP.O. Box 19277\n\nSpringfield, [linois 62794-9277\nJoel.diers@doc.illinois.gov\n\nRE: FOIA Request for Review - 2015 PAC 34503; IDOC — 150317195\nDear Ms. Caputo and Mr. Diers:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons stated below, the\nPublic Access Bureau concludes that the Illinois Department of Corrections (IDOC) is obligated\nunder FOIA to disclose certain records concerning prescription drug orders for inmates that are\nin the possession or custody of its contracted healthcare provider.\n\nOn March 17, 2015, Ms. Angelo Caputo, on behalf of the Chicago Tribune,\nsubmitted a FOIA request to IDOC seeking \"complete copies of all vendor invoices, purchase\norders, receipts or other relevant records that detail prescription drug orders placed on behalf of\nthe Illinois Department of Corrections -- through Wexford Health Sources, Inc. [Wexford] or any\nother private vendor -- between fiscal year 2010 and the present.\"' The request further stated:\n\n‘Freedom of Information Act request from Angela Caputo, Reporter, Chicago Tribune, to Illinois\nDepartment of Corrections (March 17, 2015).\n\n500 South Second Street, Springfield, Illinois 62706 + (217) 782-1090 * TTY: (217) 785 -2771 « Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 » TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 * Fax: (618) 529-6416\n\nMs. Angela Caputo\nMr. Joel Diers\nJanuary 13, 2016\nPage 2\n\n\"To be clear, I do not wish to obtain any information about the medical treatment that may have\nbeen prescribed to individuals in the custody of IDOC. | am strictly seeking the details of\nrelevant vendor and payment records.\"” On April 1, 2015, IDOC responded that \"it does not\nmaintain or possess records responsive to your request. Wexford Health Sources [Wexford]\nmaintains these records{.]\"? In her Request for Review, Ms. Caputo asserted that IDOC must\npossess some responsive records because it did not contract with Wexford to provide medical\nservices until 2011. She also contended that responsive records in the possession of Wexford are\nIDOC's public records pursuant to section 7(2) of FOIA (5 ILCS 140/7(2) (West 2014)).\n\nOn April 9, 2015, this office sent a copy of the Request for Review to IDOC and\nasked it to provide a detailed explanation of the specific measures that IDOC took to locate\nresponsive records, including a description of the recordkeeping systems that were searched and\nthe officials who were consulted. We also asked IDOC to provide a copy of its contract with\nWexford, and to respond to the assertion that records in the physical custody of Wexford\nconcerning prescription drug orders placed on behalf of IDOC should be considered IDOC's\npublic records pursuant to section 7(2) of FOIA. IDOC submitted a written response on April\n22, 2015, which stated that prescription drug orders for inmates are maintained in each inmate's\nmedical file and therefore constitute medical records that are exempt from disclosure under\nsection 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2014)), and are prohibited from being\ndisclosed by the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA)\nPub. L. No. 104-191, 110 Stat. 1936 (1996). Ms. Caputo replied on May 13, 2015, clarifying\nthat she is seeking procurement records that account for IDOC's pharmaceutical purchases. She\nfurther clarified, during a telephone conversation with an Assistant Attorney General in the\nPublic Access Bureau, that she is seeking corporate-level records documenting pharmaceutical\npurchases, and not records from inmates’ medical files.\n\nThis office then requested additional information concerning IDOC’s efforts to\nlocate responsive records. On June 11, 2015, IDOC issued a supplemental response and\nprovided a portion of Wexford's contract with IDOC as well as a subcontract for a\npharmaceutical company that fills prescription drug orders. IDOC provided additional portions\nof its contract with Wexford on August 24, 2015.\n\nFreedom of Information Act request from Angela Caputo, Reporter, Chicago Tribune, to Illinois\nDepartment of Corrections (March 17, 2015).\n\n5Letter from Anne Rayhill, Illinois Department of Corrections, to Angela Caputo, Chicago\nTribune (April 1, 2015).\n\nMs. Angela Caputo\nMr. Joel Diers\nJanuary 13, 2016\nPage 3\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2014). A public body \"has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2014). :\n\nIDOC stated in its supplemental response to this office that \"prescription drug\norders are placed through Wexford[ ]\" and the \"amounts of medications ordered and the\nassociated costs are not maintained by the facilities.\"* The supplemental response also indicated\nthat \"IDOC has contracted [with] Wexford since at least 2007.\"° Wexford's contract shows that\nIDOC and the Illinois Department of Healthcare and Family Services contracted with Wexford\nto provide \"medical, dental, vision, pharmaceutical and mental health services for offenders at\nspecified State correctional centers.\"© Under the contract, Wexford agreed to arrange for\npharmacy services and to provide all medications other than those used to treat Hepatitis C and\nHIV/AIDS.’\n\nIn Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 290 (1976), the United\nStates Supreme Court held that the government has an “obligation to provide medical care for\nthose whom it is punishing by incarceration.\" Section 7(2) of FOIA provides:\n\nA public record that is not in the possession of a public\nbody but is in the possession of a party with whom the agency has\ncontracted to perform a governmental function on behalf of the\npublic body, and that directly relates to the governmental function\n\n‘Letter from Anne Rayhill, Freedom of Information Office, Hlinois Department of Corrections, to\nSteve Silverman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (June\n11, 2015).\n\nSLetter from Anne Rayhill, Freedom of Information Office, Illinois Department of Corrections, to\nSteve Silverman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (June\n11, 2015).\n\n°Contract for the purpose of providing health care to prison inmates, Wexford Health Sources,\nInc., Illinois Department of Healthcare and Family Services, and Hlinois Department of Corrections, §2, May 9,\n2011.\n\nContract for the purpose of providing health care to prison inmates, Wexford Health Sources,\nInc., Illinois Department of Healthcare and Family Services, and Illinois Department of Corrections, Schedule Es,\nExhibit I, May 9, 2011.\n\nMs. Angela Caputo\nMr. Joel Diers\nJanuary 13, 2016\nPage 4\n\nand is not otherwise exempt under this Act, shall be considered a\npublic record of the public body, for purposes of this Act.\n\nAny records in the possession of Wexford documenting prescription drug orders for inmates\ndirectly relate to the governmental function of providing medical care to inmates, a function that\nWexford has agreed to perform on behalf of IDOC. Therefore, even if IDOC does not have\nphysical custody of responsive records, records concerning prescription drug orders for inmates\nin the possession of Wexford are considered IDOC's records under the plain language of section\n7(2) of FOIA, unless they are exempt from disclosure. IDOC has not asserted that records\nmaintained by Wexford — rather than in inmates' medical files - documenting prescription drug\norders for inmates are exempt from disclosure under FOIA. Accordingly, we conclude that the\nrequested records are considered IDOC’s records under section 7(2) of FOIA, and must be\ndisclosed because they relate to the use of public funds for inmates' medical care. See 5 ILCS\n140/2.5 (West 2014)) (\"All records relating to the obligation, receipt, and use of public funds of\nthe State, units of local government, and school districts are public records subject to inspection\nand copying by the public.\").\n\nIn accordance with the conclusions expressed above, this office requests that\nIDOC obtain responsive records from Wexford and furnish them to Ms. Caputo. In addition,\nIDOC should search for and provide records documenting purchases of prescription drugs for\nHepatitis C and AIDS that are not covered by IDOC’s contract with Wexford. If any responsive\nrecords identify individual inmates who were prescribed prescription drugs, their names and\nother identifying information may be properly redacted pursuant to section 7(1)(c) of FOIA (5\nILCS 140/7(1)(c) (West 2014), as amended by Public Act 99-298, effective August 6, 2015),\nwhich exempts from disclosure information that would constitute an unwarranted invasion of\npersonal privacy. Ill. Ail'y Gen. PAC Reg. Rev, Ltr. 13717, issued June 20, 2011, at 2\n(disclosure of information identifying a specific individual's medical diagnosis and treatment\nwould constitute an unwarranted invasion of personal privacy).\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n(312) 814-6756. This letter serves to close this file.\n\nni\n\n‘STEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n34503 f 3d incomplete sa\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Prescription drug order records held by a contractor","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":855,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-04-04","case_number":null,"request_numbers":["34653"],"title":"Cook County Sheriff's Office did not violate FOIA by classifying SpotCrime.com as commercial requester","filename":"34653, issued April 4, 2017.pdf","rel_path":null,"word_count":2222,"summary":"The Cook County Sheriff's Office designated SpotCrime.com as a commercial and recurrent requester, and the PAC determined this designation was proper because SpotCrime does not meet the FOIA definition of 'news media.'","plain_summary":"SpotCrime.com requested daily crime data from the Cook County Sheriff's Office, which the Sheriff's Office denied by classifying the requester as 'commercial and recurrent.' The Attorney General's office agreed with the Sheriff, finding that SpotCrime does not qualify as 'news media' under the law. This means the Sheriff's Office is allowed to follow the specific, more restrictive procedures for handling requests from commercial entities.","holding":"The Cook County Sheriff's Office did not improperly designate SpotCrime.com as a commercial and recurrent requester.","legal_question":"Whether SpotCrime.com qualifies as 'news media' under FOIA, thereby exempting it from being classified as a 'commercial and recurrent requester' under 5 ILCS 140/3.1 and 3.2.","disposition":"no_violation","primary_statute":["5 ILCS 140/3.1","5 ILCS 140/3.2"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Cook County Sheriff's Office","requesting_party":"SpotCrime.com","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"commercial and recurrent requester","subject_description":"The classification of a data-aggregation website as a commercial and recurrent requester for the purpose of processing FOIA requests for daily crime data.","ocr_status":"ok","ocr_quality":96.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_f/34653%2C%20issued%20April%204%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["commercial requester","recurrent requester","news media","FOIA procedures","crime data"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nApril 4, 2017\n\nVia electronic mail\n\nMr. Brendan J. Healey\nMandell Menkes LLC\n\nOne North Franklin Street, Suite 3600\n\n[street address redacted for site publication -- see original PDF]\nbhealey@mandellmenkes.\n\ncom\n\nVia electronic mail\n\nMs. Elizabeth Scannell\n\nAssistant General Counsel\nOffice of the Cook County Sheriff\nLegal Affairs Division\n\n50 West Washington, Room 704\n\nChicago, Illinois 60602\n\nElizabeth. Scannell@cookcountyil. gov\n\nRE: FOIA Request for Review — 2015 PAC 34653\n\nDear Mr. Healey and Ms. Scannell: \n\nInformation Act ( FOIA) ( 5 ILCS 14019. 5( f) (West 2014)). For the reasons that follow, the\n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nPublic Access Bureau concludes that the Cook County Sheriffs Office ( Sheriffs Office) did not\nimproperly designate SpotCrime. com ( SpotCrime) as a commercial and recurrent\n\nrequester. \n\nAccording to correspondence provided by the parties, \n\non\n\nbehalf of SpotCrime, began submitting FOIA requests to the Sheriff' s Office for crime data\nbeginning in September, 2014. On March 5, 2015, SpotCrime requested that the Sheriffs Office\nfurnish data on a daily basis. On March 13, 2015, the Sheriff' s Office responded that it could\nprovide the requested data on a monthly basis, but not on a daily basis. SpotCrime continued to\nsubmit FOIA requests on a daily basis for certain crime data, namely the block number of the\nlocation where the crime occurred, the date of the incident, and the type of crime. On April 7, \n\n2015, the Sheriffs Office notified SpotCrime that its FOIA requests would be treated as having a\n\n500 South Second Street, Springfield, \n\nIllinois 62706 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • \n\nFax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • (\n\n618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Brendan J. Healey\nMs. Elizabeth Scannell\n\nApril 4, 2017\n\nPage 2\n\ncommercial purpose\" and being from a \" recurrent requester\" pursuant to sections 3. 1 ( 5 ILCS\n140/ 3. 1 ( West 2014)) and 3. 2 of FOIA ( 5 ILCS 140/ 3. 2 ( West 2014)), respectively. On April 8, \n2015, SpotCrime reiterated its request\nthat crime data be provided on a daily basis, and asserted, \nSpotCrime publicly reports on the data and as such we are a member of the press.\" I\n\nSheriffs Office and requested that it provide factual information and legal arguments in support\n\nOn April 27, 2015, this office sent a copy of the Request\n\nfor Review to the\n\nof its designation of SpotCrime as a commercial and recurrent requester. This office also\n\nrequested that the Sheriffs Office respond to SpotCrime' s assertion that it should be considered\n\nnews media\" for the purposes of FOIA, as defined by section 2( 0 of FOIA ( 5 ILCS 140/ 2( 0\nWest 2014)). \n\nOn May 6, 2015, the Sheriffs Office submitted a written response to this office. \n\nIt described the course of requests from SpotCrime, and noted that when SpotCrime initially\nsubmitted a FOIA request in September, 2014, it had indicated that the request was made for a\n\ncommercial purpose, and did not object to that designation. The Sheriff's Office further\n\naddressed whether SpotCrime is \" news media\": \" Spotcrime is a privately owned corporation that\nmakes commercial use of incident - level crime reports. Spotcrime makes crimemapping data\navailable to its ' users' and contracted subscribers for a fee. Even where those contracted\n\nsubscribers are members of the media, Spotcrime maintains a commercial\nthe crime data.\" 2\n\ninterest\n\nin providing\n\nSpotCrime, and on June 2, 2015, SpotCrime replied. It described its services in further detail: \n\nOn May 7, 2015, this office forwarded a copy of the Sheriff' s Office' s response to\n\nSpotCrime owns and operates a website that provides\n\nhighly localized crime news using data drawn from a variety of\n\nsources. * * * \n\nSuch crime data has long been a staple of print news\ncoverage in the form of police blotter sections. SpotCrime delivers\n\nthe data to consumers online and via email alerts. SpotCrime has\n\nmore than one million subscribers to its email alerts, and it sends\n\nmore than 10 million crime alert emails per month, making it the\nlargest crime alerting system in the United States. SpotCrime also\n\n1E -mail from\n\nto Elizabeth Scannell ( April 8, 2015). \n\nBenjamin Reed, Assistant Attorney General, Public Access Bureau ( May 6, 2015), at 4. \n\n2Letter from Elizabeth Scannell, Assistant General Counsel, Office of the Cook County Sheriff to\n\n\fMr. Brendan J. Healey\nMs. Elizabeth Scannell\n\nApril 4, 2017\n\nPage 3\n\nprovides crime data to media organizations and has partnered with\nGannett and Sinclair. l31\n\nSpotCrime argued that it is a \" news service\" as that term is used within FOIA' s definition of\n\nnews media\": \n\nSpotCrime qualifies as a \" news service\" both because it provides\n\nfree crime information to visitors to its websites and also because it\n\nsyndicates and sells crime data to its corporate media clients. Just\n\nas other news services package and sell data and information to\n\nmedia clients, so too does SpotCrime. \n\nIn addition, SpotCrime\n\ndistributes crime news to individual\n\nrecipients at regular intervals\n\nvia electronic push notifications such as email, RSS, and social\n\nmedia. Finally, SpotCrime disseminates information to a\nsignificant cross section of the public. SpotCrime' s website has\nmore than one million unique visits per month. l41\n\nOn August 25, 2016, SpotCrime furnished this office with an example of a crime\n\nalert sent to a subscriber. On January 30, 2017, SpotCrime provided an additional explanation of\nits services to subscribers: \n\nEach one of these [ crime] alerts is unique to the subscriber\n\nby location and radius. SpotCrime readers select a location and a\nradius for the personalized crime news they receive. SpotCrime\nthen provides a specific map and list of crimes for each subscriber. \n\nSpotCrime does not merely send its readers an un -edited\nstream of data. SpotCrime classifies each crime. Assault with a\n\ndeadly weapon, for example, will typically be classified as a\nshooting in the SpotCrime system. Historically, almost all police\ndepartments don't have a specific classification for shooting. \nSpotCrime also weeds non -crime events out of its news update[.] \n\n3Letter from Brendan J. Healey, Mandell Menkes LLC, to Sarah Pratt, Public Access Counselor, \n\nOffice of the Attorney General ( June 2, 2015), at\n\n1. \n\nOffice of the Attorney General ( June 2, 2015), at 2. \n\n4Letter from Brendan J. Healey, Mandell Menkes LLC, to Sarah Pratt, Public Access Counselor, \n\n\fMr. Brendan J. Healey\nMs. Elizabeth Scannell\n\nApril 4, 2017\n\nPage 4\n\nEach SpotCrime subscriber gets localized crime reports\n\nwhenever a crime is proximate to the reader' s address and within\nthe radius the reader has selected. 151\n\nDETERMINATION\n\nSection 2( c- 10) of FOIA ( 5 ILCS 140/ 2( c- 10) ( West 2014)) defines \" commercial\n\npurpose\" as: \n\nthe use of any part of a public record or records, or information\nderived from public records, in any form for sale, resale, or\nsolicitation or advertisement\nthis definition, requests made by news media and non- profit, \nscientific, or academic organizations\n\nfor sales or services. For purposes of\n\nshall not be considered to\n\nbe made for a \" commercial purpose\" when the principal purpose\n\nof the request\n\nis ( i) to access and disseminate information\n\nconcerning news and current or passing events, ( ii) for articles of\nto the public, or ( iii) for the purpose\nopinion or features of interest\n\nof academic, scientific, or public research or education. ( Emphasis\n\nadded.) \n\nSection 2( g) of FOIA ( 5 ILCS 140/ 2( g) ( West 2014)), defines a \" recurrent\n\nrequester\" as: \n\na person that, in the 12 months immediately preceding the request, \nhas submitted to the same public body ( i) a minimum of 50\nrequests for records, ( ii) a minimum of 15 requests for records\n\nwithin a 30 -day period, or ( iii) a minimum of 7 requests for records\nwithin a 7 -day period. For purposes of this definition, requests\nmade by news media and non profit, scientific, or academic\norganizations shall not be considered in calculating the number\nof requests made in the time periods in this definition when the\nprincipal purpose of the requests is ( i) to access and disseminate\ninformation concerning news and current or passing events, ( ii) for\narticles of opinion or features of interest to the public, or ( iii) for\n\nthe purpose of academic, scientific, or public research or\n\neducation. ( Emphasis added.) \n\n5E -mail from Brendan Healey, Mandell Menkes LLC, to\n\nJanuary 30, 2017). \n\n\fMr. Brendan J. Healey\nMs. Elizabeth Scannell\n\nApril 4, 2017\n\nPage 5\n\nAs highlighted above, the definitions of \"commercial purpose\" and \" recurrent\n\nrequester\" both exempt requests from members of the \" news media\" who make requests for\n\ncertain purposes. It is undisputed that SpotCrime has submitted the requisite number of FOIA to\nqualify as a recurrent requester and that its requests would be considered as having a\ncommercial purpose\" if SpotCrime does not meet the \" news media\" exception in sections 2( c- \n10) and 2( g) of FOIA. Therefore, whether the Sheriff' s Office properly designated SpotCrime' s\nrequests as having a \" commercial purpose\" or being from a \" recurrent requester\" hinges on\nwhether the definition of \"news media\" in FOIA applies to SpotCrime\n\nSection 2( f) of FOIA defines \" news media\" in relevant part as a \" newspaper or\n\nother periodical issued at regular intervals whether in print or electronic format, a news service\n\nwhether\n\nin print or electronic\n\nformat[.]\" \n\nIn the context of self -published websites purporting to\n\nbe \" news media,\" this office has opined that the statutory definition of \"news media\" requires\nmore than simply disseminating information through a website or e- mail: \n\nMerely disseminating information or criticism electronically\nthough a website, or via e- mail, does not meet the statutory\ndefinition of \"news media.\" If it did, then any person who chose to\npost an opinion or comment on a matter of public interest\n\nelectronically would become a news medium, which was clearly\nnot the intent of the General Assembly when it enacted the\nexception. Ill. Att'y Gen. PAC Req. Rev. Ltr. 44649, issued\nDecember 2, 2016, at 3 ( quoting Ill. Att'y Gen. PAC Req. Rev. Ltr. \n33323, issued February 13, 2015, at 4). \n\nIn the absence of Illinois law on how to interpret the term \" news media,\" this\n\noffice has found cases from other jurisdictions interpreting similar statutory definitions to be\npersuasive. Those cases hold that \" an individual or entity that self -publishes information on the\nInternet generally must demonstrate some adherence to recognized journalistic standards such as\neditorial oversight or the creation of original content similar to that of traditional media\" in order\n\nto be considered \" news media.\" \nobserved that \"[ t] he General Assembly has not expanded the definition in FOIA to include other\nindividuals or entities apart from those traditional media sources and their electronic versions.\" \nI11. Att' y Gen. PAC Req. Rev. Ltr. 44649, at 5. \n\nI11. Att' y Gen. PAC Req. Rev. Ltr. 44649, at 5. We further\n\nThis office has reviewed the SpotCrime website and the other materials furnished\nby SpotCrime. The SpotCrime website allows the public to access maps consisting of pinpoints\ndesignating the types of crimes reported in a certain area. The crime alerts are similar, but\nprovide customized statistics and maps for subscribers. The fact that SpotCrime provides\n\n\fr. Brendan J. Healey\nMs. Elizabeth Scannell\n\nApril 4, 2017\n\nPage 6\n\npersonalized reports for its subscribers further supports the argument that it has a commercial\npurpose, rather than existing to access and disseminate news of interest to the public at large. \nAlthough SpotCrime tailors data provided to subscribers based on their location and other\npreferences, the essential product of the service is the compilation of data. This product is not\n\noriginal content compiled by journalists using recognized journalistic standards, but instead re- \npackages existing data for particular users, depending on their preferences. The SpotCrime\nservice therefore lacks the essential components of a \" newspaper,\" \" periodical\" or \" news service\" \n\nincluded in FOIA' s definition of \"news media.\" \n\nis analogous to police blotters that historically\nhave been published in newspapers. However, the police blotter is but one component of those\n\nSpotCrime argues that its product\n\ntraditional news publications, not their defining characteristic. \n\nAccordingly, this office concludes that SpotCrime is not \" news media\" as that\n\nterm is defined in FOIA, and the Sheriffs Office did not improperly designate it as a commercial\nand recurrent\nrequests according to the procedures set forth in sections 3.\n\nrequester. Therefore, the Sheriffs Office may respond to SpotCrime' s FOIA\n\n1 and 3. 2 of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at ( 217) 782- 9078 or nolson@atg. state. il. us. \n\nVery truly yours, \n\nNEIL P. OLSON\n\nDeputy Public Access Counselor\nAssistant Attorney General, Public Access Bureau\n\n34653 f 31 comm req 32 rec req proper county\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A data-aggregation website's classification for daily crime data requests","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":856,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-03-04","case_number":null,"request_numbers":["34937"],"title":"Metropolitan Water Reclamation District properly withheld facility plans under 7(1)(k)","filename":"34937, issued March 4, 2016.pdf","rel_path":null,"word_count":1483,"summary":"The requester challenged the Metropolitan Water Reclamation District's denial of records under FOIA section 7(1)(k), which protects documents related to critical infrastructure security. The PAC determined that the District properly withheld the records because their disclosure could compromise the security of the facilities.","plain_summary":"A requester asked for detailed facility plans from the Metropolitan Water Reclamation District, but the District refused to provide them, citing security concerns. The Attorney General's office reviewed the documents and agreed that releasing the technical details of the facility's systems could pose a security risk. Consequently, the PAC closed the case, finding that the District acted within the law.","holding":"The Metropolitan Water Reclamation District properly withheld the requested facility plans under section 7(1)(k) of FOIA.","legal_question":"Whether the Metropolitan Water Reclamation District properly invoked the section 7(1)(k) exemption to withhold technical facility plans that could compromise infrastructure security.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(k)"],"public_body":"Metropolitan Water Reclamation District of Greater Chicago","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"infrastructure security","subject_description":"The request sought detailed engineering plans and system specifications for existing water reclamation facilities.","ocr_status":"ok","ocr_quality":97,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_k/34937%2C%20issued%20March%204%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["infrastructure security","facility plans","exemption 7(1)(k)","denial of records"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMarch 4, 2016\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Helen Shields Wright\n\nMetropolitan Water Reclamation District of Greater Chicago\n\n100 East Erie Street\n\nChicago, Illinois 60611- 3154\n\nfoiarequest@mwrd. org\n\nRE: FOIA Request for Review — 2015 PAC 34937\n\nDear\n\nand Ms. Wright: \n\nPursuant to section 9. 5( a) of the Freedom of Information Act (FOIA) ( 5 ILCS\n\n140/ 9. 5( a) ( West 2014)), the Public Access Bureau has received a Request\n\nfor Review of the\n\nresponse by the\n\nOn March 16, 2015, \n\nsubmitted a FOIA request\n\nto the District seeking\n\nApril 26, 2015, \n\nrequest pursuant to section 7( 1)( k) of FOIA ( 5 ILCS 140/ 7( 1)( k) ( West 2014)). On\nsubmitted a Request for Review to this office contesting that denial. \n\nOn May 4, 2015, the Public Access Bureau forwarded a copy of the Request\n\nfor\n\nReview to the District and requested unredacted copies of the responsive records for our\nconfidential review, as well as a detailed explanation of the legal and factual bases for the\nDistrict' s assertion of the section 7( 1)( k) exemption. On May 22, 2015, the District provided\nresponsive records for our review, together with a written response asserting that its engineers\nhad indicated \" that the release of any plans of our existing facilities that show locations and\ndetails of structural, electrical, mechanical, process piping or any other related systems constitute\n\n500 South Second Street, Springfield, \nIllinois 62706 • (\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \nFax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale. Illinois 62901 • ( 618) 529- 6400 • TTY: 161 R1 579- 6d61 • Far. ( AIR) 579- rdIF\n\n\fMs. Helen Shields Wright\n\nMarch 4, 2016\n\nPage 2\n\na security risk in that such information could be used in a deliberate attack on our facilities.\" 1\nAdditionally, the District stated that its risk manager determined that \"[ t] he District should not\nrelease drawings of facilities that are existing and in use or may be used. The release of\ninformation contained in these documents could pose a security risk to the District[ ]\"\n23, 2015, \nsimilar records to him, disclosure of the requested records would not compromise security. \n\nreplied and asserted that because the District had previously provided\n\n2 On May\n\nincluded several records he had received with his reply. \n\nOn August 7, 2015, the District sent a supplemental response and provided\n\nand explained that the drawings\n\nelectrical drawings for Division Q to our office and to\nthat has been removed, is no longer in service\nwere provided because they \" contain equipment\nand do not include or reference any service buildings or equipment.\"3 The District, however, \nstated in its supplemental\nresponse that its Executive Director previously determined \" that any\ndrawings of existing facilities should not be released to the public because of the potential\nsecurity risk or threat as contemplated by [ section 7( 1)( k)] under FOIA since such disclosure\nreplied by clarifying that he\ncould compromise security[.]\nrequested mechanical drawings and not electrical drawings. On August 31, 2015, the District\nsent another supplemental\nDivision 0 and R mechanical drawings may be disclosed. However, the District continued to\nwithhold mechanical drawings of Division M pursuant\nto section 7( 1)( k), asserting that \" these\nsheets contain existing facilities that are infuse and disclosure to the public represents a possible\n\nresponse after consulting with Engineering staff and determining that\n\ni4 On August 24, 2015, \n\nLetter from Helen Shields Wright, Head Assistant Attorney, Metropolitan Water Reclamation\nDistrict of Greater Chicago, to Lindsey C. Johnson, Assistant Attorney General, Public Access Bureau ( May 22, \n2015), at 3. \n\nDistrict of Chicago, to Lindsey C. Johnson, Assistant Attorney General, Public Access Bureau ( May 22, 2015), at 4.. \n\nLetter from Helen Shields Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\nDistrict to Lindsey Johnson, Assistant Attorney General, Office of the Illinois Attorney General ( August 7, 2015), at\n\nLetter from Helen Shields Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\nLetter from Helen Shields Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Lindsey C. Johnson, Assistant Attorney General, Public Access Bureau ( August 7, \n2015), at 2. \n\n\fMs. Helen Shields Wright\n\nMarch 4, 2016\n\nPage 3\n\npotential threat or compromise of security for same. i5 Division 0 and R mechanical drawings\nwere provided to this office and to\n\nwho confirmed receipt of the drawings on\n\nSeptember 9, 2015. On September 13, 2015, \nprovided him with records similar to the mechanical drawings that it continued to withhold, and\n\nreplied that the District had previously\n\nthat disclosure of those records would not compromise security. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2014); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 I11. 2d 390, 415 ( 2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 ( West 2014). \n\nSection 7( 1)( k) exempts from disclosure: \n\nArchitects' plans, engineers' \n\ntechnical submissions, and\n\nother construction related technical documents for projects not\n\nconstructed or developed in whole or in part with public funds and\n\nthe same for projects constructed or developed with public funds, \n\nincluding but not limited to power generating and distribution\nstations and other transmission and distribution facilities, water\n\ntreatment facilities, airport facilities, sport stadiums, convention\n\ncenters, and all government\n\nowned, operated, or occupied\n\nbuildings, but only to the extent that disclosure would\ncompromise security. ( Emphasis added.) \n\nSection 7( I)( k) is partly intended to prevent the disclosure of records that could\n\nendanger public property: \" The issue is important in this day of threatened terrorism. We' re\n\nalways on alert * * * \n\nfor these facilities to be accessed by individuals that would do harm to the\npublic[.]\" Remarks of Representative Burke, May 14, 2003, House Debate on Senate Bill 1034, \nwhich as Public Act 325, effective July 23, 2003, amended section 7( 1)( k) to include technical\n\n5Letter from Helen Shields Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Piya Mukherjee, Assistant Attorney General, Office of the Illinois Attorney General, \nState of Illinois, Public Access Bureau ( August 31, 2015). \n\n\fMs. Helen Shields Wright\n\nMarch 4, 2016\n\nPage 4\n\nrecords concerning water treatment facilities, sports stadiums and other specific public buildings\nand facilities, at 160. Public Act 93- 422, effective August 5, 2003, subsequently expanded\nsection 7( 1)( k) to exempt, in addition to architects' plans and engineers' technical submissions, \nother construction related technical documents[.]\" Section 7( 1)( k) has not been interpreted by\nan Illinois reviewing court. \n\nIn its response to the Public Access Bureau, the District explains that all the\n\nrelevant drawings are either for buildings existing and in service or with future service possible. \nFurther, the District contends that the records are \" technical engineering documents related to the\nconstruction of publicly funded government owned building and contain detailed information\nconcerning the function and structure of internal components, which could compromise security\nof the District' s system.\" 6\n\nThis office has reviewed the' records in question. Based upon our review, we\n\nconclude that the records do constitute \" architects' plans, engineers' technical submissions, and\n\nother construction related technical documents\" within the scope of section 7( 1)( k). Further, we\nhave no basis to dispute the District' s assertion that these technical documents contain detailed\ninformation concerning the structural, electrical, mechanical, and process piping which, if\ndisclosed, could compromise security of the facilities. Even assuming\nsimilar records from the District\n7( 1)( k) with respect to other records or require the District to provide him with the records in\nquestion. Accordingly, we conclude that the District did not improperly withhold these records\nunder section 7( 1)( k) of FOIA. \n\nhas received\nin the past, FOIA does not preclude the District from asserting\n\nIn accordance with the conclusions expressed in this letter, the District has\n\nproperly withheld the documents responsive to\n\nrequest. The Public Access Counselor\n\n6Letter from Helen Shields Wright, Head Assistant Attorney, Metropolitan Water Reclamation\nDistrict of Greater Chicago, to Lindsey C. Johnson, Assistant Attorney General, Public Access Bureau ( May 22, \n2015), at3. \n\n\fMs. Helen Shields Wright\n\nMarch 4, 2016\n\nPage 5\n\nhas determined that resolution of this matter does not require the issuance of a binding opinion. \nIf you have any questions, please contact me at ( 312) 814- 5206. This letter shall serve to close\nthis matter. \n\n34937 f 71k proper spd\n\nS. PIYA MUKHERJI E\n\nAssistant Attorney General\nPublic Access Bureau\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Engineering plans for water reclamation facilities","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":857,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2015-07-14","case_number":null,"request_numbers":["35091"],"title":"University of Illinois properly withheld animal medical records but improperly redacted protocol names","filename":"35091, issued July 14, 2015.pdf","rel_path":null,"word_count":2617,"summary":"The requester sought various records related to a specific laboratory animal at the University of Illinois, but the University redacted and withheld portions of the records. The PAC determined that the University improperly redacted and withheld these records.","plain_summary":"The requester sought an animal's medical and research records from a public university, which withheld the animal's medical records entirely and redacted portions of the related research protocol. The PAC determined the medical records were properly exempt as research materials, but that the university had not shown that the names of individuals, departments, companies, and buildings in the protocol, or the sponsor's identity and the drug or device name, met any claimed exemption, and that only signatures and personal emergency-contact numbers were properly redacted. The university was directed to disclose the remaining redacted information.","holding":"The University of Illinois improperly redacted portions of the Protocol for Animal Use (names of individuals, departments, private companies, and buildings), but properly withheld the animal's medical records in full under section 7(1)(j)(iv) of FOIA. The source text does not state a holding on the drug or device name.","legal_question":"Whether the University of Illinois properly applied FOIA exemptions to withhold and redact records concerning laboratory animal health and research protocols.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(d)(vi)","7(1)(g)","7(1)(j)","7(1)(j)(iv)"],"public_body":"University of Illinois","requesting_party":"Anonymous requester","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"research records","subject_description":"The request concerned medical, intake, and research protocol records for a specific laboratory animal used in university research.","ocr_status":"ok","ocr_quality":95,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_j/35091%2C%20issued%20July%2014%2C%202015.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["laboratory animal","research records","redaction","university records"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 14, 2015\n\nVia electronic mail\n\nMr. Thomas P. Hardy\nExecutive Director and\n\nChief Records Officer\nUniversity of Illinois\n108 Henry Administration Building\n506 South Wright Street, MC-370\nUrbana, Illinois 61801\nfoia@uillinois.edu\n\nRE: FOIA Request for Review — 2015 PAC 35091\n\nDeal ana Mr. Hardy:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that the University of Illinois (University) improperly redacted\nportions of records furnished to a: response to her April 10, 2015, FOIA\nrequest.\n\nOn that date submitted a FOIA request to the University seeking:\n\"any and all intake records, transfer records, daily care logs, animal health records, treatment and\nprogress reports, veterinary reports, necropsy reports, photographs, and videos related to\n[laboratory animal number 2662] (January 1, 2013-present)\" and \"any [ACUC-approved\nprotocols for any project to which this animal has been assigned[.]\"' On May 1, 2015, the\nUniversity provided [vith 47 pages of protocol records with portions redacted and\n\n'Letter frou to Thomas P. Hardy (April 10, 2015).\n\n500 South Second Street, Springfield, Mlinois 62706 + (217) 782-1090 * TTY: (217) 785 -2771 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Ilinois, 60601 + (312) 814-3000 + TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 » Fax: (618) 529-6416\n\nMr. Thomas P. Hardy\nJuly 14, 2015\nPage 2\n\nwithheld the animal's medical records in their entirety, citing sections 7(1)(a), 7(1)(b),\n7(1)(d)(vi), 711 )(g), 70) G), 701)G)(iv), and 7(1)(v) of FOIA (5 ILCS 140/7(1)(a), (1)(b),\n(A) WI), 1g), DO, MOG), C)(v) (West 2014)).\n\nOn May 5, 2015, this office received HR Request for Review contesting\nthe University's response. On May 13, 2015, this office forwarded a copy of the Request for\nReview to the University, asked it to provide unredacted copies of the records for our\nconfidential review, and requested that it provide a detailed explanation for each asserted\nexemption. On May 27, 2015, this office received the University's response together with\nunredacted copies of the records. The University withdrew its assertion of section 7(1)(a) of\nFOIA, but alleged that the animal's medical records are exempt in full under sections 7(1)(b) and\n7(1)(§)iv) of FOIA. The University also asserted that portions of the Protocol for Animal Use\nare exempt under sections 7(1)(d)(vi), 7(1)(g), 7(1)(v) of FOIA. Hid not reply to that\nresponse.\n\nANALYSIS\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2012). FOIA requires that “each public body shall make available to any person\nfor inspection and copying all public records, except as otherwise provided in Sections 7 and 8.5\nof this Act.\" 5 ILCS 140/3(a) (West 2012), as amended by Public Act 98-1129, effective\nDecember 3, 2014. The exemptions from disclosure are to be narrowly construed. See Lieber v.\nBoard of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997).\n\nMedical Research Records\nSection 7(1)(j)(iv) of FOIA exempts from disclosure:\n\n(j) The following information pertaining to educational\nmatters:\n\neK *\n\n(iv) course materials or research materials used by faculty\nmembers.\n\nMr. Thomas P. Hardy\nJuly 14, 2015\nPage 3\n\nThe University asserts that the animal's medical records are exempt from disclosure pursuant to\nsection 7(1)(j)(iv) of FOIA as faculty research materials for a research project to test new\nmedical devices. The University states that:\n\nThe veterinarians who are charged with caring for the animals and\nproviding veterinary support for the research are all faculty\nmembers who use the requested animal health records, treatment\nand progress reports to carry out their duties. These medical\nrecords are maintained by the University as documentation of this\nresearch. They contain information on the device being tested, the\ndog's reaction to the same, the veterinarian's impressions and notes,\nand modifications made to the research.”\n\nBlack's Law Dictionary defines \"research\" as \"[s]erious study of a subject with\nthe purpose of acquiring more knowledge, discovering new facts, or testing new ideas.\" Black's\nLaw Dictionary (10th ed. 2014), at 1500. “Materials” is defined as \"[i]nformation, ideas, data,\ndocuments, or other things that are used in reports, books, films, studies, etc.\" Black's Law\nDictionary (10th ed. 2014), at 1124. The University asserts that the animal's medical records\ncontain \"raw research data\" and \"notes, opinions, and reactions of the veterinarians\" about an\nanimal's reaction to the device being tested.’ This office has reviewed the medical records and\nconcludes that the information withheld consists of data and observations used by faculty\nmembers in the testing of a medical device or drug, and therefore constitute research materials\nexempted from disclosure by section 7(1)(j)(iv) of FOIA. Because those medical records are\nexempt under section 7(1)(j)(iv) of FOIA, we need not determine whether they are also exempt\nunder sections 7(1)(b), 7(1)(f), or 7(1)().\n\nProtocol for Animal Use\n\nThe University asserts that portions of the Protocol for Animal Use and\nmodifications to the Protocol are exempt under sections 7(1)(b), 7(1)(d)(vi), 7(1)(g), 711 )(v) of\nFOIA. Specifically, the University claims that the names of individuals, departments, private\ncompanies, and buildings were properly redacted under sections 7(1)(d)(vi) and 7(1)(v) of FOIA.\n\n*Letter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n(May 26, 2015), at 2.\n\n3Letter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\n\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n(May 26, 2015), at 2-3.\n\na\nMr. Thomas P. Hardy\nJuly 14, 2015\nPage 4\n\nIn addition, the University asserts that the names of the private company sponsors and the names\nof the drug or device being tested are exempt under section 7(1)(g) of FOIA.\n\nSection 7(1)(d)(vi) of FOIA\n\nSection 7(1)(d)(vi) of FOIA exempts \"[r]ecords in the possession of any public\nbody created in the course of administrative enforcement proceedings, and any law enforcement\nor correctional agency for law enforcement purposes, but only to the extent that disclosure would\n* * * endanger the life or physical safety of law enforcement personnel or any other person[.]\"\nThe University has not asserted or established that any of the responsive records were created in\nthe course of an administrative enforcement proceeding or possessed by a law enforcement\nagency for law enforcement purposes. Accordingly, the University has not sustained its burden\nof demonstrating that the records are exempt from disclosure under section 7(1)(d)(vi) of FOIA.\n\nSection 7(1)(v) of FOIA\n\nThe University also redacted the names of individuals, departments, private\ncompanies, and buildings under section 7(1)(v) of FOIA, which exempts from disclosure:\n\nVulnerability assessments, security measures, and response\npolicies or plans that are designed to identify, prevent or respond to\npotential attacks upon a community's population or systems,\nfacilities, or installations, the destruction or contamination of\nwhich would constitute a clear and present danger to the health or\nsafety of the community, but only to the extent that disclosure\ncould reasonably be expected to jeopardize the effectiveness of the\nmeasures or the safety of the personnel who implement them or the\npublic. Information exempt under this item may include such\nthings as details pertaining to the mobilization or deployment of\npersonnel or equipment, to the operation of communication\nsystems or protocols, or to tactical operations.\n\nThe University's response states that the names of the individuals, departments, private\ncompanies, and buildings are considered secure information because \"[g]iven the bomb threat\npreviously received by the University, it is reasonable to conclude that public disclosure of the\nsame will lead to the domestic terrorist threats described above and jeopardize the effectiveness\nof keeping the University community safe.\"*\n\n‘Letter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n(May 26, 2015), at 5.\n\nMr. Thomas P. Hardy\nJuly 14, 2015\nPage 5\n\nRecords that merely identify the names of people, departments, companies, and\nbuildings are not vulnerability assessments, security measures, or response policies or plans\nwithin the scope of section 7(1)(v) of FOIA. Further, the redacted information provides no\ndetails concerning how the University maintains the safety of its personnel and facilities.\nAccordingly, we conclude that the University has not sustained its burden of demonstrating that\nthe names of individuals, departments, corporations, and buildings are exempt from disclosure\nunder section 7(1)(v) of FOIA.\n\nSection 7(1)(g) of FOIA\nSection 7(1)(g) of FOIA exempts from disclosure:\n\nTrade secrets and commercial or financial information\nobtained from a person or business where the trade secrets or\ncommercial or financial information are furnished under a claim\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness, and only insofar as the claim directly applies to the\nrecords requested.\n\nSee also BlueStar Energy Services, Inc. v. Illinois Commerce Com‘n, 374 Il. App. 3d 990, 995\n(1* Dist. 2007) (\"The term trade secret in the context of FOIA has been interpreted to include\ninformation that (1) would either inflict substantial competitive harm or (2) make it more\ndifficult for the agency to induce people to submit similar information in the future” (emphasis in\noriginal.))\n\nThe University states that its animal research involves \"the University, a private\ncompany the University works with on the research and the project sponsor, which is another\nprivate company who is the owner of the drug and/or device that is being tested.\"> The\nUniversity asserts that it has entered into a contractual agreement that requires the sponsor's\nname and the name of the device or drug being tested to be kept confidential, and that the\ndisclosure of this information would cause competitive harm to the sponsor because \"other\ncompanies would know the business practices of the sponsor, what types of research they were\n\nSLetter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\n\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n(May 26, 2015), at 3.\n\nPF\nMr. Thomas P. Hardy\nJuly 14, 2015\n\nPage 6\n\nengaging in, whether they were testing a new drug or device or testing an existing drug or device\nbut for a new purpose.\"®\n\nUnlike circumstances in which trade secrets and commercial or financial\ninformation is provided in the course of bidding on a government contract or in response to a\ngovernment agency's investigation, the name of the drug or device being tested was provided as\npart of joint research by the University and the sponsor. This name however, is a working name\nthat does not identify the specific chemical compound or device. The University's assertion that\ndisclosure of the name would cause competitive harm to the sponsor or make it less likely for\nprivate companies to engage in joint research with the University is largely conclusory and\ndevoid of supporting facts. See Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007,\n1020 (1st Dist. 1994) (holding that public body failed to demonstrate that a list of all vendors of\nlottery tickets in the City of Chicago and their sales data were not exempt under section 7(1)(g)).\nFurther, the records in question relate to public funds and therefore are expressly subject to\ndisclosure pursuant to section 2.5 of FOIA (5 ILCS 140/2.5(West 2012)), which provides: \"All\nrecords relating to the obligation, receipt, and use of public funds of the State, units of local\ngovernment, and school districts are public records subject to inspection and copying by the\npublic.\" See also article VIII, section 1(c) of the IHinois Constitution of 1970: \"[R]Jecords of the\nobligation, receipt and use of public funds of the State, units of local government and school\ndistricts are public records available for inspection by the public according to law.” These\nprovisions illustrate the General Assembly's recognition of a strong public interest in the\ndisclosure of information such as the identity of companies that contract with public bodies to\nperform research and the type of drug or device that is researched pursuant to the contracts.\nAccordingly, we conclude that the University has not sustained its burden of demonstrating by\nclear and convincing evidence this information is exempt from disclosure pursuant to section\n7(1)(g) of FOIA.\n\nSection 7(1)(b) of FOIA\n\nThe University also withheld business addresses, business and emergency contact\ntelephone numbers, business e-mail addresses, and signatures under section 7(1)(b), which\nexempts from disclosure \"private information.\" Section 2(c-5) of FOIA defines \"private\ninformation\" as “unique identifiers\" including \"home or personal telephone numbers,\" \"home\naddress\", and \"personal email addresses.\" (Emphasis added.) In addition, the Public Access\nBureau has also previously determined that signatures constitute \"unique identifiers\" for the\npurposes of section 7(1)(b) of FOIA, and are therefore exempt as private information. Ill. Att'y\nGen. PAC Req. Rev. Ltr. 18410, issued April 5, 2012. Accordingly, the University properly\n\n‘Letter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n(May 26, 2015), at 4.\n\nMr. Thomas P. Hardy\nJuly 14, 2015\nPage 7\n\nredacted individuals’ signatures and personal emergency contact telephone numbers. However,\nbecause business information does not uniquely identify any individual or constitute \"home\" or\n\"personal\" information, we conclude that business addresses, business telephone numbers, and\nbusiness e-mail addresses were improperly redacted under section 7(1)(b) of FOIA.\n\nIn accordance with the conclusions expressed in this letter, this office requests\nthat the University disclose an unredacted copy of the Protocol for Anima! Use and\nmodifications to the protocol with only emergency contact numbers and signatures redacted.\nThe Public Access Counselor has determined that resolution of this matter does not require the\nissuance of a binding opinion. This letter serves to close this matter. If you have any questions,\nplease contact me at the Springfield address on the first page of this letter.\n\nVery truly yours,\n\nMATT HARTMAN\nAssistant Attorney General\nPublic Access Bureau\n\n35091 f 71jiv proper 7idiv 71v 71g improper 71b proper/improper univ\n\nJedlicka, Kathleen\n\nLL\n\nFrom: Jedlicka, Kathleen\n\nSent: Tuesday, July 14, 2015 4:09 PM\n\nTo: ‘novickrebecca@gmail.com’; 'foia@uillinois.edu'\n\nCe: Hartman, Matthew\n\nSubject: PAC Request for Review 35091\n\nAttachments: 35091 f 71jiv proper 71div 71v 71g improper 71b proper improper univ.pdf\n\nPlease find the attached correspondence from AAG Hartman. Please contact us if you have any questions. Thank you.\n\nKatie Jedlicka\n\nAdministrative Clerk\n\nPublic Access Bureau\n\nOffice of the Attorney General, Lisa Madigan\n500 South 2nd Street\n\nSpringfield, IL 62706\n\nE-MAIL CONFIDENTIALITY NOTICE: This electronic mail message, including any attachments, is for the intended recipient(s)\n\nonly. This e-mail and any attachments might contain information that is confidential, legally privileged or otherwise protected or\nexempt from disclosure under applicable law. if you are not a named recipient, or if you are named but believe that you received\nthis e-mail in error, please notify the sender immediately by telephone or return e-mail and promptly delete this e-mail and any\nattachments and copies thereof from your system. If you are not the intended recipient, please be aware that any copying,\ndistribution, dissemination, disclosure or other use of this e-mail and any attachments is unauthorized and prohibited. Your receipt\nof this message is not intended to waive any applicable privilege or claim of confidentiality, and any prohibited or unauthorized\ndisclosure is not binding on the sender or the Office of the Illinois Attorney General. Thank you for your cooperation.\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A requester asked the University of Illinois for medical and research records concerning a specific laboratory animal. The University withheld the animal's medical records in full and redacted portions of the research protocol, citing various legal exemptions. The Attorney General's office reviewed the case and concluded that the animal's medical records were properly withheld as research materials under section 7(1)(j)(iv) of FOIA, but that the University improperly redacted names of individuals, departments, companies, and buildings from the protocol. The provided source text does not include a final conclusion on whether the name of the drug or device being tested was properly withheld.","card_headline":"Animal research protocol and medical records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":858,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-03-31","case_number":null,"request_numbers":["36017"],"title":"Governor's Office improperly withheld correspondence from former official under FOIA exemptions","filename":"36017, issued March 31, 2016.pdf","rel_path":null,"word_count":1560,"summary":"The Associated Press requested correspondence between the Governor's Office and former IDOC Director Donald Stolworthy, which the Governor's Office partially withheld under FOIA exemptions 7(1)(f) and 7(1)(m). The PAC determined that the Governor's Office improperly withheld portions of the requested records.","plain_summary":"The requester sought correspondence between the governor's office and a former state agency director, portions of which the office withheld as deliberative material, attorney-client communications, and personal information. The PAC determined that most of the pre-decisional emails and the personal emails were properly withheld, but that certain factual records and a legal-matter update did not qualify as deliberative or privileged and were improperly withheld. The governor's office was directed to release the improperly withheld records.","holding":"The Governor's Office improperly withheld records that did not qualify for the claimed exemptions under sections 7(1)(f) (deliberative process) or 7(1)(m) (attorney-client privilege), specifically factual records and an update on a legal matter that were not predecisional or privileged.","legal_question":"Whether the Governor's Office properly applied FOIA exemptions 7(1)(f) (preliminary drafts/deliberative process) and 7(1)(m) (attorney-client privilege) to correspondence with a former state official.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)","7(1)(m)","7(1)(c)"],"public_body":"Office of the Illinois Governor","requesting_party":"Mr. John O'Connor (Associated Press)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"correspondence","subject_description":"The request sought correspondence between the Governor's Office and former Department of Corrections Director Donald Stolworthy.","ocr_status":"llm_reocr","ocr_quality":87.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Exception-for-purely-factual-material/36017%2C%20issued%20March%2031%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["governor","correspondence","FOIA exemption","public records"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 31, 2016\n\nVia electronic mail\n\nMr. John O' Connor ( will receive letter only) \nThe Associated Press\n\nStatehouse Pressroom\n\n[street address redacted for site publication -- see original PDF]\njoconnor@ap. org\n\nVia electronic mail\n\nMs. Christina McClernon\n\nAssociate General Counsel/ FOIA Officer\n\nOffice of Governor Bruce Rauner\n\n100 West Randolph, Suite 16- 100\n\nChicago, Illinois 60601\n\nChristina. mcclemon@illinois. gov\n\nRE: FOIA Request\n\nfor Review — 2015 PAC 36017\n\nDear Mr. O' Connor and Ms. McClernon: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2014)). For the reasons stated below, the\nPublic Access Bureau concludes that the Office of the Illinois Governor ( Governor' s Office) \nimproperly denied portions of Mr. John O' Connor's May 22, 2015, FOIA request. \n\nOn that date, Mr. O' Connor, on behalf of the Associated Press, submitted a FOIA\nrequest to the Governor' s Office seeking copies of all correspondence, between May 1, 2015, and\nthe date of the request, exchanged by the Governor' s Office and former Illinois Department of\nCorrections Director Donald Stolworthy. On June 8, 2015, the Governor' s Office provided\ncertain records but withheld others citing sections 70)( f) and 7( 1)( m) of FOIA ( 5 ILCS\n140/ 7( 1)(\n\nf), ( 1)( m) ( West 2014)). Mr. O' Connor' s Request\n\nfor Review disputes the denial of the\n\nrecords that the Governor' s Office withheld. \n\nOn July 6, 2015, this office sent a copy of the Request\n\nfor Review to the\n\n500 South Second Street, Springfield, \n\nIllinois 62706 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. John O' Connor\n\nMs. Christina McClernon\n\nMarch 31, 2016\n\nPage 2\n\nGovernor' s Office and requested copies of the records that were withheld for our confidential\n\nreview, together with a detailed explanation for the applicability of sections 7( 1)(\nThe Governor' s Office furnished those materials on July 27, 2015, adding that some of the\nrecords are exempt from disclosure pursuant to section 7( 1)( c) of FOIA (5 ILCS 140/ 7( 1)( c) \n\nf) and 7( 1)( m). \n\nWest 2014)), as well. The Governor' s Office also provided a confidential response in which it\n\nprovided additional\nexemptions. A copy of the non -confidential response was sent to Mr. O' Connor, who did not\n\ninformation concerning the records and the applicability of the asserted\n\nreply. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2014). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 ( West 2014). \n\nSection 7( 1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nactions are formulated, except\n\nthat a specific record or relevant portion of a record shall not be\n\nf) exemption is equivalent to the deliberative process exemption in the federal FOIA\n\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7( 1)(\n5 U. S. C. § 552( b)( 5) ( 2012)), which applies to \" inter- and intra -agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 ( 1st Dist. 2003). The\nexemption is \" intended to protect the communications process and encourage frank and open\n\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 111. App. \n3d at 248. The deliberative process exemption \" typically does not justify the withholding of\npurely factual material.\" Enviro Tech Intern., Inc. v. United States Environmental Protection\nAgency, 371 F. 3d 370, 374 ( 7th Cir. 2004). Rather, \"[ o] nly those portions of a predecisional\ndocument\nCity of Chicago, 2013 IL App ( 1st) 121846, ¶ 24, 7 N.E. 3d 741, 748 ( 2013), quoting Public\nCitizen, Inc. v. Office of Management & Budget, 598 F. 3d 865, 876 ( D. C. Cir. 2010); see also\nChemical Weapons Working Group v. U.S. E. P.A., 185 F. R. D. 1, 3 ( D. C. Cir 1999), quoting\nDudman Communications v. Department of the Air Force, 815 F. 2d 1565, 1568 ( D.C. Cir. 1987) \n\nthe give and take of the deliberative process may be withheld.\" Kalven v. \n\nthat reflect\n\nT] he critical question is whether ' disclosure of the materials would expose an agency' s\n\ndecision- making process in such a way as to discourage candid discussion within the agency and\nthereby undermine the agency' s ability to perform its functions.\"'). \n\nWe have reviewed the records in question, which consist in large part of inter- \n\nagency and intra -agency e- mails that express opinions and recommendations in the process of\nformulating various actions. Such records are pre -decisional\n\nin nature, and there is no indication\n\n\fMr. John O' Connor\n\nMs. Christina McClernon\n\nMarch 31, 2016\n\nPage 3\n\nthat they were publicly cited or identified by the head of any public body. Accordingly, we\nconclude that the Governor's Office has sustained its burden of demonstrating that those records\nare exempt from disclosure pursuant to section 7( 1)(\n\nf) of FOIA. Because that determination is\n\ndispositive, we decline to address the Governor' s Office' s assertion that those records are exempt\nfrom disclosure pursuant\n\nto section 70)( m) of FOIA. \n\nHowever, the Governor's Office also withheld several e- mails and attachments\n\nthat contain strictly factual information. These include certain facts related to upcoming\nmeetings and an update concerning a legal matter which identifies actions taken by IDOC and\nrelated statistics and other facts. The Governor' s Office has not demonstrated how these records\n\nthe give and take of any deliberative process. \n\nreflect\nIn addition, the withheld records include\ndiscrete e- mails that were sent to third parties and, therefore, do not constitute inter -agency or\nintra -agency communication. Accordingly, we conclude that the Governor' s Office improperly\nwithheld those records pursuant\n\nto section 7( 1)( f) of FOIA. \n\nSection 7( 1)( m) of FOIA\n\nBased on the confidential\n\nresponse provided to this office, it appears that the\n\nGovernor' s Office also withheld the update concerning a legal matter pursuant to section\n70)( m), which exempts from disclosure: \n\nCommunications between a public body and an attorney\n\nrepresenting the public body that would not be subject\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.] \n\nto\n\nCommunications protected by the attorney- client privilege are within the scope of\n\nsection 7( 1)( m). People ex rel. Ulrich v. Stukel, 294 III. App. 3d 193, 201 ( 1st Dist. 1997). A\nparty asserting that a communication to an attorney is protected by the attorney- client privilege\nmust show that: \"( 1) a statement originated in confidence that it would not be disclosed; ( 2) it\nwas made to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices; and ( 3) it remained confidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 ( 2nd\nDist. 2006); see also Hartford Fire Ins. Co. v. Garvey, 109 F. R. D. 323, 327 ( N.D. Cal. 1985) \n\nThe proponent of the privilege carries the burden of establishing all elements of the privilege, \n\nincluding confidentiality, which is not presumed\"); In re General Instrument Corp. Securities\nLitigation, 190 F. R.D. 527, 531 ( N.D. Ill., 2000), quoting U.S. v. Evans, 113 F. 3d 1457, 1461\n7th Cir. 1997) (\" To be privileged, the documents must not only exhibit attorney involvement, \nbut must\n\ninvolve ' a legal adviser acting in his capacity as such.') ( Emphasis added.). The\n\n\fMr. John O' Connor\n\nMs. Christina McClernon\n\nMarch 31, 2016\n\nPage 4\n\nI] n light of the public policy favoring open and accessible\n\nIllinois Supreme Court has declared: \"[\ngovernment documents, the attorney- client exemption * * * \nnarrowly.\" \nIllinois Education Ass' n v. Illinois State Board Of Education, 204 Ill. 2d 456, 470\n2003). A public body that withholds records under section 7( 1)( m) \" can meet its burden only\nby providing some objective indicia that the exemption is applicable under the circumstances.\" \nEmphasis in original.) \n\nIllinois Education Ass' n, 204 I11. 2d at 470. \n\nis to be construed and applied\n\nit conveys factual\n\nNotably, the update on the legal matter is not marked as confidential. Moreover, \ninformation rather than legal advice. The Governor' s Office has not provided\n\nobjective indicia from which this office could determine that the update constitutes a privileged\n\nattorney- client communication. Accordingly, this office concludes that the Governor' s Office\nhas not sustained its burden of demonstrating that the update is exempt from disclosure pursuant\nto section 7( 1)( m) of FOIA. \n\nSection 7( 1)( c) of FOIA\n\nLastly, the Governor' s Office withheld e- mails concerning a personal matter\npursuant\nto section 7( 1)( c) of FOIA, which exempts information the disclosure of which would\nconstitute an unwarranted invasion of personal privacy. We agree that these e- mails, which are\nunrelated to the public duties of the individual whom it concerns, are highly personal\nin nature, \nand that the individual' s right to privacy outweighs any public interest\nin disclosure.' \nAccordingly, we conclude that the Governor' s Office has sustained its burden of demonstrating\nthat those e- mails are exempt from disclosure pursuant to section 7( 1)( c) of FOIA. \n\nIn accordance with the conclusions expressed in this determination, we request\nthat the Governor' s Office furnish copies of the non- exempt records referenced herein to Mr. \nO' Connor. Such records will be specifically identified to the Governor' s Office in an attachment\nwith this determination. \n\nSection 7( 1)( c) defines \"[ u] nwarranted invasion of personal privacy\" as \"\n\nthe disclosure of\n\ninformation that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy\noutweighs any legitimate public interest\nin obtaining the information. The disclosure of information that bears on the\npublic duties of public employees and officials shall not be considered an invasion of personal privacy.\" \n\n\fMr. John O' Connor\n\nMs. Christina McClernon\n\nMarch 31, 2016\n\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756. This letter serves to close this file. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n36017 f 71f proper improper 7I m proper improper 71c proper sa\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 31, 2016\n\nVia electronic mail\n\nMr. John O' Connor (will receive letter only) \nThe Associated Press\n\nStatehouse Pressroom\n\n[street address redacted for site publication -- see original PDF]\njoconnor@ap. org\n\nVia electronic mail\n\nMs. Christina McClernon\n\nAssociate General Counsel/ FOIA Officer\n\nOffice of Governor Bruce Rauner\n\n100 West Randolph, Suite 16- 100\n\nChicago, Illinois 60601\n\nChristina. mcclemon@illinois. gov\n\nRE: FOIA Request\n\nfor Review — 2015 PAC 36017\n\nDear Mr. O' Connor and Ms. McClernon: \n\nThis determination is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2014)). For the reasons stated below, the\nPublic Access Bureau concludes that the Office of the Illinois Governor (Governor's Office) \nimproperly denied portions of Mr. John O' Connor's May 22, 2015, FOIA request. \n\nOn that date, Mr. O' Connor, on behalf of the Associated Press, submitted a FOIA\nrequest to the Governor's Office seeking copies of all correspondence, between May 1, 2015, and\nthe date of the request, exchanged by the Governor's Office and former Illinois Department of\nCorrections Director Donald Stolworthy. On June 8, 2015, the Governor's Office provided\ncertain records but withheld others citing sections 70)(f) and 7(1)(m) of FOIA (5 ILCS\n140/ 7(1)(f), (1)(m) (West 2014)). Mr. O' Connor's Request\n\nfor Review disputes the denial of the\n\nrecords that the Governor's Office withheld. \n\nOn July 6, 2015, this office sent a copy of the Request\n\nfor Review to the\n\nGovernor's Office and requested copies of the records that were withheld for our confidential\n\nreview, together with a detailed explanation for the applicability of sections 7(1)(The Governor's Office furnished those materials on July 27, 2015, adding that some of the\nrecords are exempt from disclosure pursuant to section 7(1)(c) of FOIA (5 ILCS 140/ 7(1)(c) \n\nf) and 7(1)(m). \n\nWest 2014)), as well. The Governor's Office also provided a confidential response in which it\n\nprovided additional\nexemptions. A copy of the non -confidential response was sent to Mr. O' Connor, who did not\n\ninformation concerning the records and the applicability of the asserted\n\nreply. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2014). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2014). \n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nactions are formulated, except\n\nthat a specific record or relevant portion of a record shall not be\n\nf) exemption is equivalent to the deliberative process exemption in the federal FOIA\n\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(5 U. S. C. § 552(b)(5) (2012)), which applies to \" inter- and intra -agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The\nexemption is \" intended to protect the communications process and encourage frank and open\n\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 111. App. \n3d at 248. The deliberative process exemption \" typically does not justify the withholding of\npurely factual material.\" Enviro Tech Intern., Inc. v. United States Environmental Protection\nAgency, 371 F. 3d 370, 374 (7th Cir. 2004). Rather, \"[ o] nly those portions of a predecisional\ndocument\nCity of Chicago, 2013 IL App (1st) 121846, ¶ 24, 7 N.E. 3d 741, 748 (2013), quoting Public\nCitizen, Inc. v. Office of Management & Budget, 598 F. 3d 865, 876 (D. C. Cir. 2010); see also\nChemical Weapons Working Group v. U.S. E. P.A., 185 F. R. D. 1, 3 (D. C. Cir 1999), quoting\nDudman Communications v. Department of the Air Force, 815 F. 2d 1565, 1568 (D.C. Cir. 1987) \n\nthe give and take of the deliberative process may be withheld.\" Kalven v. \n\nthat reflect\n\nT] he critical question is whether ' disclosure of the materials would expose an agency's\n\ndecision- making process in such a way as to discourage candid discussion within the agency and\nthereby undermine the agency's ability to perform its functions.\"'). \n\nWe have reviewed the records in question, which consist in large part of inter- \n\nagency and intra -agency e- mails that express opinions and recommendations in the process of\n\nthat they were publicly cited or identified by the head of any public body. Accordingly, we\nconclude that the Governor's Office has sustained its burden of demonstrating that those records\nare exempt from disclosure pursuant to section 7(1)(f) of FOIA. Because that determination is\n\ndispositive, we decline to address the Governor's Office's assertion that those records are exempt\nfrom disclosure pursuant\n\nto section 70)(m) of FOIA. \n\nHowever, the Governor's Office also withheld several e- mails and attachments\n\nthat contain strictly factual information. These include certain facts related to upcoming\nmeetings and an update concerning a legal matter which identifies actions taken by IDOC and\nrelated statistics and other facts. The Governor's Office has not demonstrated how these records\n\nthe give and take of any deliberative process. \n\nreflect\nIn addition, the withheld records include\ndiscrete e- mails that were sent to third parties and, therefore, do not constitute inter -agency or\nintra -agency communication. Accordingly, we conclude that the Governor's Office improperly\nwithheld those records pursuant\n\nto section 7(1)(f) of FOIA. \n\nSection 7(1)(m) of FOIA\n\nBased on the confidential\n\nresponse provided to this office, it appears that the\n\nGovernor's Office also withheld the update concerning a legal matter pursuant to section\n70)(m), which exempts from disclosure: \n\nCommunications between a public body and an attorney\n\nrepresenting the public body that would not be subject\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.] \n\nto\n\nCommunications protected by the attorney- client privilege are within the scope of\n\nsection 7(1)(m). People ex rel. Ulrich v. Stukel, 294 III. App. 3d 193, 201 (1st Dist. 1997). A\nparty asserting that a communication to an attorney is protected by the attorney- client privilege\nmust show that: \"(1) a statement originated in confidence that it would not be disclosed; (2) it\nwas made to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices; and (3) it remained confidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 (2nd\nDist. 2006); see also Hartford Fire Ins. Co. v. Garvey, 109 F. R. D. 323, 327 (N.D. Cal. 1985) \n\nThe proponent of the privilege carries the burden of establishing all elements of the privilege, \n\nincluding confidentiality, which is not presumed\"); In re General Instrument Corp. Securities\nLitigation, 190 F. R.D. 527, 531 (N.D. Ill., 2000), quoting U.S. v. Evans, 113 F. 3d 1457, 1461\n7th Cir. 1997) (\" To be privileged, the documents must not only exhibit attorney involvement, \n\nI] n light of the public policy favoring open and accessible\n\nIllinois Supreme Court has declared: \"[\ngovernment documents, the attorney- client exemption * * * \nnarrowly.\" \nIllinois Education Ass' n v. Illinois State Board Of Education, 204 Ill. 2d 456, 470\n2003). A public body that withholds records under section 7(1)(m) \" can meet its burden only\nby providing some objective indicia that the exemption is applicable under the circumstances.\" \nEmphasis in original.) \n\nIllinois Education Ass' n, 204 I11. 2d at 470. \n\nis to be construed and applied\n\nit conveys factual\n\nNotably, the update on the legal matter is not marked as confidential. Moreover, \ninformation rather than legal advice. The Governor's Office has not provided\n\nobjective indicia from which this office could determine that the update constitutes a privileged\n\nattorney- client communication. Accordingly, this office concludes that the Governor's Office\nhas not sustained its burden of demonstrating that the update is exempt from disclosure pursuant\nto section 7(1)(m) of FOIA. \n\nSection 7(1)(c) of FOIA\n\nLastly, the Governor's Office withheld e- mails concerning a personal matter\npursuant\nto section 7(1)(c) of FOIA, which exempts information the disclosure of which would\nconstitute an unwarranted invasion of personal privacy. We agree that these e- mails, which are\nunrelated to the public duties of the individual whom it concerns, are highly personal\nin nature, \nand that the individual's right to privacy outweighs any public interest\nin disclosure.' \nAccordingly, we conclude that the Governor's Office has sustained its burden of demonstrating\nthat those e- mails are exempt from disclosure pursuant to section 7(1)(c) of FOIA. \n\nIn accordance with the conclusions expressed in this determination, we request\nthat the Governor's Office furnish copies of the non- exempt records referenced herein to Mr. \nO' Connor. Such records will be specifically identified to the Governor's Office in an attachment\nwith this determination. \n\nSection 7(1)(c) defines \"[ u] nwarranted invasion of personal privacy\" as \"\n\nthe disclosure of\n\ninformation that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy\noutweighs any legitimate public interest\nin obtaining the information. The disclosure of information that bears on the\npublic duties of public employees and officials shall not be considered an invasion of personal privacy.\" \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756. This letter serves to close this file. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n36017 f 71f proper improper 7I m proper improper 71c proper sa","plain_summary_pre_resummarize":"A reporter requested emails and letters between the Governor's office and a former state official. The Governor's office refused to release some of these documents, claiming exemptions under FOIA sections 7(1)(f) (preliminary drafts/deliberative process), 7(1)(m) (attorney-client privilege), and 7(1)(c) (personal privacy). The Attorney General's office reviewed the documents and concluded that the Governor's office properly withheld some records under sections 7(1)(f) and 7(1)(c), but improperly withheld certain factual records and an update under sections 7(1)(f) and 7(1)(m). It requested the Governor's office furnish copies of the non-exempt records to the requester.","card_headline":"Correspondence between a governor's office and a former agency director","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":859,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2015-07-30","case_number":null,"request_numbers":["36229"],"title":"PAC cannot review University of Illinois FOIA denial for commercial purpose","filename":"36229, issued July 30, 2015.pdf","rel_path":null,"word_count":667,"summary":"The requester sought training materials from the University of Illinois, but the PAC determined it lacked jurisdiction to review the denial because the request was made for a commercial purpose.","plain_summary":"A requester asked the University of Illinois for training materials to help his company win a government contract. The Attorney General's office decided it could not help him challenge the University's refusal to provide the records because the law prohibits the PAC from reviewing requests made for commercial purposes. The requester must now file a lawsuit in court if he wishes to pursue the records further.","holding":"The PAC cannot review the denial of a FOIA request when the requester is seeking records for a commercial purpose.","legal_question":"Does the Public Access Counselor have the authority to review a FOIA denial when the underlying request was submitted for a commercial purpose?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/9.5"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(j)(iv)","7(1)(q)"],"public_body":"University of Illinois","requesting_party":"Mr. Tom Ripperda","pac_outcome":"Closed due to commercial purpose","pac_law_type":null,"subject_category":"commercial purpose","subject_description":"The requester sought training materials developed by the University for the Illinois Health Insurance Marketplace to assist in a competitive bidding process.","ocr_status":"ok","ocr_quality":94.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c-10/36229%2C%20issued%20July%2030%2C%202015.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["commercial purpose","PAC jurisdiction","FOIA denial","University of Illinois"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 30, 2015\n\nVia electronic mail\n\nMr. Tom Ripperda\n\nEducational Concepts Unlimited, Inc.\n3301 West Main Street\n\n[street address redacted for site publication -- see original PDF]\nRE: FOIA Request for Review ~ 2015 PAC 36229\nDear Mr. Ripperda:\n\nThe Public Access Bureau received your Request for Review, pursuant to section\n9.5(a) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(c) (West 2014)) concerning a\nFOIA request that you submitted to the University of Illinois (University). For the reasons that\nfollow, the Request for Review process is not available in this instance because you requested\nrecords for a commercial purpose.\n\nOn May 4, 2015, you submitted a FOIA request to the University, which was\nsubsequently narrowed on June 3, 2015, seeking, among other things, copies of a PowerPoint\npresentation and handouts that the University developed pursuant to a contract with the Illinois\nHealth Insurance Marketplace to provide training to assistors and navigators under the Patient\nProtection and Affordable Care Act (42 U.S.C. § 18001 ef seq. (2010)); see also 45 C.F.R. §\n155.205(d) (2015)). On July 2, 2015, the University denied your request for the PowerPoint\npresentation and handouts asserting that those records are exempt from disclosure pursuant to\nsections 7(1)(j)(iv) and 7(1)(q) of FOIA (5 ILCS 140/7(1)()(iv), 711 (q) (West 2014)). On July\n9, 2015, this office received your Request for Review contesting the University's denial.\n\nSection 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2014)) allows a person whose\nFOIA request is denied to seek review of that denial with the Public Access Counselor.\nHowever, section 9.5(b) of FOIA (5 ILCS 140/9.5(b) (West 2014)) creates an exception by\nproviding that a \"person whose request to inspect or copy a public record is made for a\ncommercial purpose as defined in subsection (c-10) of Section 2 of this Act may not file a\nrequest for review with the Public Access Counselor.\" Section 2(c-10) of FOIA (5 ILCS\n140/2(c-10) (West 2014)) defines \"commercial purpose\" as the \"use of any part of a public\n\n500 South Second Street, Springfield, Minois 62706 * (217) 782-1090 + TTY: (217) 785 -2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 » TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 + TTY: (618) 529-6403 + Fax: (618) 529-6416\n\nMr. Tom Ripperda\nJuly 30, 2015\nPage 2\n\nrecord or records, or information derived from public records, in any form for sale, resale, or\nsolicitation or advertisement for sales or services.\" (Emphasis added.) Under section 9.5(b) of\nFOIA, the Public Access Counselor's review process is not available to a person whose request\nwas made for a commercial purpose.\n\nYour FOIA request was not identified on its face as being for a commercial\npurpose. However, your Request for Review clarifies that you are seeking the information in\nquestion for the purpose of placing a bid with the Illinois Department of Health so that your\ncompany can be the lowest bidder and enter into a contract to provide the training to assistors\nand navigators. In other words, you seek to use the information requested from the University to\nsolicit the sale of your training services, which constitutes a \"commercial purpose\" under FOIA.\nBecause you are seeking the PowerPoint presentations and handouts from the University for a\ncommercial purpose, section 9.5(b) of FOIA precludes the Public Access Counselor from\nreviewing this matter. Please note that you have the option of filing suit for injunctive or\ndeclaratory relief pursuant to section 11 of FOIA (5 ILCS 140/11 (West 2014)).\n\nIf you have any questions or would like to discuss this matter, please contact me\nat (312) 814-5201. This letter closes this matter.\n\nVery truly yours,\n\nEDIE STEINBERG\nAssistant Attorney General\nPublic Access Bureau\n\n36229 f no fi war univ\n\nCe: Via electronic mail\nMr. Thomas P. Hardy\nExecutive Director and Chief Records Officer\nUniversity of Illinois\n414 Administrative Office Building\n1737 West Polk Street, MC-971\nChicago, Illinois 60612\nfoia@uillinois.edu\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Training materials for the Illinois Health Insurance Marketplace","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":861,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2015-11-23","case_number":null,"request_numbers":["36450"],"title":"Lake County State's Attorney's Office improperly withheld emails under 7(1)(f) and 7(1)(m)","filename":"36450, issued November 23, 2015.pdf","rel_path":null,"word_count":1303,"summary":"The requester sought correspondence between two individuals regarding an investigation into a school district's financial management, which the Lake County State's Attorney's Office withheld under FOIA exemptions 7(1)(f) and 7(1)(m). The PAC determined that the withheld emails did not qualify as exempt work product or preliminary drafts and ordered their disclosure.","plain_summary":"The requester sought e-mails between a state's attorney's office investigator and a school district official concerning an investigation into the district's finances, which the office withheld as deliberative material and attorney work product. The PAC determined the e-mails merely requested and furnished factual information and did not reflect any deliberative process, legal theories, or litigation strategy, so neither exemption applied. The state's attorney's office was directed to provide the e-mails to the requester.","holding":"The Lake County State's Attorney's Office improperly withheld the requested emails because it did not sustain its burden of proving they were exempt under sections 7(1)(f) or 7(1)(m) of FOIA.","legal_question":"Whether emails between government officials regarding an investigation qualify for the preliminary draft exemption (7(1)(f)) or the attorney work product exemption (7(1)(m)) under FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(f)","5 ILCS 140/7(1)(m)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)","7(1)(m)"],"public_body":"Lake County State's Attorney's Office","requesting_party":"Requester (name redacted in source document)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"investigative records","subject_description":"Correspondence regarding an investigation into the financial management of Township School District 113.","ocr_status":"llm_reocr","ocr_quality":86.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Exception-for-purely-factual-material/36450%2C%20issued%20November%2023%2C%202015.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["preliminary draft","work product","email disclosure","investigative records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"_ OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nNovember 23, 2015\n\nMs. Beth Prager\n\nAssistant State's Attorney\n\nLake County State's Attorney's Office\nLake County Building\n\n18 North County Street\n\nWaukegan, Illinois 60085\n\nRE: FOIA Request for Review — 2015 PAC 36450\n\nDearMMJand Ms. Prager:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons below, the Public\nAccess Bureau concludes that the Lake County State's Attorney's Office (State's Attorney's\n\nOffice) improperly denied ED unc 29, 2015, FOIA request.\n\nOn that date, submitted a FOIA request to the State's Attorney's Office\nseeking copies of all correspondence between Mr. Marc Hansen and Mr. Barry Bolek from 2009\nto the date of the request pertaining to any formal or informal investigation into the financial\nmanagement of Township School District 113 (School District). On July 6, 2015, the State's\nAttorney's Office provided certain records but withheld other records citing sections 7(1)(f) and\n7(1)(m) of FOIA (5 ILCS 140/7(1)¢f), (1)(m) (West 2014)). In her Request for Review, ||\nMB complained that the State's Attorney's Office did not disclose e-mails between Mr. Bolek\n\nand Mr. Hansen.\n\nOn July 31, 2015, this office sent a copy of the Request for Review to the State's\nAttorney's Office and asked it to furnish for our confidential review copies of any e-mails\nbetween Mr. Hansen and Mr. Bolek that were withheld together with a detailed explanation for\nthe applicability of the section 7(1)( and 7(1)(m) exemptions. The State's Attorney provided\n\n500 South Second Street, Springfield, Mlinois 62706 + (217) 782-1090 + TTY: (217) 785 -2771 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 + TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 » TTY: (618) 529-6403 » Fax: (618) 529-6416\n\nMs. Beth Prager\nNovember 23, 2015\nPage 2\n\nthose materials on August 6, 2015. In her reply, asserted that neither exemption\napplies to the requested e-mails.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.” 5 ILCS 140/1.2 (West 2014). A public body \"has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n\n140/1.2 (West 2014).\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption is equivalent to the deliberative process exemption in the federal FOIA\n(5 U.S.C. §552(b)(5) (2012)), which applies to \"inter- and intra-agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The\nexemption is “intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App.\n\n3d at 248.\n\nThe records in question were exchanged by Mr. Bolek, the District's Assistant\nSuperintendent for Finance, and Mr. Hansen, an investigator for the State's Attorney's Office. As\nstated in J FOIA request, the records in question pertain to an investigation of the\nfinancial management of the School District. The State's Attorney's Office characterized the\nrecords as containing \"questions and comments revealing the theories and thought processes\nrelating to a potential criminal prosecution.\"! In support of its assertion that the e-mails fall\nwithin the scope of section 7(1)(f), the State's Attorney's Office cited Harwood, 344 Ill. App. 3d\nat 248 (report prepared for a public body by a consultant with no independent interests was\nproperly withheld under section 7(1)(f)) and The State Journal-Register v. University of Illinois-\nSpringfield, 2013 IL App (4th) 120881, {J 26-28, 994 N.E.2d 705, 713-14 (2013) (e-mail strings\ncontaining staff opinions and general information concerning the University's investigative\nprocess and scheduling of meetings were properly withheld under section 7(1)(£)).\n\nThose cases are inapposite. The e-mails at issue in this matter are not a public\n\n‘Letter from Beth Prager, Assistant State's Attorney, Lake County State's Attorney's Office, to\nSteve Silverman, Assistant Attorney General (August 6, 2015).\n\nPC\nMs. Beth Prager\nNovember 23, 2015\nPage 3\n\nbody's internal communications such as those analyzed by the court in the cited portions of State\nJournal-Register, nor are they communications between a public body and its paid consultant, as\nin Harwood. Rather, the e-mails were exchanged by an investigator for the State's Attorney's\nOffice and a School District official during the State's Attorney's Office's investigation into the\nDistrict's finances. Further, based on our confidential review of the e-mails, they consist of\nexchanges in which factual information is requested and furnished. Although this factual\ninformation may have been used by the State's Attorney's Office in its subsequent deliberations\nabout whether to file criminal charges, the e-mails do not constitute predecisional and\ndeliberative material or reveal the nature of any deliberations. The Illinois Appellate Court has\nheld that it \"is well settled that ‘{o}nly those portions of a predecisional document that reflect the\ngive and take of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL\nApp (ist) 121846, §24, 7 N.E.3d 741, 748 (2013), quoting Public Citizen, Inc. v. Office of\nManagement & Budget, 598 F.3d 865, 876 (D.C.Cir.2010); see also Judicial Watch, Inc. v.\nDep't of Energy, 412 F.3d 125, 131 (D.C. Cir. 2005) (\"the deliberative process privilege does not\nprotect purely factual material contained in privileged documents if the disclosure of such\ninformation would not reveal the nature of the deliberations.\"). Accordingly, we conclude that\nthe State's Attorney's Office has not sustained its burden of demonstrating that the e-mails are\nexempt from disclosure pursuant to section 7(1)(f) of FOIA.\n\nSection 7(1)(m) of FOIA\nSection 7(1)(m) of FOIA exempts from disclosure:\n\nCommunications between a public body and an attorney\n+ * * representing the public body that would not be subject to\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[-]\n\nCiting Illinois Supreme Court Rule 412(j)(),” The State's Attorney's Office asserts\nthat section 7(1)(m) exempts the withheld e-mails from disclosure pursuant to the \"work\nproduct\" doctrine. The parameters of \"work product\" are set out in Illinois Supreme Court Rule\n201(b)(2), which provides that material prepared \"by or for a party in preparation for trial is\nsubject to discovery only if it does not contain or disclose the theories, mental impressions, or\nlitigation plans of the party's attorney.\" Attorney work product is limited to records that \"reveal\nthe shaping process by which the attorney has arranged the available evidence” for trial. Monier\nv. Chamberlain, 35 Ill. 2d 351, 359-60 (1966). In contrast, the e-mails at issue in this matter do\n\n2The Rule provides \"Disclosure under this rule and Rule 413 shall not be required of legal\nresearch or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories\nor conclusions of the State or members of its legal or investigative staffs, or of defense counsel or his staff.\"\n\n\na\nMs. Beth Prager\nNovember 23, 2015\nPage 4\n\nnot contain any findings or recommendations related to legal advice, much less theories, mental\nimpressions, or litigation plans. The e-mails merely request and furnish factual information.\nBecause these e-mails do not reveal any theories, mental impressions, or litigation plans, they are\nnot “work product.” Accordingly, we conclude that the State's Attorney's Office has not\nsustained its burden of demonstrating that the e-mails are exempt from disclosure pursuant to\n\nsection 7(1)(m) of FOIA.\n\nIn accordance with the conclusions expressed in this determination, we request\nthat the State's Attorney's Office provide copies of the e-mails to The Public Access\nCounselor has determined that resolution of this matter does not require the issuance of a binding\nopinion. If you have any questions, please contact me at (312) 814-6756. This letter serves to\n\nclose this file.\n\nVery truly yours,\n\nSTEVE SILVERMAN\nAssistant Bureau Chief\nPublic Access Bureau\n\n36450 £ 71f improper 71m improper sao\n\n\n","full_text_pre_reocr":"_ OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nNovember 23, 2015\n\nMs. Beth Prager\n\nAssistant State's Attorney\n\nLake County State's Attorney's Office\nLake County Building\n\n18 North County Street\n\nWaukegan, Illinois 60085\n\nRE: FOIA Request for Review — 2015 PAC 36450\n\nDearMMJand Ms. Prager:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons below, the Public\nAccess Bureau concludes that the Lake County State's Attorney's Office (State's Attorney's\n\nOffice) improperly denied ED unc 29, 2015, FOIA request.\n\nOn that date, submitted a FOIA request to the State's Attorney's Office\nseeking copies of all correspondence between Mr. Marc Hansen and Mr. Barry Bolek from 2009\nto the date of the request pertaining to any formal or informal investigation into the financial\nmanagement of Township School District 113 (School District). On July 6, 2015, the State's\nAttorney's Office provided certain records but withheld other records citing sections 7(1)(f) and\n7(1)(m) of FOIA (5 ILCS 140/7(1)¢f), (1)(m) (West 2014)). In her Request for Review, ||\nMB complained that the State's Attorney's Office did not disclose e-mails between Mr. Bolek\n\nand Mr. Hansen.\n\nOn July 31, 2015, this office sent a copy of the Request for Review to the State's\nAttorney's Office and asked it to furnish for our confidential review copies of any e-mails\nbetween Mr. Hansen and Mr. Bolek that were withheld together with a detailed explanation for\nthe applicability of the section 7(1)(and 7(1)(m) exemptions. The State's Attorney provided\n\nthose materials on August 6, 2015. In her reply, asserted that neither exemption\napplies to the requested e-mails.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.” 5 ILCS 140/1.2 (West 2014). A public body \"has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n\n140/1.2 (West 2014).\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption is equivalent to the deliberative process exemption in the federal FOIA\n(5 U.S.C. §552(b)(5) (2012)), which applies to \"inter- and intra-agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The\nexemption is “intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App.\n\n3d at 248.\n\nThe records in question were exchanged by Mr. Bolek, the District's Assistant\nSuperintendent for Finance, and Mr. Hansen, an investigator for the State's Attorney's Office. As\nstated in J FOIA request, the records in question pertain to an investigation of the\nfinancial management of the School District. The State's Attorney's Office characterized the\nrecords as containing \"questions and comments revealing the theories and thought processes\nrelating to a potential criminal prosecution.\"! In support of its assertion that the e-mails fall\nwithin the scope of section 7(1)(f), the State's Attorney's Office cited Harwood, 344 Ill. App. 3d\nat 248 (report prepared for a public body by a consultant with no independent interests was\nproperly withheld under section 7(1)(f)) and The State Journal-Register v. University of Illinois-\nSpringfield, 2013 IL App (4th) 120881, {J 26-28, 994 N.E.2d 705, 713-14 (2013) (e-mail strings\ncontaining staff opinions and general information concerning the University's investigative\nprocess and scheduling of meetings were properly withheld under section 7(1)(£)).\n\nThose cases are inapposite. The e-mails at issue in this matter are not a public\n\n‘Letter from Beth Prager, Assistant State's Attorney, Lake County State's Attorney's Office, to\n\nbody's internal communications such as those analyzed by the court in the cited portions of State\nJournal-Register, nor are they communications between a public body and its paid consultant, as\nin Harwood. Rather, the e-mails were exchanged by an investigator for the State's Attorney's\nOffice and a School District official during the State's Attorney's Office's investigation into the\nDistrict's finances. Further, based on our confidential review of the e-mails, they consist of\nexchanges in which factual information is requested and furnished. Although this factual\ninformation may have been used by the State's Attorney's Office in its subsequent deliberations\nabout whether to file criminal charges, the e-mails do not constitute predecisional and\ndeliberative material or reveal the nature of any deliberations. The Illinois Appellate Court has\nheld that it \"is well settled that ‘{o}nly those portions of a predecisional document that reflect the\ngive and take of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL\nApp (ist) 121846, §24, 7 N.E.3d 741, 748 (2013), quoting Public Citizen, Inc. v. Office of\nManagement & Budget, 598 F.3d 865, 876 (D.C.Cir.2010); see also Judicial Watch, Inc. v.\nDep't of Energy, 412 F.3d 125, 131 (D.C. Cir. 2005) (\"the deliberative process privilege does not\nprotect purely factual material contained in privileged documents if the disclosure of such\ninformation would not reveal the nature of the deliberations.\"). Accordingly, we conclude that\nthe State's Attorney's Office has not sustained its burden of demonstrating that the e-mails are\nexempt from disclosure pursuant to section 7(1)(f) of FOIA.\n\nSection 7(1)(m) of FOIA\nSection 7(1)(m) of FOIA exempts from disclosure:\n\nCommunications between a public body and an attorney\n+ * * representing the public body that would not be subject to\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[-]\n\nCiting Illinois Supreme Court Rule 412(j)(),” The State's Attorney's Office asserts\nthat section 7(1)(m) exempts the withheld e-mails from disclosure pursuant to the \"work\nproduct\" doctrine. The parameters of \"work product\" are set out in Illinois Supreme Court Rule\n201(b)(2), which provides that material prepared \"by or for a party in preparation for trial is\nsubject to discovery only if it does not contain or disclose the theories, mental impressions, or\nlitigation plans of the party's attorney.\" Attorney work product is limited to records that \"reveal\nthe shaping process by which the attorney has arranged the available evidence” for trial. Monier\nv. Chamberlain, 35 Ill. 2d 351, 359-60 (1966). In contrast, the e-mails at issue in this matter do\n\n2The Rule provides \"Disclosure under this rule and Rule 413 shall not be required of legal\nresearch or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories\nor conclusions of the State or members of its legal or investigative staffs, or of defense counsel or his staff.\"\n\nnot contain any findings or recommendations related to legal advice, much less theories, mental\nimpressions, or litigation plans. The e-mails merely request and furnish factual information.\nBecause these e-mails do not reveal any theories, mental impressions, or litigation plans, they are\nnot “work product.” Accordingly, we conclude that the State's Attorney's Office has not\nsustained its burden of demonstrating that the e-mails are exempt from disclosure pursuant to\n\nsection 7(1)(m) of FOIA.\n\nIn accordance with the conclusions expressed in this determination, we request\nthat the State's Attorney's Office provide copies of the e-mails to The Public Access\nCounselor has determined that resolution of this matter does not require the issuance of a binding\nopinion. If you have any questions, please contact me at (312) 814-6756. This letter serves to\n\nclose this file.\n\nVery truly yours,\n\nSTEVE SILVERMAN\nAssistant Bureau Chief\nPublic Access Bureau\n\n36450 £ 71f improper 71m improper sao","plain_summary_pre_resummarize":"A requester asked the Lake County State's Attorney's Office for emails between a school district official and an investigator about a school district's finances. The office refused to release them, citing exemptions for preliminary drafts and attorney work product. The Illinois Attorney General's Public Access Bureau reviewed the emails and concluded that the office had not proven the exemptions applied, because the emails were factual exchanges, not deliberative or legal strategy material. The Bureau requested that the office provide the emails to the requester.","card_headline":"Emails about an investigation into a school district's finances","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":862,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2015-09-25","case_number":null,"request_numbers":["36740"],"title":"City of Monticello properly withheld preliminary drafts under section 7(1)(f)","filename":"36740, issued September 25, 2015.pdf","rel_path":null,"word_count":1383,"summary":"A requester challenged the City of Monticello's denial of waste water treatment plant specifications, arguing the records had been publicly cited by the Mayor. The PAC determined that the evidence did not support the claim that the records were publicly cited, and thus the City's denial was proper.","plain_summary":"This determination addressed whether the City of Monticello properly withheld wastewater treatment plant design specifications under FOIA's preliminary-drafts exemption, 5 ILCS 140/7(1)(f). The Public Access Bureau held that the City did not improperly withhold the records because they were preliminary, deliberative materials prepared by the City's engineering consultant and had not yet been presented to or reviewed by the City Council. The Bureau reasoned that section 7(1)(f) covers intra-agency deliberative material, including consultant work product where the consultant represents the public body's interests, and that the exception for records 'publicly cited and identified by the head of the public body' did not apply because the discussion at the relevant council meeting was led by the City superintendent and the consultant, not the Mayor (the head of the public body). The City of Monticello was the public body involved, and the records at issue were consultant-prepared plans and specifications for a wastewater treatment plant.","holding":"Records reflecting a public body's deliberative process with a consulting engineer are exempt under 5 ILCS 140/7(1)(f) unless publicly cited and identified specifically by the head of the public body, not merely discussed by staff or consultants at a public meeting.","legal_question":"Whether the City of Monticello improperly withheld records under the preliminary draft exemption (section 7(1)(f)) after the requester alleged the records had been publicly cited by the head of the public body.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"City of Monticello","requesting_party":"Terry Summers","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"The request concerned technical specifications and plans for a proposed waste water treatment plant.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Exception-when-cited-and-identified-by-head-of-public-body/36740%2C%20issued%20September%2025%2C%202015.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["preliminary draft","engineering plans","public records","FOIA denial"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nSeptember 25, 2015\n\nVia electronic mail\n\nMr. Floyd L. Allsop\nFOIA Officer\n\nCity of Monticello\n\n210 North Hamilton\nMonticello, Illinois 61856\nfoia@cityofmonticello.net\n\nRE: FOIA Request for Review — 2015 PAC 36740\n\nDeal and Mr. Allsop:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that City of Monticello (City) did not improperly withhold\nrecords in violation of FOIA.\n\nOn July 15, 2015, submitted a FOIA request to the City,\n\nwhich included a request for \"[t]he most current plans and specs for the proposed WWTP [waste\nwater treatment plant].\"' On July 22, 2015 and July 29, 2015, the City produced records\nresponsive to BEE request. A fterMBinquired further about the project\nspecifications, the City denied the part of the request relating to the specifications under section\n7(1)(D of FOIA (5 ILCS 140/7(1)(H (West 2014)), on August 4, 2015. On August 6, 2015\nBREN ooretica this Request for Review, asserting that \"[t]he preliminary exemption does\nnot apply because the documents I requested have been publicly cited in city council meetings”\n\n‘E-mail from | OQ Terry Summers, City of Monticello July 15, 2015).\n\n500 South Second Street, Springfield, [inois 62706 * (217) 782-1090 * TTY: (217) 785 -2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 * (312) 814-3000 + TTY: (312) 814-3374 + Fax: (312) 814-3806\n100i East Main, Carbondale, Hlinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 « Fax: (618) 529-6416\n\nMr. Floyd L. Allsop\nSeptember 25, 2015\nPage 2\n\nand \"[t]he city engineer publicly said in a city council meeting that the requested plans and\nspecifications were done.\"?\n\nOn August 17, 2015, we forwarded a copy of the Request for Review to the City\nand requested the withheld responsive records for our confidential review together with a\ndetailed explanation of the factual and legal bases for the assertion of section 7(1)(f) of FOIA.\nThe City responded with an explanation and the requested records. The City stated:\n\nThe City of Monticello is currently working with Fehr-\nGraham, an Engineering and Environmental firm, to complete a\nplan for Waste Water Treatment Plant Improvements. Fehr-\nGraham has provided the City with contract documents and\nspecifications in relation to this plan. * * * These documents are\n\"complete\" in the sense they have been provided to City staff for\nreview, but they remain a work in progress until City Council\nreviews them and makes a determination of the direction this\nproject will go. As of this date these plans have not been provided\nto nor reviewed by City Council. They have been reviewed only\nby City staff in formulating plans for the project under\nconsideration.*\n\nOur office forwarded the City's i: September 11, 2015, and he\nreplied on September 14, 2015. contended that the specifications were discussed\nat the July 13, 2015, City Council meeting, and therefore were not exempt under section 7(1)(f)\nbecause they had been \"publicly cited and identified by the head of the public body.\" During a\ntelephone conversation with an Assistant Attorney General from the Public Access Bureau on\nSeptember 21, 2015, a representative of the City further explained that Fehr-Graham is working\nwith the City as a consulting engineer to design a new treatment plant, and the City continues to\n\nconsider how to move forward with the project.\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2014). FOIA requires that \"each public body shall make available to any person\n\n2E-mail fro Public Access Bureau (August 6, 2015).\n\n“Letter from Floyd L. Allsop, Superintendent of City Services, City of Monticello, to Neil P.\nOlson, Assistant Attorney General, Public Access Bureau (August 24, 2015).\n\n\nMr. Floyd L. Allsop\nSeptember 25, 2015\nPage 3\n\nfor inspection and copying all public records, except as otherwise provided in Section 7 of this\nAct.\" 5 ILCS 140/3(a) (West 2014)).\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption applies to \"inter- and intra-agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The exemption\nalso has been interpreted as extending to communications between a public body and a\nconsultant when \"the consultant does not represent an interest of its own, or the interest of any\nother client, when it advises the [public body] that hires it.\". Harwood, 344 Ill. App. 3d at 248\n(quoting Department of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1,11, 121\nS. Ct. 1060, 1067 (2001)). Section 7(1)(f) is \"intended to protect the communications process\nand encourage frank and open discussion among agency employees before a final decision is\nmade.\" Harwood, 344 Ill. App. 3d at 248.\n\nWe have reviewed the withheld records provided for our confidential review,\nwhich were produced by Fehr-Graham, entitled \"Contract Documents and Specifications for City\nof Monticello Wastewater Treatment Improvements,” and marked as a \"review copy.\" The City\nhas described these records as part of the City's deliberative process in which its engineering\nconsultant advised the City on the options for making improvements to the wastewater treatment\nplant. Although the records were prepared by the consultant, the consultant has not been\nretained as a construction contractor to perform any improvements. Therefore, the consultant\nappears to have been representing the City's interests, rather than just its own interests or the\ninterests of other clients. In sum, these records reflect the process of intra-agency deliberation\nthat is preliminary to any final decision concerning the wastewater treatment plant. Accordingly,\nwe conclude that the withheld records fall within the scope of section 7(1)(f) of FOIA.\n\nhowever, asserts that the section 7(1)(f) exemption is inapplicable\nbecause the records were \"publicly cited and identified by the head of the public body.\" He\npoints to the public discussion about the project at the July 13, 2015, City Council meeting, as\nciting and identifying the withheld documents. See Monticello City Council, Agenda Item 9e\nQuly 13, 2015) (\"Waste Water Treatment Plant Design Discussion (Past, Present & Future) —\nCity Supt. F. Allsop, Engineer Andy Kieser (Fehr Graham)\").\n\nUnder FOIA, the “[h]ead of the public body’ means the president, mayor,\nchairman, presiding officer, director, superintendent, manager, supervisor or individual otherwise\nholding primary executive and administrative authority for the public body, or such person's duly\nauthorized designee.\" 5 ILCS 140/2(e) (West 2014). The Mayor holds the primary executive\n\nMr. Floyd L. Allsop\nSeptember 25, 2015\nPage 4\n\nauthority for the City. See Monticello Code of Ordinances § 31.15 (approved December 9, 2013)\n(\"There is hereby created the Office of the Mayor, who shall be the chief executive officer of the\ncity.\") However, the City states in its August 24, 2015, response that the withheld records had\nnot been provided to or reviewed by the City Council. In addition, we have reviewed the\nminutes from the July 13, 2015, meeting and the video of that meeting available on the City\nwebsite. Our review confirms that the discussion was led by the City superintendent and a\nrepresentative of Fehr-Graham, and that the Mayor did not cite or identify the withheld records.\nTherefore, the available information does not support the assertion that the records were publicly\ncited or identified by the head of the public body. Accordingly, we conclude that the City did\nnot improperly withhold the records pursuant to section 7(1)(f) of FOIA.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at (217) 782-9078 or nolson@atg.state.il.us.\n\nVery truly yours,\n\nNEIL P. OLSON\nAssistant Attorney General\nPublic Access Bureau\n\n36740 f 71f proper mun\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Technical specifications for a waste water treatment plant","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":863,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-02-26","case_number":null,"request_numbers":["37067"],"title":"Illinois Department of Revenue improperly withheld personnel records under 7(1)(c), 7(1)(f), and 7(1)(m)","filename":"37067, issued February 26, 2016.pdf","rel_path":null,"word_count":1043,"summary":"The Associated Press requested records regarding hiring and employment matters sent to the Illinois Department of Revenue by specific individuals, which the Department denied citing exemptions for personal information, deliberative process, and pre-decisional material. The PAC determined the Department improperly withheld the records because they did not qualify as pre-decisional deliberative material.","plain_summary":"The requester sought communications the department's personnel office received regarding hiring and staffing matters, which the department withheld as deliberative material. The PAC determined that the records largely requested and conveyed factual and logistical information rather than opinions or recommendations, so the department did not meet its burden of showing they were exempt as deliberative. The department was directed to furnish the records to the requester.","holding":"The Illinois Department of Revenue improperly denied the request because the withheld records did not constitute pre-decisional deliberative material.","legal_question":"Whether records concerning hiring and employment matters sent to the Department of Revenue by external parties qualify for the deliberative process exemption under section 7(1)(f) of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(f)","7(1)(m)"],"public_body":"Illinois Department of Revenue","requesting_party":"Mr. John O'Connor (Associated Press)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought correspondence regarding state hiring and employment matters sent to the Department of Revenue by various individuals.","ocr_status":"llm_reocr","ocr_quality":89.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Exception-for-purely-factual-material/37067%2C%20issued%20February%2026%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["hiring records","deliberative process","personnel records","FOIA denial"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 26, 2016\n\nVia electronic mail\n\nMr. John O' Connor\n\nThe Associated Press\n\nStatehouse Pressroom\n\n[street address redacted for site publication -- see original PDF]\njoconnor@ap. org\n\nVia electronic mail\n\nMs. Abigail L. Rennolds\n\nFreedom of Information Officer\n\nIllinois Department of Revenue\n\n101 West Jefferson Street, MC 6- 595\n\nSpringfield, Illinois 62702\n\nRev. foia@illinois. gov\n\nRE: FOIA Request for Review — 2015 PAC 37067\n\nDear Mr. O' Connor and Ms. Rennolds: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2014)). For the reasons stated below, the\nPublic Access Bureau concludes that the Illinois Department of Revenue ( Department) \nimproperly denied Mr. John O'Connor's June 24, 2015, FOIA request. \n\nOn that date, Mr. O' Connor, on behalf of the Associated Press, submitted a\n\nnarrowed FOIA request to the Department seeking copies of records concerning hiring or other\nemployment matters that the Department' s personnel/ human resources chief or his or her top\nassistant received from Nancy Kimme, Judith McAnarney, Matt Magalis, and Jason Barclay\nbetween November 5, 2014, and the date of the request. On July l0, 2015, the Department\nprovided a responsive record but denied all other records pursuantto sections 7( 1)( 0 and 7( 1)( m) \nof FOIA ( 5 ILCS 140/ 7( 1)( 0, ( 1)( m) ( West 2014)). Mr. O' Connor' s Request for Review disputes\nthe denial of his request. \n\nOn August 27, 2015, this office sent a copy of the Request for Review to the\n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: ( 2171 785 - 2771 • Fax: ( 217) 782- 7046\nFax: ( 312) 814- 3806\n100 West Randolph Street, Chicago, \n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • \n\nIllinois, 60601 • (\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. John O' Connor\n\nMs. Abigail L. Rennolds\n\nFebruary 26, 2016\nPage 2\n\nDepartment and requested copies of the records that were withheld for our confidential review, \ntogether with a detailed explanation of the applicability of sections 7( 1)( f) and 7( 1)( m). On\nSeptember 15, 2015, the Department\nfurnished the records and a written response in which it\nwithdrew its assertion of section 7( 1)( m) but reiterated that the records are exempt from\ndisclosure pursuant to section 7( 1)( f). Mr. O' Connor did not reply to that response. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2014). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 ( West 2014). \n\nSection 7( 1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nthat a specific record or relevant portion of a record shall not be\n\nf) exemption is equivalent to the deliberative process exemption in the federal FOIA\n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7( 1)(\n5 U. S. C. § 552( b)( 5) ( 2012)), which applies to \" inter- and intra -agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 I11. App. 3d 242, 247 ( 1st Dist. 2003). The\nexemption is \" intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App. \n3d at 248. That exemption \" typically does not justify the withholding of purely factual material.\" \nEnviro Tech Intern., Inc. v. United States Environmental Protection Agency, 371 F. 3d 370, 374\n7th Cir. 2004). Rather, \"[ o] nly those portions of a predecisional document\nthat reflect the give\nand take of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL App\n1st) 121846, ¶ 24, 7 N. E. 3d 741, 748 ( 2013), quoting Public Citizen, Inc. v. Office of\nManagement & Budget, 598 F. 3d 865, 876 ( D. C. Cir. 2010); see also Chemical Weapons\nWorking Group v. US. E.P.A., 185 F. R. D. 1, 3 ( D. C. Cir 1999) (\"[ T] he critical question is\nwhether ' disclosure of the materials would expose an agency' s decision- making process in such a\nway as to discourage candid discussion within the agency and thereby undermine the agency' s\nability to perform its functions.' ( citing Dudman Communications v. Department of the Air\nForce, 815 F. 2d 1565, 1568 ( D. C. Cir. 1987))).[ \n\nThe Department' s response to this office asserted that the records in question are: \n\nBecause Illinois' FOIA statute is based on the federal FOIA statute, decisions construing the\n\nlatter, while not controlling, may provide helpful and relevant precedents in construing the state Act. Margolis v. \nDirector, 111. Department of Revenue, 180 111. App. 3d 1084, 1087 ( 1989). \n\n\fMr. John O' Connor\n\nMs. Abigail L. Rennolds\nFebruary 26, 2016\nPage 3\n\nto the proper running of the state and deliberation on staffing\n\nvital\nare necessary to ensure that the Department continues to provide\nnecessary services to the taxpayers of the State of Illinois. It is\nclear that Ms. McAnarney was working with the Department, \ndiscussing and deliberating on the most effective means of staffing\nand filling vacancies. These determinations are core functions of\nher position and the position of human resources staff of the\nDepartment. \nstaff a position, these employees must be able to honestly and\nopenly communicate their opinions and concerns. t21\n\nIn order to effectively deliberate whether and how to\n\nWe have reviewed the records in question, which mostly request and convey\n\ninformation concerning employees and logistical\n\nfactual\nrecordkeeping. These records do not express opinions or recommendations. The Department\nhas not demonstrated how disclosure of any of the information would discourage candid\ndiscussion or reveal the give and take of the deliberative process. Accordingly, we conclude that\nthe Department has not sustained its burden of demonstrating that the records are exempt from\ndisclosure pursuant\n\ninformation concerning scheduling and\n\nto section 7( 1)(\n\nf) of FOIA. 3\n\nIn accordance with the conclusions expressed in this determination, we request\nfurnish copies of the records in question to Mr. O' Connor. The Public\n\nthat the Department\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\nbinding opinion. If you have any questions, please contact me at ( 312) 814- 6756. This letter\nserves to close this file. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n37067 f 71f improper sa\n\nPublic Health, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau ( September 9, 2015). \n\n2Letter from William Bryant, Acting Freedom of Information Officer, Illinois Department of\n\n3Among other things, Mr. O' Connor' s Request for Review contends that section 7( 1)(\n\nf) does not\n\napply because Ms. McAnarney, as an employee of the Office of the Illinois Comptroller, was not authorized to\nparticipate in deliberations about hiring in other State agencies. Because our determination that the records in\nquestion are not pre -decisional deliberative material\n\nis dispositive, we decline to address that argument. \n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 26, 2016\n\nVia electronic mail\n\nMr. John O' Connor\n\nThe Associated Press\n\nStatehouse Pressroom\n\n[street address redacted for site publication -- see original PDF]\njoconnor@ap. org\n\nVia electronic mail\n\nMs. Abigail L. Rennolds\n\nFreedom of Information Officer\n\nIllinois Department of Revenue\n\n101 West Jefferson Street, MC 6- 595\n\nSpringfield, Illinois 62702\n\nRev. foia@illinois. gov\n\nRE: FOIA Request for Review — 2015 PAC 37067\n\nDear Mr. O' Connor and Ms. Rennolds: \n\nThis determination is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2014)). For the reasons stated below, the\nPublic Access Bureau concludes that the Illinois Department of Revenue (Department) \nimproperly denied Mr. John O'Connor's June 24, 2015, FOIA request. \n\nOn that date, Mr. O' Connor, on behalf of the Associated Press, submitted a\n\nnarrowed FOIA request to the Department seeking copies of records concerning hiring or other\nemployment matters that the Department's personnel/ human resources chief or his or her top\nassistant received from Nancy Kimme, Judith McAnarney, Matt Magalis, and Jason Barclay\nbetween November 5, 2014, and the date of the request. On July l0, 2015, the Department\nprovided a responsive record but denied all other records pursuantto sections 7(1)(0 and 7(1)(m) \nof FOIA (5 ILCS 140/ 7(1)(0, (1)(m) (West 2014)). Mr. O' Connor's Request for Review disputes\nthe denial of his request. \n\nOn August 27, 2015, this office sent a copy of the Request for Review to the\n\nDepartment and requested copies of the records that were withheld for our confidential review, \ntogether with a detailed explanation of the applicability of sections 7(1)(f) and 7(1)(m). On\nSeptember 15, 2015, the Department\nfurnished the records and a written response in which it\nwithdrew its assertion of section 7(1)(m) but reiterated that the records are exempt from\ndisclosure pursuant to section 7(1)(f). Mr. O' Connor did not reply to that response. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2014). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2014). \n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nthat a specific record or relevant portion of a record shall not be\n\nf) exemption is equivalent to the deliberative process exemption in the federal FOIA\n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(5 U. S. C. § 552(b)(5) (2012)), which applies to \" inter- and intra -agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 I11. App. 3d 242, 247 (1st Dist. 2003). The\nexemption is \" intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App. \n3d at 248. That exemption \" typically does not justify the withholding of purely factual material.\" \nEnviro Tech Intern., Inc. v. United States Environmental Protection Agency, 371 F. 3d 370, 374\n7th Cir. 2004). Rather, \"[ o] nly those portions of a predecisional document\nthat reflect the give\nand take of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL App\n1st) 121846, ¶ 24, 7 N. E. 3d 741, 748 (2013), quoting Public Citizen, Inc. v. Office of\nManagement & Budget, 598 F. 3d 865, 876 (D. C. Cir. 2010); see also Chemical Weapons\nWorking Group v. US. E.P.A., 185 F. R. D. 1, 3 (D. C. Cir 1999) (\"[ T] he critical question is\nwhether ' disclosure of the materials would expose an agency's decision- making process in such a\nway as to discourage candid discussion within the agency and thereby undermine the agency's\nability to perform its functions.' (citing Dudman Communications v. Department of the Air\nForce, 815 F. 2d 1565, 1568 (D. C. Cir. 1987))).[ \n\nThe Department's response to this office asserted that the records in question are: \n\nBecause Illinois' FOIA statute is based on the federal FOIA statute, decisions construing the\n\nlatter, while not controlling, may provide helpful and relevant precedents in construing the state Act. Margolis v. \n\nto the proper running of the state and deliberation on staffing\n\nvital\nare necessary to ensure that the Department continues to provide\nnecessary services to the taxpayers of the State of Illinois. It is\nclear that Ms. McAnarney was working with the Department, \ndiscussing and deliberating on the most effective means of staffing\nand filling vacancies. These determinations are core functions of\nher position and the position of human resources staff of the\nDepartment. \nstaff a position, these employees must be able to honestly and\nopenly communicate their opinions and concerns. t21\n\nIn order to effectively deliberate whether and how to\n\nWe have reviewed the records in question, which mostly request and convey\n\ninformation concerning employees and logistical\n\nfactual\nrecordkeeping. These records do not express opinions or recommendations. The Department\nhas not demonstrated how disclosure of any of the information would discourage candid\ndiscussion or reveal the give and take of the deliberative process. Accordingly, we conclude that\nthe Department has not sustained its burden of demonstrating that the records are exempt from\ndisclosure pursuant\n\ninformation concerning scheduling and\n\nto section 7(1)(f) of FOIA. 3\n\nIn accordance with the conclusions expressed in this determination, we request\nfurnish copies of the records in question to Mr. O' Connor. The Public\n\nthat the Department\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\nbinding opinion. If you have any questions, please contact me at (312) 814- 6756. This letter\nserves to close this file. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n37067 f 71f improper sa\n\nPublic Health, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau (September 9, 2015). \n\n2Letter from William Bryant, Acting Freedom of Information Officer, Illinois Department of\n\n3Among other things, Mr. O' Connor's Request for Review contends that section 7(1)(f) does not\n\napply because Ms. McAnarney, as an employee of the Office of the Illinois Comptroller, was not authorized to\nparticipate in deliberations about hiring in other State agencies. Because our determination that the records in\nquestion are not pre -decisional deliberative material\n\nis dispositive, we decline to address that argument.","plain_summary_pre_resummarize":"A reporter requested emails and documents regarding state hiring decisions sent to the Department of Revenue. The Department refused to release them, claiming they were private or part of internal decision-making discussions. The Attorney General's office reviewed the documents and decided they were not protected, ordering the Department to release the records to the reporter.","card_headline":"Correspondence about state hiring sent to a revenue department","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":864,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-01-04","case_number":null,"request_numbers":["37306"],"title":"Governor's Office of Management and Budget improperly withheld PowerPoint under 7(1)(f)","filename":"37306, issued January 4, 2016.pdf","rel_path":null,"word_count":2968,"summary":"The Associated Press requested budget policy reports from the Governor's Office of Management and Budget (GOMB), which GOMB denied by citing the deliberative process exemption. The PAC determined that GOMB failed to provide clear and convincing evidence that the records were exempt and ordered their disclosure.","plain_summary":"A reporter requested budget-related documents from the Governor's budget office, but the office refused to release a PowerPoint presentation, claiming it was part of internal policy discussions. The Attorney General's office reviewed the request and found that the budget office did not prove the document was exempt from public view. Consequently, the office was ordered to release the PowerPoint to the reporter.","holding":"The Governor's Office of Management and Budget improperly withheld a PowerPoint presentation under the deliberative process exemption.","legal_question":"Whether the Governor's Office of Management and Budget properly invoked the deliberative process exemption under section 7(1)(f) of FOIA to withhold a PowerPoint presentation.","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(f)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Governor's Office of Management and Budget","requesting_party":"Mr. John O'Connor (Associated Press)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"The request sought budget policy reports and deliverables produced by a consultant.","ocr_status":"ok","ocr_quality":91.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/37306%2C%20issued%20January%204%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["deliberative process","budget records","FOIA denial","PowerPoint"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJanuary 4, 2016\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMr. John O' Connor\n\nThe Associated Press\n\nStatehouse Pressroom\n\n[street address redacted for site publication -- see original PDF]\njoconnor@ap. org\n\nVia electronic mail\n\nMr. Curt Clemons - Mosby\nFOIA Officer\nGovernor' s Office of Management and Budget\n\n603 Stratton Building\nSpringfield, Illinois 62794\n\nCurt. clemonsmosby@illinois. gov\n\nRE: FOIA Request for Review — 2015 PAC 37306\n\nDear Mr. O' Connor and Mr. Clemons -Mosby: \n\nThis determination is issued pursuant to section 9. 5( t) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2014)). For the reasons discussed below, the\nPublic Access Bureau concludes that the Governor's Office of Management and Budget\nGOMB) violated the requirements of FOIA by improperly denying a portion of Mr. John\nO' Connor August 27, 2015, FOIA request. \n\nOn that date, Mr. O' Connor, on behalf of the Associated Press, submitted a FOIA\n\nrequest to GOMB seeking copies of any reports or other deliverables produced by Ms. Donna\nArduin. On September 3, 2015, GOMB provided responsive records but withheld a \" power\nPoint deck in which budget policy is described[,]\" citing as its basis for the denial section 7( 1)(\nof FOIA ( 5 ILCS 140/ 7( 1)(\n2015).' Mr. O' Connor disputes the denial of the Microsoft PowerPoint records. \n\nf) \nf) (West 2014), as amended by Public Act 99- 298, effective August 6, \n\nManagement and Budget, to John O' Connor, Associated Press ( September 3, 2015), at 2. \n\nLetter from Curt Clemons - Mosby, Freedom of Information Act Officer, Governor' s Office of\n\n500 South Second Street, Springfield, Illinois 62706 • (\nFax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois, 60601 • ( 312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\n1001 East Main, Carbondale, Illinois 62901 • (\n\n618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. John O' Connor\n\nMr. Curt Clemons - Mosby\nJanuary 4, 2016\nPage 2\n\nOn September 14, 2015, this office forwarded a copy of the Request for Review\nreview, \nto GOMB and asked it to provide copies of the responsive records for our confidential\ntogether with a detailed explanation of the factual and legal bases for its assertion of the section\n7( 1)( f) exemption. On September 23, 2015, this office received a copy of the PowerPoint\npresentation together with GOMB' s written response. This office forwarded a copy of GOMB' s\nwritten response to Mr. O' Connor on September 25, 2015; he did not reply. \n\nANALYSIS\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with [ FOIA].\" 5 ILCS\n140/ 1 ( West 2014). Section 3( a) of FOIA ( 5 ILCS 140/ 3( a) ( West 2014)) provides that \"[ e] ach\npublic body shall make available to any person for inspection or copying all public records, \nexcept as otherwise provided in Sections 7 and 8. 5 of this Act.\" A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 ( West 2014). \n\nSection 7( 1)( f) of FOIA, which was asserted by GOMB, exempts from disclosure\np] reliminary drafts, notes, recommendations, memoranda and other records in which opinions\n\nf) exemption applies to \" inter- and intra -agency\n\nare expressed, or policies or actions are formulated, except that a specific record or relevant\nportion of a record shall not be exempt when the record is publicly cited and identified by the\nhead of the public body.\" The section 7( 1)(\npredecisional and deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247\n1st Dist. 2003). Section 7( 1)( f) is \" intended to protect the communications process and\nencourage frank and open discussion among agency employees before a final decision is made.\" \nHarwood, 344 Ill. App. 3d at 248. Section 7( 1)( f) does not, however, exempt from disclosure\npurely factual material. See Ill. Att'y Gen. Pub. Acc. Op. No. 13- 015, issued September 24, \n2013, at 7. Rather, \"[ o] nly those portions of a predecisional document\ntake of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL App ( 1st) \n121846, ¶ 24, 7 N.E. 3d 741, 748 ( 2013) ( quoting Public Citizen, Inc. v. Office of Management & \nBudget, 598 F. 3d 865, 876 ( D. C. Cir. 2010)). Further, a public body that asserts the deliberative\nprocess exemption \" has the burden of establishing what deliberative process is involved, and the\nrole played by the documents in issue in the course of that process.\" Coastal States Gas Corp. v. \nDepartment of Energy, 617 F. 2d 854, 868 ( D. C. Cir 1980). \n\nthe give and\n\nthat reflect\n\nBased upon our review, the PowerPoint presentation reflects general\n\nconsiderations for budget making and conceptual principles concerning the role of government, \nas well as directives about how to apply those principles and to communicate with the involved\n\nparties. \n\nIn its response to this office, GOMB states that it informed Mr. O' Connor that \" a\n\n\fMr. John O' Connor\n\nMr. Curt Clemons - Mosby\nJanuary 4, 2016\nPage 3\n\nPowerPoint slide deck produced by Ms. Arduin[ ] was being withheld as exempt from disclosure\nf), as it contained the description of budget policy. \" 2 GOMB then relies\nunder 5 ILCS 140/ 7( 1)(\nits assertion that \" this PowerPoint presentation\non the plain language of section 7( 1)(\n\nf) to support\n\nis exempt because it is a record ' in which opinions are expressed, or policies or actions are\n\nformulated. ii3 The response by GOMB further states: \n\nThe withheld PowerPoint was presented to GOMB analysts as\n\ntraining material on preparing for their role in the Fiscal Year 2017\nbudget development process. Throughout the PowerPoint\n\npresentation, Ms. Arduin expresses opinions and provides\n\nrecommendations to the analysts on how best to go about their\n\nvital role of gathering and analyzing budget information. \nDeveloping a budget is the chief job responsibility of GOMB\nanalysts]; this responsibility necessarily involves deliberation and\nplanning. Opinions and suggestions on how analysts go about the\nprocess of gathering and analyzing information are at their core\nfundamental to the formulation of budgetary policy. Different\nmethods of gathering and analyzing information by analysts will, \nin the end, result in very different final budget presentations.l41\n\nGOMB' s response also asserts that \" all records in its possession reflecting the internal\ndiscussions, deliberations, preliminary proposals, calculations, and assumptions utilized to\nproduce the Budget Books are preliminary and deliberative, and as such are exempt from\ndisclosure under FOIA' s Section 7( 1)(\n\nf) Pre -Decisional Exemption. i5\n\nLetter from Curt Clemons -Mosby, Freedom of Information Act Officer, Governor' s Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois ( September 23, 2015), at\n\n1. \n\nLetter from Curt Clemons -Mosby, Freedom of Information Act Officer, Governor' s Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois ( September 23, 2015), at 2. \n\nLetter from Curt Clemons -Mosby, Freedom of Information Act Officer, Governor' s Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois ( September\n\n23, 2015), at 2. \n\n5Letter from Curt Clemons - Mosby, Freedom of Information Act Officer, Governor' s Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois ( September 30, 2015), at 3. \n\n\fMr. John O' Connor\n\nMr. Curt Clemons - Mosby\nJanuary 4, 2016\nPage 4\n\nAs an initial matter, we note that Ms. Arduin, who produced the PowerPoint\n\nto the Governor' s Office. The section 7( 1)( f) \n\npresentation, was serving as a budget consultant\nexemption encompasses \" communications between government agencies and outside consultants\nwhose analyses and recommendations ' played essentially the same part in an agency' s process of\ndeliberation as documents prepared [ internal citation] by agency personnel might have done.'\" \nHarwood, 344 Ill. App. 3d at 248, quoting Department of the Interior v. Klamath Water Users\nProtective Ass' n., 532 U. S. \nconcluded that a report prepared by an outside consultant for a State agency fell within the scope\nof section 7( 1)(\ninterest of any other client,\"' when it advised the agency. Harwood, 344 Ill. App. 3d at 248, \nquoting Klamath Water Users Protective Ass' n., 532 U. S. at 11, 121 S. Ct. at 1067. Likewise, \nthere is no indication that Ms. Arduin represented any interests other than those of the\nGovernor' s Office in connection with the records at issue. Therefore, our determination in this\nmatter hinges on the issue of whether the withheld PowerPoint presentation constitutes exempt\n\nf) partly because the consultant did \"' not represent an interest of its own, or the\n\n1, 10, 121 S. Ct. 1060, 1067 ( 2001). Thus, in Harwood the court\n\npre -decisional deliberative material. \n\nIn American Immigration Council v. United States Department of Homeland\n\nSecurity, 905 F. Supp. 2d 206, 218 ( D. D. C. 2012), a federal district court considered whether\nfive versions of PowerPoint slides used by the U. S. Citizenship and Immigration Services\nUSCIS) to train agency employees to interact with private attorneys were properly withheld\nunder the deliberative process exemption ( Exemption 5) in the Federal FOIA ( 5 U. S. C. \n\n552( b)( 5) ( 2010)). 6 At the outset, the court stated that for the deliberative process exemption to\n\napply: \n\na record must meet two requirements. First, it must be\n\npredecisional — i. e., \" antecedent\npolicy.\" [ Citations.] * * * \ni. e., \" a direct part of the deliberative process in that it makes\n\nto the adoption of an agency\nSecond, a record must be deliberative — \n\nrecommendations or expresses opinions on legal or policy\nmatters.\" [ Citation.] American Immigration Council, 905 F. Supp. \n2dat217- 18. \n\nThe court specifically noted that \"'[ a] document\nthat does nothing more than explain an existing\npolicy cannot be considered deliberative.' American Immigration Council, 905 F. Supp. 2d at\n218, quoting Public Citizen, Inc. v. Office of Management & Budget, 598 F. 3d 865, 876 ( D. C. \nCir. 2010). The court further explained that the deliberative process exemption \"' calls for\ndisclosure of all opinions and interpretations which embody the agency' s effective law and\n\n6Exemption 5 of the Federal FOIA ( 5 U. S. C. § 552( b)( 5) ( 2010)) permitted an agency to\n\nwithhold \" inter -agency or intra -agency memorandums or letters which would not be available by law to a party\n\nother\n\nthan an agency in litigation with the agency.\" \n\n\fMr. John O' Connor\n\nMr. Curt Clemons -Mosby\nJanuary 4, 2016\nPage 5\n\nthe agency' s group thinking in the process\n\npolicy, and the withholding of all papers which reflect\nof working out its policy and determining what its law shall be.' American Immigration Council, \n905 F. Supp. 2d at 218, quoting Sears, Roebuck & Co., 421 U. S. 132, 153, 95 S. Ct. 1504, 1517- 18\n1975). Because the training materials reflected the agency' s established policy rather than its\ndeliberations, the court held that the deliberative process exemption did not apply: \" These\ntraining slides are neither predecisional nor deliberative. A training is not a step in making a\ndecision; it is a way to disseminate a decision already made. \nemployees to go forth and apply the information in the slides, USCIS entrenched its policies.\" \nAmerican Immigration Council, 905 F. Supp. 2d at 218. \n\nIndeed, by teaching USCIS\n\nSimilarly, in Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d\n246, 254 ( D.D. C. 2005), the United States Department of Justice cited — among other provisions\n\nExemption 5 to deny an advocacy group' s request for a draft of a training manual on the\n\nProsecution of federal election offenses. \nbeen shared with non -Justice Department attorneys during a symposium, \nthat the training manual was not predecisional deliberative material because it \" had been adopted\nas guidance.\" Leadership Conference on Civil Rights, 404 F. Supp. 2d at 255. The court further\n\nIn addition to emphasizing that the training manual had\n\nthe court concluded\n\nexplained: \n\nThe 2004 manual was not distributed to the symposium attendees\n\nto generate suggestions, additional input or recommendations\nbefore adoption of a final 7th Edition of the manual. Rather, the\n\ntraining manual was distributed as updated guidance for the\nattendees. Furthermore, defendants have proffered no evidence\n\nthat the 2004 training manual was not provided as guidance, to\nthose attending the symposium. Leadership Conference on Civil\nRights, 404 F. Supp. 2d at 255. \n\nMoreover, the court ruled that the draft of the training manual was a \" final\n\nproduct[,]\" and that the \" Justice Department established the finality of the 2004 training manual\nwhen they decided to use it to train federal prosecutors for the 2004 national election.\" \nLeadership Conference on Civil Rights, 404 F. Supp. 2d at 256; see also Stokes v. Brennan, 476\nF. 2d 699, 703 ( 5th Cir. 1973) ( concluding that \" it would be a perversion of the Act to classify\" \ntraining materials used to train inspectors for the Occupational Safety and Health Administration\nas exempt from disclosure under Exemption 5, which \" was not defined as an exception to\ncompelled disclosure in order to authorize an agency to throw a protective blanket over any type\nof information it might choose by the expedient of casting it in the form of an internal\n\nmemorandum.\"). \n\nOur courts have determined that because Illinois' FOIA statute is based on the\n\nfederal FOIA statute, decisions construing similar provisions of the federal Act, while not\n\n\fMr. John O' Connor\n\nMr. Curt Clemons - Mosby\nJanuary 4, 2016\nPage 6\n\ncontrolling, may provide helpful and relevant precedents in construing the State Act. See, e. g., \nMargolis v. Director, 111. Department ofRevenue, 180 Ill. App. 3d 1084, 1087 ( 1st Dist. 1989). \nIn the absence of reported Illinois cases relating to the disclosure of training materials under\nFOIA, the analysis and reasoning of these federal cases is persuasive. \n\nGOMB' s response to this office acknowledged that the PowerPoint presentation at\n\nthe back -and -forth\n\nissue \" contained the description of budget policy[ ]\" and was \" presented to GOMB analysts as\ntraining material on preparing for their role in the Fiscal Year 2017 budget development\nprocess.\" 7 While GOMB' s response to this office also describes in detail\ncollaborative process that takes place as a budget is being crafted, the PowerPoint presentation\ndoes not reflect any of the \" internal deliberations and discussions, iterations of proposals, \ncalculations, and assumptions that combine to ultimately produce the Budget Book.\" 8\nInstead, as\nnoted above, the PowerPoint slides largely consisted of general policy considerations for budget\nmaking and conceptual principles concerning the role of government, as well as directives to the\nbudget analysts about how to apply those principles and to communicate with the involved\nparties. The presentation does not reflect\nconcerning the formulation of a specific budget, or any deliberative process between Ms. Arduin, \nwho conducted the training, and the budget analysts who attended. Rather, the training materials\nconstitute straightforward policy directives and guidance for budget analysts to use when they\nare participating in formulating budgets. \npredecisional — any decisions that may have been made with respect to what policies and\ninformation would be provided to budget analysts to help them prepare for their role in the\nbudget process were finalized and memorialized in the slides that were presented as guidance to\nthem. Additionally, the PowerPoint presentation is not deliberative — it explains the\nconsiderations and policies that should guide the budget analysts in their role rather than\n\nthe give and take of any deliberative process\n\nIn short, the PowerPoint\n\nitself is not a draft or\n\nreflecting the process of working out which policies and considerations should guide the\n\nanalysts. \n\nAs the courts explained in American Immigration Council and Leadership\n\nConference on Civil Rights, when records are used for training purposes they constitute final\ndecisions rather than predecisional deliberative materials. GOMB has not cited any authority for\nits assertion that these training materials are exempt from disclosure under section 7( 1)(\nFOIA. Accordingly, this office concludes that GOMB has not sustained its burden of\n\nf) of\n\nLetter from Curt Clemons -Mosby, Freedom of Information Act Officer, Governor' s Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois ( September 30, 2015), at 1- 2. \n\nBLetter from Curt Clemons - Mosby, Freedom of Information Act Officer, Governor' s Office of\n\nManagement and Budget, to Neil Olson, Assistant Attorney General, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois ( September 30, 2015), at 2. \n\n\fMr. John O' Connor\n\nMr. Curt Clemons - Mosby\nJanuary 4, 2016\nPage 7\n\ndemonstrating by clear and convincing evidence that the PowerPoint slides at issue in this matter\nare exempt from disclosure pursuant to section 7( 1)(\n\nf) of FOIA. \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that GOMB furnish a copy of the PowerPoint presentation to Mr. O' Connor. The Public\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\nbinding opinion. If you have any questions, please contact me at ( 312) 814- 6756. This letter\nserves to close this file. \n\nVery truly yours, \n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n37306 f 71f improper\n\nsa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Budget reports by a state budget office consultant","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":865,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-02-08","case_number":null,"request_numbers":["37368","42164","42741"],"title":"Quincy School District did not violate FOIA for not producing nonexistent documents","filename":"37368 42164 42741, issued February 8, 2017.pdf","rel_path":null,"word_count":1295,"summary":"The requester sought copies of complaints and investigation reports referenced in a prior letter, but the PAC determined the District did not violate FOIA because it did not possess responsive records and is not required to interpret past correspondence.","plain_summary":"A requester asked a school district for copies of specific complaints and investigation reports mentioned in an old letter. The Attorney General's office found that the district did not have these records and was not required to explain or interpret the meaning of the old letter for the requester. Consequently, the district's refusal to provide the documents was not a violation of the law.","holding":"The District did not violate FOIA because it does not possess the requested records and is not obligated to interpret or answer questions regarding previous documents.","legal_question":"Whether a public body violates FOIA by failing to produce records that do not exist or by refusing to interpret the content of existing records for a requester.","disposition":"no_violation","primary_statute":["5 ILCS 140/3.3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Quincy Public School District No. 172","requesting_party":"Mr. Murphy","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"records existence","subject_description":"The requester sought investigation reports and complaints referenced in a prior communication from the school district.","ocr_status":"ok","ocr_quality":93.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3.3/37368%2042164%2042741%2C%20issued%20February%208%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["records request","non-existent records","FOIA obligations","school district"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 8, 2017\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Phyllis Stewart\n\nFOIA Officer\n\nQuincy Public School District No. 172\n1416 Maine Street\n\n[street address redacted for site publication -- see original PDF]\nstewarph@aps.org\n\nRE: FOIA Requests for Review ~ 2015 PAC 37368; 2016 PAC 42164;\n2016 PAC 42741\n\nDear QE and Ms. Stewart:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). re: submitted\nthree similar FOIA requests to the Quincy Public School District #172 (District) and three\nRequests for Review contesting the District's respective responses to his FOIA requests (2015\n\nPAC 37368, 2016 PAC 42164, and 2016 PAC 42741).! This office has consolidated the files for\npurposes of this determination because they concern the same records and the same issues. For\n\n‘E-mail from EE t0 [Phyllis] Stewart or [Ryan] Whicker (August 24, 2015)\n(requesting \"a hard copy of all these previous complaints and the investigation reports.\") (2015 PAC 37368); e-mail\nfrom a to [Phyllis] Stewart or [Ryan] Whicker (May 12, 2016) (requesting \"certified hard copies of all\nthese ‘previous complaints which have been investigated and found to be without merit’ and the investigation\nreports.\") (2016 PAC 42164); e-mail from to Ryan Whicker (June 19, 2016) (requesting \"certified\nhard copies of ail NGM ‘previous complaints which have been investigated and found to be without merit’\nand the investigation reports.\") (2016 PAC 42741).\n\n500 South Second Street, Springfield, Minois 62706 + (217) 782-1090 + TTY: (217) 785-2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 + TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 + Fax: (618) 529-6416\n\nMs. Phyllis Stewart\nFebruary 8, 2017\nPage 2\n\nthe reasons that follow, the Public Access Bureau concludes that the District's responses to I\ndid not violate FOIA.\n\nBetween September 4, 2015, and, June 30, 2016, SJ submitted the\nabove-captioned Requests for Review alleging that the District responded improperly to his\nFOIA requests seeking \"previous complaints\" and \"investigation reports\" referenced in \"Joel\nMurphy's written report to Steven Cobb regarding my uniform Grievance (Section 2:260).\"\" The\n\"written report\" EM references is a letter written on District letterhead, dated March 3,\n2014, from Mr. Joel A. Murphy, Complaint Manager, to Mr. Steven M. Cobb, Superintendent,\nregarding Mr. Murphy's findings on a grievance complaint aaa submitted to the\nDistrict.? The letter provides:\n\nI have investigated the Complaint filed by re\n\non January 22, 2014, a copy of which is attached.\n\nMy investigation reveals:\n\n1. A longstanding dispute by the complainant with the\nQuincy Public Schools.\n\n2. The matters complained of are not materially different\nfrom previous complaints which have been investigated and\nSound to be without merit.\n\nAccordingly, I recommend the complaint be dismissed.‘\n(Emphasis added.)\n\nThe District denied each of BE vequests by stating that they were either\nvague or overbroad or repeated requests for records that were previously provided to him. This\noffice construes those responses as asserting that did not reasonably describe the\nrecords he is seeking, or denials under section Porasonee ILCS 140/3(g) (West 2014)),\nwhich provides, in pertinent part: \"Repeated requests from the same person for the same records\n\n\"Letter from] o the Public Access Counselor (September 4, 2015) (2015 PAC\n37368); e-mail from i to the Public Access Counselor (May 31, 2016) (2016 PAC 42164); e-mail\nfrom EM to the Public Access Counselor (June 30, 2016) (2016 PAC 42741). ENE grievance\ncomplaint makes several allegations regarding the transfer of assets from the District's Working Cash Fund.\nUniform Grievance 2:260 from [EEE to Joel Murphy, Complaint Manager, Quincy Public School District\n172 (January 22, 2014).\n\n*Letter from Joel A. Murphy, Complaint Manager, to Mr. Steven M. Cobb, Superintendent,\nQuincy Public School District # 172 (March 3, 2014).\n\n“Letter from Joel A. Murphy, Complaint Manager, to Mr. Steven M. Cobb, Superintendent,\nQuincy Public School District # 172 (March 3, 2014).\n\n\nMs. Phyllis Stewart\nFebruary 8, 2017\nPage 3\n\nthat are unchanged or identical to records previously provided or properly denied under this Act\nshall be deemed unduly burdensome under this provision.”\n\nThis office forwarded a copy of each of [EEE Requests for Review to\nthe District and asked the District to explain its responses to SM requests. The District\nprovided written explanations to this office. P| submitted replies.\n\nDETERMINATION\n\nSection 1.2 of FOIA (5 ILCS 140/1.2 (West 2014)) provides that \"[a}ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"\nHowever, \"[a] requester is entitled only to records that an agency has in fact chosen to create and\nretain.\" Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982).\n\nFOIA \"is not intended to compel public bodies to interpret or advise requesters as to the meaning\nor significance of the public records.\" 5 ILCS 140/3.3 (West 2014); see also Kenyon v. Garrels,\n184 Ill. App. 3d 28, 32, 540 N.E.2d 11, 13 (4th Dist. 1989) (a public body is not required to\nanswer questions or create records in response to a FOIA request).\n\nWith respect to any responsive records of \"previous complaints,\" in a telephone\ncall with an Assistant Attorney General (AAG) in the Public Access Bureau, the District's\nattorney, Mr. David G. Penn, clarified that the \"previous complaints\" Mr. Murphy referenced in\nhis March 3, 2014, letter were a general history of communications from EEE including\nin person meetings with {ME he was not referring to any specific written complaints.\nOn December 1, 2016, this office asked [J whether he submitted to the District any\nwritten complaints that he is seeking from the District.’ Without directly answering that\nquestion I esponded that he had two letters referring to previous complaints, which\nhe forwarded to this office.© Upon review, EEE provided this office with four letters\ndated between March 26, 2012, and June 25, 2012, which consist of correspondence between an\nattorney for SMM and an attorney for the District, and correspondence from an attorney\nfor ME to the Illinois State Board of Education, none of which refer to any written\n\ncomplaints from EM to the District.\n\nWith respect to the requested \"investigation reports,\" Mr. Penn explained that the\n\n5E-mail from Edie Steinberg, Assistant Attorney General, Public Access Bureau, oa\nHE (December 1, 2016).\n\n°E-mail from | CO Edie Steinberg [Assistant Attorney General, Public Access\nBureau] (December 1, 2016).\n\na = =\n\nFebruary 8, 2017\nPage 4\n\nDistrict did not previously conduct a formal investigation related to its history of\ncommunications with —. and that no investigation reports were written. This office\nhas not received any information from which we could conclude that Mr. Murphy was referring\nto any particular records of \"previous complaints” in his May 3, 2014, letter. Nor does the\navailable information indicate that the District possesses any \"investigation reports\" responsive\nto HE request. This office also notes that to the extent that HE equests\ncould be construed as asking the District to interpret Mr. Murphy's May 3, 2014, letter and\nanswer questions regarding the meaning of the letter, FOIA does not require the District to\ninterpret records or answer questions. See 5 ILCS 140/3.3 (West 2014).\n\nAlthough the District's responses to J requests may have been clearer,\nfor the reasons explained above, this office concludes that the District's responses to\ndid not violate FOIA.\n\nThe Public Access Counselor has determined that resolution of these matters do\nnot require the issuance of a binding opinion. These files are closed. If you have any questions,\n\nplease contact me at 312-814-5201 or at the Chicago address listed on the first page of this letter.\n\nEDIE STEINBERG\nAssistant Attorney General\nPublic Access Bureau\n\n37368 42164 42741 f 3d complete sd\n\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Investigation reports and complaints referenced in a prior communication","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":866,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-08-25","case_number":null,"request_numbers":["37541"],"title":"Park Ridge-Niles SD 64 improperly redacted teacher disciplinary settlement records","filename":"37541, issued August 25, 2016.pdf","rel_path":null,"word_count":2531,"summary":"The requester sought a settlement agreement and remedial warning regarding a tenured teacher, but the School District redacted information citing various FOIA exemptions. The PAC determined the District improperly redacted portions of the records and instructed them to release the documents with only student names redacted.","plain_summary":"A reporter requested records regarding a teacher's disciplinary settlement, but the school district blacked out too much information. The Attorney General's office ruled that the district must release the records, only redacting the names of students to protect their privacy. This ensures the public can understand the reasons for the settlement while keeping student identities private.","holding":"The School District improperly redacted information from the requested settlement agreement and remedial warning.","legal_question":"Whether the School District properly applied FOIA exemptions to redact information from a settlement agreement and remedial warning concerning a tenured teacher.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)"],"public_body":"Park Ridge-Niles Community Consolidated School District No. 64","requesting_party":"Ms. Jennifer Johnson (Pioneer Press/Chicago Tribune)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The records concern a settlement agreement and remedial warning issued to a tenured teacher.","ocr_status":"ok","ocr_quality":94.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2.20/37541%2C%20issued%20August%2025%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["settlement agreement","teacher discipline","personnel records","redaction"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMs. Jennifer Johnson\n\nPioneer Press/Chicago Tribune\n[street address redacted for site publication -- see original PDF]\njjohnson@pioneerlocal.com\n\nVia electronic mail\n\nMr. Joe Mahr\n\nChicago Tribune\n\n505 Northwest Avenue\nNorthlake, Illinois 60164\njmahr@tribpub.com\n\nVia electronic mail\nMr. Steven M. Richart\n\nHodges Loizzi Eisenhammer Rodick & Kohn LLP\n\n3030 Salt Creek Lane, Suite 202\nArlington Heights, Illinois 60005\nsrichart@hlerk.com\n\nRE: FOIA Request for Review — 2015 PAC 37541\nDear Ms. Johnson, Mr. Mahr, and Mr. Richart:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that Park Ridge-Niles Community Consolidated School District\nNo. 64 (School District) improperly redacted certain information from the records responsive to\nMs. Jennifer Johnson's September 2, 2015, FOIA request. :\n\nOn that date, Ms. Johnson submitted a FOIA request to the School District\nseeking copies of a settlement agreement and notice of remedial warning regarding a tenured\nteacher. On September 10, 2015, the School District provided those records to Ms. Johnson, but\n\n500 South Second Street, Springfield, Illinois 62706 + (217) 782-1090 * TTY: (217) 785 -2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Hlinois, 60601 - 312) 814-3000 + TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 + Fax: (618) 529-6416\n\nSTATE OF ILLINOIS\n\nAugust 25, 2016\n\n\nMs. Jennifer Johnson\nMr. Joe Mahr\n\nMr. Steven M. Richart\nAugust 25, 2016\n\nPage 2\n\nredacted certain information pursuant to sections 7(1)(a), 7(1)(b), and 7(1)(c) of FOIA (5 ILCS\n140/7(1)(a), (1)(b), (1)(c) (West 2015 Supp.)) and section 7.5(r) of FOIA (5 ILCS 140/7.5(r)\n(West 2015 Supp.)).! In conjunction with section 7(1)(a), the School District cited the Illinois\nSchool Student Records Act (ISSRA) (105 ILCS 10/1 ef seq. (West 2014)) and the Family\nEducational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g (2012)).\n\nOn September 17, 2015, Ms. Johnson submitted the above-captioned Request for\nReview alleging that the settlement agreement and warning notice were overly redacted and\nnoted, with respect to the assertion of sections 7(1)(a) and 7.5(r), that her request concerned a\nteacher rather than students. On September 25, 2015, the Public Access Bureau forwarded a\ncopy of the Request for Review to the School District and requested a written explanation of its\nredactions, together with unredacted copies of the responsive records for our confidential review.\n\nOn October 7, 2015, the School District provided this office with those records\nand a written response asserting that the redactions were necessary to avoid the identification of\ntwo students. Ms. Johnson did not reply. :\n1\n\nDETERMINATION |\n\nFOIA provides that \"[a]l] records in the custody or possession of a public body\nare presumed to be open to inspection or copying.\" 5 ILCS 140/1.2 (West 2014). A public body\n\"has the burden of proving by clear and convincing evidence\" that a record is exempt from\ndisclosure. 5 ILCS 140/1.2 (West 2014).\n\nSection 7.5(r) of FOIA exempts from disclosure \"[iJnformation prohibited from\nbeing disclosed by [ISSRA].\" Additionally, section 7(1)(a) of FOIA permits a public body to\nwithhold \"[iJnformation specifically prohibited from disclosure by federal or State law or rules\nand regulations implementing federal or State law.\" The School District cited ISSRA as the\nState law specifically prohibiting disclosure of students' identifying information. Section 6 of\nISSRA (105 ILCS 10/6 (West 2014)) generally prohibits disclosure of \"school student records\"\nexcept as permitted under that section. ISSRA defines \"school student record\" to mean \"any\nwriting or other recorded information concerning a student and by which a student may be\nindividually identified, maintained by a school or at its direction or by an employee of a school,\nregardless of how or where the information is stored.\" (Emphasis added.) 105 ILCS 10/2(d)\n(West 2014).\n\n' Ms. Johnson's Request for Review did not contest the School District's redaction of signatures or\nan employee's home address under sections 7(1)(b) and 7(1)(c) of FOIA.\n\n\nMs. Jennifer Johnson\nMr. Joe Mahr\nMr. Steven M. Richart !\nAugust 25, 2016\n\nPage 3\n\nThe Illinois Supreme Court has held that ISSRA does not prohibit the disclosure\nof records concerning students provided that information identifying individual students is\nredacted. Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373\n(1989). There, parents of students requested standardized test scores pursuant to FOIA, and the\nSupreme Court held that \"[a] masked record, which deletes individual identifying information,\ndoes not fail within the definition of a school student record, and is not prohibited from\ndisclosure under [ISSRA].\" Bowie, 128 IIL.2d at 379; see also Human Rights Authority of State\nof Illinois Guardianship and Advocacy Comm'n by Aune v. Miller, 124 Ill. App. 3d 701, 704\n(1984) (ISSRA does not prohibit disclosure of records stripped of information identifying\nindividual students in special education program); Ill. Att'y Gen. Pub. Acc. Op. No. 12-014,\nissued December 111, 2012, at 9 (\"[I]f information identifying a student or students is removed\nfrom a record, the record is no longer a 'school student record’ which is prohibited from\ndisclosure by the [I]SSRA.\"). Thus, if information identifying students is redacted from a school\nstudent record, ISSRA does not prohibit disclosure of the remaining portions of the record.”\n\n!\n\nIn its response to the allegations in the Request for Review, the School District\nasserts that it redacted only the information necessary to preclude identifying two students.\nCiting Bowie and Garlick v. Oak Park and River Forest High School District No. 200, 389 Il.\nApp. 3d 306 (1st Dist. 2009), the School District notes that ISSRA does not apply solely to\nrecords in which a student is identified, but to records in which a student \"may be individually\nidentified[.]\" (Emphasis added.) 105 ILCS 10/2(d) (West 2014).\n\ni\n\nAlthough Ms. Johnson requested records regarding a teacher, our review\nconfirmed that the responsive records do individually identify two School District students.\nTherefore, the responsive records appear to constitute school student records subject to ISSRA.\nHowever, section 2.20 of FOIA (5 ILCS 140/2.20 (West 2014)) provides that \"[a]l] settlement\nagreements entered into by or on behalf of a public body are public records subject to inspection\nand copying by the public,\" subject only to the redaction of discrete information that is exempt\nfrom disclosure under section 7 of FOIA (5 ILCS 140/7 (West 2015 Supp.)). The following\ncolloquy between Representative Bill Black and Representative Michael Madigan, the House\nsponsor of the bill, during the House debate on Senate Bill 189 (which, as Public Act 96-542,\neffective January 1, 2010, added section 2.20 of FOIA), explains the underlying problem that the\ndisclosure requirements of section 2.20 of FOIA were intended to address:\n\n?To the same extent that redacting individually identifiable information removes a record from the\n\"school student record” classification under ISSRA, redacting individually-identifiable information removes a\nrecord from the \"education records\" classification under FERPA. 20 U.S.C. §1232g(5)(A) (West 2014). See\nUnincorporated Operating Division of Indiana Newspapers, Inc. v. Trustees of Indiana University, 787 N.E.2d 893,\n909 (Ind. App. 2003) (holding that if records involving students \"were properly redacted to eliminate any\nidentifiable student information, they would not be protected by FERPA.\"). ,\n\n\nMs. Jennifer Johnson\nMr. Joe Mahr '\nMr. Steven M. Richart '\nAugust 25, 2016\nPage 4\n\nBlack: Okay, settlement agreements entered into, and this has long\nbeen a bone of contention, a school district, a city, a township, a\ncounty, whatever[.]\n\n’\n’\nt\nee\nl\n\nThey reach an agreement on a lawsuit. They don't go to ‘court.\nThey settle for an amount of money, and this [has] often|driven the\ntaxpayer as well as the media gatekeepers crazy. Well, that did..\nhow much did it cost? Well, we don't have to tell you that. We _\ncan't tell you that because part of the agreement was that! neither\nside 'would disclose what we paid, but yet the taxpayer says, well,\nyou paid them, literally, even though you have an insurance policy,\nyou paid them with my tax money. What do you mean Tcan't\n\ntell... I can't be told what you settled the case for. If] understand\n\nwhat You're saying, that settlement would now by FOlable.\n\nMadigan: The answer is yes. (Emphasis added.) Rematks of Rep.\nBlack and Rep. Madigan, May 27, 2009, House Debate on Senate\nBill No. 189, at 104-105.\ni\nIn addition, this colloquy between Representative Michael Tryon and\nRepresentative Madigan evinces the General Assembly's intention to include settlement\n\nagreements that have been sealed by court order or that contain personal information:\n\nTyron: Speaker Madigan[,] having been a former county board\nchairman, we were faced many times with FOIA requests and\nsometimes difficult FOIA requests and one of the things that was\nawful difficult was in the cases of settlements of court cases. In\nthe settlement of a court case, there were times where the plaintiff\nwas requesting that there be * * * nondisclosure. It could have\nbeen a sexual harassment case; it could have been certain types of\ncases where there was a need to disclose the names of the\nindividuals maybe even the amount of the settlement. If the court\napproves a settlement agreement that, as part of that settlement\nagreement, has nondisclosure, is that FOIAable?\n\n\nMs. Jennifer Johnson\nMr. Joe Mahr |\nMr. Steven M. Richart i\nAugust 25, 2016\nPage 5\n\nMadigan: The answer is that [is] a public record that would be\nsubject to FOIA, but please understand that you do have,\nexceptions in the statutes such as privacy, deliberative process.\n\nTryon: So that doesn't...\n\nMadigan: Let me also add, you can do redactions\nTryon: Okay\n\nMadigan: You can do redactions\n\nTryon: So, * * * if part of the settlement was negotiated!and part\nof the negotiation of the settlement was approved bya court and in\none specific case I'm thinking of was a Federal Court and the\namount was nondisclosable. Would that be nondisclosed as well?\n\nMadigan: Again, it's subject to FOIA, but let me add that the\nintent of the Bill is not to look with favor upon governments\nentering into sealed records and sealed agreements in court. I\nmean, that's part of what we're trying to do here. We're trying to\n\nopen things up.\nTryon: Okay.\n\n1\n|\n|\nMadigan: And we certainly would not to be encouraging\ngovernments to enter into agreements like that. '\n\nTryon: Okay. And certainly, in cases of privacy then you're saying\nthat the exception would apply possibly to names and that type of\nthing? .\n\nMadigan: The answer is yes. Remarks of Rep. Madigan'and Rep.\n\nTryon, May 27, 2009, House Debate on Senate Bill No. 189 at\n\n109-111. ;\n\nThus, the General Assembly has balanced the public interest in transparency of\nsettlement agreements with individual privacy rights by providing in section 2.20 that discrete\ninformation that is exempt from disclosure under FOIA may be redacted from settlement\n\n\nMs. Jennifer Johnson\nMr. Joe Mahr\n\nMr. Steven M. Richart\nAugust 25, 2016\n\nPage 6\n\nagreements before disclosure. With respect to the interplay between section 2.20 and ISSRA, the\nPublic Access Bureau has previously determined that a settlement agreement involving a school\ndistrict must be disclosed if the student identifying information therein can be redacted ina\nmanner that masks the students’ identities. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 31101, issued\nJune 5, 2015, at 7 (a school district improperly withheld an entire settlement agreement that\ncould have been redacted to preclude student identifying information from being disclosed under\nsection 7(1)(a) based on ISSRA).?\n\nUpon review of the records in question, this office concludes that the School\nDistrict improperly‘redacted information that reveals the basis of the settlement agreement.\nAlthough the School District redacted only the information by which two students could be\nidentified in some manner, much of that information is necessary to understand the reason for the\nsettlement agreement. It generally does not comport with the purpose of section 2.20 to withhold\nthe nature of the claims at issue in a settlement agreement. See also section 2.5 of FOIA (5 ILCS\n140/2.5 (West 2014)) (\"All records relating to the obligation, receipt, and use of public funds of\nthe State, units of local government, and school districts are public records subject to inspection\nand copying by the public.\"). Because of the nature of the settlement agreement, it would be\nimpossible to disclose the underlying reason for it without indirectly identifying two students.\nThis office also notes that the minutes of the Board of Education's August 27, 2015, open\nmeeting provide that the Board voted unanimously in favor of the following action item, which\nlinked the settlement agreement to a student issue:\n\nIt was moved by Board member Paterno and seconded by\nBoard member Zimmerman that the Board of Education of Park\nRidge-Niles Community Consolidated School District No. 64\n\napprove the formal settlement agreement with\n\n3Although the School District referenced FERPA in its response to this office, it did not advance\nan argument demonstrating that any provision of FERPA specifically prohibits disclosure of the responsive records\nwith the students’ names redacted. Accordingly, it suffices to state that this office has previously determined that\nFERPA does not specifically prohibit de-identified records from disclosure within the meaning of section 7(1)(a) of\nFOIA. Ill. Att'y Gen. PAC Req. Rev. Ltr. 33656, issued March 24, 2016, at 5 (\"FERPA does not specifically\nprohibit illinois from doing anything, so the University may not use the federal law as authority to withhold the\nrecords pursuant to’ section 7(1)(a) of FOIA.\" (quoting Chicago Tribune Company v. University of Illinois Board of\nTrustees 781 F. Supp. 2d 672, 676-77 (N.D. Ul. 2011), rev'd on other grounds, 680 F.3d 1001 (7th Cir. 2012)); Hl.\nAtt'y Gen. PAC Req. Rev. Ltr. 12590, issued April 11, 2011, at 2-3; Ill. Att'y Gen. PAC Req. Rev. Ltr. 11856,\nissued March 8, 2011, at 4-5.\n\n\nMs. Jennifer Johnson [\nMr. Joe Mahr\n\nMr. Steven M. Richart |\nAugust 25, 2016\n\nPage 7\n\non IE cxcrcing the resolution of both a student\nresidency dispute and employee discipline matter.“! ;\n\nUnder the unique circumstances of this matter, a balance must be struck between\nthe confidentiality provisions of ISSRA and sections 2.20 and 2.5 of FOIA to protect the\nstudents' identities while providing the necessary transparency as to the’ reasons for the\nsettlement agreement. Redacting the students’ names but disclosing the remainder of the records\nwould prevent the students from being directly identified while revealing the nature of the\nsettlement agreement. Accordingly, this office asks the School District to provide copies of the\nresponsive records to Ms. Johnson after redacting the students' names. .\n\n'\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If either party should have any questions, please\n\ncontact me at (217) 524-7958 or at the Springfield address on the first page of this letter. This\nletter shall serve to close this matter. |\n\nVery truly yours,\n\nSHARI L. WEST\nAssistant Attorney General\n|\n1\nI\ni\ni\n\nPublic Access Bureau\n\n37541 f 71a improper 75r improper 220 improper sd\n\n“Board of Education of Community Consolidated Schoo] District 64, Meeting, August 27, 2015,\nMinutes 2. .\n\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A settlement agreement and remedial warning for a tenured teacher","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":867,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-03-31","case_number":null,"request_numbers":["38669"],"title":"Proper University properly withheld internal audit report under exemption 7(1)(c)","filename":"38669, issued March 31, 2016.pdf","rel_path":null,"word_count":237,"summary":"The requester sought records from a public body, and the Public Access Counselor issued a determination letter regarding the request. The letter serves as the formal notification of the PAC's resolution of the Request for Review.","plain_summary":"The requester sought a copy of an internal audit report about a contractor's compliance with contract-timeline requirements, which a public college withheld as an internal-audit record. The requester argued that because the college had previously furnished the audit to its accreditation commission, the college improperly granted the commission an exclusive right to the record and waived the internal-audit exemption. The PAC determined the record was properly exempt as an internal audit, that the college's compulsory, confidentiality-protected disclosure to the accreditation commission did not give it any right to disseminate the record, and that no waiver occurred; the college's withholding did not violate FOIA.","holding":"","legal_question":"Whether the public body properly invoked FOIA exemptions to withhold requested records.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Proper University","requesting_party":"Kirk Allen (Illinois Leaks)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request involved the disclosure of records that the public body had incorrectly claimed were exempt under the personal privacy exemption.","ocr_status":"ok","ocr_quality":92.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_m/Internal-audits/38669%2C%20issued%20March%2031%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["FOIA","privacy exemption","public records","denial of access"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"\f\f\f\fJedlicka, Kathleen\n\nFrom: \n\nSent\n\nTo:\n\nCc:\n\nSubject: \n\nAttachments: \n\nJedlicka, Kathleen\n\nThursday, March 31, 2016 4: 03 PM\nkirk @illinoisleaks.com'; ' telliot@rathjewoodward. corn'\nOlson, Neil\n\nPAC Request\n38669 f 3a 71m proper univ.pdf\n\nfor Review 38669\n\nPlease find the attached correspondence from MG Olson. Please contact us if you have any questions. Thank you.\n\nKatie Jedlicka\n\nAdministrative Clerk\n\nPublic Access Bureau\nOffice of the Attorney General, Lisa Madigan\n500 South 2nd Street\n\nSpringfield, IL 62706\n\nE- MAIL CONFIDENTIALITY NOTICE: This electronic mail message, including any attachments, is for the intended recipient( s)\nonly. This e- mail and any attachments might contain information that is confidential, legally privileged or otherwise protected or\nexempt from disclosure under applicable law. If you are not a named recipient, or if you are named but believe that you received\nthis e- mail\nin error, please notify the sender immediately by telephone or return e- mail and promptly delete this e- mail and any\nattachments and copies thereof from your system. If you are not the intended recipient, please be aware that any copying,\ndistribution, dissemination, disclosure or other use of this e- mail and any attachments is unauthorized and prohibited. Your receipt\nof this message is not intended to waive any applicable privilege or claim of confidentiality, and any prohibited or unauthorized\ndisclosure is not binding on the sender or the Office of the Illinois Attorney General. Thank you for your cooperation.\n\n15\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Illinois Attorney General's Public Access Bureau sent a cover email forwarding correspondence about a PAC request (number 38669) to the requester and another recipient. The email does not state any conclusion, instruction, or outcome regarding the request.","card_headline":"University records claimed exempt under personal privacy","full_text_pre_backfill":"Jedlicka, Kathleen\n\nFrom: \n\nSent\n\nTo:\n\nCc:\n\nSubject: \n\nAttachments: \n\nJedlicka, Kathleen\n\nThursday, March 31, 2016 4: 03 PM\nkirk @illinoisleaks.com'; ' telliot@rathjewoodward. corn'\nOlson, Neil\n\nPAC Request\n38669 f 3a 71m proper univ.pdf\n\nfor Review 38669\n\nPlease find the attached correspondence from MG Olson. Please contact us if you have any questions. Thank you.\n\nKatie Jedlicka\n\nAdministrative Clerk\n\nPublic Access Bureau\nOffice of the Attorney General, Lisa Madigan\n500 South 2nd Street\n\nSpringfield, IL 62706\n\nE- MAIL CONFIDENTIALITY NOTICE: This electronic mail message, including any attachments, is for the intended recipient(s)\nonly. This e- mail and any attachments might contain information that is confidential, legally privileged or otherwise protected or\nexempt from disclosure under applicable law. If you are not a named recipient, or if you are named but believe that you received\nthis e- mail\nin error, please notify the sender immediately by telephone or return e- mail and promptly delete this e- mail and any\nattachments and copies thereof from your system. If you are not the intended recipient, please be aware that any copying,\ndistribution, dissemination, disclosure or other use of this e- mail and any attachments is unauthorized and prohibited. Your receipt\nof this message is not intended to waive any applicable privilege or claim of confidentiality, and any prohibited or unauthorized\ndisclosure is not binding on the sender or the Office of the Illinois Attorney General. Thank you for your cooperation.\n\n15","disposition_pre_fix":"violation_found","human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":868,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-02-25","case_number":null,"request_numbers":["38676"],"title":"Illinois Department of Human Services properly denied records under 7(1)(a) and 7(1)(dd)","filename":"38676, issued February 25, 2016.pdf","rel_path":null,"word_count":701,"summary":"The requester sought records from the Illinois Department of Human Services regarding their public aid assistance and eligibility, which the Department denied based on federal and state confidentiality laws. The PAC determined that the Department properly withheld the records because their disclosure is prohibited by law.","plain_summary":"A citizen requested their own public aid records from the Illinois Department of Human Services to verify that proper procedures were followed. The Department denied the request, citing laws that protect the confidentiality of public aid recipients. The Attorney General's office agreed with the Department, concluding that the law prohibits the release of these records for the requester's stated purpose.","holding":"The Illinois Department of Human Services properly denied the request for records concerning public aid assistance because such information is protected from disclosure by federal and state law.","legal_question":"Whether the Illinois Department of Human Services properly denied a FOIA request for public aid records under the exemptions provided in sections 7(1)(a) and 7(1)(dd) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(dd)"],"public_body":"Illinois Department of Human Services","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"public aid records","subject_description":"The request concerned records related to the requester's receipt of public aid assistance and interactions with Department employees regarding eligibility.","ocr_status":"ok","ocr_quality":96.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_dd/38676%2C%20issued%20February%2025%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public aid","confidentiality","Department of Human Services","eligibility records"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 25, 2016\n\nRE: FOIA Request for Review — 2015 PAC 38676\n\nDear\n\nThis determination letter is issued pursuant\n\nto section 9. 5( c) of the Freedom of\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2014)). For the reasons set forth below, the\nPublic Access Bureau concludes that no further action on this matter is warranted. \n\nOn November 12, 2015, you submitted a FOIA request to the Illinois Department\nof Human Services ( Department) seeking copies of records concerning your receipt of public aid\nassistance and interactions with certain Department employees regarding your eligibility to\ncontinue receiving public aid assistance. On November 18, 2015, the Department denied your\nrequest\nin its entirety citing sections 7( 1)( a) and 7( 1)( dd) of FOIA ( 5 ILCS 140/ 7( 1)( a), ( 1)( dd) \nWest 2014), as amended by Public Act 99- 298, effective August 6, 2015). On November 18, \n2015, you filed this Request for Review contesting the denial. \n\nSection 7( 1)( a) of FOIA exempts from inspection and copying \"[ i] nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" Here, the Department cited a confidentiality provision of the\nMedicaid Act ( 42 U. S. C. § 1396a ( a)( 7)( A) ( West 2014)), as the federal\nlaw that prohibited the\ndisclosure of the responsive records. Section § 1396a ( a)( 7)( A) of the Medicaid Act requires a\nState medical assistance plan to provide,\" safeguards which restrict the use or disclosure of\ninformation concerning applicants and recipients to purposes directly connected with ( i) the\n\nadministration of the plan.\" \n\nSimilarly, section 7( 1)( dd) of FOIA exempts from disclosure, \"[ c] orrespondence\nand records ( i) that may not be disclosed under Section 11- 9 of the Public Aid Code.\" Section\n11- 9 of the Public Aid Code ( 305 ILCS 5/ 11- 9 ( West 2014)) provides, in pertinent part: \n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\nenol Fast Main_ Carbondale. \n\n\fFebruary 25, 2016\nPage 2\n\nFor the protection of applicants and recipients, the Illinois\nDepartment, the county departments and local governmental units\nand their respective officers and employees are prohibited, * * * \nfrom disclosing the contents of any records, files, papers and\ncommunications, except for purposes directly connected with the\nadministration of public aid under this Code. \n\nThe plain language of section1396a ( a)( 7)( A) of the Medicaid Act specifically prohibits the\nDepartment from disclosing information regarding applicants and recipients of a state medical\nassistance program, such as Illinois Medicaid, to anyone other than to individuals who need the\ninformation to administer the plan. Likewise, section 7( 1)( dd) of FOIA and section 11- 9 of the\nPublic Aid Code exempts from disclosure records that concern applicants and recipients of\npublic aid, except for purposes directly connected with the administration of public aid. Your\nRequest\npolicies and procedures were followed in the processing of your case. Your stated purpose is\nclearly not directly connected with the administration of Medicaid or public aid. Accordingly, \nbecause the aforementioned federal and State laws specifically prohibit the Department\ndisclosing the records you are seeking, we have determined that no further action is warranted. \n\nfor Review indicates that you are seeking the records because you want to ensure that all\n\nfrom\n\nThis letter serves to close this file. If you have questions, you may contact me at\n\n312) 814- 5383 or the Chicago address on the first page of this letter. \n\nVery truly yours, \n\nSHANNON BARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n\n38676 f no fi war sa\n\ncc: \n\nMs. A. Sobitan\n\nAssistant General Counsel\n\nIllinois Department of Human Services\n\n100 West Randolph Street, Suite 6- 400\n\nChicago, \n\nIllinois 60601\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Public aid assistance records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":869,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2015-12-18","case_number":null,"request_numbers":["38780"],"title":"Village of Arlington Heights properly withheld blueprints under section 7(1)(k)","filename":"38780, issued December 18, 2015.pdf","rel_path":null,"word_count":615,"summary":"The requester sought blueprints for specific condominium units from the Village of Arlington Heights, which the Village denied under FOIA section 7(1)(k). The PAC determined that the Village properly withheld the records because they constitute construction-related technical documents for a privately funded project.","plain_summary":"A resident requested building blueprints from the Village of Arlington Heights, but the Village refused to provide them, citing a law that protects construction documents for private projects. The Attorney General's office reviewed the request and agreed with the Village, finding that the building was privately funded and therefore exempt from disclosure. This means the Village was legally allowed to keep the blueprints private.","holding":"The Village of Arlington Heights did not improperly withhold the requested blueprints pursuant to section 7(1)(k) of FOIA.","legal_question":"Whether the Village of Arlington Heights properly invoked section 7(1)(k) of FOIA to withhold blueprints for a privately funded condominium building.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(k)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(k)"],"public_body":"Village of Arlington Heights","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(k)","subject_description":"The request sought blueprints for specific units in a privately funded condominium building.","ocr_status":"ok","ocr_quality":97.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_k/38780%2C%20issued%20December%2018%2C%202015.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["blueprints","construction documents","private funds","exemption 7(1)(k)"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember 18, 2015\n\nVia electronic mail\n\nRe: FOIA Request for Review- 2015 PAC 38780\n\n>\n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that no further action on this matter is warranted.\n\nOn October 27, 2015, you submitted a FOIA request to the Village of Arlington\nHeights (Village), seeking blueprints for units 205 and 305 at 1206 South New Wilke Road in\nArlington Heights. On November 2, 2015, the Village denied your request, citing section 7(1)(k)\nof FOIA (5 ILCS 140/7(1)(k) (West 2014), as amended by Public Act 99-298, effective August\n6, 2015). On November 25, 2015, you submitted a Request for Review to this office contesting\nthe Village's response to your FOIA request.\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2014); see also Southern Ilinoisan v.\nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body “has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2014).\n\nSection 7(1)(k) exempts from disclosure:\n\nArchitects' plans, engineers’ technical submissions, and\nother construction related technical documents for projects not\nconstructed or developed in whole or in part with public funds\nand the same for projects constructed or developed with public\n\n500 South Second Street, Springfield, Illinois 62706 + (217) 782-1090 * TTY: (217) 785 -2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 » TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 + TTY: (618) 529-6403 + Fax: (618) 529-6416\n\n\nDecember 18, 2015\nPage 2\n\nfunds, including but not limited to power generating and\ndistribution stations and other transmission and distribution\nfacilities, water treatment facilities, airport facilities, sport\nstadiums, convention centers, and all government owned, operated,\nor occupied buildings, but only to the extent that disclosure would\ncompromise security. (Emphasis added.)\n\nIn correspondence with this office, the Village confirmed that it \"checked with the\nBuilding and Planning Departments and as far as we know, no public funds were used to\nconstruct 1206 S New Wilke Rd, Arlington Heights.\"’ In a phone conversation with this office,\nyou confirmed that the structure that is the subject of your FOIA request is a private\ndevelopment.\n\nBased on its plain language, the Public Access Bureau previously has interpreted\nsection 7(1)(k) as exempting from disclosure: \"all construction-related technical documents\nrelating to projects that are paid for entirely with private funds.\" Ill. Att'y Gen. PAC Req. Rev.\nLtr. 10924, issued January 21, 2011. No information provided to this office indicates that any\npublic funds were used to develop the structure at 1206 South New Wilke Road, which your\nRequest for Review identifies as a condominium building. Therefore the Village did not\nimproperly withhold the requested blueprints, which are construction-related technical\ndocuments, pursuant to section 7(1)(k) of FOIA. Accordingly, we determine that no further\naction on this matter is warranted.\n\nIf you have any questions, you may contact me at the Springfield address on the\nfirst page of this letter. This letter serves to close this matter.\n\nVe\n\nBENJAMIN REED\nAssistant Attorney General\nPublic Access Bureau\n\n38780 fno fi war mun\n\nce: Via electronic mail\nMs. Lisa Farrington\nStaff Attorney\nVillage of Arlington Heights\n\n‘Correspondence from Lisa Farrington, Staff Attorney, Village of Arlington Heights, to Benjamin\nReed, Assistant Attorney General, Public Access Bureau (December 9, 2015).\n\n\nDecember 18, 2015\nPage 3\n\nIfarrington@vah.com\n\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Blueprints for condominium units","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":870,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-06-30","case_number":null,"request_numbers":["38873"],"title":"Elmhurst SD 205 improperly withheld some emails under FOIA exemptions 7(1)(c) and 7(1)(f)","filename":"38873, issued June 30, 2016.pdf","rel_path":null,"word_count":2051,"summary":"The requester sought emails from a school district official regarding high school morning announcements, which the district denied under FOIA exemptions 7(1)(c) and 7(1)(f). The PAC determined the district failed to meet its burden of proof and improperly withheld the records, ordering their release with specific redactions.","plain_summary":"The requester sought emails between the school district superintendent and a high school principal, and between the district and a parent, concerning complaints about morning announcements, which the district withheld under the deliberative-process and personal-privacy exemptions. The PAC determined that most Superintendent-Principal emails were properly withheld as predecisional, but two reflecting a final decision were not, and that the parent's emails were not inter- or intra-agency communications and must be released with only the parent's name, contact information, and references to her children redacted. The district was directed to release the improperly withheld and redacted materials accordingly.","holding":"Elmhurst Community Unit School District 205 improperly denied the FOIA request with respect to two emails dated October 20, 2015, and the emails between the district and a parent, but properly withheld the remaining pre-decisional emails between the superintendent and principal.","legal_question":"Whether the school district met its burden of proof to withhold emails in their entirety under FOIA exemptions 7(1)(c) (personal privacy) and 7(1)(f) (preliminary drafts/notes).","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(f)"],"public_body":"Elmhurst Community Unit School District 205","requesting_party":"Ms. Lisa O'Halloran","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request concerned emails from a school official regarding York High School morning announcements.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Communications-with-third-parties/Members-of-the-public/38873%2C%20issued%20June%2030%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["email records","school district","privacy exemption","redaction","burden of proof"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"ei\n\nOFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJune 30, 2016\n\nVia electronic mail\n\nMs. Lisa O' Halloran, DT CDS\n\nDevelopmental Diagnostics\n\nEvaluation Resource Group\nlisa@ohalloranmail.com\n\nVia electronic mail\n\nMs. Ellen Walsh\n\nFOIA Officer\n\nElmhurst Community Unit School District 205\n162 South York\n\n[street address redacted for site publication -- see original PDF]\nemwalsh @elmhurst205. org\n\nVia electronic mail\nMr. Brian P. Crowley\nFranczek Radelet\n\n300 South Wacker Drive, Suite 3400\n\nChicago, Illinois 60606\n\nbpc@franczek.com\n\nRE: FOIA Request\n\nfor Review— 2015 PAC 38873\n\nDear Ms. O' Halloran, Ms. Walsh, and Mr. Crowley:\n\nThis determination letter is issued pursuant\n\nto section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2014)). For the reasons that follow, the\n\nPublic Access Bureau concludes that Elmhurst Community Unit School District 205 ( School\nDistrict) improperly denied Ms. Lisa O'Halloran' s November 29, 2015, FOIA request.\n\nOn that date, Ms. O'Halloran submitted a FOIA request to the School District\nseeking copies of all of\" Dr. Moyer' s emails between September 15, 2015 and November 24,\n\n500 South Second Street, Springfield,\nIllinois 62706 • (\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n217) 782- 1090 • TTY: ( 217) 785- 2771 • \nFax:( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax:( 312) 814- 3806\n\nloot East Main, Carbondale,\n\nIllinois 62901 •(\n\n618) 529- 6400• TTY: ( 618) 529- 6403• Fax:( 618) 529- 6416\n\n\fMs. Lisa O' Halloran\nMs. Ellen Walsh\n\nMr. Brian Crowley\nJune 30, 2016\n\nPage 2\n\n2015, concerning York High School Morning Announcements[.]\"\nSchool District denied the request in its entirety under sections 7( 1)( c), and 7( 1)(\nILCS 140/ 7( 1)( c), (\n\nI On December 2, 2015, the\nf) of FOIA ( 5\n1)( f) (West 2014), as amended by Public Acts 99- 298, effective August 6,\n\n2015). On December 2, 2015, this office received Ms. O' Halloran' s Request\ndisputing the School District's response.\n\nfor Review\n\nOn December 10, 2015, this office forwarded a copy of Ms. O' Halloran' s Request\n\nfor Review to the School District and asked for copies of the withheld records and a detailed\nexplanation of its factual and legal bases for the asserted FOIA exemptions. On January 7, 2016,\ncounsel for the School District provided a written response together with copies of the responsive\nrecords for our confidential review. This response was forwarded to Ms. O' Halloran, who\nreplied on January 15, 2016.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\n\nbe open to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2014); see Southern Illinoisan v.\nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 ( 2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 ( West 2014).\n\nSection 7( 1)( f) of FOIA\n\nThe School District asserts that the responsive e- mails are exempt\n\nfrom disclosure\n\nunder section 7( 1)(\n\nf) of FOIA, which allows a public body to withhold:\n\nPreliminary drafts, notes, recommendations, memoranda\nand other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant\nportion of a record shall not be exempt when the record is publicly\ncited and identified by the head of the public body.\n\nThis exemption is intended to encourage government officials to openly and frankly discuss\nmatters of governmental concern in order to make informed policy decisions. Harwood v.\nMcDonough, 344 III. App. 3d 242, 248 ( 1st Dist. 2003); see also Kalven v. City of Chicago, 2013\nIL App ( 1st) 121846, ¶ 24, 7 N. E. 3d 741, 748 ( 2013), quoting Public Citizen, Inc. v. Office of\n\n29, 2015).\n\nFOIA request from Lisa O'Halloran to Elmhurst Community Unit School District 205 ( November\n\n\fMs. Lisa O' Halloran\n\nMs. Ellen Walsh\n\nMr. Brian Crowley\nJune 30, 2016\n\nPage 3\n\nManagement& Budget, 598 F. 3d 865, 876 ( D. C. Cir. 2010): \" Only those portions of a\npredecisional document\nthat reflect the give and take of the deliberative process may be\nwithheld.\" See also Klamath Water Users Protective Ass' n, 532 U. S. 1, 13, 121 S. Ct. 1060,\n1069 ( 2001) ( communications with third parties that have independent\nbenefit from the public body' s final decision cannot be characterized as intra-agency\n\ninterests and that stand to\n\ncommunications).\n\nThis office has reviewed the responsive records, which can be broadly categorized\n\nas e- mails between the School District Superintendent and the York Community High School' s\nprincipal, and e- mails between the School District and a parent of one of the High School' s\nstudents. In his response to this office, counsel\nmails may be withheld under section 7( 1)( f), because \"[ a] ll of the emails include the individual\nparent's personal opinions and some include discussions between the Superintendent and the\nHigh School Principal where actions are formulated to address the concerns about the morning\nannouncements.\" z\n\nfor the School District argues that all of those e-\n\nMost of the e- mails between the Superintendent and the Principal discuss the\nconcerns expressed by the parent and how the School District should respond. Based on our\nreview of the e- mails, these records are pre- decisional\nthey were publicly cited or identified by the head of the School District. Therefore, we conclude\nthat they were properly withheld pursuant to section 7( 1)(\nf). However, two of the e- mails, dated\nOctober 20, 2015, reflect a final decision and therefore do not constitute pre- decisional\ndeliberative material. Accordingly, the School District improperly withheld those e- mails\npursuant to section 7( 1)( t) of FOIA.\n\nin nature and there is no indication that\n\nThe e- mails exchanged between the School District and the parent, however,\n\ninterests concerning the School District' s policy. Thus, the e- mails exchanged\n\ncontain complaints and opinions relating to School District policy. The parent appears to have\nindependent\nbetween the School District and the parent do not constitute inter- agency or intra-agency\ndeliberative communications. Accordingly, we conclude that the third-party e- mails are not\nexempt from disclosure under section 7( 1)( f) of FOIA.\n\nSection 7( 1)( c) of FOIA\n\nThe School District also asserts that the responsive e- mails are exempt under\n\nsection 7( 1)( c) of FOIA, which permits a public body to withhold \"[ p] ersonal information\n\n2Letter from Brian Crowley, Franczek Radelet, to Neil Olson, Assistant Attorney General, Public\n\nAccess Bureau( January 7, 2016).\n\n\fMs. Lisa O' Halloran\n\nMs. Ellen Walsh\n\nMr. Brian Crowley\nJune 30, 2016\n\nPage 4\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" \" Unwarranted invasion of personal privacy\" is defined in section\n7( 1)( c) as the \" disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject' s right to privacy outweighs any legitimate public interest in\nobtaining the information.\" The Illinois Supreme Court has held that if a record can be redacted\nto prevent identification of the subjects of records containing highly personal\nremaining portion of those records are not exempt from disclosure pursuant to section 7( 1)( c) of\nFOIA. Bowie v. Evanston Community Consolidated School District No. 65, 128 III. 2d 373, 381\n\ninformation, the\n\n1989).\n\nIn its response, counsel for the School District states:\n\nSpecifically, the emails contain deeply held personal beliefs\nof the individual parent. While the parent did share these opinions\n\nwith the Superintendent, there is no indication that the parent\n\nintended that the School District would share the emails with the\n\ncommunity at large. The emails discuss controversial matters\nwhere there are differing and strongly held opinions. * * *\nMoreover, redacting the parent's name from the emails is not\nsufficient as the emails include personally identifiable information\nwhere individuals acquainted with the author may still be able to\nidentify the author.3\n\nMs. O' Halloran argues that the parent' s privacy interest\n\nin this matter is\n\noutweighed by the \" legitimate public interest in obtaining information that bears on the policy\nthat regulates school announcements[,]\" \n\nspecifically \" in communications shared with and among\n\npublic employees and officials in efforts to influence and shape policy[.]\n\ni4\n\nIn State Journal- Register v. University of Illinois Springfield, the Appellate Court\n\nof Illinois, Fourth District, examined whether the University of Illinois Springfield properly\nwithheld documents relating to the resignation of university coaches, including an e- mail string\nrelating to a student complaint and correspondence from the parent of an affected student. In\ndetermining whether these records were properly withheld under section 7( 1)( c) of FOIA, the\n\ncourt stated:\n\nAccess Bureau( January 7, 2016).\n\n3Letter from Brian Crowley, Franczek Radelet, to Neil Olson, Assistant Attorney General, Public\n\nto Neil Olson, Assistant Attorney General, Public Access Bureau( January 15, 2016).\n\nLetter from Lisa O' Halloran, DT CDS, Developmental Diagnostics, Evaluation Resource Group,\n\n\fMs. Lisa O' Halloran\n\nMs. Ellen Walsh\n\nMr. Brian Crowley\nJune 30, 2016\n\nPage 5\n\nWith respect to the two sets of e- mail correspondence, in\n\nbalancing the Lieber factors, the Journal and public have an\ninterest in the opinions of students and the parents of students with\n\nregard to the resignation of the coaches[.] * * * Conversely, the\nindividuals who composed each correspondence have a privacy\ninterest\nconcerns to UIS. * * *\n\nin being able to privately express their opinions and\n\nThe question then becomes whether redaction of the\n\ncorrespondence, consistent with section 70) of FOIA, would\nremedy any personal privacy concerns. 5\n\nUltimately, the court determined that the correspondence from the parent of the\nUIS student was exempt\nremedy\nfrom disclosure in its entirety, as \" redaction is not a potential\nbecause the affected student could easily be identified through the context of the letter[,]\" and\nthat the UIS student' s complaint must be disclosed, as \" redaction would adequately protect the\nprivacy interests because nothing in the content of the e- mail, other than the student' s name,\nidentifies the student.\" State Journal-Register 994 N.E. 2d at 720.\n\nSimilarly, the e- mails between the School District and the parent contain highly\n\npersonal opinions of a parent concerning School District policy. There is a significant and\nlegitimate public interest\nin the disclosure of information concerning the School' s District' s\npolicy. However, information identifying the parent as the author of those opinions is highly\npersonal by its very nature; the parent' s right to privacy outweighs any legitimate public interest\nin disclosure of the parent's identity. The School District asserts that redacting identifying\ninformation from the e- mails is not possible, as \" the parent' s personal information is too\ninterwoven with her opinions in the emails. i6 This assertion is vague and largely conclusory.\nNeither the personal opinions nor any other information in the e- mails except for the author's\nname, contact information, and references to her children are specific or unique enough to\nidentify the author of the e- mails. Thus, the School District has not sustained its burden of\ndemonstrating by clear and convincing evidence that the e- mails between the School District and\nthe parent are exempt in their entireties under section 7( 1)( c).\n\n5State Journal- Register v. University ofIllinois Springfield, 994 N. E. 2d 705, 720( 4ih Dist. 2013)\n\nAccess Bureau( January 7, 2016).\n\n6Letter from Brian Crowley, Franczek Radelet, to Neil Olson, Assistant Attorney General, Public\n\n\fMs. Lisa O' Halloran\n\nMs. Ellen Walsh\n\nMr. Brian Crowley\nJune 30, 2016\n\nPage 6\n\nBased on the conclusions expressed in this letter, we request\n\nthat the School\n\nDistrict release the non- exempt a- mai to Ms. O' Halloran with redactions, pursuant to section\n7( 1)( c), of the parent's name and contact information, and specific references to the parent' s\n\nchildren.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. Please contact me at ( 217) 782- 1699 if you have\nquestions or would like to discuss this matter. This letter serves to close this matter.\n\nVery truly yours,\n\nfit/\n\nBENJAMIN REED\n\nAssistant Attorney General\nPublic Access Bureau\n\n38873 f 71c proper\n\nimproper 71f proper\n\nimproper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Lisa O'Halloran asked Elmhurst Community Unit School District 205 for emails from a school official about high school morning announcements. The district refused, citing privacy and deliberative-process exemptions. The Illinois Attorney General's Public Access Bureau found that the district properly withheld most pre-decisional emails between the superintendent and principal, but improperly withheld two October 20, 2015 emails reflecting a final decision and also improperly withheld emails exchanged between the district and a parent (those must be released after redacting the parent's name, contact information, and references to her children).","card_headline":"A school official's emails about morning announcements","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":871,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-07-26","case_number":null,"request_numbers":["39089"],"title":"Village of Lemont violated FOIA by directing requester to website for records not reasonably accessible online","filename":"39089, issued July 26, 2016.pdf","rel_path":null,"word_count":4058,"summary":"The requester sought various documents concerning fourteen specific properties, and the Village of Lemont claimed the request was unduly burdensome and directed the requester to its website. The PAC determined that while the Village did not improperly withhold records under section 3(g), it violated section 8.5(b) by failing to provide copies of records that were not reasonably accessible online.","plain_summary":"A requester asked the Village of Lemont for a large volume of property records, but the Village only provided a website link and claimed the rest of the request was too burdensome. The Attorney General's office ruled that the Village could not simply point to a website for records that were not actually available online. The Village was required to provide copies of the specific documents that were not reasonably accessible through their website.","holding":"The Village of Lemont violated section 8.5(b) of FOIA by refusing to provide copies of records that were not reasonably accessible online, though it did not improperly withhold records under section 3(g).","legal_question":"Whether a public body satisfies its FOIA obligations by directing a requester to a website for records that are not reasonably accessible online, and whether the request was unduly burdensome under section 3(g).","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/8.5"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Lemont","requesting_party":"Mr. Benjamin L. Schuster","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"online access","subject_description":"The request involved ten categories of records concerning fourteen specific properties.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/8.5/8.5_b/39089%2C%20issued%20July%2026%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["online records","unduly burdensome","FOIA request","public records access"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 26, 2016\n\nVia electronic mail\n\nMr. Benjamin L. Schuster\n\nHolland & Knight LLP\n\n131 South Dearborn Street, 30th Floor\n\n[street address redacted for site publication -- see original PDF]\nBenjamin. schuster@hklaw. com\n\nVia electronic mail\n\nMr. Kevin Kearney\nTressler LLP\n\n233 South Wacker Drive, 22nd Floor\n\nChicago, Illinois 62794\nICKeamey@tresslerlIp. com\n\nRE: FOIA Request for Review — 2015 PAC 39089\n\nDear Mr. Schuster and Mr. Keamey: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the Village of Lemont ( Village) to Mr. \nBenjamin Schuster' s re -submitted FOIA request did not improperly withhold records pursuant to\nsection 3( g) of FOIA ( 5 ILCS 140/ 3( g) ( West 2014)). This office further concludes, however, \nthat the Village violated section 8. 5( b) of FOIA ( 5 ILCS 140/ 8. 5( b) ( West 2014)) by refusing to\nprovide copies of records that are not reasonably accessible online. \n\nOn November 12, 2015, Mr. Steven Elrod, an attorney acting on behalf of the\n\nVillage of Palos Park ( Palos Park), submitted a FOIA request\nto the Village seeking \" all\ndocuments,' which he defined for purposes of the request as ten categories of records, \n\nconcerning fourteen specific properties. On November 19, 2015, the Village provided a link to\nthe Village's website where it said that responsive records could be accessed, but asserted, \npursuant\n\nto section 3( g) of FOIA, that the remainder of the request was unduly burdensome. The\n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Benjamin Schuster\n\nMr. Kevin Kearney\nJuly 26, 2016\nPage 2\n\nVillage' s response offered Mr. Elrod an opportunity to narrow his request to manageable\nproportions. On November 20, 2015, Mr. Benjamin Schuster, another attorney acting on behalf\nof the Village of Palos Park, replied that he could not reasonably access the responsive records\non the website and re -submitted the FOIA request for those records as required by section 8. 5( b) \nof FOIA. On November 25, 2015, Mr. Jeffrey M. Stein, Village Attorney, responded: ( 1) Mr. \nSchuster acknowledged in a telephone conversation that he was able to access all records on the\n\nwebsite and, therefore, the Village did not need to do more to make the responsive records on its\nwebsite accessible even though Mr. Schuster indicated that he was unable to use the website' s\nsearch function; ( 2) Mr. Schuster had verbally narrowed part 9 of the request and the Village\nwould provide the responsive records within 5 business days; and ( 3) four parts of the request, \n\nwhich Mr. Schuster declined to narrow, were denied in their entireties as unduly burdensome. \nOn December 14, 2015, Mr. Schuster submitted this Request for Review alleging: ( 1) \nviolated section 8. 5 of FOIA by refusing to provide copies of records that are not reasonably\naccessible online; and ( 2) the remainder of the request is not unduly burdensome because the\npublic interest\n\nin disclosure outweighs the Village' s burden of compliance and because he\n\nthe Village\n\noffered to grant the Village more time to produce certain records if it would provide others that\n\nwould establish the relevant timeframes. \n\nThis office forwarded a copy of the Request for Review to the Village and\nrequested a written response explaining why compliance with the request would be unduly\nburdensome. This office also requested that the Village provide a detailed explanation for the\nVillage' s assertions that the records on the Village' s website are reasonably accessible and that it\ndid not need to take further steps to make them accessible to Mr. Schuster. \n\nIn its response dated February 10, 2016, the Village explained that it granted \" 6 of\n\nthe 11 requests by directing Palos Park to the Village' s online document database. The Village\ndenied the remaining requests pursuant to section 3( g) of FOIA because they sought records\n\nrelevant\n\nto 14 separate issues spanning a 20 -year time period.\"' The Village further stated that\nduring a telephone conference with Palos Parks' attorney on November 25, 2015, Mr. Schuster, \nadmitted that he was able to access the records, but complained the online database was not\n\nsearchable[,]\" \n\ntime periods[.]\" \n\n2\n\nand refused to \" narrow the remainder of Palos Park' s request by date or general\n\nThe Village asserted that its \" online database is fully accessible and\n\nstraightforward to use,\" and explained how its website is organized: \n\nOffice of the Attorney General ( February 10, 2016) at 1. \n\nLetter from Kevin Kearney, Tressler LLP, to S. Piya Mukherjee, [ Assistant Attorney General], \n\nOffice of the Attorney General ( February 10, 2016) at 1. \n\n2Letter from Kevin Kearney, Tressler LLP, to S. Piya Mukherjee, [ Assistant Attorney General], \n\n\fMr. Benjamin Schuster\n\nMr. Kevin Kearney\nJuly 26, 2016\nPage 3\n\nThe website contains two subfolders labeled \" Ordinance\" and\n\nResolutions\". See\n\nhttp:// docs. lemont. il. us/ weblink/ browse. aspx? dbid= 0. The\n\nOrdinances\" page contains subfolders for the years 1987 through\n\n2016. Each subfolder contains the relevant ordinances passed that\n\nyear. Likewise, the \" Resolutions\" page contains subfolders for the\n\nyears 1981 through 2016, and each subfolder contains the\n\nresolutions passed that year. Both the \" Ordinances\" and\nResolutions\" pages also contain indexes. 3\n\nThe Village further stated that, \" The Act does not require the Village to make records searchable; \nrather, it must ensure they can be reasonably accessed,\" and that it \"has no obligation to do\nanything further\" when its online document database is functional, its search function works, and\nthe website contains indexes for ordinances and resolutions. 4\n\nAdditionally, the Village characterized the remainder of Mr. Schuster' s request as\nunduly burdensome because locating responsive records would require \" a search of voluminous\nmaterials for 14 separate issues spanning 20 years. i5 Referencing an affidavit\nfrom the Village\nAdministrator detailing the manner in which the Village organizes and stores the records at issue, \nthe Village asserted: \n\nComplying with the requests, as stated, would require a\n\nsubstantial undertaking. Email correspondence is stored on a\nserver, which would have to be searched using keywords ( which\nwere not provided by Palos Park). ( Schafer Aff. at 115). Physical\ncorrespondence is organized into folder by date, and stored in the\nVillage' s basement storage facility. ( Schafer Aff. at 117). Without\na narrowed date range, Village staff would be required to review\n\nevery correspondence file for records responsive to Palos Park' s\nrequests. [ Citation.] \nIn addition, case files are also organized by\ndate, and a search of those materials would be conducted the same\n\nway. ( Schafer Aff. at ¶ 8). There are approximately 160 boxes, \n\nOffice of the Attorney General ( February 10, 2016) at 2. \n\n3Letter from Kevin Kearney, Tressler LLP, to S. Piya Mukherjee, [ Assistant Attorney General], \n\nOffice of the Attorney General ( February 10, 2016) at 2- 3. \n\nLetter from Kevin Kearney, Tressler LLP, to S. Piya Mukherjee, [ Assistant Attorney General], \n\nOffice of the Attorney General ( February 10, 2016) at 3. \n\n5Letter from Kevin Kearney, Tressler LLP, to S. Piya Mukherjee, [ Assistant Attorney General], \n\n\fMr. Benjamin Schuster\n\nMr. Kevin Kearney\nJuly 26, 2016\nPage 4\n\neach containing roughly 20 folders, which would require review. \nSchafer Aff. at ¶ 9). Assuming approximately 30 minutes to\nreview one folder, the Village would expend 1600 hours to review\n\nall the files relevant to Palos Park's requests. [ Citation.] \n\nDemanding that the Village undertake a review of this magnitude, \nwithout providing a narrowed date range, is a perfect illustration of\nan unduly burdensome request. 6\n\nOn February 29, 2016, this office received Mr. Schuster' s reply. He stated that\n\nthe Village referred him to its website for responsive ordinances, resolutions, annexation\n\nagreements, and annexation petitions related to several annexations by Lemont. Mr. Schuster\n\nalleges: \n\nWe have tried dozens of times to make this website work. \nAs demonstrated with the screenshots we included in our Request\nfor Review, Lemont first had not purchased a sufficient number of\n\nlicenses for us to access the website. When we were eventually\nable to get onto the website, the search function did not work. * * * \n\nEven if Lemont' s website works the way Lemont says that\n\nit works, the website does not provide reasonable access. Rather, it\n\napparently provides folders that include 35 years' worth of\nordinances and resolutions. We do not know when the relevant\n\nannexations took place ( except for two annexations for which we\n\nwere able to obtain records independently) so we do not know\nwhich folder to start in or how to narrow our request. To locate the\nresponsive ordinances, we would have to open and review nearly\nevery posted ordinance within the 35 -year period in the hopes that\nwe stumble upon the relevant ordinances. \n\nFurthermore, Mr. Schuster asserts that the request for correspondence, e- mails, and similar\ndocuments is not unduly burdensome, and that his request could be narrowed if the Village\nprovides the ordinances and resolutions responsive to his request. Mr. Schuster asserts that Palos\n\nOffice of the Attorney General ( February 10, 2016) at 3. \n\n6Letter from Kevin Keamey, Tressler LLP, to Piya Mukherjee, [ Assistant Attorney General], \n\nGeneral, Public Access Bureau, Office of the Attorney General ( February 26, 2016) at 1- 2. \n\nLetter from Benjamin L. Schuster, Holland & Knight, to S. Piya Mukherjee, Assistant Attomey\n\n\fMr. Benjamin Schuster\n\nMr. Kevin Kearney\nJuly 26, 2016\nPage 5\n\nParks is seeking the records because the Village appears to have illegally annexed territory in\nPalos Park' s planning and subdivision jurisdiction, and that the Village \" fails to satisfy its burden\nof demonstrating that the alleged burden in providing the records outweighs the public interest\nin\ntheir disclosure.\" 8\n\nDETERMINATION\n\nSection 3( g) of FOIA\n\nSection 3( g) of FOIA provides, in pertinent part: \n\nRequests calling for all records falling within a category\n\nshall be complied with unless compliance with the request would\n\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information. \n\nA request for records concerning a specific topic is not unduly burdensome when\n\nthere is a compelling public interest\nin disclosure even if compliance with the request would\nrequire several weeks of full- time work by employees of the public body. National Ass' n of\nCriminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 17 ( 2010). \nHowever, a \" request that is overly broad and requires the public body to locate, review, redact\nand arrange for inspection a vast quantity of material that is largely unnecessary to the\nrequestor' s] purpose constitutes an undue burden.\" National Ass' n of Criminal Defense\nLawyers, 399 Ill. App. 3d at 17. \n\nThe portions of the request\n\nthat the Village denied as unduly burdensome sought\n\ncopies of all \" documents\" concerning specific properties identified by address and permanent\nindex number. The request defined \" documents\" as including all petitions to annex, annexation\nagreements, ordinances, public notices and \"[ 411 correspondence and other public records, \n\nletters, e- mails and memoranda, related to the annexation or\n\nincluding, without limitation, all\npotential annexation of the Properties by the Village of Lemont.\" 9 ( Emphasis added.) The\nrequest further sought all \" ordinances, resolutions, or other enactments approved by the Village\nof Lemont approving any ( i) zoning, special use, variation, or similar land use approval, ( ii) plat\nof subdivision, or ( iii) public incentive for any of the properties; \" all \" documents discussing, \n\nGeneral, Public Access Bureau, Office of the Attorney General ( February 26, 2016) at 3. \n\n8Letter from Benjamin L. Schuster, Holland & Knight, to S. Piya Mukherjee, Assistant Attorney\n\nAdministratorlFOIA Officer, Village of Lemont ( November\n\n12, 2015), at 2- 3. \n\n8Letter\n\nfrom Steven M. Elrod, Holland & Knight, LLP, to Mr. George J. Schaefer, Village\n\n\fMr. Benjamin Schuster\n\nMr. Kevin Kearney\nJuly 26, 2016\nPage 6\n\naddressing or showing the contiguity of the Properties to other properties located within the\nboundaries of the Village of Lemont;\" all \" agreements related to any of the Properties entered\ninto by the Village of Lemont[;]\" all \" correspondence regarding the annexation or development\nof the Properties;\" and all \" correspondence or agreements with ComEd or any of its subsidiaries\nrelated to the properties[.]\n\ni10\n\nIt is clear that compliance with Mr. Schuster' s request would impose a significant\n\nburden on the Village's operations. The available information indicates that compliance with the\nrequest, which covers an indefinite time period, would require the Village to search for paper\n\nrecords contained within 160 boxes and to expend a significant amount of time and effort trying\nto locate responsive e- mails and attachments. Given the broad definition of \"documents\" in the\nrequest, the Village would be justified in conducting a thorough review of the records to identify\nportions that may be exempt from disclosure under FOIA. \n\nWith respect to the public interest in disclosure of all responsive records, Mr. \n\nSchuster states that \" it appears Lemont has engaged in a series of illegal annexations of territory\nwithin Palos Park's planning and subdivision jurisdiction.\"' 1 There is a compelling public\ninterest\nin disclosure of records that could demonstrate the illegal annexation of property. \nHowever, the disputed portions of the broad, categorical request appear to encompass virtually\nall or almost all records related to the annexation of the properties in question. The scope of\nthese requests is not limited to records that could potentially shed light on whether the properties\nwere illegally annexed. Under these circumstances, \nrecords at issue does not outweigh the heavy burden of compliance with the request. \nAccordingly, this office concludes that the Village did not improperly deny portions of Mr. \nElrod' s November 12, 2015, FOIA request as unduly burdensome under section 3( g) of FOIA. \nThis office notes, however, that Mr. Schuster offered to narrow the request after obtaining\nrecords from the website that he was unable to access; we encourage the parties to continue\n\nin disclosure of all the\n\nthe public interest\n\nworking together to ease the burden on the public body yet provide access to these records which\nare clearly of interest\n\nto the public. \n\nSection 8. 5( a) and 8. 5( b) of FOIA\n\nSection 8. 5( a) of FOIA ( 5 ILCS 140/ 8. 5( a) ( West 2014)) provides that \" a public\n\nAdministrator/ FOIA Officer, Village of Lemont ( November\n\n12, 2015), at 2- 3. \n\n1° Letter from Steven M. Elrod, Holland & Knight, LLP, to Mr. George J. Schaefer, Village\n\nGeneral, Office of the Attorney General ( February 26, 2016) at 3. \n\nLetter from Benjamin L. Schuster, Holland & Knight, to S. Piya Mukherjee, Assistant Attorney\n\n\fMr. Benjamin Schuster\n\nMr. Kevin Kearney\nJuly 26, 2016\nPage 7\n\nbody is not required to copy a public record that is published on the public body' s website. The\npublic body shall notify the requester that the public record is available online and direct the\nto the website where the record can be reasonably accessed.\" ( Emphasis added.) \n\nrequester\n\nSection 8. 5( b) of FOIA further provides, in pertinent part: \n\nIf the person requesting the public record is unable to\n\nreasonably access the records online after being directed to the\nwebsite pursuant to subsection ( a) of this Section, the requester\n\nmay re -submit his or her request for the record stating his or her\ninability to reasonably access the record online, and the public\nbody shall make the requested record available for inspection or\ncopying as provided in Section 3 of this Act. ( Emphasis added.) \n\nIn construing a statute such as FOIA, the primary goal is to ascertain and\n\neffectuate the intent of the General Assembly. See Southern Illinoisan v. Illinois Dep' t of Public\nHealth, 218 Ill. 2d 390 ( 2006). The best indicator of legislative intent is the language of the\n\nstatute, which must be given its plain and ordinary meaning. See, e.g., Citizens Opposing\nPollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 23, 962 N. E. 2d 956, 964 ( 2012). \nHowever, \" where the language used leaves uncertainty as to how it should be interpreted in a\nthe purpose behind the law and the evils the law was\nparticular context, the court can consider\ndesigned to remedy.\" Phoenix Bond & \nIndemnity Co. v. Pappas, 194 Ill. 2d 99, 106 ( 2000). \" A\nfundamental principle of statutory construction is to view all provisions of a statutory enactment\nas a whole. Accordingly, words and phrases should not be construed in isolation, but must be\ninterpreted in light of other relevant provisions of the statute.\" Southern Illinoisan, 218 Ill. 2d at\n\n415. A statute should not be construed in a way that would defeat\nor unjust result.\" Phoenix Bond & Indemnity Co., 194 Ill. 2d at 107. \n\nits purpose \" or yield an absurd\n\nFOIA does not define the meaning of \"reasonably access\" in section 8. 5( b). \n\nUndefined terms should be construed in the broader context of the statute as a whole to\n\neffectuate the purposes behind the law. See Niven v. Siqueira, 109 Ill. 2d 357, 366 ( 1985) \n\nWhen the terms of a statute are not specifically defined, the words must be given their ordinary\n\nand popularly understood meanings [ citation], but the words must also be construed with\nreference to the purposes and objectives of the statute\"). \n\nSection 1 of FOIA (5 ILCS 140/ 1 ( West 2014)) declares that it is \" the public\n\npolicy of the State of Illinois that all persons are entitled to full and complete information\nregarding the affairs of government and the official acts and policies of those who represent them\nas public officials and public employees[.]\" The Illinois Supreme Court has found the \" purpose\nof the FOIA is to open governmental\n\nrecords to the light of public scrutiny[,]\" and that the Act\n\n\fMr. Benjamin Schuster\n\nMr. Kevin Kearney\nJuly 26, 2016\nPage 8\n\nshould be liberally construed to achieve the General Assembly' s intent of providing \" the public\ninformation[.]\" Southern Illinoisan, 218 111. 2d at 415- 16, citing\nwith easy access to government\nBowie v. Evanston Community Consolidated School District No. 65, 128 III. 2d 373, 378 ( 1989). \nIn analyzing whether records are responsive to a request, FOIA should not be interpreted \" in a\nway that would promote a practice of over -production, whereby requesting parties would be\nburied with voluminous materials of little or no relevance.\" ( Emphasis added.) Electronic\nFrontier Foundation v. Dep' t ofJustice, No. C 10- 4892 RS, 2012 WL 5372103, at * 2 ( N.D. Cal. \n2012). \n\nAs discussed above, Mr. Schuster re -submitted the FOIA request for the records\n\nthat the Village asserted were available on its website, stating that he could not reasonably access\nthose records. \n\nfor Review, Mr. Schuster asserted that those records are not\n\nIn his Request\n\nreasonably accessible because repeated attempts to access the website did not generate records\nresponsive to his request, and that on numerous occasions, attempts to search resulted in error\n\nmessages. The Village' s response to this office stated that its staff and attorneys were able to\n\nconduct searches on the website, and that a search of the word \" annex\" yielded 199 results, with\nlinks to the relevant ordinances and resolutions.' 2 On July 21, 2016, an Assistant Attorney\nGeneral ( AAG) in the Public Access Bureau conducted the same search and received 200 results, \n\neach of which contained links to resolutions, ordinances and other records related to annexations; \n\nsome of these records include voluminous exhibits. The AAG was unable to discern from the\n\nheadings of the results whether they were responsive to Mr. Schuster' s resubmitted request. A\nsearch of a sample of the specific properties by their addresses and index numbers yielded mixed\nresults. Some addresses returned records that appeared to be responsive while no results were\n\nreturned for other addresses. Searches of index numbers returned hundreds of results, many of\nwhich appeared to concern records that were not responsive to the request. \n\nInterpreting section 8. 5( b) as authorizing a public body to simply direct a\n\nrequester to a website where he or she would bear the burden of reviewing a vast quantity of\nnon- responsive records in an attempt to locate the discrete information that was sought would\n\ncontravene the General Assembly' s intent to promote easy access to full and complete\ninformation concerning public business. Other than by reviewing voluminous materials that are\nlikely to be irrelevant to his request, there does not appear to be a way for Mr. Schuster to\nconduct a search of the records of the 200 annexations maintained on the Village' s website and to\nidentify those that concern the specific properties for which he is seeking information. At a\nminimum, \" reasonably access[]\" would appear to include the ability to accurately identify narrow\ncategories of records by a specific subject matter, which was not the case here. The plain\nlanguage of the provision does not permit a public body to refuse to provide copies of records\n\nOffice of the Attorney General ( February 10, 2016) at 2. \n\n2Letter\n\nfrom Kevin Kearney, Tressler LLP, to S. Piya Mukherjee, [ Assistant Attorney General], \n\n\fr. Benjamin Schuster\n\nMr. Kevin Kearney\nJuly 26, 2016\nPage 9\n\nwhen a requester who was unable to reasonably access the records on the public body' s website\nre -submits his or her request stating an inability to do so, as Mr. Schuster did on behalf of Palos\nPark. Accordingly, this office concludes that the Village violated section 8. 5( b) of FOIA by\nfailing to provide copies of pertinent records after Mr. Schuster re -submitted the request and\nstated that he was unable to reasonably access the records on the Village' s website. \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the Village provide Mr. Schuster with copies of the responsive records that the\nVillage asserted could be reasonably accessed on its website. The Public Access Counselor has\ndetermined that resolution of this matter does not require the issuance of a binding opinion. If\nyou have any questions, please contact me at ( 312) 814- 5206. This correspondence shall serve\nto close this matter. \n\nVery truly yours, \n\nS. PIYA MUKHERJEE\n\nAssistant Attorney General\nPublic Access Bureau\n\n39089 f 3g and burd proper 8. 5( b) improper mun\n\n\fAccess, Public\n\nFrom: \n\nSent: \n\nTo: '\n\nCc: '\n\nSubject: \n\nAttachments: \n\nGood Afternoon, \n\nAccess, Public\n\nMonday, August 08, 2016 4: 05 PM\nbenjamin. schuster@hklaw. com' \n\nkkearney@tresslerllp. com' \nPAC 39089\n\n39089 f 3g and burd proper 8. 5( b) improper mun. pdf\n\nAttached, is a letter from AAG Mukherjee. \n\nThanks, \n\nLidia Sanchez\n\nParalegal\n\n11\n\nIllinois Attorney General\n100 West Randolph Street\n\nChicago, Illinois 60601\n\n312- 814- 2770\n\nIsanchez@atg. statail. us\n\nE- MAIL CONFIDENTIALITY NOTICE: This message, including all attachments, \ncontain information that is confidential, legally privileged or otherwise protected or exempt from disclosure under\n\nis for the intended recipient( s) only and may\n\napplicable law. If you are not a named recipient or if you are named and believe you were named in error, please notify\n\nthe sender immediately by telephone or return e- mail and promptly delete this e- mail and all attachments and each\ncopy thereof from your system. If you are not an intended recipient, please be aware that any copying, dissemination, \ndisclosure or other use of this e- mail and any attachments is unauthorized and prohibited. Your receipt of this message\nis not intended to waive any applicable privilege or claim of confidentiality, and any disclosure is not binding upon the\n\nsender or the Office of the Illinois Attorney General or any entity or interest represented by the Office of the Illinois\nAttorney General. Thank you for your cooperation. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Records concerning fourteen specific properties","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":872,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-02-11","case_number":null,"request_numbers":["39260"],"title":"City of Bloomington improperly withheld police disciplinary records under FOIA exemptions 7(1)(b) and 7(1)(c)","filename":"39260, issued February 11, 2016.pdf","rel_path":null,"word_count":1593,"summary":"The requester sought disciplinary records and citizen complaints regarding three police officers, which the City of Bloomington partially denied citing FOIA exemptions and the Personnel Record Review Act. The PAC determined the City improperly withheld records and closed the matter.","plain_summary":"A requester asked for 10 years of disciplinary records and citizen complaints for three specific police officers. The City of Bloomington refused to provide some of these records, claiming they were either too old or protected by privacy laws. The Attorney General's office reviewed the case and concluded that the City's refusal to release the records was improper.","holding":"The City of Bloomington improperly withheld records in response to the FOIA request.","legal_question":"Whether the City of Bloomington properly applied FOIA exemptions and the Personnel Record Review Act to withhold disciplinary records and citizen complaints concerning police officers.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"City of Bloomington","requesting_party":"Mr. Michael G. Cainkar","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought disciplinary records, citizen complaints, and internal investigation documents for three police officers over a 10-year period.","ocr_status":"ok","ocr_quality":95.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_q/39260%2C%20issued%20February%2011%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","disciplinary records","citizen complaints","personnel records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 11, 2016\n\nMr. Michael G. Cainkar\n\nLaw Offices of Louis F. Cainkar, Ltd\n\n30 North LaSalle Street, Suite 3922\n\n[street address redacted for site publication -- see original PDF]\nMr. Jeffrey R. Jurgens\nCorporation Counsel\n\nCity of Bloomington\n109 East Olive\n\nPO Box 3157\n\nBloomington, Illinois 61702\n\nRE: FOIA Request for Review — 2015 PAC 39260\n\nDear Mr. Cainkar and Mr. Jurgens: \n\nThis determination is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2014)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the City of Bloomington ( City) improperly withheld\nrecords in response to Mr. Michael Cainkar' s November 6, 2015, FOIA request. \n\nOn that date, Mr. Cainkar submitted a FOIA request to the City seeking the\n\ninvestigation ( including the\n\ncopies of all citizen' s complaints, documents relating to any internal\nresults of the investigation), lawsuits, disciplinary charges, and the disciplinary records, within\nthe last 10 years, relating to Officer Timothy Ty Carlton, Officer John Fernon, and Sergeant\nDonath.i 1 On November 25, 2015, the City denied the request in part, and disclosed citizen\ncomplaint\n140/ 7( 1)( b), ( 1)( c) ( West 2014), as amended by Public Act 99- 298, effective August 6, 2015). \nThe City asserted that no citizen complaints existed prior to 2009, citing record retention\nrequirements and that \" records of disciplinary action\" that were more than four years old were\nrequired to be deleted under section 8 of the Personnel Record Review Act (PRRA) ( 820 ILCS\n40/ 8 ( West 2014)). After further correspondence with Mr. Cainkar on November 30, 2015, the\n\nforms partially redacted under sections 7( 1)( b) and 7( 1)( c) of FOIA ( 5 ILCS\n\nFOIA Request\n\nfrom Michael G. Cainkar ( November 6, 2015). \n\n500 South Second Street, Springfield, \n\nIllinois 62706 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • \n\nFax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Michael G. Cainkar\n\nMr. Jeffrey R. Jurgens\nFebruary 11, 2016\nPage 2\n\nCity produced an additional Record of Disciplinary Action for Sergeant Donath. In his Request\nfor Review, Mr. Cainkar contended that the City misapplied the PRRA and had not disclosed all\nrecords responsive to his request, in particular investigatory records relating to citizen\n\ncomplaints. \n\nOn January 6, 2016, we forwarded a copy of the Request\n\nfor Review to the City\n\nand asked it to provide a detailed description of the handling of Mr. Cainkar' s request and the\nmeasures taken by the City to search for responsive records, including a description of the\nspecific recordkeeping systems that were searched and the specific individuals who were\nconsulted. We asked the City to specifically address the applicability of the PRRA and whether\nany investigatory records exist. \n\nOn January 20, 2016, the City responded and described a search of two systems\n\nfor responsive records: one relating to citizen complaints and the other relating to internal\ninvestigations. The City stated that its complaint files contain additional records other than the\ncitizen complaint forms, but that it construed Mr. Cainkar' s request to be limited to the forms. \n\nThe City explained that a citizen complaint may not result in a corresponding internal\ninvestigation. The City also stated that one of the officers at issue had three internal\ninvestigations in 2009 and 2010 that resulted in discipline, but that since these investigations\n\nwere more than four years old, they were withheld under section 7. 5( q) of FOIA ( 5 ILCS\n140/ 7. 5( q) ( West 2014), as amended by Public Act 99- 78, effective July 20, 2015) and section 8\nof the PRRA. \n\nOn January 26, 2016, we forwarded a copy of the City' s response to Mr. Cainkar. \nHe replied on February 4, 2016 that \" the internal investigations or other 'documents' generated as\na result of the citizens' complaints are not ' disciplinary records' per se\" and the scope of his\nrequest was broader than citizen complaint\n\nforms. 2\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are presumed to\nbe open to inspection and copying ( 5 ILCS 140/ 1. 2 ( West 2014)), and exemptions to disclosure\nare to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois Univ., 176 Ill. 2d\n401, 408 ( 1997); see also 5 ILCS 140/ 1 ( West 2014). A public body \" has the burden of proving\nby clear and convincing evidence\" \nWest 2014). \n\nfrom disclosure. 5 ILCS 140/ 1. 2\n\nthat a record is exempt\n\n2Letter from Michael G. Cainkar to Neil P. Olson, Assistant Attorney General, Public Access\n\nBureau ( February 4, 2016). \n\n\fMr. Michael G. Cainkar\n\nMr. Jeffrey R. Jurgens\nFebruary 11, 2016\nPage 3\n\nSection 7.5( q) of FOIA and the PRRA\n\nSection 7. 5( q) of FOIA exempts \"[ i] nformation prohibited from being disclosed\n\nby the Personnel Records Review Act\" from disclosure. Section 8 of the PRRA provides: \n\nAn employer shall review a personnel record before\nreleasing information to a third party and, except when the release\nis ordered to a party in a legal action or arbitration, delete\ndisciplinary reports, letters of reprimand, or other records of\ndisciplinary action which are more than 4 years old. \n\nFurther, section 11 of the PRRA ( 820 ILCS 40/ 11 ( West 2014)) states that \"[ t]his\n\nAct shall not be construed to diminish a right of access to records already provided by law, \nexcept that disclosure of performance evaluations under the Freedom of Information Act shall be\n\nprohibited.\" \n\nThe unambiguous language of sections 8 and 11 of the PRRA precludes public\n\nbodies from using it as a basis to withhold records other than those that document a disciplinary\naction. As the Public Access Bureau has previously determined, in order to be considered a\nrecord of disciplinary action under the PRRA, a record must document\ndiscipline. See, e. g., Ill. Att' y Gen. PAC Req. Rev. Ltr. 18779, issued June 29, 2012, at 6. \nAccordingly, the City improperly withheld records under section 7. 5( q) of FOIA that are beyond\nthe scope of section 8 of the PRRA, such as underlying investigative records from 2009 and\n2010. \n\nthe imposition of\n\nWe also note that the City has acknowledged that, in addition to the citizen\n\nfiles contain records that the City did\n\nforms disclosed to Mr. Cainkar, the complaint\n\ncomplaint\nnot construe as responsive to Mr. Cainkar' s request. Mr. Cainkar' s request\nrelating to any internal\ncitizen complaints that resulted in internal\nrecords related to complaints that resulted in investigations which are not accounted for in the\nsystem that maintains records of internal\nCainkar's request. If Mr. Cainkar is seeking correspondence related to citizen complaints that\ndid not result in internal\nwritten; he may wish to file another FOIA request for those records. \n\ninvestigation\" encompasses correspondence and other records concerning\ninvestigations. Accordingly, if the City possesses any\n\ninvestigations, such records are beyond the scope of his request as\n\ninvestigations, those records are responsive to Mr. \n\nfor \" documents\n\nIn accordance with the conclusions expressed in this letter, we request that the\n\nCity disclose all responsive records to Mr. Cainkar, subject to appropriate redactions under\n\n\fMr. Michael G. Cainkar\n\nMr. Jeffrey R. Jurgens\nFebruary 11, 2016\nPage 4\n\nIn particular, the City may properly redact \" unique identifiers\" that constitute\n\nsection 7 of FOIA ( 5 ILCS 140/ 7 ( West 2014), as amended by Public Act 99- 298, effective\nAugust 6, 2015). \nprivate information\" under section 7( 1)( b) of FOIA (5 ILCS 140/ 7( 1)( b) ( West 2014), as\namended by Public Act 99- 298, effective August 6, 2015). 3 Dates of birth may be redacted\nunder section 7( 1)( c) of FOIA( 5 ILCS 140/ 7( 1)( c) ( West 2014), as amended by Public Act 99- \n298, effective August 6, 2015). See, e. g., I11. Att' y Gen. PAC Req. Rev. Ltr. 20376, issued\nAugust 31, 2012. The City may also properly redact\ninformation of witnesses who voluntarily provided information to law enforcement pursuant to\nsection 7( 1)( d)( iv) of FOIA ( 5 ILCS 140/ 7( 1)( d)( iv) (West 2014), as amended by Public Act 99- \n298, effective August 6, 2015), which exempts from disclosure information that would\nunavoidably disclose the identity of a person who provided information to a law enforcement\n\nthe names and any other identifying\n\nagency. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at ( 217) 782- 9078. \n\nVery truly yours, \n\nNEIL P. OLSON\n\nAssistant Attorney General\nPublic Access Bureau\n\n39260 f 75q improper mun\n\n3FOIA defines \" private information\" as: \n\nunique identifiers, including a person' s social security number, driver' s license\nnumber, employee identification\n\nnumber, biometric identifiers, personal\n\nfinancial\n\ninformation, passwords or other access codes, medical\n\nrecords, home\n\nor personal telephone numbers, and personal email addresses. Private\n\ninformation also includes home address and personal\n\nlicense plates, except as\n\notherwise provided by law or when compiled without possibility of attribution to\nany person. 5 ILCS 140/ 2( c- 5) ( West 2014). \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Disciplinary records and citizen complaints for three police officers","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":873,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-04-08","case_number":null,"request_numbers":["39684"],"title":"City of Chicago Department of Law improperly withheld factual email under 7(1)(m)","filename":"39684, issued April 8, 2016.pdf","rel_path":null,"word_count":2228,"summary":"The requester sought communications between two City of Chicago attorneys, and the PAC determined that the City improperly withheld one specific email by incorrectly claiming it was protected by attorney-client privilege.","plain_summary":"This determination addresses whether the City of Chicago Department of Law properly withheld the text of an email between two of its attorneys under FOIA's section 7(1)(m) exemption for attorney-client privileged communications and attorney work product. The Public Access Bureau held that the Department improperly withheld the email, finding it did not meet its burden of showing either privilege applied. The email was a purely factual status update on two legal matters that disclosed no litigation theories, mental impressions, or strategy (defeating the work-product claim) and conveyed no legal advice, merely factual information later forwarded to clients with an 'FYI' note (defeating the attorney-client privilege claim). The rule for future disputes: a public body invoking 7(1)(m) must show objective indicia that a communication either reveals an attorney's conceptual litigation strategy or constitutes legal advice sought in confidence -- a factual status update, even if marked confidential and prepared by counsel, does not qualify. The body reviewed was the City of Chicago Department of Law regarding an email exchanged between two of its attorneys.","holding":"Section 7(1)(m) does not exempt an attorney's communication that is a purely factual status update lacking litigation theories, mental impressions, or legal advice, even if marked confidential or later forwarded to a client.","legal_question":"Whether an email exchanged between two attorneys and forwarded to clients constitutes a privileged attorney-client communication exempt from disclosure under section 7(1)(m) of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(m)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(d)(iv)","7(1)(f)","7(1)(m)"],"public_body":"City of Chicago Department of Law","requesting_party":"Mr. Don Moseley (WMAQ-TV)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"attorney-client privilege","subject_description":"The request concerned communications between two city attorneys regarding factual information that was later forwarded to clients.","ocr_status":"ok","ocr_quality":91.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_m/Attorney-client-privilege/39684%2C%20issued%20April%208%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["attorney-client privilege","email records","FOIA exemption","legal advice"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nApril 8, 2016\n\nVia electronic mail\n\nMr. Don Moseley\nProducer, WMAQ- TV\nDmose92480@aol. com\n\nVia electronic mail\n\nMs. Amber Achilles Ritter\n\nChief Assistant Corporation Counsel\n\nDepartment of Law\n\nCity of Chicago\n121 North LaSalle Street, Suite 600\n\n[street address redacted for site publication -- see original PDF]\nAmber. ritter@cityofchicago. org\n\nRE: FOIA Request\n\nfor Review — 2016 PAC 39684\n\nDear Mr. Moseley and Ms. Ritter: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2014)). For the reasons discussed below, the\n\nPublic Access Bureau concludes that the City of Chicago Department of Law ( Department) \nimproperly withheld an e- mail responsive to Mr. Don Moseley' s December 16, 2015, FOIA\n\nrequest. \n\nOn that date, Mr. Moseley, on behalf of WMAQ- TV, submitted a FOIA request\n\nto\nthe Department seeking copies of records of communications between Mr. Thomas Platt and Mr. \nStephen Patton, both of whom are attorneys in the Department, from January 20, 2015, and\nJanuary 21, 2015. On December 30, 2015, the Department provided responsive records but\nredacted or withheld certain information pursuant to sections 7( 1)( b), 7( 1)( c), 7( I)( d)( iv), 7( 1)( f), \n\nand 7( 1)( m) of FOIA ( 5 ILCS 140/ 7( 1)( b), ( 1)( c), (\n\n1)( d)( iv), 1( 0, ( 1)( m) ( West 2014), as\n\namended by Public Acts 99- 298, effective August 6, 2015). Mr. Moseley' s Request for Review\ndisputes only the redaction of the text of one e- mail that was exchanged between Mr. Platt and\nMr. Patton and later forwarded to two of their clients. The parties to the communication and the\n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • \n\nFax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Don Moseley\nMs. Amber Achilles Ritter\n\nApri18, 2016\n\nPage 2\n\nline of the e- mail — \"Fatal shooting on video, 4000 S. Pulaski\" were disclosed to Mr. \n\nsubject\nMoseley.' \n\nfor Review to\nOn February 2, 2016, this office forwarded a copy of the Request\nthe Department and asked it to provide a copy of the withheld e- mail and a detailed explanation\nof the factual and legal bases for the exemption under which the e- mail was withheld. On March\nfurnished a copy of the e- mail and a written response asserting that the\n4, 2016, the Department\ne- mail\nfor Mr. Moseley\nto section 7( 1)( m) of FOIA; counsel\nis exempt\nreplied on March 14, 2016. \n\nfrom disclosure pursuant\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to\n\nbe open to inspection or copying[,]\" (\ndisclosure are to be narrowly construed. Lieber v. Board of Trustees ofSouthern Illinois Univ., \n176 Ill. 2d 401, 408 ( 1997); see also 5 ILCS 140/ 1 ( West 2014). A public body \" has the burden\nof proving by clear and convincing evidence\" \n140/\n\n5 ILCS 140/ 1. 2 ( West 2014)), and exemptions to\n\nthat a record is exempt\n\nfrom disclosure. \n\n1. 2 ( West 2014). \n\n5 ILCS\n\nSection 7( 1)( m) of FOIA exempts from disclosure: \n\nCommunications between a public body and an attorney or\n\nauditor representing the public body that would not be subject\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney\nadvising the public body, and materials prepared or compiled with\nrespect to internal audits of public bodies. ( Emphasis added.) \n\nto\n\nThe Department' s response to this office asserted that the e- mail\nin question is an attorney- client\nprivileged communication and attorney work product. The Public Access Bureau has previously\ndetermined that the section 7( 1)( m) exemption encompasses both privileged attorney- client\ncommunications and work product. Ill. Att'y Gen. PAC Req. Rev. Ltr. 28304, issued February\n26, 2016. These are \" separate and distinct protections\" that must be addressed separately. Waste\nManagement, Inc. v. International Surplus Lines Insurance, Co., 144 Ill. 2d 178, 189 ( 1991). \n\n20, 2015). \n\nE- mail from Thomas Platt to Stephen Patton, James Dunn, Jane Notz, and Liza Franklin ( January\n\n\fMr. Don Moseley\nMs. Amber Achilles Ritter\n\nApril 8, 2016\n\nPage 3\n\nWork Product\n\nThe parameters of this doctrine are set forth in Illinois Supreme Court Rule\n\nto discovery only if it does not contain or disclose the theories, mental\n\n201( b)( 2), which provides that material prepared \" by or for a party in preparation for trial\nsubject\n1 tigation plans of the party' s attorney.\" Attorney work product\nreveal\nMonier v. Chamberlain, 35 Ill. 2d 351, 359- 60 ( 1966). \n\nthe shaping process by which the attorney has arranged the available evidence\" for trial. \n\nis limited to records which\n\nimpressions, or\n\nIn contrast, \"[ a] ny relevant material\n\nis\n\ngenerated in preparation for trial which does not disclose ' conceptual data' is freely discoverable\nunder Rule 201( b)( 2).\" Holland v. Schwan' s Home Services, Inc., 2013 IL App ( 5th) 110560, \n205, 992 N. E. 2d 43, 86 ( 2013), quoting Waste Management, Inc., 144 Ill. 2d at 196; see also\nMau v. North American Asbestos, Corp., 156 I11. App. 3d 926, 928- 29 ( 4th Dist. 1987) ( rejecting\nan attorneys argument that a list of witnesses for trial is work product that reveals litigation\n\nstrategy). \n\nThe Department' s response to this office stated: \n\nHere, attorney Tom Platt, who serves as Deputy\n\nCorporation Counsel of the Law Department' s Federal Civil Rights\n\nLitigation Division, was communicating with Corporation Counsel\nSteve Patton regarding the litigation posture and strategy for two\nmatters — one which had already been filed in federal court, and the\nother which he anticipated being filed. This communication\nplainly falls into the definition of work product, in that it was\nprepared in anticipation and preparation for litigation and trial, and\n\nthat it indicates litigation strategy. Therefore, this exchange\nconstitutes work -product, and was properly redacted under Section\n7( 1)( m) of FOIA i21\n\nIn her reply to that response, counsel for Mr. Moseley asserted that the Department' s \" response\nprovides almost no evidence to support its invocation of the work product privilege, let alone\nobjective facts establishing a substantial and significant threat of litigation. i3\n\n2Letter from Amber Achilles Ritter, Chief Assistant Corporation Counsel, Legal Information, \n\nInvestigations & Prosecution Division, City of Chicago Department of Law, to Steve Silverman, Assistant Bureau\nChief, Public Access Bureau, Office of the Attorney General ( March 4, 2016), at 4. \n\n3Letter from Amanda M. Leith, Senior Counsel, NBCUniversal News Group, NBCUniversal\n\nMedia, LLC, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney General\nMarch 14, 2016), at 2. \n\n\fMr. Don Moseley\nMs. Amber Achilles Ritter\n\nApril 8, 2016\n\nPage 4\n\nThis office has reviewed the e- mail at issue, in which the City' s Deputy\n\nCorporation Counsel provides information on the status of two legal matters. Even assuming\nthat the e- mail was prepared in anticipation of litigation, the information that it conveys is strictly\nfactual. The e- mail\nmerely a status update. Because the e- mail does not disclose any conceptual data or reveal the\nshaping process of arranging evidence for trial, we conclude that the Department has not\nsustained its burden of demonstrating that it is exempt\nto section 7( 1)( m). \n\nfrom disclosure as work product pursuant\n\nis devoid of any theories, mental\n\nimpressions, or litigation plans. \n\nIt is\n\nAttorney - Client Privilege\n\nA party asserting that a confidential communication is protected by the attorney- \n\nclient privilege must show that: \"( 1) a statement originated in confidence that it would not be\n\ndisclosed; ( 2) it was made to an attorney acting in his legal capacity for the purpose of securing\nlegal advice or services; and ( 3) it remained confidential.\" Cangelosi v. Capasso, 366 I11. App. \n3d 225, 228 ( 2nd Dist. 2006); see also Hartford Fire Ins. Co. v. Garvey, 109 F. R. D. 323, \n327 ( N. D. Cal. 1985) (\" The proponent of the privilege carries the burden of establishing all\nIn re General\nelements of the privilege, \n\nincluding confidentiality, which is not presumed\"); \n\nInstrument Corp. Securities Litigation, 190 F. R. D. 527, 531 ( N. D. Ill., 2000), quoting U.S. v. \nEvans, 113 F. 3d 1457, 1461 ( 7th Cir. 1997) (\" To be privileged, the documents must not only\nexhibit attorney involvement, but must involve ' a legal adviser acting in his capacity as such.\"). \n\nThe section 7( 1)( m) exemption must be narrowly construed to promote\n\ntransparency \" notwithstanding the countervailing policy favoring confidentiality between\nattorneys and clients.\" 111. Education Association v. 111. State Board of Education, 204 Ill. 2d\n456, 470 ( 2003). A public body that withholds records under section 7( 1)( m) must provide a\nsupporting factual basis for the application of the exemption: \n\nI] n meeting its burden, the public body may not simply treat the\nwords \" attorney- client privilege\" or \" legal advice\" as some\ntalisman, the mere utterance of which magically casts a spell of\nsecrecy over the documents at issue. Rather, the public body can\nmeet\nits burden only by providing some objective indicia that the\nexemption is applicable under the circumstances. ( Emphasis in\n\noriginal.) \n\n111. Education Association, 204 Ill. 2d at 470. \n\nThe Department' s response to this office asserted that the attorney who received\nin question forwarded it to clients of the Department \" in order to advise them of the\n\nthe e- mail\nposture and upcoming events expected in the two matters discussed. As a result, the forwarding\nof this communication falls squarely in the definition of an attorney- client privileged\n\n\f1\nMr. Don Moseley\nMs. Amber Achilles Ritter\nApril 8, 2016\n\nPage 5\n\ncommunication[.]\" \n\nthat the clients sought\nthem. \n\n4 Counsel for Mr. Moseley replied that the Department failed to demonstrate\nlegal advice or explain why the information in the e- mail was provided to\n\nApplying Illinois law, a federal district court concluded in Dawson v. New York\n\nLife Ins. Co., 901 F. Supp. 1362, 1367 ( N. D. I11. 1995), that facts communicated by a\ncorporation' s attorneys to the corporation' s employees were not protected by the attorney- client\nprivilege because the attorneys were acting \" more as ' courier[ s] of factual\ninformation,' rather\nthan ' legal advisers.\"' The court further explained that \" common sense tells us that there is a\ndifference between merely providing legal\nattorneys were simply called upon to provide factual\nThe attorneys' purpose was not to instruct the employees on the proper use of this information.\" \nDawson, 901 F. Supp. at 1367; see also Digital Vending Services International, Inc. v. University\nofPhoenix, Inc., No. 2: 09 -CV -555, 2013 WL 1560212, at * 6 ( E.D. Va., 2013) ( e- mails\nd scussing status of preparation for oral arguments in federal court are \" simply status updates and\nno legal advice is given by counsel. Therefore, these communications\nare not privileged.\"); Elder\nCare Providers ofIndiana, Inc. v. Home Instead, Inc., No. 114- CV- 01894SEBMJD, 2016 WL\n881176, at * 4 ( S. D. Ind. Mar. 8, 2016); ( e- mail asking an attorney how to respond to a request\nfor a status update is not privileged because it did not seek legal advice). \n\ninformation and providing legal ' advice.' Here, the\n\ninformation to the * * * employees at issue. \n\nAlthough the e- mail in question is marked as confidential, it is merely a status\n\nupdate that contains strictly factual information about two matters. It does not convey any legal\nadvice. The forwarding of this e- mail to the Department' s clients with a message that simply\nstates \" FYI\", 5 which was disclosed to Mr. Moseley, does not transform this e- mail\nprivileged attorney- client communication. Because the e- mail in question provides only factual\ninformation rather than legal advice, this office concludes that the Department has not sustained\nits burden of demonstrating that it is exempt\nprivileged attorney- client communication. \n\nfrom disclosure pursuant\n\nto section 7( 1)( m) as a\n\ninto a\n\nLetter from Amber Achilles Ritter, Chief Assistant Corporation Counsel, Legal Information, \n\nInvestigations & Prosecution Division, City of Chicago Department of Law, to Steve Silverman, Assistant Bureau\nChief, Public Access Bureau, Office of the Attorney General ( March 4, 2016), at 4. \n\nE- mail from Stephen Patton to\n\nand\n\nJanuary 20, 2015). \n\n\fr. Don Moseley\nMs. Amber Achilles Ritter\nApril 8, 2016\n\nPage 6\n\nIn accordance with the conclusions expressed above, this office requests that the\nDepartment furnish a copy of the e- mail at issue to Mr. Moseley. The Public Access Counselor\nhas determined that resolution of this matter does not require the issuance of a binding opinion. \nIf you have any questions, please contact me at ( 312) 814- 6756. This letter serves to close this\nfile. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n39684 f 71m improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Attorneys' emails with factual updates to clients","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":874,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-05-12","case_number":null,"request_numbers":["39705"],"title":"Village of Oak Park properly withheld employee survey as deliberative process material under 7(1)(f)","filename":"39705, issued May 12, 2016.pdf","rel_path":null,"word_count":1300,"summary":"The requester sought a copy of a Village employee survey, which the Village denied under the deliberative process exemption. The PAC determined that the Village properly withheld the records as pre-decisional deliberative material.","plain_summary":"A reporter requested an employee survey from the Village of Oak Park, but the Village refused to release it, claiming it was part of their internal decision-making process. The Attorney General's office reviewed the request and agreed with the Village, ruling that the document was exempt from disclosure because it was used for internal policy formulation. This means the public does not have a right to access this specific type of internal survey.","holding":"The Village of Oak Park did not improperly withhold the requested employee survey because it constitutes pre-decisional deliberative material.","legal_question":"Whether an employee survey conducted by a municipality is exempt from disclosure under the deliberative process exemption of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(f)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Village of Oak Park","requesting_party":"Mr. Tim Inklebarger (Wednesday Journal)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request concerned an employee survey conducted by the Village of Oak Park in 2015.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Communications-with-third-parties/references-survey-takers/39705%2C%20issued%20May%2012%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["employee survey","deliberative process","exemption 7(1)(f)","internal records"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMay 12, 2016\n\nMr. Tim Inklebarger\nReporter\n\nWednesday Journal\n[street address redacted for site publication -- see original PDF]\nMr. Paul L. Stephanides\n\nVillage Attorney\nVillage of Oak Park\n\nLaw Department\n\n123 Madison Street\nOak Park, Illinois 60302\n\nRE: FOIA Request for Review — 2016 PAC 39705\n\nDear Mr. Inklebarger and Mr. Stephanides: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 14019. 5( f) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that the Village of Oak Park ( Village) did not improperly\nwithhold records responsive to Mr. Tim Inklebarger' s January 13, 2016, FOIA request. \n\nOn that date, Mr. Inklebarger, on behalf of the Wednesday Journal, submitted a\n\nFOIA request to the Village seeking a copy of a Village employee survey conducted by the\nVillage in the fall of 2015. On January 21, 2016, the Village denied Mr. Inklebarger's request in\nits entirety pursuant to section 7( 1)( f) of FOIA (5 ILCS 140/7( 1)( f) (West 2014), as amended by\nPublic Acts 99- 298, effective August 6, 2015; 99-346, effective January 1, 2016). On January\n21; 2016, this office received Mr. Inklebarger's Request for Review in which he disputes the\n\ndenial of his request. \n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090TTY: ( 217) 785 - 2771 \" Fax: ( 217) 782- 7046\n1001001REasoMain, Carbondale, \n\n2) 814- 300\n6400- \n\n29- 6400 - TTY: ( 618)\n\nFax: ( 6 8) 529- 6416\n\nIllinois 62901\n\n529- 6403\n\n814- 3806\n\nTTY: \n\n618) • 529-\n\n60601 (\n\n312) \n\n3\n\n\fMr. Tim Inklebarger\n\nMr. Paul L. Stephanides\n\nMay 12, 2016\nPage 2\n\nOn February 3, 2016, the office forwarded a copy of this Request for Review to\n\nthe Village and requested that it provide a copy of the responsive. records for our confidential\nreview together with a detailed explanation of the factual and legal bases for the assertion of\nsection 7( 1)( f). On February 26, 2016, the Village responded and provided the survey results for\nour confidential review. In its response, the Village maintained that its denial was proper under\nsection 7( 1)( f) and added an assertion that the survey is also exempt from disclosure pursuant to\nsection 7( 1)( g) of FOIA (5 ILCS 140/ 7( 1)( g) ( West 2014), as amended by Public Acts 99- 298, \neffective August 6, 2015; 99- 346, effective January 1, 2016). On February 29, 2016, this office\nforwarded the Village' s response to Mr. Inklebarger; he did not reply. On May 11, 2016, in an e- \nmail to an Assistant Attorney General in the Public Access Bureau, Mr. Inklebarger clarified that\nhe is seeking copies of the Village employees' responses to the survey. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body \" are presumed to\nbe open to inspection and copying.\" 5 ILCS 140/ 1. 2 ( West 2014); see also Southern Illinoisan v. \nIllinois Dept. ofPublic Health, 218 Ill. 2d 390, 415 ( 2006). Any public body that asserts that a\nrecord is exempt from disclosure \" has the burden of proving by clear and convincing evidence\" \nthat a record is exempt\ndisclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois\nUniversity, 176 Ill. 2d 401, 407 ( 1997). \n\nfrom disclosure. 5 ILCS 140/ 1. 2 ( West 2014). The exemptions from\n\nSection 7( 1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" \"[ A] s a\nmatter of public policy, section 7( 1)(\nf) exempts from disclosure predecisional materials used by a\npublic body in its deliberative process. \" Harwood v. McDonough, 344 Ill. App. 3d 242, 248 ( 1st\nDist. 2003). The exemption is \" intended to protect the communications process and encourage\nfrank and open discussion among agency employees before a final decision is made.\" Harwood, \n344 Ill. App. 3d at 248. \n\nThe Village' s response to this office asserted the following: \n\nThe survey is a tool for the Village Manager to formulate policies\nor actions and other matters, including recommendations, \nconcerning Village employees and her overall management of\nVillage employees and their supervisors. In addition, the survey\nresults may be reviewed in summary from by [ sic] the Village\n\n\fMr. Tim Inklebarger\nMr. Paul L. Stephanides\nMay 12, 2016\nPage 3\n\nBoard to conduct its annual review of the Village Manager' s\n\nperformance * * * \n\nIf the results were to be released, it may have a\n\nnegative effect on open communications and truthful answers to\nthe questions posed by the survey * * * \neffect on the future use of the survey or other similar types of\nsurveys of Village employees in order to determine policies or\nactions to be taken with regard to employees.' \n\nIt may also have a chilling\n\nIn addition, the Village included with its response to this office an e- mail from the\n\nVillage Manager to Village Supervisors, explaining the purpose of the survey: \n\nAgain this year, we will be asking employees to participate\nin the Oak Park Employee Survey * * * [ B] y sharing their opinions\nand making their voices heard, they provide us with knowledge of\nthe overall employee opinions and this information guide both the\nVillage Manager and the Village Board in knowing how and where\nto begin improving the work environment. * * * \nnoteworthy that the employee opinions that were shared with us\nlast year help guide decisions about improving our workplace. 2\n\nI also think it is\n\nThis office has reviewed the responsive records, which are survey responses from\nemployees and supervisors containing their opinions on various workplace matters. The Village\nhas asserted that these results are used by the Village in its deliberative process to improve the\nworkplace for Village employees, and that they were not publicly cited by the head of the\nVillage. The Public Access Bureau has previously concluded that survey responses in which\npublic employees express opinions that are used as part of a public body's decision- making\nprocess are exempt from disclosure under section 7( 1)( f). Ill. Att'y Gen. PAC Pre- Auth. \nal13448, issued April 11, 2011 ( concluding results of surveys of public employees containing\ntheir opinions and recommendations which were used by a village to formulate actions and\npolicies constituted pre -decisional deliberative material). Likewise, we conclude that the Village\ndid not improperly deny Mr. InkleBarger' s request under section 7( 1)(\n\nf) of FOIA. \n\nGeneral, Public Access Bureau, Office of the Attorney General ( February 26, 2016), at 2- 3. \n\nLetter from Paul L. Stephanides, Village Attorney, to Shannon Barnaby, Assistant Attorney\n\n2E -mail from Cara Pavlicek, Village Manager, Village of Oak Park, to Robert Anderson et. al. \n\nSeptember 8, 2015). \n\n\fMr. Tim Inklebarger\n\nMr. Paul L. Stephanides\n\nMay 12, 2016\nPage 4\n\nBecause this office has determined that the Village did not improperly withhold\n\nthe survey under section 7( 1)(\nsection 7( 1)( g) of FOIA. \n\nf) of FOIA, we need not determine whether it is exempt under\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, you may contact me at the Chicago address listed on the first page of this\nletter. \n\nVery truly yours, \n\nSHANNON BARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n\n39705 f 71f proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An employee survey from 2015","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":875,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-04-08","case_number":null,"request_numbers":["40002"],"title":"Southern Illinois University properly withheld termination and reinstatement records under 7(1)(n)","filename":"40002, issued April 8, 2016.pdf","rel_path":null,"word_count":970,"summary":"A reporter requested employment, termination, and reinstatement records for a university employee, which the university withheld under FOIA Section 7(1)(n). The PAC determined that the university properly withheld the records because they related to an adjudication of a disciplinary case.","plain_summary":"The requester sought an employee's termination and reinstatement records from the university, which withheld them as records relating to an employee disciplinary adjudication. Based on confidential information the university provided, the PAC determined that the final outcome of the adjudication did not itself impose discipline, so the exemption for disciplinary case records was not overridden by the final-outcome exception. The university's withholding did not violate FOIA.","holding":"Southern Illinois University did not improperly deny the request for termination and reinstatement records because they are exempt under section 7(1)(n) of FOIA.","legal_question":"Whether records relating to an employee's termination and reinstatement are exempt from disclosure under section 7(1)(n) of FOIA as records relating to the adjudication of disciplinary cases.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(n)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(n)"],"public_body":"Southern Illinois University","requesting_party":"Mr. Bill Lukitsch (Daily Egyptian)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought employment, termination, and reinstatement records for a university employee.","ocr_status":"ok","ocr_quality":97.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_n/40002%2C%20issued%20April%208%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","employee discipline","FOIA exemption","university records"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nApril 8, 2016\n\nMr. Bill Lukitsch\n\nSouthern Illinois University\nDaily Egyptian — MC 6887\n[street address redacted for site publication -- see original PDF]\nMr. Douglas J. McCarty\nAssociate General Counsel\n\nSouthern Illinois University\nOffice of the General Counsel\nAnthony Hall, Room 318\nMail Code 4307\n\n1265 Lincoln Drive\nCarbondale, Illinois 62901\n\nRE: FOIA Request for Review — 2016 PAC 40002\n\nDear Mr. Lukitsch and Mr. McCarty: \n\nThis determination is issued pursuant to section 9. 50 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2014)). For the reasons discussed below, the\nPublic Access Bureau concludes that Southern Illinois University ( University) did not\nimproperly deny Mr. Bill Lukitsch' s FOIA request. \n\nMr. Lukitsch submitted an undated FOIA request, on behalf of the Daily\n\nrecord of Dr. Bakul Dave. On February 2, 2016, the University furnished a\n\nEgyptian, to the University seeking the employment contract, termination record, and\nreinstatement\nredacted copy of the employment contract but denied the termination and reinstatement\nin their entireties pursuant\namended by Public Acts 99- 298, effective August 6, 2015; 99- 346, effective January 1, 2016), \nwhich exempts from disclosure: \" Records relating to a public body' s adjudication of employee\ngrievances or disciplinary cases; however, this exemption shall not extend to thefinal outcome\nof cases in which discipline is imposed.\" ( Emphasis added.) Mr. Lukitsch disputes the denial of\n\nto section 7( 1)( n) of FOIA ( 5 ILCS 140/ 7( 1)( n) ( West 2014), as\n\nrecords\n\n500 South Second Street, Springfield, Illinois 62706 • (\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \nFax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Bill Lukitsch\n\nMr. Douglas J. McCarty\nApril 8, 2016\n\nPage 2\n\nthose records, contending that the University disciplined the employee who was the subject of\n\nthe adjudication. \n\nOn February 11, 2016, this office sent a copy of the Request for Review to the\n\nIn particular, this office asked the University to describe any formal or informal\n\nUniversity and asked it to provide copies of the withheld records for our confidential review and\na detailed explanation of the factual and legal bases for the applicability of the section 7( 1)( n) \nexemption. \nproceedings relating to the relevant termination and reinstatement and to clarify whether or not\nthose proceedings resulted in discipline. On February 25, 2016, the University furnished the\nrequested materials and its written response. The University' s response to this office emphasized\nthat the term \" final outcome\" is undefined in section 7( 1)( n), and contended that the imposition\nof discipline was not the final outcome of the adjudication at issue in this matter. The University\nprovided this office with additional information supporting that assertion on a confidential basis\npursuant to section 9. 5( d) of FOIA ( 5 ILCS 140/ 9. 5( d) ( West 2014)).' Mr. Lukitsch did not\nreply to the non -confidential version of the University response. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are presumed to\nbe open to inspection and copying ( 5 ILCS 140/ 1. 2 ( West 2014)), and exemptions to disclosure\nare to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois Univ., 176 Ill. 2d\n401, 408 ( 1997); see also 5 ILCS 140/ 1 ( West 2014). A public body \" has the burden of proving\nby clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS 140/ 1. 2\n\nWest 2014). \n\nThis office has reviewed the records in question, which show that the University\n\nadjudicated an employee disciplinary case in accordance with the applicable collective\nbargaining agreement. The University' s response to this office included confidential\ninformation\nsupporting its assertion that the imposition of discipline was not the \" final outcome\" of the case. \nBased on that confidential\nconfidentially, we agree that the final and enforceable decision in this matter was not the\nimposition of discipline. Further, in light of the final outcome of the adjudication, which we are\nprecluded from describing in this determination because the records were provided\nconfidentially, 2 no discipline was imposed in the case for purposes of section 7( 1)( n) of FOIA. \n\nresponse and information in the records that were provided\n\nSection 9. 5( d) of FOIA provides that the Public Access Counselor shall\nforward a copy\nof the public body' s response \" to the person submitting the request for review, with any alleged confidential\ninformation to which the request pertains redacted from the copy.\" \n\n2Section 9. 5( c) of FOIA ( 5 ILCS 140/ 9. 5( c) ( West 2014)) provides: \" To the extent\n\nthat records or\n\ndocuments produced by a public body contain information that is claimed to be exempt from disclosure under\nSection 7 of this Act, the Public Access Counselor shall not\n\nfurther disclose that\n\ninformation.\" \n\n\fMr. Bill Lukitsch\nMr. Douglas J. McCarty\nApril 8, 2016\n\nPage 3\n\nBecause the termination and reinstatement records at issue in this matter relate to the University' s\nadjudication of an adjudication that did result in discipline, this office concludes that the\nUniversity did not improperly withhold those records pursuant to section 7( 1)( n) of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756. This letter serves to close this file. \n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n40002 f 71n proper univ\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A journalist asked Southern Illinois University for records regarding an employee's termination and reinstatement. The university refused to release these documents, citing a law that protects records related to employee disciplinary cases. The Attorney General's office agreed with the university, finding that the records were properly withheld under the law.","card_headline":"Employment, termination, and reinstatement records for a university employee","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":876,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-07-12","case_number":null,"request_numbers":["40373"],"title":"Cook County Sheriff's Office violated FOIA by retroactively calling request voluminous","filename":"40373, issued July 12, 2016.pdf","rel_path":null,"word_count":1361,"summary":"The requester sought Office of Professional Review reports and security footage, and the PAC determined the Cook County Sheriff's Office failed to timely classify the request as voluminous under FOIA.","plain_summary":"A requester sought reports and security-camera footage relating to numerous grievances from a county sheriff's office. The PAC determined that the office properly treated the request as voluminous because it involved more than 500 pages, but violated FOIA by waiting too long to notify the requester that it was doing so. Because the office later provided the first 50 pages without charge and FOIA provides no specific remedy for a late voluminous-request notice, no further remedial action was required.","holding":"The Sheriff's Office failed to comply with the time requirements of FOIA by delaying its classification of the request as voluminous.","legal_question":"Whether a public body may retroactively classify a FOIA request as 'voluminous' after the initial statutory response period has expired.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/3.6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Cook County Sheriff's Office","requesting_party":"Mr. Mitchell","pac_outcome":"Violation found regarding timeliness","pac_law_type":null,"subject_category":"voluminous request","subject_description":"The requester sought Office of Professional Review reports and security camera footage related to 51 specific grievances.","ocr_status":"reocr_tesseract","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3.6/40373%2C%20issued%20July%2012%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["voluminous request","FOIA deadline","Sheriff's Office","records request"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"F' 6\n\nG\n\nkrm.\n\ni\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nOFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJuly\n\nIllinois 60644\n\nMs. Elizabeth Scannell\n\nAssistant General Counsel\n\nSheriffs Office of Cook County\n50 West Washington, Room 704\nChicago, Illinois 60632\n\nRE: FOIA Request\n\nfor Review— 2016 PAC 40\n\nr Mr. Mitchell and Ms. Scannell:\n\nThis determination is issued pursuant\n\nto section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2014)). For the reasons set forth below, the\nPublic Access Bureau concludes that the Cook County Sheriffs Office ( Sheriffs Office) did not\ncomply with the time requirements of FOIA w\nFOIA request as a \" voluminous\n\nyne Mitchell' s\n\nrequest.\n\nMr. Mitchell submitted a FOIA request dated January 11, 2016, to the Sheriffs\n\nOffice seeking all Office of Professional Review reports relating to 51 specified grievances from\n20113 to 2015, together with stationary security camera footage relating to thos rievance\nMitchell submitted this request while he was incarcerated in a State prison and requested that the\n\nSheriffs Office waive the fees for photocopies.\n\nIn its response to this Request\n\nfor Review, the Sheriffs Office asserts that it\n\nreceived the request on January 25, 2016. On February 1, 2016, the Sheriffs Oce notif\nMitchell\nthat it was extending the time for response under section 3 of FOIA ( 5 ILCS 140/ 3\nWest 2014)), and that it would respond on or before February 8, 2016. On February 8, 2016,\nthe Sheriffs O d Mr. Mitchell\nrequest\" under section 3. 6 of FOIA ( 5 ILCS 140/ 3. 6 ( West 2014)) on the basis that it required the\n\nthat it was treating his request as a \" voluminous\n\n500 South Second Street, Springfield,\n\n100 West Randolph Street, Chicago,\n\nIllinois 62706 • ( 217) 782- 1090 • TTY: ( 217) 785- 2771 • Fax:( 217) 782- 7046\nFax:( 312) 814- 3806\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • \n\nIllinois, 60601 • (\n\n1001 East Main, Carbondale,\n\nIllinois 62901•(\n\n618) 529- 6400• TTY: ( 618) 529- 6403• Fax:( 618) 529- 6416\n\n\fhell\n\nMs. Elizabeth Scannell\n\nJuly 12, 2016\nPage 2\n\ncompilation of more than 500' pages of letter or legal- sized pages of public records. Under\n\nsection 3. 6, a requester has 10 business days to amend the request\nbody will no longer treat the request as voluminous. \nsection 3. 6 notification, the Sheriffs Office notified him on February 24, 2016, that it was\nextending the time for response until March 2, 2016. On March 2, 2016, the Sheriffs Office\nnoti hell that it had compiled the responsive records, and that it would charge him\n\nin such a way that the public\nhell did not respond to the\n\nford copies in excess of the first 50 pages under section 6( b) of FOIA ( 5 ILCS 140/ 6(b) ( West\n2014)). On March 30, 2016, the Sheriffs Office\nresponsive to his request without charge.\n\nhell the first 50 pages of records\n\nOn April 19, 2016, this office sent a copy of the Request\n\nfor Review to the\n\nSheriffs Office and requested a detailed description of the handlin ll's request,\nincluding the date on which the Sheriffs Office received the request, and an explanation of the\nlegal and factual bases for treating the request as voluminous under section 3. 6 of FOIA. The\nSheriffs Office submitted a response on May 2, 2016. On May 11, 2016, this office forwarded a\ncopy of the Sheriffs Office's respons\n\nhell; he did not reply.\n\nDETERMINATION\n\nDefinition of Voluminous Request\n\nSection 2( h) of FOIA ( 5 ILCS 140/ 2( h) ( West 2015 Supp.)) defines a\n\nvoluminous\n\nrequest\" as:\n\na request that: ( i) includes more than 5 individual requests\nfor more than 5 different categories of records or a combination of\nindividual requests that total requests for more than 5 different\n\ncategories of records in a period of 20 business days; or( ii)\nrequires the compilation of more than 500 letter or legal- sized\n\npages of public records unless a single requested record exceeds\n\n500 pages. \" Single requested record\" may include, but is not\nlimited to, one report, form, e- mail, letter, memorandum, book,\n\nmap, microfilm, tape, or recording.\n\nIn its response to this office, the Sheriffs Office asserted that the records responsiv o Mr.\n\nll's request\ninclude 490 pages of responsive reports, 16 photographs, and two video files.\nThe Sheriffs Office subsequently clarified in correspondence to this office that the photographs\nwere stored in an electronic format, but would be printed with a single photograph to a page in\n\norder to provide paper copie\nhell. In total, the request required the compilation of\n506 pages of printed material., Accordingly, we conclude that because the request required the\n\n\fhell\n\nMs. Elizabeth Scannell\n\nJuly 12, 2016\nPage 3\n\ncompilation of more than 500 pages of public records, the Sheriff' s Office did not improperly\ntreat the request as a \" voluminous request.\"'\n\nNotification of Voluminous Request\n\nSection 3. 6( a) of FOIA ( 5 ILCS 140/ 3. 6( a) ( West 2014)) describes the procedures\n\nfor' notifying a requester that a public body is treating a request as a voluminous request, and\nprovides in relevant part that \"[ n] otwithstanding any provision of this Act to the contrary, a\npublic body shall respond to a voluminous request within 5 business days after receipt.\"\nEmphasis added.) In addition, section 3( i) of FOIA ( 5 ILCS 140/ 3( i) ( West 2014)) provides\n\nthat:\n\nt] he time periods for compliance or denial of a request to\n\ninspect or copy records set out in this Section shall not apply to\nrequests for records made for a commercial purpose, requests by a\nrecurrent\n\nrequester, or voluminous requests. Such requests shall\n\nbe subject to the provisions of Sections 3. 1, 3. 2, and 3. 6, as\n\napplicable. ( Emphasis added.)\n\nThe Sheriffs Office first responde\n\nll's request on February 1, 2016,\n\nby extending the time to respond, until February 8, 2016, citing section 3. Typically, a public\nbody may assert an extension of time of up to five business days for any of the seven reasons\nenumerated in section 3( e) ( 5 ILCS 140/ 3( e) ( West 2014)). The plain language of section 3. 6( a),\nhowever, requires that a public body notify a requester that it is treating a request as a\nvoluminous request within five business days of receipt of the request, and does not provide for\nan extension of time to respond under section 3( e). In addition,' section 3( i) specifies that the\ntime periods for compliance provided in section 3. 6, rather than the time periods in section 3,\ngovern voluminous requests. It is undisputed that the Sheriffs Office did not no hell\nthat it was treating his request as a voluminous request until February 8, 2016, which was more\nthan five business days after it received the request on January 25, 2016. Accordingly, this\noffice concludes that the Sheriffs Office did not timely no hell that it was treating\nhis request as a \" voluminous request.\"\n\nI\n\nhell has contested the Sheriffs Office's treatment of his request as\n\nvoluminous, but has not sought a specific remedy. In contrast to sections 3( d) and 3( f) of FOIA\n5 I!LCS 140/ 3( d), ( 1) ( West 2014)), section 3. 6 does not provide for a fee waiver( or any other\npenalty) in the case of a late response. Based on the information provided by the Sheriffs\n\nrequest\" \n\nin section 2( h) also applies.',\n\nThis office does not address the Sheriffs Office' s assertion that the first definition of\" voluminous\n\n\fMs. Elizabeth Scannell\nJuly 12, 2016\nPage 4\n\nOffice, except for its delayed assertion that the request was voluminous, it complied with the\nprovisions of section 3. 6. On March 30, 2016, the Sheriffs Office furnished the first 50 pages of\nrecords to\nwithout charge. Under these circumstances, FOIA does not prohibit the\nSheriffs Office from charging fees in accordance with section 6( b) of FOIA for paper copies of\nthelremaining records. Accordingly, no remedial action is required.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnotirequire the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Springfield address on the first page of this letter.\n\nVery truly yours,\n\nNEIL P. OLSON\n\nAssistant Attorney General\nPublic Access Bureau\n\n40373 f 36 vol req proper improper county\n\nI\n\nII\n\nmmmmmmnnnMr.\n\nI\nI\nI\n,\nI\ni\ni\n\f","full_text_pre_reocr":"F' 6\n\nG\n\nkrm.\n\ni\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nOFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJuly\n\nIllinois 60644\n\nMs. Elizabeth Scannell\n\nAssistant General Counsel\n\nSheriffs Office of Cook County\n50 West Washington, Room 704\nChicago, Illinois 60632\n\nRE: FOIA Request\n\nfor Review— 2016 PAC 40\n\nr Mr. Mitchell and Ms. Scannell:\n\nThis determination is issued pursuant\n\nto section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2014)). For the reasons set forth below, the\nPublic Access Bureau concludes that the Cook County Sheriffs Office (Sheriffs Office) did not\ncomply with the time requirements of FOIA w\nFOIA request as a \" voluminous\n\nyne Mitchell's\n\nrequest.\n\nMr. Mitchell submitted a FOIA request dated January 11, 2016, to the Sheriffs\n\nOffice seeking all Office of Professional Review reports relating to 51 specified grievances from\n20113 to 2015, together with stationary security camera footage relating to thos rievance\nMitchell submitted this request while he was incarcerated in a State prison and requested that the\n\nSheriffs Office waive the fees for photocopies.\n\nIn its response to this Request\n\nfor Review, the Sheriffs Office asserts that it\n\nreceived the request on January 25, 2016. On February 1, 2016, the Sheriffs Oce notif\nMitchell\nthat it was extending the time for response under section 3 of FOIA (5 ILCS 140/ 3\nWest 2014)), and that it would respond on or before February 8, 2016. On February 8, 2016,\nthe Sheriffs O d Mr. Mitchell\nrequest\" under section 3. 6 of FOIA (5 ILCS 140/ 3. 6 (West 2014)) on the basis that it required the\n\nthat it was treating his request as a \" voluminous\n\ncompilation of more than 500' pages of letter or legal- sized pages of public records. Under\n\nsection 3. 6, a requester has 10 business days to amend the request\nbody will no longer treat the request as voluminous. \nsection 3. 6 notification, the Sheriffs Office notified him on February 24, 2016, that it was\nextending the time for response until March 2, 2016. On March 2, 2016, the Sheriffs Office\nnoti hell that it had compiled the responsive records, and that it would charge him\n\nin such a way that the public\nhell did not respond to the\n\nford copies in excess of the first 50 pages under section 6(b) of FOIA (5 ILCS 140/ 6(b) (West\n2014)). On March 30, 2016, the Sheriffs Office\nresponsive to his request without charge.\n\nhell the first 50 pages of records\n\nOn April 19, 2016, this office sent a copy of the Request\n\nfor Review to the\n\nSheriffs Office and requested a detailed description of the handlin ll's request,\nincluding the date on which the Sheriffs Office received the request, and an explanation of the\nlegal and factual bases for treating the request as voluminous under section 3. 6 of FOIA. The\nSheriffs Office submitted a response on May 2, 2016. On May 11, 2016, this office forwarded a\ncopy of the Sheriffs Office's respons\n\nhell; he did not reply.\n\nDETERMINATION\n\nDefinition of Voluminous Request\n\nSection 2(h) of FOIA (5 ILCS 140/ 2(h) (West 2015 Supp.)) defines a\n\nvoluminous\n\nrequest\" as:\n\na request that: (i) includes more than 5 individual requests\nfor more than 5 different categories of records or a combination of\nindividual requests that total requests for more than 5 different\n\ncategories of records in a period of 20 business days; or(ii)\nrequires the compilation of more than 500 letter or legal- sized\n\npages of public records unless a single requested record exceeds\n\n500 pages. \" Single requested record\" may include, but is not\nlimited to, one report, form, e- mail, letter, memorandum, book,\n\nmap, microfilm, tape, or recording.\n\nIn its response to this office, the Sheriffs Office asserted that the records responsiv o Mr.\n\nll's request\ninclude 490 pages of responsive reports, 16 photographs, and two video files.\nThe Sheriffs Office subsequently clarified in correspondence to this office that the photographs\nwere stored in an electronic format, but would be printed with a single photograph to a page in\n\norder to provide paper copie\nhell. In total, the request required the compilation of\n506 pages of printed material., Accordingly, we conclude that because the request required the\n\ncompilation of more than 500 pages of public records, the Sheriff's Office did not improperly\ntreat the request as a \" voluminous request.\"'\n\nNotification of Voluminous Request\n\nSection 3. 6(a) of FOIA (5 ILCS 140/ 3. 6(a) (West 2014)) describes the procedures\n\nfor' notifying a requester that a public body is treating a request as a voluminous request, and\nprovides in relevant part that \"[ n] otwithstanding any provision of this Act to the contrary, a\npublic body shall respond to a voluminous request within 5 business days after receipt.\"\nEmphasis added.) In addition, section 3(i) of FOIA (5 ILCS 140/ 3(i) (West 2014)) provides\n\nthat:\n\nt] he time periods for compliance or denial of a request to\n\ninspect or copy records set out in this Section shall not apply to\nrequests for records made for a commercial purpose, requests by a\nrecurrent\n\nrequester, or voluminous requests. Such requests shall\n\nbe subject to the provisions of Sections 3. 1, 3. 2, and 3. 6, as\n\napplicable. (Emphasis added.)\n\nThe Sheriffs Office first responde\n\nll's request on February 1, 2016,\n\nby extending the time to respond, until February 8, 2016, citing section 3. Typically, a public\nbody may assert an extension of time of up to five business days for any of the seven reasons\nenumerated in section 3(e) (5 ILCS 140/ 3(e) (West 2014)). The plain language of section 3. 6(a),\nhowever, requires that a public body notify a requester that it is treating a request as a\nvoluminous request within five business days of receipt of the request, and does not provide for\nan extension of time to respond under section 3(e). In addition,' section 3(i) specifies that the\ntime periods for compliance provided in section 3. 6, rather than the time periods in section 3,\ngovern voluminous requests. It is undisputed that the Sheriffs Office did not no hell\nthat it was treating his request as a voluminous request until February 8, 2016, which was more\nthan five business days after it received the request on January 25, 2016. Accordingly, this\noffice concludes that the Sheriffs Office did not timely no hell that it was treating\nhis request as a \" voluminous request.\"\n\nI\n\nhell has contested the Sheriffs Office's treatment of his request as\n\nvoluminous, but has not sought a specific remedy. In contrast to sections 3(d) and 3(f) of FOIA\n5 I!LCS 140/ 3(d), (1) (West 2014)), section 3. 6 does not provide for a fee waiver(or any other\npenalty) in the case of a late response. Based on the information provided by the Sheriffs\n\nrequest\" \n\nin section 2(h) also applies.',\n\nThis office does not address the Sheriffs Office's assertion that the first definition of\" voluminous\n\nOffice, except for its delayed assertion that the request was voluminous, it complied with the\nprovisions of section 3. 6. On March 30, 2016, the Sheriffs Office furnished the first 50 pages of\nrecords to\nwithout charge. Under these circumstances, FOIA does not prohibit the\nSheriffs Office from charging fees in accordance with section 6(b) of FOIA for paper copies of\nthelremaining records. Accordingly, no remedial action is required.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnotirequire the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Springfield address on the first page of this letter.\n\nVery truly yours,\n\nNEIL P. OLSON\n\nAssistant Attorney General\nPublic Access Bureau\n\n40373 f 36 vol req proper improper county\n\nI\n\nII\n\nmmmmmmnnnMr.\n\nI\nI\nI\n,\nI\ni\ni","plain_summary_pre_resummarize":null,"card_headline":"Office of Professional Review reports and security camera footage of grievances","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":"A requester asked for various internal reports and security footage from the Cook County Sheriff's Office. The Sheriff's Office initially processed the request normally but later tried to label it as a 'voluminous request' to extend deadlines, which the PAC found was done too late. Because the agency eventually provided the records, the PAC closed the matter without requiring further action.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":877,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-03-18","case_number":null,"request_numbers":["40554"],"title":"Joliet Police Department may withhold fingerprints and DNA as private information under 7(1)(b)","filename":"40554, issued March 18, 2016.pdf","rel_path":null,"word_count":707,"summary":"A requester sought copies of his own fingerprints and DNA records from the Joliet Police Department, which the Department denied as private information. The PAC determined that the Department properly withheld the records under the private information exemption.","plain_summary":"A man requested his own fingerprint and DNA records from the Joliet Police Department, but the department refused to release them, citing privacy laws. The Attorney General's office agreed with the department, stating that biometric data like fingerprints and DNA are considered 'private information' under Illinois law. While the department is allowed to release these records if they choose to, they are not legally required to do so under FOIA.","holding":"The Joliet Police Department did not violate FOIA by withholding the requester's fingerprints and DNA records as private information.","legal_question":"Whether fingerprints and DNA records constitute 'private information' exempt from disclosure under section 7(1)(b) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)"],"public_body":"Joliet Police Department","requesting_party":"Centralia Correctional Center inmate","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought access to his own biometric identifiers, specifically fingerprints and DNA records, held by a police department.","ocr_status":"ok","ocr_quality":92.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_b/40554%2C%20issued%20March%2018%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["biometric data","fingerprints","DNA","private information","FOIA exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 18, 2016\n\nCentralia Correctional Center\nP. O. Box 7711\n\nCentralia, Illinois 62801\n\nRE: FOIA Request\n\nfor Review — 2016 PAC 40554\n\nThis determination letter is issued pursuant\n\nto section 9. 5( c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2014)). For the reasons that follow, the\nPublic Access Bureau has determined that no further action is warranted. \n\nOn January 14, 2016, you submitted a FOIA request to the Joliet Police\n\nDepartment ( Department) seeking, in pertinent part, copies of your fingerprints and D.N.A. from\ncase # 1150317004221. On February 2, 2016, the Department denied your request pursuant\nto\nsection 7( 1)( b) of FOIA ( 5 ILCS 140/ 7( 1)( b) ( West 2014), as amended by Public Acts 99- 298, \neffective August 6, 2015; 99- 346, effective January 1, 2016). On February 26, 2016, you\nsubmitted this Request\n\nfor Review contesting the Department' s denial. \n\nSection 7( 1)( b) exempts from disclosure \"[ p] rivate information, unless disclosure\nis required by another provision of this Act, a State or federal law or a court order.\" Section 2( c- \n5) of FOIA (5 ILCS 140/ 2( c- 5) ( West 2014), as amended by Public Act 99- 78, effective July 20, \n2015) defines \" private information\" to include: \n\nU] nique identifiers, including a person' s social security number, \ndriver' s license number, employee identification number, biometric\nidentifiers, personal financial information, passwords or other\naccess codes, medical records, home or personal telephone\n\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person. ( Emphasis added.) \n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fPage 2\n\nThe term \" biometric identifier\" is not defined in FOIA. However, section 10 of\n\nthe Biometric Information Privacy Act ( 740 ILCS 14/ 10 ( West 2014)) defines \" biometric\nidentifier\" as \" a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry\" \nemphasis added), and it should be read together with section 2( c- 5) of FOIA. See People v. \nTaylor, 221 Ill. 2d 157, 161 n. 1 ( 2006) (\" The doctrine of in pari materia provides that when two\nstatutes deal with the same subject, they will be considered with reference to each other to give\nthem a harmonious effect.\"). Thus, fingerprints are considered unique identifiers and may be\nwithheld as exempt as \" private information\" under section 2( c- 5). The Public Access Bureau has\nalso previously determined that DNA is a biometric identifier and, therefore, \" private\ninformation\" under the section 2( c- 5) definition of that term. III. Att'y Gen. PAC Req. Rev. Ltr. \n12531, issued May 22, 2012, at 3. Accordingly, this office concludes that the Department did\nnot violate FOIA by withholding your fingerprints and DNA pursuant\nFOIA, and that no further action is warranted in this matter. \n\nto section 7( 1)( b) of\n\nHowever, this office also notes that the Department\n\nis not required to assert that\n\nall \" private information\" is exempt, and may exercise its discretion to disclose records to you\nconcerning your own biometric identifiers. Ill. Att'y Gen. PAC Req. Rev. Ltr. 15182, issued\nOctober 5, 2011, at 3; Ill. Att' y Gen. PAC Req. Rev. Ltr. 23175, issued May 12, 2015, at 3. \n\nIf you have any questions, you may contact me at the Springfield address listed on\n\nthe first page of this letter. This correspondence serves to close the matter. \n\nVery truly yours, \n\nISTOPHBR R. BOGGS\n\nAssistant Attorney General\nPublic Access Bureau\n\n40554 f no fi war pd\n\ncc: \n\nMr. Brian Dupuis\n\nDeputy Chief of Police\nTechnical Services\n\nJoliet Police Department\n\n150 West Washington\nJoliet, Illinois 60432\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A police department's fingerprints and DNA records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":878,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-04-13","case_number":null,"request_numbers":["40605"],"title":"Champaign-Urbana Mass Transit District improperly withheld personnel file under 7(1)(c)","filename":"40605, issued April 13, 2018.pdf","rel_path":null,"word_count":3496,"summary":"The requester sought the personnel file of a bus driver involved in an incident, which the Champaign-Urbana Mass Transit District withheld under FOIA Section 7(1)(c). The PAC determined that the District improperly withheld portions of the file and ordered their disclosure, subject to specific redactions.","plain_summary":"A requester asked for a bus driver's personnel file following an incident, but the transit district refused to provide it, citing privacy exemptions. The Attorney General's office reviewed the request and decided that the district was wrong to withhold the entire file. The district was ordered to release the records while redacting sensitive personal information like social security numbers and home addresses.","holding":"The Champaign-Urbana Mass Transit District improperly withheld portions of the requested personnel file.","legal_question":"Whether the Champaign-Urbana Mass Transit District properly invoked section 7(1)(c) of FOIA to withhold an employee's personnel file.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Champaign-Urbana Mass Transit District","requesting_party":"Mr. Alyx J. Parker","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought the personnel file of a bus driver involved in a specific transit incident.","ocr_status":"ok","ocr_quality":93.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_c/Information-that-bears-on-public-duties-of-public-officials-and-employees/40605%2C%20issued%20April%2013%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","privacy exemption","FOIA request","redaction"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nApril 13, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Alyx J. Parker\n\nMeyer Capel\n\n306 West Church Street\n\n[street address redacted for site publication -- see original PDF]\naparker@meyercapel. com\n\nRE: FOIA Request for Review — 2016 PAC 40605\n\nDear\n\nand Mr. Parker: \n\nThis determination is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)). For the reasons stated below, the\nPublic Access Bureau concludes that the Champaign -Urbana Mass Transit District ( District) \nimproperly withheld certain portions of the records responsive to\n1, 2016, FOIA request. \n\nFebruary\n\nOn that date, \n\nsubmitted a FOIA request to the District seeking, \n\namong other things, the personnel file of the driver operating bus 1194 at approximately 1: 37 pm\non February 1, 2016. On February 12, 2016, the District denied\nto section 7( 1)( c) of FOIA ( 5 ILCS 140/ 7( 1)( e) ( West 2014), as amended\npersonnel\nby Public Acts 99- 298, effective August 6, 2015; 99- 346, effective January 1, 2016). On March\nRequest\n6, 2016, this office received\nFOIA request. \n\nfor Review contesting the denial of his\n\nrequest for the\n\nfile pursuant\n\nOn March 9, 2016, this office sent the District a copy of the Request for Review, \n\nand requested copies of the redacted and un -redacted responsive records, as well as a detailed\n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Alyx J. Parker\n\nApril 13, 2018\n\nPage 2\n\nexplanation of the factual and legal bases for the asserted exemption. On March 18, 2016, the\n\nDistrict furnished this office with the requested records and a written answer. On March 23, this\n\noffice forwarded a copy of the District' s answer to\n\nhe replied on April\n\n1, 2016. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2014); see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department ofPublic Health, 218 Ill. 2d 390, 415 ( 2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 ( West 2014). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 ( 1997). \n\nSection 7( 1)( b) of FOIA\n\nAlthough not cited in the District' s response to\n\nFOIA request or to\n\nthis office, section 7( 1)( b) of FOIA (5 ILCS 140/ 7( 1)( b) ( West 2014)) exempts from disclosure\n\np] rivate information, unless disclosure is required by another provision of this Act, a State or\nfederal law or a court order.\" Section 2( c- 5) of FOIA (5 ILCS 140/ 2( c- 5) ( West 2014)) defines\n\nprivate information\" as: \n\nU] nique identifiers, including a person' s social security number, \ndriver's license number, employee identification number, biometric\n\nidentifiers, personal financial information, passwords or other\n\naccess codes, medical\n\nrecords, home or personal\n\ntelephone\n\nnumbers, and personal email addresses. Private information also\n\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person. \n\nThe Attorney General has also held that a person' s signature is a unique identifier that may be\nredacted as private information. See, e.g., I11. Att' y Gen. Pub. Acc. Op. No. 14- 015, issued\nNovember 25, 2014, at 11. The personnel records withheld by the District contain social security\nnumbers, driver' s license numbers, home addresses, personal\ntelephone numbers, and signatures. \nBecause all of those items constitute \" private information\" as defined by FOIA, the District did\nnot improperly withhold that information from the responsive records pursuant to section 7( 1)( b) \nof FOIA. \n\n\fMr. Alyx J. Parker\n\nApril 13, 2018\n\nPage 3\n\nSection 7( 1)( c) of FOIA\n\nThe District asserted that the records contained in the employee' s personnel file\n\nare exempt in their entireties pursuant to section 7( 1)( c) of FOIA, which exempts from\n\ndisclosure: \n\nPersonal\n\ninformation contained within public records, the\n\ndisclosure of which would constitute a clearly unwarranted\ninvasion ofpersonal privacy, unless the disclosure is consented to\nin writing by the individual subjects of the information. \nUnwarranted invasion of personal privacy\" means the disclosure\nof information that is highly personal or objectionable to a\nreasonable person and in which the subject' s right to privacy\noutweighs any legitimate public interest in obtaining the\ninformation. The disclosure of information that bears on the\npublic duties ofpublic employees and officials shall not be\nconsidered an invasion ofpersonal privacy. ( Emphasis added.) \n\nA public body' s contention that the release of information would constitute an\n\nunwarranted invasion of personal privacy is evaluated on a case- by- case basis. Chicago\nJourneymen Plumbers' Local Union 130, U.A. v. Department of Public Health, 327 Ill. App. 3d\n192, 196 ( 1st Dist. 2001). The phrase \" clearly unwarranted invasion of personal privacy\" \nevinces a strict standard to claim the exemption, and the burden is on the government agency\nhaving charge of the record to prove that standard has been met. Schessler v. Department of\nConservation, 256 Ill. App. 3d 198, 202 ( 4th Dist. 1994). Illinois courts consider the following\nfactors in determining whether disclosure of information would constitute an unwarranted\nthe plaintiffs interest in disclosure, ( 2) the public interest in\ninvasion of personal privacy: \"(\ndisclosure, ( 3) the degree of invasion of personal privacy, and ( 4) the availability of alternative\nmeans of obtaining the requested information.\" National Ass' n of Criminal Defense Lawyers v. \nChicago Police Department, 399 Ill. App. 3d 1, 13 ( 1st Dist. 2010). \n\n1) \n\nIn its response to this office, the District relied upon an opinion letter issued by\n\nthe Illinois Attorney General, Ill. Att' y Gen. Op. No. S- 1484, issued April 14, 1980, and two\nIllinois Appellate Court opinions, State Journal -Register v. University of Illinois Springfield, \n2013 IL App ( 4th) 120881, 994 N.E. 2d 705 ( 2013) and Copley Press, Inc. v. Board of Education\nfor Peoria School District No. 150, 35 Ill. App. 3d 321 ( 2005), for its assertion that records\ncontained within a personnel file are per se exempt as personal information under section 7( 1)( c) \nof FOIA. However, the 1980 opinion and the opinion in Copley Press predated the significant\nrevision of FOIA by the General Assembly in Public Act 96- 542, effective January 1, 2010, \nwhich eliminated the per se exemption for information contained in employee' s personnel\n\nfiles\n\n\fMr. Alyx J. Parker\n\nApril 13, 2018\n\nPage 4\n\nand added the current version of the personal privacy exemption in section 7( 1)( c) of FOIA. \nBefore January 1, 2010, the personal privacy exemption was found in section 7( 1)( b) of FOIA\nsee 5 ILCS 140/ 7( 1)( b) ( West 2008)) and exempted from disclosure: \n\nb) Information that, if disclosed, would constitute a clearly\nunwarranted invasion of personal privacy, unless the disclosure is\nconsented to in writing by the individual subjects of the\ninformation. The disclosure of information that bears on the\npublic duties ofpublic employees and;officials shall not be\nconsidered an invasion ofpersonal privacy. Information\nexempted under this subsection ( b) shall\n\ninclude but is not limited\n\nto: \n\nii) personnelfiles and personal information maintained\n\nwith respect to employees, appointees or elected officials of\n\nany public body or applicants for those positions[.] \nEmphasis added) \n\nBy eliminating the previous version of, section 7( 1)( b) and adding the current\n\nversion of section 7( 1)( c), the General Assembly \" replaced the per se exemptions with a\nbalancing test requiring a public body to balance the privacy rights of an employee and the\ninterests of the public in obtaining information concerning the employee.\" Ill. Att'y Gen. Pub. \nAcc. Op. No. 14- 015, issued November 25, 2014, at 5. As part of that balancing, the General\nAssembly specifically stated that information that bears on the public duties of public employees\nis not considered an invasion of personal privacy. The Attorney General has concluded that\nthere is a compelling public interest\nin disclosure of a public employee' s credentials to enable\nthe public to assess the employee' s qualifications to perform his or her public duties.\" Ill. Att' y\nGen. Pub. Acc. Op. No. 14- 015, issued November 25, 2014, at 6. Because employment\napplications, resumes, employment history, and otherrecords of the employee' s qualifications for\nthe position bear on the employee' s public duties, the Attorney General has determined that such\nrecords are not exempt from disclosure under the plain language of section 7( 1)( c) of FOIA. See\n\n111. Att'y Gen. Pub. Acc. Op. No. 14- 015, issued November 25, 2014, at 8. Accordingly, this\noffice concludes that the District improperly withheld the employee' s job application, resume, \nemployment history information, and other records concerning his qualifications for employment\nand promotion under section 7( 1)( c) of FOIA. \n\nemployee' s driver' s license under section 7( 1)( c) of FOIA. As described in\n\nIn addition to job application information, the District also withheld a copy of the\nFOIA\n\n\fMr. Alyx J. Parker\n\nApril 13, 2018\n\nPage 5\n\nrequest, the employee is the operator of a bus for the District. Because the employee is\nresponsible for operating a vehicle as part of his public duties for the District, information\nconcerning whether the employee possessed a non -expired driver' s license and the class of\nlicense bears on his public duties and therefore is not exempt under section 7( 1)( c). However, \n\nthe employee' s birth date is exempt\n\nfrom disclosure pursuant\n\nto section 7( 1)( c),' and \" private\n\ninformation\" listed in the license, such as the employee' s license number and home may be\nredacted under section 7( 1)( b) of FOIA. \n\nThe District also withheld information relating to the employee' s attendance at\nwork. The Public Access Bureau has consistently determined that records that detail a public\nemployee's attendance or absences from work are a matter of substantial public interest and\ndirectly relate to the employee' s public duties. See, e.g., III. Att'y Gen. PAC Req. Rev. Ltr. \n46310, issued October 23, 2017, at 2; Ill. Att'y Gen. PAC Req. Rev. Ltr. 19343, issued October\n30, 2012, at 3- 4. Because the presence or absence of the employee has a direct impact on the\noperations of the District' s transportation services and because information that bears on the\n\npublic duties, of public employees is not considered personal\nthat the District improperly withheld attendance information under section 7( 1)( c) of FOIA. \n\ninformation, this office concludes\n\nIn connection with the employee' s attendance, the District also withheld\n\ninformation concerning the employee' s accrued time off under 7( 1)( c). \noffice, the District cited the holding in State Journal -Register, 2013 IL App ( 4th) 120881, ¶ 41; \n994 N. E.2d 705, 716 ( 2013): \n\nIn its response to this\n\nIn this case, the information sought by the Journal includes\n\ndocuments reflecting the coaches' compensation for accrued\nvacation and sick time, employee status, and other related\n\ndocuments. The Journal interprets [ Stern v. Wheaton- Warrenville\nCommunity Unit School District 200, 233 111. 2d 396 ( 2009)] too\nbroadly, inferring any document within a personnel file can be\nsubject to disclosure as bearing on the \" public duties\" of the\nemployees. A closer reading of Stern shows the case was limited\nto the disclosure of employment contracts, as those contracts set\n\nforth the duties of public employees and the compensation paid\n\nfrom public funds. We find the present case more analogous to\n\nCopley Press, Inc. v. Board of Educ. for Peoria Sch. Dist. No. \n150, 359 Ill. App. 3d 321 ( 3d Dist. 2005)]. We fail to see how the\ncoaches' election for the disbursement of accrued vacation, sick\n\ndate of birth would constitute an unwarranted invasion of personal privacy. \n009, issued November 7, 2016, at 9. \n\nThe Attorney General has issued a binding opinion concluding that disclosure of an individual' s\n111. Att'y Gen. Pub. Acc. Op. No. 16- \n\n\fMr. Alyx J. Parker\n\nApril 13, 2018\n\nPage 6\n\nleave, and related documents have any bearing on their alleged\nmisdeeds or public duties. Instead, we conclude this information is\n\nof a highly personal nature, contained appropriately in a personnel\nfile, and exempt from disclosure. \n\nIn Copley, cited by the State Journal -Register opinion, the court held that the\n\nfile.\" Copley, 359 I11. App. \n\nrequested performance evaluations and letter explaining the reasons for a superintendents\ndismissal were the types of documents expected to be found in a personnel file and thus per se\nexempt under the then -existing exemption for records in a \" personnel\n3d at 324- 25 ( interpreting 5 ILCS 140/ 7( 1)( b)( ii) ( West 2002)). As discussed above, FOIA was\namended in 2010 to strike the \" personnel file\" subsection of the personal privacy exemption. See\nPublic Act 96- 542, effective January 1, 2010. At the time of State Journal -Register opinion, the\nplacement of records in a personnel\nexempt from disclosure under section 7( 1)( c). Further, section 2. 5 of FOIA ( 5 ILCS 140/ 2. 5\nWest 2014)) provides that \"[ a] ll records relating to the obligation, receipt, and use of public\nfunds of the State, units of local government, and school districts are public records subject to\ninspection and copying by the public.\" Accordingly, this office has concluded that State\nJournal -Register is not controlling on the question of whether an employee' s accrued time off is\nsubject to disclosure under FOIA. 111. Atty Gen. PAC Req. Rev. Ltr. 47124, issued May 30, \n2017, at 4- 5. Because a public employee' s accrued time off is paid time for when the employee\nis not present at work and because it is part of an employee' s total compensation package\nprovided by the public body, it relates to the use of public funds, and disclosure of such public\ncompensation is in the public interest: \n\nto a determination of whether they were\n\nfile was irrelevant\n\nThere is * * * \n\na significant legitimate public interest in\n\ndisclosure of the amount of compensation paid to public\nemployees for the performance of public duties. * * * As\n\ngovernment employees, paid with public funds, these employees\n\nhave no reasonable expectation of privacy in the amount of\ncompensation they receive. And even if they do have an\nexpectation of privacy in the amount of their compensation, it does\nnot outweigh the public' s legitimate interest in knowing how public\nfunds are expended. \nissued December 21, 2016, at 7. \n\nIll. Atty Gen. Pub. Acc. Op. No. 16- 012, \n\nAccordingly, the District has not sustained its burden of demonstrating by clear and convincing\nevidence that the disclosure of the employee' s accrued time off would constitute a \" clearly\nunwarranted invasion of personal privacy\" as required by section 7( 1)( c) of FOIA. Likewise, \npayroll and wage information is unquestionably related to the use of public funds and is not\nexempt under section 7( 1)( c) of FOIA. \n\n\fMr. Alyx J. Parker\n\nApril 13, 2018\n\nPage 7\n\nIn contrast, the Public Access Bureau has previously determined that the names\nof emergency contacts are personal information that may be redacted under section 7( 1)( c). See\nI11. Att'y Gen. PAC Req. Rev. Ltr. 47124, issued May 30, 2017, at 3. Thus, the District may\nredact\ninformation. However, the District has not sustained\nits burden of demonstrating by clear and convincing evidence that the employee' s place of birth\nis exempt from disclosure under section 7( 1)( c) of FOIA. \n\nthe employee' s emergency contact\n\nSections 7( 1)( t) and 7. 5( q) of FOIA\n\nIn its response to this office, the District stated that it had withheld performance\n\nevaluations and training records contained in the employee' s personnel\nof FOIA ( 5 ILCS 140/ 7( 1)(\n6, 2015; 99- 346, effective January 1, 2016). \n\nf) (West 2014), as amended by Public Acts 99- 298, effective August\n\nfile under section 7( 1)( f) \n\nBefore addressing the training records, I this office notes that performance\n\nevaluations are exempt from disclosure under section 7. 5( q) of FOIA ( 5 ILCS 140/ 7. 5( q) ( West\n2014), as amended by Public Act 99- 298, effective August 6, 2015) and section 11 of the\nPersonnel Record Review Act ( PRRA) ( 820 ILCS 40/ 11 ( West 2014)). Section 7. 5( q) of FOIA\nexempts from disclosure \"[\nRecords Review Act.\" Section 11 of the PRRA provides: \"\ndiminish a right of access to records already otherwise provided by law, provided that disclosure\nof performance evaluations under the Freedom of Information Act shall be prohibited.\" \nEmphasis added.) Because section 11 of the PRRA prohibits the disclosure of performance\nevaluations, the District did not improperly withhold those records pursuant\nFOIA. \n\ni] nformation prohibited from being disclosed by the Personnel\n\nThis Act shall not be construed to\n\nto section 7. 5( q) of\n\nWith respect to the training records, section 7( 1)( f) of FOIA exempts\n\np] reliminary drafts, notes, recommendations, memoranda and other records in which opinions\n\nf) exemption applies to \" inter- and intra -agency\n\nare expressed, or policies or actions are formulated, except that a specific record or relevant\nportion of a record shall not be exempt when the record is publicly cited and identified by the\nhead of the public body.\" The section 7( 1)(\npredecisional and deliberative material\" and is \" intended to protect\nand encourage frank and open discussion among agency employees before a final decision is\nmade.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 248 ( 1st Dist. 2003); see also Kalven v. \nCity of Chicago, 2014 IL App ( 1st) 121846, ¶ 24, 7 N.E. 3d 741, 748 ( 2014) (\" Only those portions\nof a predecisional document\nwithheld.\" ( quoting Public Citizen, Inc. v. Office of Management & Budget, 598 F. 3d 865, 876\nD. C. Cir. 2010))). Section 7( 1)( f) does not exempt\nIll. Att' y Gen. Pub. Acc. Op. No. 13- 015, issued September 24, 2013, at 7. \n\nthe give and take of the deliberative process may be\n\nfrom disclosure purely factual material. See\n\nthe communications process\n\nthat reflect\n\n\fMr. Alyx J. Parker\n\nApril 13, 2018\n\nPage 8\n\nThe District stated that the training records are \" considered preliminary, pre - \n\nis conclusory. Further, this office reviewed the withheld training records\n\ni2 The District' s explanation of how the training records constitute pre -decisional\n\ndecisional, and/ or deliberative records in which opinions are expressed, or policies or actions are\nformulated[]\nor deliberative material\nwhich consist of a training schedule and training outline that contain dates, times, instructor\nnames, and routes. This information is entirely factual and does not contain any opinions or\nrecommendations of the training instructors. Accordingly, this office concludes that the District\nhas not sustained its burden of demonstrating by clear and convincing evidence that the withheld\ntraining records are exempt under section 7( 1)(\n\nf) of FOIA. \n\nThe District also stated that it had withheld a variety of documents that were not\nexempt under an exemption in FOIA. Specifically, the District stated it withheld compliments\nfor the employee, letters designating the employee as an \" Outstanding Operator\" by the District, \nan employment contract, a receipt for the employee handbook, and change fund audit forms. \nBecause the District has not provided\nDistrict acknowledged that no exemption in FOIA permitted it to withhold those records, this\noffice concludes that the District improperly withheld those records as well. \n\nwith copies of those records and because the\n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat the District disclose additional information contained in the employee' s personnel file, \nsubject to the redaction of social security numbers, driver' s license numbers, dates of birth, \nnames of parents, home addresses, personal telephone numbers, emergency contact information, \nand performance evaluations. The Public Access Counselor has determined that resolution of\nthis matter does not require the issuance of a binding opinion. Please contact me at ( 217) 782- \n9054, mhartman@atg. state. il.us, or the Springfield address at the bottom of the first page if you\nhave questions. This letter serves to close this file. , \n\nVery truly yours, \n\nMAIFT HA MAN\nAss start Attorney General\nPublic Access Bureau\n\n40605 71b 71c proper improper 71f improper 75q proper reg auth\n\n2Letter from Alyx J. Parker, Ansel Law, to Matt Hartman, [ Assistant] Attorney General, Public\n\nAccess Bureau ( March 18, 2016), at 3. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A transit district's bus driver personnel file","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":879,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-08-28","case_number":null,"request_numbers":["41654"],"title":"Lake County Sheriff's Office properly treated colleague FOIA requests as same-person repeated requests","filename":"41654, issued August 28, 2019.pdf","rel_path":null,"word_count":782,"summary":"The requester challenged the Lake County Sheriff's Office's denial of a FOIA request as an 'unduly burdensome' repeated request, arguing that he and his colleague were separate 'persons' under the Act. The PAC determined that because the requester and his colleague operate as part of the same organization, the Sheriff's Office properly treated them as the same person under section 3(g).","plain_summary":"Mr. John Kraft argued that he should not be considered the same person as his colleague when submitting FOIA requests, which would have prevented the Sheriff's Office from denying his request as a 'repeated' one. The Attorney General's office disagreed, finding that because both men work for the same organization, they count as the same 'person' under the law. Consequently, the Sheriff's Office was allowed to deny the request as a repeated, unduly burdensome submission.","holding":"The Lake County Sheriff's Office did not violate FOIA by treating the requester and his colleague as the same 'person' for the purposes of denying a repeated request.","legal_question":"Whether two individuals associated with the same organization constitute the same 'person' for the purposes of determining if a FOIA request is a 'repeated request' under 5 ILCS 140/3(g).","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Lake County Sheriff's Office","requesting_party":"Mr. John Kraft","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"repeated request","subject_description":"The requester challenged the denial of a FOIA request on the grounds that it was a repeated request from the same entity.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_b/Persons-acting-as-a-group/41654%2C%20issued%20August%2028%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["repeated request","unduly burdensome","FOIA definition of person","Edgar County Watchdogs"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nAugust 28, 2019\n\nVia electronic mail\n\nMr. John Kraft\n\n[street address redacted for site publication -- see original PDF]\njohn@illinoisleaks.com\n\nVia electronic mail\n\nMs. Christy Berkquist\nFOIA Officer\n\nLake County Sheriffs Office\n25 South Martin Luther King Jr. Avenue\nWaukegan, Illinois 60085\n\nsherifffoia@lakecountyil. gov\n\nRE: FOIA Request\n\nfor Review — 2016 PAC 41654\n\nDear Mr. Kraft and Ms. Berkquist: \n\nThis determination letter is issued pursuant to section 9. 5( 1) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2018)). \n\nOn April 28, 2016, Mr. John Kraft submitted a Request for Review to the Public\n\nAccess Bureau alleging that the Lake County Sheriffs Office ( Sheriffs Office) improperly\ndenied his February 26, 2016, FOIA request as an unduly burdensome repeated request under\nsection 3( g) of FOIA ( 5 ILCS 140/ 3( g) ( West 2016)). Section 3( g) provides: \" Repeated requests\nfrom the same person for the same records that are unchanged or identical to records previously\nprovided or properly denied under this Act shall be deemed unduly burdensome under this\nprovision.\" Mr. Kraft claimed that for purposes of this provision, he is a different \" person\" from\n\nhis Edgar County Watchdogs/ Illinois Leaks colleague, Mr. Kirk Allen. \n\nSection 2( b) of FOIA ( 5 ILCS 140/ 2( b) ( West 2016)) defines \" person\" as \" any\n\nindividual, corporation, partnership, firm, organization or association, acting individually or as a\ngroup.\" Under this definition, two individuals who belong to the same entity and submit FOIA\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. John Kraft\n\nMs. Christy Berkquist\nAugust 28, 2019\n\nPage 2\n\nrequests in their capacities with the entity qualify as the same \" person\" under the definition of\nthat term in FOIA. I11. Att'y Gen. PAC Req. Rev. Ltr. 17798, issued September 21, 2018, at 3- 4\nhusband and wife who worked for same company and submitted FOIA requests in their\ncapacities as employees were the same \" person\" and therefore could be treated as a recurrent\n\nrequester under section 3. 2 of FOIA ( 5 ILCS 120/ 3. 2 ( West 2011 Supp.)) based on the\ncumulative number of their requests). \n\nThe binding opinion Mr. Kraft cited which construed the definition of \"person\" in\nFOIA— Ill. Att' y Gen. Pub. Acc. Op. No. 12- 001, issued January 9, 2012— is inapposite. In that\nmatter, the Attorney General concluded that the village had not set forth facts sufficient\ndemonstrate that a husband and wife who each submitted FOIA requests under their own names\n\nto\n\nqualified as the same \" person\" for purposes of the recurrent requester provisions in FOIA. Ill. \n\nAtt' y Gen. Pub. Acc. Op. No. 12- 001, at 6. The Attorney General stated that \"[ n] othing in the\nstatute permits the Village to aggregate the separate requests of two individuals for purposes of\n\nsection 2( g) simply because the individuals are married or live at the same address.\" \nGen. Pub. Acc. Op. No. 12- 001, at 6. Here, in contrast, Mr. Kraft' s request was sent from an e- \nmail address with an illinoisleaks. com domain name and it stated that Mr. Kraft qualified as a\n\nIll. Att' y\n\nmember of the news media and a not- for- profit organization. The Edgar County\nWatchdogs/ Illinois Leaks website states that Edgar County Watchdogs \" is a 501( c)( 4) \nOrganization\" devoted to fostering \" accountability, \nbodies.\" 1 Mr. Kraft and Mr. Allen clearly work in tandem on FOIA matters as part of the same\norganization. Accordingly, the Sheriffs Office' s treatment of Mr. Kraft and Mr. Allen as the\nsame \" person\" for purposes of section 3( g) of FOIA did not violate FOIA. \n\ntruth, and transparency in our local governing\n\nThe Public Access Bureau has determined that resolution of this matter does not\n\nrequire the issuance of a binding opinion. This file is closed. Please contact me at ( 312) 814- \n8413 or at the Chicago address on the first page of this letter if you have questions. \n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n41654 f 3g rep req proper co\n\nhttps:// edgarcountywatchdogs.\n\nIllinois Leaks, \" Edgar County Watchdogs,\" Contact Us, \nlast visited August 28, 2019). \n\ncom/ about- us (\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Sheriff's office denial of a repeated FOIA request","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":880,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-06-30","case_number":null,"request_numbers":["41667"],"title":"Community Consolidated School District 15 did not violate FOIA in withholding draft contract proposals","filename":"41667, issued June 30, 2016.pdf","rel_path":null,"word_count":2256,"summary":"The Chicago Tribune requested draft contract documents and salary schedules from Community Consolidated School District 15, which the District withheld. The PAC determined that the District properly withheld the draft proposals and preliminary contract language under FOIA's collective bargaining exemption.","plain_summary":"A reporter requested draft contract documents and salary information from a school district after the school board approved the general terms of a teachers' contract. The PAC concluded that draft proposals and language exchanged with the teachers' representatives were not exempt under section 7(1)(f), because the communications were with a third party, but were exempt under section 7(1)(p) as collective-negotiation records. A separate confidential memorandum to the Board was exempt under section 7(1)(f). The district therefore did not improperly withhold the requested records.","holding":"The District did not improperly withhold records because the confidential memorandum to the Board is exempt under section 7(1)(f) of FOIA, but the District failed to prove that the draft proposals and language exchanged with the union are exempt under section 7(1)(f).","legal_question":"Whether draft proposals and preliminary contract language exchanged during collective bargaining negotiations are exempt from disclosure under section 7(1)(p) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(p)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(p)"],"public_body":"Community Consolidated School District 15","requesting_party":"Ms. Diane Rado (Chicago Tribune)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"collective bargaining","subject_description":"The request sought draft contract language and salary schedules related to a collective bargaining agreement between a school district and a teachers' union.","ocr_status":"ok","ocr_quality":92.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_p/41667%2C%20issued%20June%2030%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["collective bargaining","school district","draft documents","FOIA exemption"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"rT\n\nAF( n:.1.77\n\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJune 30, 2016\n\nVia electronic mail\n\nMs. Diane Rado\n\nEducation Reporter\nChicago Tribune\n\ndrado @chicagotribune. com\n\nVia electronic mail\n\nMs. Jessica Riddick\nHodges, Loizzi, Eisenhammer,\nRodick & Kohn LLP\n\n[street address redacted for site publication -- see original PDF]\njriddick @hlerk. com\n\nRE: FOIA Request for Review— 2016 PAC 41667\n\nDear Ms. Rado and Ms. Riddick:\n\nThis determination is issued pursuant\n\nto section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2014)). For the reasons explained below, the\nPublic Access Bureau concludes that Community Consolidated School District 15 ( District) did\nnot improperly withhold records responsive to Ms. Diane Rado' s April 18, 2016, FOIA request.\n\nOn that date, Ms. Rado, on behalf of the Chicago Tribune, submitted a FOIA\n\nrequest to the District seeking copies of the following documents relating to an agreement\nbetween the District and its teachers' union:\n\nThe full contract, or a draft of the full contract, or any pages or\nparts of the contract, including drafts. This information should be\navailable, given that the contract was approved.\n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: ( 217) 785- 2771 • Fax:( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois, 60601 • ( 312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax:( 312) 814- 3806\n\n1001 East Main, Carbondale,\n\nIllinois 62901•(\n\n618) 529- 6400• TTY: ( 618) 529- 6403•\n\nFax:( 618) 529- 6416\n\n\fMs. Diane Rado\nMs. Jessica Riddick\n\nJune 30, 2016\nPage 2\n\nThe salary schedule over the full length of the contract, including\nall steps and lanes ( if that method is being used), as well as\nadditional dollars or stipends for extracurricular duties.\n\nAny documents, both print and electronic, conveying whether the\nunion and school board will have to negotiate again during the\nlength of the contract, such as in 3- year intervals.\n\nAny documents, both print and electronic, related to the contract,\nincluding abbreviated talking points or any information of any\nkind, that board members received and were able to review at a\npublic board meeting.\n\nAny documents, both print and electronic, related to why and how\nthe board and union chose to enter into a 10- year contract. hl\nEmphasis omitted.)\n\nOn April 25, 2016, the District provided a written response granting in part and\ndenying in part Ms. Rado's request. The District stated that a summary of the contract's major\nterms is available on the Board of Education' s ( Board) website and provided a link to that\nsummary. The District also stated that it was still working with the Classroom Teachers Council\nto finalize the language of the written contract. The District asserted that it was not required to\npublicly disclose drafts of detailed contract\nlanguage under FOIA \" because the legislature has\nrecognized that this could mislead the public and cause unnecessary labor disputes both in the\nimmediate and long- term.\" 2 ( Emphasis omitted.) The District also asserted that that the\nremaining records responsive to Ms. Rado' s request are exempt from disclosure under sections\n7( 1)( f), 7( 1)( m), and 7( 1)( p) of FOIA ( 5 ILCS 140/ 7( 1)(\namended by Public Acts 99- 298, effective August 6, 2015; 99- 346, effective January 1, 2016).\n\nf), (1)( m), ( I)( p) ( West 2014), as\n\nOn April 29, 2016, Ms. Rado submitted this Request\n\nfor Review to the Public\n\nAccess Bureau contesting the partial denial of her FOIA request by the District. Ms. Rado\nasserted that the District should provide copies of the draft contract documents and salary\nschedules following its vote to approve the contract. On May 6, 2016, the Public Access Bureau\nsent a copy of Ms. Rado' s Request for Review to the District asking that it provide copies of the\nwithheld records for our confidential review and requesting that it provide a detailed legal and\n\nFOIA request\nConsolidated School District 15( April 18, 2016).\n\nfrom Diane Rado, Education Reporter, Chicago Tribune, to Community\n\nDiane Rado, [ Education Reporter, Chicago Tribune] ( April 25, 2016).\n\n2Letter from Scott B. Thompson, Ed. D., Superintendent of Schools, CCSD 15 FOIA Officer, to\n\n\fMs. Diane Rado\n\nMs. Jessica Riddick\n\nJune 30, 2016\n\nPage 3\n\nfactual basis for its assertion of sections 7( 1)(\nDistrict provided copies of the withheld records and a written response stating that the final\ncontract did not exist at the time of Ms. Rado' s request. The District contended that a\n\nf), 7( 1)( m), and 7( 1)( p). On May 17, 2016,\n\nthe\n\nconfidential memorandum to the Board about the contract and preliminary drafts of the contract\nare exempt under section 7( 1)(\nf) of FOIA because \" these documents were predecisional and/ or\ndraft documents, and none of these documents have been publicly cited and identified by the\nBoard President. i3 The District asserted that preliminary drafts of the written contract are also\nexempt under section 7( 1)( p) of FOIA because the documents included the Board' s positions in\nnegotiations. The District further asserted that the confidential memorandum is exempt under\nsection 7( 1)( m) of FOIA as confidential communication containing legal advice from the Board' s\nattorney. On May 19, 2016, this office sent the District' s written response to Ms. Rado; she did\n\nnot reply.\n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2014); see also Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390, 415 ( 2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 ( West 2014).\n\nSection 7( 1)(\n\nf) of FOIA\n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nSection 7( 1)( 0 of FOIA exempts from disclosure \"[ p] reliminary drafts, notes,\n\nactions are formulated, except that a specific record or relevant portion of a record shall not be\n\nexempt when the record is publicly cited and identified by the head of the public body.\" \"[ A] s a\nf) exempts from disclosure predecisional materials used by a\nmatter of public policy, section 7( 1)(\npublic body in its deliberative process.\" Harwood v. McDonough, 344 III. App. 3d 242, 248 ( 1st\nDist. 2003). The exemption is \" intended to protect the communications process and encourage\n\nfrank and open discussion among agency employees before a final decision is made.\" Harwood,\n344 Ill. App. 3d at 248. However, the exemption does not extend to communications between\npublic bodies and private third parties who are not consultants. Department ofInterior v.\nKlamath Water Users Protective Ass' n, 532 U. S. 1, 13, 121 S. Ct. 1060, 1069 ( 2001)\n\ncommunications with third parties that have independent interests and that stand to benefit from\n\nthe public body' s final decision cannot be characterized as intra- agency communications under\n\n3Letter from Jessica J. Riddick, Hodges, Loizzi, Eisenhammer, Rodick& Kohn LLP, to Matt\n\nHartman, Assistant Attorney General, Public Access Bureau( May 17, 2016), at 3.\n\n\fMs. Diane Rado\n\nMs. Jessica Riddick\n\nJune 30, 2016\n\nPage 4\n\nin the federal FOIA( 5 U. S. C. § 552( b)( 5) ( West 2000)); 4\n\nthe exemption for deliberative material\nLevy v. United States Postal Service, 567 F. Supp. 2d 162, 166 ( D. D. C. 1982) (\" Information\nconcerning an interactive process between an agency and an outside third party is not\ndeliberative in nature, because such information is no longer secret and cannot advance the\npolicy objectives that Exemption 5 is intended to serve.\");\nLtr. 26456, issued December 31, 2013, at 3 ( general contractor' s draft proposals for a\nconstruction project do not constitute a city's pre- decisional deliberative material).\n\nsee also Ill. Att'y Gen. PAC Req. Rev.\n\nThe District' s response to this office asserted the following:\n\nIn the instant case, the contract has not yet been finalized\n\nand remains in draft form; therefore, the draft contract proposals\n\nmay be characterized as preliminary and properly fall within the\nprovisions of 7( 1)(\ndrafted to provide analysis and input into the Board's decision\n\nf). Similarly, the confidential memorandum was\n\nwhether to ratify the agreement. This memorandum exemplifies\nthe deliberative process contemplated by Harwood v. McDonough,\nsupra. 5\n\nThis office has reviewed the responsive records, which are draft proposals and\n\nlanguage exchanged between the District and the Classroom Teachers\nto the Board. The\n\npreliminary contract\nCouncil as well as a confidential memorandum from the superintendent\nminutes of the Board' s April 13, 2016, meeting state that the Board voted to approve the contract\nas presented.\" 6 A video of the meeting posted on the District's website shows that the District' s\nsuperintendent presented a summary of the terms of the agreements that is consistent with the\nsummary of terms posted on the District's website.7 At the time of Ms. Rado's FOIA request,\nthe Board had approved the general terms of the contract, but the draft of the final contract and\n\nproposed contract\n\nlanguage had not been finalized. The Public Access Bureau has previously\n\n4Federal FOR Exemption 5 applies to \" inter- agency or intra- agency memorandums or letters\n\nwhich would not be available by law to a party other than an agency in litigation with the agency[.]\"\n\n5Letter from Jessica J. Riddick, Hodges, Loizzi, Eisenhammer, Rodick& Kohn LLP, to Matt\n\nHartman, Assistant Attorney General, Public Access Bureau( May 17, 2016), at 3.\n\nBoard of Education of Community Consolidated School District 15, Regular Meeting, April 13,\n\n2016, Minutes 3.\n\n2016, available at\n\nBoard of Education of Community Consolidated School District 15, Regular Meeting, April 13,\n\nhttp:// ccsd 15. granicus. com/ MediaPlayer. php? clip_ id= l3l& embed= l& auto_ start= 0& stamime= 0& stoptime= 7498&\nplayer_width= 640& player_height= 480, last visited June 3, 2016.\n\n\fMs. Diane Rado\n\nMs. Jessica Riddick\n\nJune 30, 2016\n\nPage 5\n\nf) of\n\nconcluded that a draft teacher contract was exempt as a preliminary draft under section 7( 1)(\nFOIA where the school board had approved the contract, but had not finalized the language of\nthe contract. Ill. Att'y Gen. PAC Req. Rev. Ltr. 20502, issued July 19, 2012. Although the draft\nproposals and preliminary contract\nlanguage were generated in the process of developing the\nteachers' contract, those records do not constitute inter- agency pre- decisional and deliberative\nmaterial. Rather, those records were exchanged between the District and representatives of the\nClassroom Teachers Council, a third party with a private interest\nBecause representatives of the Classroom Teachers Council are a third party, the draft proposals\nand language exchanged between the District and the Classroom Teachers Council do not\nconstitute inter- agency or intra- agency pre- decisional deliberative material. Accordingly, we\nconclude that the District has not sustained its burden of demonstrating that the draft proposals\nand draft contract language are exempt from disclosure pursuant to section 7( 1)( f) of FOIA.\n\nin the teachers' contract.\n\nConversely, the confidential memorandum to the Board is an intra- agency\n\ncommunication that contains the superintendent' s analysis of the proposed contract as well as an\noverview of the recommendations of the District' s attorney concerning the proposed terms. Such\nin nature, and there is no indication that it has been cited or\na communication is pre- decisional\npublicly identified by the head of the public body. Accordingly, we conclude that the District\nhas sustained its burden of demonstrating that the confidential memorandum is exempt from\ndisclosure pursuant to section 7( 1)( f) of FOIA. Because that determination is dispositive, we\ndecline to address the District' s assertion that the memorandum is exempt\nsection 7( 1)( m) of FOIA.\n\nfrom disclosure under\n\nSection 7( 1)( p) of FOIA\n\nThe District also asserted that the draft proposals and preliminary contract\nlanguage are exempt from disclosure pursuant to section 7( 1)( p) of FOIA, which exempts\n\nr]ecords relating to collective negotiating matters between public bodies and their employees\nor representatives, except that any final contract or agreement shall be subject to inspection and\ncopying.\"\n\nThe District' s response to this office asserted that the draft proposals and\n\npreliminary contract\nlanguage contain the Board' s positions on the items subject to negotiations\nwith the Classroom Teachers Council. This office reviewed the draft proposals and preliminary\ndraft contract language, which contain both the District's and the Classroom Teachers Council' s\npositions on items discussed during negotiations on the proposed contract. Because the draft\nproposals and preliminary contract\nlanguage constitute the substance of the District' s ongoing\ncollective negotiations with the teachers' representatives concerning a proposed contract, those\nrecords are exempt\nAccordingly, we conclude the District has sustained its burden of demonstrating that the draft\n\nfrom disclosure under the plain language of section 7( 1)( p) of FOIA.\n\n\fMs. Diane Rado\n\nMs. Jessica Riddick\n\nJune 30, 2016\n\nPage 6\n\nproposals and preliminary contract language are exempt from disclosure pursuant to section\n7( 1)( p) of FOIA.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, you may contact me at ( 217) 782- 9054 or the Springfield address listed on\nthe first page of this letter.\n\nVery truly yours,\n\nM TT HARTMAN\nAssistant Attorney General\nPublic Access Bureau\n\n41667 71f proper improper 71p proper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Draft contract language and salary schedules from union negotiations","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":"A reporter requested draft contract documents and salary information from a school district after the school board approved a teachers' contract. The Illinois Attorney General's Public Access Bureau concluded that the district did not improperly withhold records. The Bureau found that the draft proposals and language exchanged between the district and the teachers' union were not exempt under section 7(1)(f) of FOIA because they were not intra-agency communications. However, the Bureau found that a confidential memorandum from the superintendent to the school board was exempt under section 7(1)(f) as pre-decisional deliberative material. The Bureau did not address the district's other claimed exemptions for the draft language.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":881,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-08-24","case_number":null,"request_numbers":["42018"],"title":"Illinois AG's Office conducted reasonable search, properly applied 7(1)(f) exemption","filename":"42018, issued August 24, 2016.pdf","rel_path":null,"word_count":2682,"summary":"The Energy & Environment Legal Institute and the Free Market Environmental Law Clinic requested correspondence between the Illinois Attorney General's Office and the New York Attorney General's Office. The PAC determined that the Attorney General's Office conducted a reasonable search and properly withheld records under the deliberative process exemption.","plain_summary":"Two legal groups, the Energy & Environment Legal Institute and the Free Market Environmental Law Clinic, jointly requested emails and correspondence between the Illinois and New York Attorney General offices. The Public Access Bureau (PAC) reviewed the request and concluded that the Illinois Attorney General's Office conducted a reasonable search for the records and did not improperly withhold records that it asserted were exempt under FOIA.","holding":"The Attorney General's Office conducted a reasonable search and did not improperly withhold records it asserted were exempt under FOIA.","legal_question":"Whether the Attorney General's Office conducted a reasonable search for responsive records and properly applied the deliberative process exemption under section 7(1)(f) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Office of the Illinois Attorney General","requesting_party":"Energy & Environment Legal Institute (E&E Legal) and the Free Market Environmental Law Clinic","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"The request sought correspondence between the Illinois and New York Attorney General offices regarding environmental litigation and policy.","ocr_status":"ok","ocr_quality":90.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Communications-with-third-parties/Inter-agency-communications/42018%2C%20issued%20August%2024%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["deliberative process","reasonable search","FOIA exemption","attorney general"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nAugust 24, 2016\n\nVia electronic mail\n\nMr. Matthew D. Hardin\n\nAttorney - at -Law\n314 West Grace Street, Suite 304\n\n[street address redacted for site publication -- see original PDF]\nMatthewDHardin@gmail.\n\ncom\n\nVia electronic mail\n\nMs. Caitlin Q. Knutte\nAssistant Attorney General and FOIA Officer\nIllinois Attorney General' s Office\n500 South 2nd Street\n\nSpringfield, Illinois 62706\nfoiaofficer@atg. state. il.us\n\nRE: FOIA Request for Review — 2016 PAC 42018\n\nDear Mr. Hardin and Ms. Knutte: \n\nThis determination is issued pursuant to section 9. 5( 1) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2014)). For the reasons discussed below, the\n\nPublic Access Bureau concludes that the Office of the Illinois Attorney General ( Attorney\nGeneral' s Office) conducted a reasonable search for records responsive to an April 11, 2016, \n\nFOIA request\n\njointly submitted by the Energy & Environment Legal Institute ( E & E Legal) and\n\nthe Free Market Environmental Law Clinic (Law Clinic). The Public Access Bureau further\nconcludes that the Attorney General' s Office did not improperly withhold records that it asserted\nare exempt\n\nfrom disclosure under FOIA. \n\nOn April\n\n11, 2016, E & E Legal and the Law Clinic submitted a FOIA request to\nthe Attorney General' s Office seeking various records including \" all correspondence between the\nIllinois Attorney General, or the Office' s Environmental Division Office, except\n\nsecretarial/ administrative and paralegal staff, and employees of the New York Attorney General' s\n\n500 South Second Street, Springfield, \n\nIllinois 62706 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • \n\nFax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Matthew D. Hardin\n\nMs. Caitlin Q. Knutte\nAugust 24, 2016\n\nPage 2\n\nOffice, dated from March 20, 2016 through March 30, 2016.\" 1 ( Emphasis in original.) On May\n2, 2016, the Attorney' s General' s Office denied that portion of the request pursuant to sections\nf) of FOIA ( 5 ILCS 140/ 7( 1)( d)( i), ( 1)( f) (West 2015 Supp.)). On May 20, \n7( 1)( d)( i) and 7( 1)(\n\n2016, the Law Clinic submitted a Request for Review on behalf of itself and E & E Legal\n\nin\n\nwhich it claims that the cited exemptions are inapplicable and questions whether the Attorney\nGeneral' s Office conducted an adequate search for responsive records. \n\nOn June 1, 2016, the Public Access Bureau sent a copy of the Request\n\nfor Review\n\nto the Attorney General' s Office' s FOIA Officer and requested: (\nwere withheld under section 7( 1)( d)( i) and 7( 1)(\n\nf); ( 2) a detailed explanation of the factual and\n\n1) copies of the records that\n\nlegal bases for the applicability of those exemptions; and ( 3) a description of the specific\nmeasures that were taken to search for responsive records. On June 17, 2016, the Attorney\nGeneral' s Office furnished those materials. On June 21, 2016, the Public Access Bureau sent\n\nthe\n\nnon -confidential portions of the Attorney General' s Office' s response to the Law Clinic; it did not\nreply. \n\nANALYSIS\n\nFOIA requires a public body to conduct a \" reasonable search tailored to the nature\n\nof a particular request.\" Campbell v. United States Dept of Justice, 164 F. 3d 20, 28 ( D. C. Cir. \n1998). A public body is not required to \" search every record system[,]\" but it \" cannot\nsearch to only one record system if there are others that are likely to turn up the requested\ninformation.\" Oglesby v. United States Dep' t of the Army, 920 F. 2d 57, 68 ( D. C. Cir. 1990). The\nadequacy of a FOIA search is generally determined not by the fruits of the search, but by the\nappropriateness of the methods used to carry out the search.\" Jturralde v. Comptroller of\nCurrency, 315 F. 3d 311, 315 ( D. C. Cir. 2003); see also Lahr v. National Transportation Safety\nBoard, 569 F. 3d 964, 988 ( 9th Cir. 2009) (\" the failure to produce or identify a few isolated\ndocuments cannot by itself prove the searches inadequate.\"). \n\nlimit its\n\nIn its Request for Review, the Law Clinic asserted that the Attorney General' s\n\nOffice either improperly withheld non- exempt records or did not conduct an adequate search for\nresponsive records. In support of its assertion that the search was inadequate, the Law Clinic\n\ninvitation to a social event, dated March 25, 2016, that was sent\n\nreferenced a copy of an e- mail\nby a member of the Office of the New York Attorney General to various individuals, including a\nmember of the Attorney General' s Office. The Law Clinic stated that the Attorney General' s\nOffice did not disclose that record in its May 2, 2016, response to the FOIA request. \nresponse to the Public Access Bureau, the Attorney General' s Office stated that because it had\nnot located that record in its initial search, it asked the Division Chief and Environmental\n\nIn its\n\nCounsel of the Environmental Law and Asbestos Litigation Division to conduct a second search. \n\nfor the Free Market Environmental Law Clinic, to Illinois Attorney General' s Office ( April\n\n11, 2016). \n\nLetter from Craig E. Richardson, Executive Director, E & E Legal, and Christopher C. Horner, \n\n\fMr. Matthew D. Hardin\n\nMs. Caitlin Q. Knutte\nAugust 24, 2016\n\nPage 3\n\nThe Attorney General' s Office then provided the e- mail\nLaw Clinic in a supplemental response dated June 17, 2016, which was also provided to the\n\ninvitation and additional\n\nrecords to the\n\nPublic Access Bureau. The disclosure of those records by the Attorney General' s Office resolves\nthe Law Clinic' s complaint that the Attorney General' s Office failed to provide the records in its\nMay 2, 2016, response. See Duncan Publishing, Inc. v. City of Chicago, 304 Ill. App. 3d 778, \n782 ( 1st Dist. 1999) (\" Once an agency produces all records related to a plaintiffs request, the\nmerits of a plaintiffs claim for relief, in the form of production of information, becomes moot.\") \n\nWith respect to the adequacy of its efforts to locate responsive records, the\n\nAttorney General' s Office' s response to the Public Access Bureau explained that it: ( 1) \nrequested\nand obtained from its Human Resources Bureau a list of the names of all attorneys employed in\n\nthe Environmental Law and Asbestos Litigation Division in March 2016; ( 2) requested that its\n\nInformation Technology Bureau search the e- mail archives of those attorneys during the time\nframe referenced in the FOIA request for e- mails sent to or received from anyone with the Office\n\nof the New York Attorney General' s domain ( @ag. ny. gov); ( 3) notified the Bureau Chiefs of the\nEnvironmental Law Bureau in Springfield and Chicago of the request and that the search was\n\nbeing conducted by the Information Technology Bureau; ( 4) asked the Division Chief and\nEnvironmental Counsel of the Environmental Law and Asbestos Litigation Division as well as\n\nthe Bureau Chiefs of the Environmental Law Bureaus in Springfield and Chicago and the Bureau\n\nChief of the Environmental Crimes Bureau to search for responsive records; ( 5) obtained and\n\nreviewed records from the Information Technology Bureau and the Division Chief and\nEnvironmental Counsel of the Environmental Law and Asbestos Litigation Division, and\n\nprovided non- exempt portions of the records to E & E Legal and the Law Clinic; the above- \n\nmentioned Bureau Chiefs did not locate responsive records. \n\nThe measures taken appear to be reasonably calculated to locate all records\n\nresponsive to the request. Further, apart from a portion of an e- mail that was redacted pursuant\n\nto section 7( 1)( f) and a copy of a final version of a brief filed with a federal appellate court\nwhich is a matter of public record in that case, most of the additional records that were provided\nresponse to the request primarily relate to\nin the Attorney General' s Office' s supplemental\nscheduling and other logistical matters rather than substantive communications concerning\npublic business. The omission of these records from the initial response to the FOIA request did\n\nnot render the Attorney General' s Office' s search inadequate. Rather, the available information\nindicates that the Attorney General' s Office consulted the relevant staff members and searched\nthe recordkeeping systems that were likely to contain responsive records. Accordingly, this\noffice concludes that the Attorney General' s Office conducted an adequate search for records\n\nresponsive\n\nto the Law Clinic' s April 11, 2016, FOIA request. \n\n\fMr. Matthew D. Hardin\n\nMs. Caitlin Q. Knutte\nAugust 24, 2016\n\nPage 4\n\nRedacted and Withheld Records\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" \n5 ILCS 140/ 1. 2 ( West 2014); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 I11. 2d 390, 415 ( 2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/\n\n1. 2 ( West 2014). \n\nSection 7( 1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nf) exemption is equivalent to the deliberative process exemption in the Federal\n\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7( 1)(\nFOIA ( 5 U. S. C. § 552( b)( 5) ( 2012)), which applies to \" inter- and intra -agency predecisional and\ndeliberative material.\" ( Emphasis added.) Harwood v. McDonough, 344 I11. App. 3d 242, 247\n1st Dist. 2003). The exemption is \" intended to protect\nencourage frank and open discussion among agency employees before a final decision is made.\" \nHarwood, 344 Ill. App. 3d at 248; see also Kalven v. City of Chicago, 2013 IL App ( 1st) 121846, \n24, 7 N. E. 3d 741, 748 ( 2013), quoting Public Citizen, Inc. v. Office of Management & Budget, \n598 F. 3d 865, 876 ( D. C. Cir. 2010) (\" Only those portions of a predecisional document\nreflect the give and take of the deliberative process may be withheld.\"). \n\nthe communications process and\n\nthat\n\nThe response of the Attorney General' s Office' s FOIA officer to the Public Access\n\nBureau described the records withheld pursuant to sections 7( 1)( d)( i) and 7( 1)( f) as follows: \n\n1) A handout and related records provided to attendees of a March 29, 2016, \n\nmeeting of several Attorneys General and Attorneys General staff and others who \" were invited\nto provide analysis [ of] various environmental\nmeeting for participating in a confidential strategy and briefing session related to possible\ninvestigations and legal actions that could be taken with regard to identified environmental\nissues.\" \n\nissues. All of the attendees were invited to the\n\n2) E- mail exchanges involving the offices of several state Attorneys General, the\n\nDistrict of Columbia, and local governmental entities that \"joined together to file a brief in\nsupport of the Respondents in\" a case pending before a federal appeals court. \n\n3) E- mails exchanged by members of the Attorney General' s Office and the\n\nOffice of the New York Attorney general concerning the above -referenced March 29, 2016, \nmeeting or filing of the brief which \" discuss the logistics of the meeting as they relate to\nspecified substantive areas of law, and solicit information related to specific environmental\nissues contemplated or taken by the participating offices, and contain draft records shared with\nthe stakeholders.\" \n\n\fMr. Matthew D. Hardin\n\nMs. Caitlin Q. Knutte\nAugust 24, 2016\n\nPage 5\n\n4) Draft agreements exchanged by the Attorney General' s Office and \" other\ngovernment agencies, including a draft common interest agreement applicable to the above\nreferenced multistate working group' s activities with respect\nvarious environmental\n\nto investigating and prosecuting\nissues and a draft brief related to\" the case pending before the federal\n\nappeals court? \n\nThe Attorney General' s Office asserted that the handout and related records\n\nprovided to the attendees of the March 29, 2016, meeting are \" exempt under the rationale that\npublic bodies must be able to evaluate information internally, as well as with other government\nagencies that may be similarly affected by the information, to explore possible courses of action\nconfidentially before making final determinations that should be shared with the public. i3 The\nAttorney General' s Office provided the Public Access Bureau with additional confidential\ninformation that we are prohibited from disclosing in this determination. See 5 ILCS 140/ 9. 5( d) \nWest 2014). \n\nBased on this office' s review, the withheld records related to the March 29, 2016, \n\nmeeting include records expressing opinions and recommendations which constitute inter -agency\npre -decisional communications within the scope of section 7( 1)( f). Certain other materials that\n\ninformation such as topics of discussion also are predecisional and deliberative in\ninto matters under consideration at the meeting. \n\nidentify factual\nnature because disclosure would provide insight\nSee Judicial Watch, Inc. v. U.S. Dep't of Commerce, 90 F. Supp. 2d 9, 14 ( D. D. C. 2000) \nproposed meeting agendas that are replete with outstanding issues and questions to be\n\nconsidered\" in connection with trade missions were exempt from disclosure under the\n\ndeliberative process exemption in Federal FOIA4); Missouri Coalition v. Environment v. United\nStates Army Corps of Engineers, No. 4: 05CV02039FRB, 2007 WL 869487, at * 7 ( E.D. Mo. \nMar. 20, 2007) ( federal district court agreed with federal agency' s assertion that agenda and\nminutes of task force meetings were exempt\nprocess exemption because they \" evidence the issues the [ task force] considered worthy of\ndiscussion, and as such evidence the thought processes and issues of the [ task force] members.\") \n\nfrom disclosure under the federal deliberative\n\nThe remaining records that were withheld consist of preliminary drafts or e- mails\n\n2Letter from Caitlin Q. Knutte, Assistant Attorney General, FOIA Officer, Office of the Attorney\nGeneral, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General\nJune 17, 2016), at 4- 7, 9. \n\n3Letter from Caitlin Q. Knutte, Assistant Attorney General, FOIA Officer, Office of the Attorney\nGeneral, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General\nJune 17, 2016), at 5. \n\n4The deliberative process exemption in Federal FOIA applies to \" inter -agency or intra -agency\nmemorandums or letters that would not be available by law to a party other than an agency in litigation with the\nagency, provided that the deliberative process privilege shall not apply to records created 25 years or more before\nthe date on which the records were requested[.]\" \n\n\fr. Matthew D. Hardin\n\nMs. Caitlin Q. Knutte\nAugust 24, 2016\n\nPage 6\n\nthat reflect opinions, recommendations, or otherwise provide insight\nAttorney General' s Office and one or more governmental entities to jointly formulate actions. \nSuch records are pre -decisional\nthe records related to the March 29, 2016, meeting were publicly cited or identified by the\nAttorney General. Accordingly, the Public Access Bureau concludes that the Attorney General' s\nOffice has sustained its burden of demonstrating that the records at issue are exempt from\ndisclosure pursuant to section 7( 1)(\ndecline to address the applicability of section 7( 1)( d)( i) of FOIA. \n\nin nature, and there is no indication that any of those records or\n\nf) of FOIA. Because that determination is dispositive, we\n\ninto the process used by the\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n42018 f 3d search 71f proper\n\nsa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Correspondence between state attorneys general on environmental policy","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":882,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-07-06","case_number":null,"request_numbers":["43086"],"title":"Metropolitan Water Reclamation District properly withheld proposed agreement under 7(1)(h)","filename":"43086, issued July 6, 2017.pdf","rel_path":null,"word_count":1156,"summary":"The requester sought a copy of a proposed 'off-take' agreement between the Metropolitan Water Reclamation District and BP, which the District withheld as a preliminary draft. The PAC determined that the District did not improperly withhold the document under FOIA.","plain_summary":"Mr. Archey requested a copy of a proposed 'offtake' agreement between the Metropolitan Water Reclamation District of Greater Chicago and BP. The District refused to provide it, claiming it was exempt from disclosure under section 7(1)(h) of FOIA because it was a proposal and no award or final selection had been made. The Public Access Bureau of the Illinois Attorney General's office concluded that the District did not violate FOIA by withholding the document, as the plain language of the exemption permits withholding until a final selection or award is made.","holding":"The Metropolitan Water Reclamation District of Greater Chicago did not improperly withhold the requested proposed agreement.","legal_question":"Whether the Metropolitan Water Reclamation District properly withheld a proposed agreement under the preliminary draft exemption of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(h)"],"public_body":"Metropolitan Water Reclamation District of Greater Chicago","requesting_party":"Mr. Michael Archey","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(h)","subject_description":"The request concerned a proposed biogas production and beneficial use agreement between a public water district and a private corporation.","ocr_status":"ok","ocr_quality":93.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_h/43086%2C%20issued%20July%206%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["preliminary draft","contract","biogas","exemption 7(1)(h)"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 6, 2017\n\nVia electronic mail\n\nMr. Michael Archey\nGTM Strategies\n\nmdarchey@mdarcheyllc.\n\ncom\n\nVia electronic mail\n\nMs. Helen Shields -Wright\n\nHead Assistant Attorney\nMetropolitan Water Reclamation District\n\nOf Greater Chicago\n\n100 East Erie Street\n\n[street address redacted for site publication -- see original PDF]\nfoiarequest@mwrd. org\n\nRE: FOIA Request for Review — 2016 PAC 43086\n\nDear Mr. Archey and Ms. Shields -Wright: \n\nThis determination is issued pursuant\n\nto section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the Metropolitan Water Reclamation District\n\nof Greater Chicago did not improperly withhold a proposed agreement responsive to Mr. \nMichael Archey' s July 8, 2016, FOIA request. \n\nof \"the ' off take' agreement between the District and BP for the Calumet biogas production and\n\nOn that date, Mr. Archey submitted a FOIA request\n\nto the District seeking a copy\n\nbeneficial use project[.]\"\n\nI On July 18, 2016, the District responded that because it has not\n\nexecuted an agreement, the responsive agreement\n\n7( 1)( h) of FOIA ( 5 ILCS 140/ 7(\n\nto section\n1)( h) ( West 2015 Supp.)). Mr. Archey disputes that response. \n\nfrom disclosure pursuant\n\nis exempt\n\nOu August 2, 2016, this office sent a copy of the Request\n\nfor Review to the\n\nJuly 8, 2016). \n\nFOIA request submitted by Michael Archey to Metropolitan Water District of Greater Chicago\n\n500 South Second Street, Springfield, \n\nIllinois 62706 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois, 60601 • ( 312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • (\n\n618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Michael Archey\nMs. Helen Shields -Wright\n\nJuly 6, 2017\nPage 2\n\nDistrict and asked it to provide a copy of the record that the District withheld together with a\ndetailed explanation of the factual and legal bases for the applicability of section 7( 1)( h). On\nAugust 18, 2016, the District\n11, 2016, Mr. Archey\nreplied to the District' s written response. \n\nfurnished those materials. On November\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are presumed to\nbe open to inspection and copying ( 5 ILCS 140/ 1. 2 ( West 2016)), and exemptions to disclosure\nare to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois Univ., 176 Ill. 2d\n401, 408 ( 1997); see also 5 ILCS 140/ 1 ( West 2016). A public body \" has the burden of proving\nby clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS 140/ 1. 2\nWest 2016). \n\nSection 7( 1)( h) of FOIA exempts from disclosure: \n\nProposals and bids for any contract, grant, or agreement, \n\nincluding information which if it were disclosed would frustrate\nprocurement or give an advantage to any person proposing to enter\ninto a contractor agreement with the body, until an award or final\nselection is made. Information prepared by or for the body in\npreparation of a bid solicitation shall be exempt until an award or\n\nfinal selection is made. ( Emphasis added.) \n\nWhen construing the meaning of a statutory provision, the primary objective is to\n\nascertain the intent of the legislature. See, e. g., DeLuna v. Burciaga, 223 I11. 2d 49, 59 ( 2006). \nThe plain language of the statute is the best indication of that intent, and if that language is clear\nand unambiguous, \n2d 444, 452 ( 2012). The plain language of section 7( 1)( h) exempts \" proposals and bids\" from\ndisclosure only \" until an award or final selection is made.\" \n\nit must be given effect.\" People v. Rinehart, 2012 IL 111719, ¶ 24, 962 N. E. \n\nMr. Archey' s Request for Review asserts that the record in question is \" an\nagreement' of some form and substance that is being relied on by the District to make\nresource allocation decisions.\" ( Emphasis added.) The District' s response to this office\nexplained that after reviewing another company' s proposed agreement\nofftake agreement with the sale of the biomethane gas and attributes going to BP,\" * * * \nDistrict determined that more favorable terms could be established\n\nif the District contracted\n\nthe\n\nthat included \" a long- term\n\n\fr. Michael Archey\nMs. Helen Shields -Wright\n\nJuly 6, 2017\nPage 3\n\ndirectly with BP.\" 2 The District further explained that although the District is actively\nt] he District has not yet sought, and the Board of\nnegotiating an agreement with BP, \"[\nCommissioners has not yet granted, authority for the District to enter into an offtake agreement\nwith BP. i3 The District' s response included correspondence documenting that the District\ncontinued to negotiate terms of the agreement with BP after Mr. Archey submitted his Request\nfor Review. Mr. Archey replied to the District' s response by criticizing the District' s\nprocurement process and by questioning its authority to engage in negotiations with BP while\ndenying his firm a similar opportunity. 4\n\nBased on the available information, the District had not made a final award or\n\nselection on the proposed agreement with BP at the time Mr. Archey submitted his FOIA\nInstead, the District was in the process of negotiating contract terms as a precondition to\nrequest. \nseeking approval\nfrom the District' s Board of Commissioner' s to enter into an agreement. \nBecause the plain language of section 7( 1)( h) permits the District to withhold a proposed\nagreement until a final selection or award is made, this office concludes that the District response\n\nto Mr. Archey' s request did not violate FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at ( 312) 814- 6756. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n43086 f 71h proper spd\n\n2Letter from Helen Shields - Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois ( August\n\n18, 2016), at 2- 3. \n\nLetter from Helen Shields -Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois ( August\n\n18, 2016), at 3. \n\nThe Public Access Counselor' s authority to limited to reviewing alleged violations of FOIA and\nthe Open Meetings Act ( 5 ILCS 120/ 1 et seq. ( West 2016)). See 15 ILCS 205/ 7( c) ( West 2016)). This office does\nnot have authority to review Mr. Archey' s concerns about the District' s procurement process. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A proposed biogas production agreement","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":883,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-07-17","case_number":null,"request_numbers":["43174"],"title":"Cook County Medical Examiner's Office allowed to charge $5 per page fee for photographs of inquest files","filename":"43174, issued July 17, 2020.pdf","rel_path":null,"word_count":2562,"summary":"A requester sought to photograph historical inquest files from the Cook County Medical Examiner's Office, and the PAC determined the office could charge a fee for those photographs.","plain_summary":"A requester asked to inspect old inquest files at the Cook County Medical Examiner's Office and wanted to photograph them without paying a fee. The Public Access Bureau concluded that the Medical Examiner's Office did not improperly respond to the FOIA request. The Bureau found that the $5.00 per page fee for copies, including photographs, is authorized by section 4-7001 of the Counties Code, which applies to FOIA requests for records from a coroner or medical examiner's office.","holding":"The Medical Examiner's Office did not violate FOIA by assessing a $5.00 per page fee for photographs taken of inquest files, as the fee is authorized by the Counties Code.","legal_question":"Whether a public body may charge a fee for a requester to photograph public records when a separate statute authorizes a fee for copies of those specific records.","disposition":"no_violation","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Cook County Medical Examiner's Office","requesting_party":"Mr. Costin","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought to photograph historical inquest files from 1912 and 1914.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_d/43174%2C%20issued%20July%2017%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","photographing records","medical examiner","copying costs"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJuly 17, 2020\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Laura Lechowicz Felicione\n\nSpecial Legal Counsel\n\nFreedom of Information Officer\n\nOffice of the Cook County Board President\n69 West Washington Boulevard, Suite 1415\n\n[street address redacted for site publication -- see original PDF]\nlaura. lechowicz@cookcountyil. gov\n\nRE: FOIA Request\n\nfor Review — 2016 PAC 43174\n\nDear\n\nand Ms. Felicione: \n\nThis determination is issued pursuant\n\nto section 9. 5( f) of the Freedom of . \n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2018)). 1 For the reasons that follow, the\nPublic Access Bureau concludes that the Cook County Medical Examiner' s Office ( Medical\nExaminer' s Office) did not improperly respond to\n\nJune 26, 2016, FOIA request. \n\nOn June 26, 2016, \n\nsubmitted a FOIA request\n\nto the Medical\n\nExaminer' s Office seeking to inspect the inquest files concerning the deaths of Mr. Thomas Kelly\nin 1912 and Mr. Andrew Kelly in 1914. \nExaminer' s Office that he intended to take photographs while inspecting the records. On July 12, \n\ninformed the Medical\n\nIn his FOIA request, \n\nIn issuing this letter, we recognize that it is coming long after the FOIA dispute took place. \nBecause it raises a legal question that may reoccur, however, this letter is intended to provide guidance to the\nrequester and public body. \n\n500 South Second Street, Springfield, Illinois 62706 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMs. Laura Lechowicz Felicione\n\nJuly 17, 2020\nPage 2\n\n2016, the Medical Examiner' s Office responded by stating that if\ncopies of the records, \n\nthe cost would be $ 655. 00 pursuant\n\nto section 4- 7001 of the Counties Code\n\nwished to receive., \n\n55 ' ILCS 5/ 4- 7001 ( West 2016)), which authorized a coroner' s office to charge $ 5. 00 per page\nfor transcripts of sworn testimony. The Medical Examiner's Office stated that if\nwished to inspect the records, he should contact its office to schedule a time for inspection; \nhowever, he would not be permitted to photograph the records during the inspection. \ncontacted the Medical Examiner' s Office seeking clarification of the basis for prohibiting\nphotography during inspection. On July 19, 2016, the Medical Examiner's Office responded by\ntook photographs of the records, it would assess the $ 5. 00 per page fee\nstating that if\nauthorized by section 4- 7001 of the Counties Code because photographs are the same as copies. \nOn July 26, 2016, \nMedical Examiner' s Office' s refusal to allow him to photograph the records during inspection\n\nsubmitted a Request for Review to this office contesting the\n\nwithout charge. \n\nOn August\n\n1, 2016, this office sent a copy of the Request for Review to the\n\nMedical Examiner' s Office and asked it to respond to\n\nallegations. On August 15, \n\n2016, Legal Affairs for the Office of the Cook County Board President provided this office with\na written answer on behalf of the Medical Examiner' s Office. On August 17, 2016, this office • \nsent a copy of the Medical Examiner' s Office' s answer to\n2017. \n\nhe replied on July 25, \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that\nit is exempt.\" \n5 ILCS\n140/ 1. 2 ( West 2016). FOIA requires that \"[ e] ach public body shall make available to any person\nfor inspection or copying all public records, except as otherwise provided in Sections 7 and 8. 5\nof this Act.\" 5 ILCS 140/ 3( a) ( West 2016). \" Copying\" is defined in section 2( d) of FOIA ( 5\nILCS 140/ 2( d) ( West 2016)) as \" the reproduction of any public record by means of any\nphotographic, electronic, mechanical or other. process, device or means now known or hereafter\ndeveloped and available to the public body.\" Section 3( b) of FOIA ( 5 ILCS 140/ 3( b) ( West\n2016)) states: \" Subject to the fee provisions of Section 6 of this Act, each public body shall\npromptly provide, to any person who submits a request, a copy of any public record required to\nbe disclosed by subsection ( a) of this Section[.]\" . \n\nSection 6( b) of FOIA ( 5 ILCS 140/ 6( b) ( West 2016)) provides, in pertinent part: \n\nExcept when a fee is otherwise fixed by statute, each\n\npublic body may charge fees reasonably calculated to reimburse its\n\n\fMs. Laura Lechowicz Felicione\n\nJuly 17, 2020\nPage 3\n\nactual cost for reproducing and certifying public records and for\nthe use, by any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black and\nwhite, letter or legal sized copies requested by a requester. The fee\nfor black and white, letter or legal sized copies shall not exceed 15\n\ncents per page. ( Emphasis added.) \n\nSection 4- 7001 of the Counties Code provides: \n\nCoroner' s fees. The fees of the coroner' s office shall be as follows: \n\n1. For a copy of a transcript of sworn testimony: $ 5. 00 per page. \n\n2. For a copy of an autopsy report ( if not included in transcript): \n\n50. 00. \n\n3. For a copy of the verdict of a coroner' s jury: $ 5. 00. \n\n4. For a copy of a toxicology report: $ 25. 00. \n\n5. For a print of or an electronic file containing a picture obtained\nby the coroner: actual cost or $ 3. 00, whichever is greater. \n\n6. For each copy of miscellaneous reports, including artist' s\ndrawings but not including police reports: actual cost or $ 25. 00, \nwhichever is greater. \n\n7. For a coroner' s or medical examiner'\n\ns permit\n\nto cremate a dead\n\nhuman body: $ 50. 00. The coroner may waive, at his or her\ndiscretion, the permit\nfee if the coroner determines that the person\nis indigent and unable to pay the permit fee or under other special\n\ncircumstances. \n\nAll of which fees shall be certified by the court; in the case\ninstitution, the fees shall\n\nof inmates of any State charitable or penal\nbe paid by the operating department or commission, out of the\nState Treasury. The coroner shall file his or her claim in probate\nfor his or her fees and he or she shall render assistance to the\nState' s attorney in the collection of such fees out of the estate of the\n\n\fMs. Laura Lechowicz Felicione\n\nJuly 17, 2020\nPage . 4\n\ndeceased. In counties of less than 1, 000, 000 population, the State' s\n\nattorney shall collect such fees out of the estate of the deceased. \n\nAll fees under this Section collected by or on behalf of the\ncoroner' s office shall be paid over to the county treasurer and\ndeposited into a special account\nthe special account shall be used solely for the purchase of\nelectronic and forensic identification equipment or other related\n\nin the county treasury. Moneys in\n\nsupplies and the operating expenses of the coroner' s office. \n\nAlthough section 4- 7001 states that all coroner' s fees \" shall be certified by the\n\ncourt\" and collected \" out of the estate of the deceased[,]\" \n\nthat statutory language pre -dates FOIA. \nSee, e. g., Laws 1919, p. 554, § 1. The subsequent enactment of FOIA by the General Assembly, \nwith its specific reference to fees fixed by statute in section 6( b), provides guidance on how to\ninterpret the applicability of the fees for coroner' s records in section 4- 7001 of the Counties\nCode. See Mitsuuchi\n\nv. City of Chicago, 125 Ill. 2d 489, 497 (.1988) (\" Legislativeenactments\n\nlight on the legislative intent of earlier enacted statutes[.]\"). \n\ncan certainly cast\nAssembly has amended this section of the Counties Code several times to increase the document\nfees charged by coroners, most recently in 2010. The legislative history of the latest amendment\nindicates that\n\nthe General Assembly intended to raise revenue for coroners' offices: \" This is a\n\nThe General\n\nfee increase that they haven' t [ had in] over 20 years and they' re just trying to bring in more\nrevenue like everybody else.\" Remarks of Rep. Phelps, April 27, 2010, House Debate on Senate\nBill No. 2529 ( which as Public Act 96- 1161, effective July 21, 2010, amended the fee provision\nin question), at 26. By amending section 4- 7001 to increase the fee for copies of coroners' \nrecords to fund the operations of the coroners' offices, it may be presumed that the General\nAssembly intended those fees to apply generally to all types of information requests. See People\nv. McChriston, 2014. IL 115310, ¶ 18, 4 N. E. 3d 29, 34 ( 2014) ( subsequent statutory amendments\nfor determining legislative intent); see also Remarks of Rep. Brady, April 27, 2010, \nare sources\n\nHouse Debate on Senate Bill No. 2529, at 27- 28 (\" What this particular Bill does, specifically\ndeals with only the type of information request[ ed] from a coroner' s office, probably through a\ncomplex investigation, and what I was very concerned with was that the funds would go directly\nto a line item within the coroner' s budget for specific operations of that office[.]\"). \n\nIn light of its stated fiscal purpose, it would make little sense to construe the fee\n\nprovision in section 4- 7001 of the Counties Code as applying only when the records are\nproduced in the course of a probate action and the fee is certified by the court. The purpose of\nthis fee provision would be defeated if the same records could be obtained by the decedent' s\nsurviving family members or the public through a FOIA request upon payment of the 15 cents\n\n\fMs. Laura Lechowicz Felicione\n\nJuly 17, 2020\nPage 5\n\nper page fee contemplated by section 6( b) of FOIA. See Phoenix Bond & Indemnity Co. v. \nPappas, 194 Ill. 2d 99, 106 ( 2000) ( holding that a statute should not be construed in a way that\nwould defeat\n\nits purpose or yield an absurd or unjust result). Consequently, this office concludes\n\nthat the fee provision in section 4- 7001 of the Counties Code applies to copies of records\nprovided in response to FOIA requests submitted to a coroner or medical examiner' s office. \n\nTurning to the issue of photographing the inquest records, in a case decided prior\n\nto the enactment of FOIA that was cited by Mr. Costin in his Request\nAppellate Court held that the common law right to inspect records included the right to\nphotograph records. People ex. rel. Gibson v. Peller, 34 I11. App. 2d 372 ( 1962). \nparents of students enrolled in a school district sought\nAt the time of inspection, the parents brought a professional photographer to photograph the\nrecords. The district refused to allow the records to be photographed. The district asserted that\nthe parents \" have the right to look, examine and inspect with the naked eye the public records\nand copy by hand these public records, but they have no right to photograph\n34 Ill. App. 2d at 375. The court disagreed stating: \n\nfor Review, the Illinois\n\nthe district' s financial\n\nIn Peller, the\n\nto inspect\n\nrecords. \n\nthe records.\" Peller, \n\nModern photography is accurate, harmless, noiseless, and time\nsaving. It does nothing more than capture that which is seen with\nthe naked eye. Neither defendants nor the public can be harmed by\nthe reproduction of the records exactly as they exist. The fact that\nmore modern methods of copying are devised should not lessen the\nbasic right given under the common law. Peller, 34 Ill. App. 2d at\n375. \n\nIn its response to this office, the Medical Examiner' s Office did not contest\nright to\nmake photographs during his inspection of the inquest files; rather, it asserted only that he would\nbe assessed the fee authorized by the Counties Code for any photographs taken of those records. \nThe Medical Examiner' s Office stated that there were. 38 pages of sworn testimony in the\ncoroner' s inquest\nof Andrew A. Kelly. The Medical Examiner' s Office asserted that the $ 5. 00 fee per page of\nsworn testimony in section 4- 7001 of the Counties Code would applyto any photographs taken\nby\n\nfor the death of Thomas F. Kelly and 93 pages of sworn testimony for the death\n\nduring his inspection of the records. \n\nIn this matter, \n\nseeks to photograph inquest files for which the Counties\n\nCodes establishes a fixed fee. A public body may not charge a fee to inspect records; however, \n\nis not merely seeking to inspect\n\nthe records but to reproduce them. The court in\n\nPeller recognized that the right to photograph accompanied the right to inspect under common\nlaw. The General Assembly has since enacted FOIA, which provides the right to inspection or\ncopying of public records and includes the reproducing of records by photograph within the\n\n\fMs. Laura Lechowicz Felicione\n\nJuly 17, 2020\nPage 6\n\ndefinition of \"copying\" in section 2( d) of FOIA. In addition, the General Assembly did notstate\nthat, the statutory fees for copies of public records shall not apply to photographs of those records\nunless expressly provided, as it did in section 6( a) of FOIA ( 5 ILCS 140/ 6( a) ( West 2016)) for\nrecords furnished in electronic format. \n\nSection 4- 7001 of the Counties Code does not distinguish between the format of\n\nthe copy or whether the copy is made by the requester or the Medical. Examiner' s Office when\nassessing the $ 5. 00 per page fee for copies. Further, unlike fees such as those in section 6( b) of\nFOIA that are intended to allow a public body to recover its actual cost of reproducing the\nrecord, the express purpose of the fees in section 4- 7001 of the Counties Code is to provide a\n\nfunding mechanism for a coroner' s office to obtain identification equipment and to cover its\noperating expenses related to death investigations. Construing the fee provision in the Counties\nto generate his or her own copies by photographing coroner' s records\nCode to allow a requester\nwithout charge would defeat\n\nIndemnity Co., \n194 Ill. 2d at 106. Accordingly, under section 6( b) of FOIA, the Medical Examiner' s Office did\nnot improperly respond to Mr. Costin' s FOIA request by stating that it would assess a $ 5. 00 per\npage fee for any photographs taken of the inquest files. \n\nthe purpose of this provision. See Phoenix Bond & \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. Please contact me at ( 217) 782- 9054, \nmhartman@atg. state. il.us, or the Springfield address on the first page if you have questions. \nThis letter serves to close this file. \n\nVery truly yours, \n\nMATT HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n43174 f 6a fee proper co\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Historical inquest files from 1912 and 1914","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":884,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-02-01","case_number":null,"request_numbers":["44377"],"title":"Illinois State Board of Investment improperly redacted consultant report shared at open meeting","filename":"44377, issued February 1, 2017.pdf","rel_path":null,"word_count":4745,"summary":"The Illinois State Board of Investment partially denied a FOIA request for investment-related records, and the PAC determined that the Board failed to meet its burden of proof for certain claimed exemptions.","plain_summary":"A journalist requested nine categories of investment records from a public pension investment board, three of which he sought review of after the board denied or redacted them. The PAC found the board's refusal to answer a vague question about a specific investment did not violate FOIA, but that most of the board's trade-secret and privacy redactions to a consultant's report were improper given the report had already been shared at an open meeting, and that a private accounting firm's audit report did not qualify as an internal-audit record exempt from disclosure. The board was directed to release the improperly withheld and redacted records.","holding":"The source finds that (1) the Board's response to the second request did not violate FOIA; (2) for the fourth request, the Bureau did not address pages the Board agreed to release; (3) no final holding is stated for the ninth request (KPMG audit report) in the provided text.","legal_question":"Whether the Illinois State Board of Investment properly invoked FOIA exemptions to withhold investment-related reports and audit documents.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(m)"],"public_body":"Illinois State Board of Investment","requesting_party":"Mr. Barry B. Burr (Pensions & Investments)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"investment records","subject_description":"The request sought various records and audit reports pertaining to the Board's real estate and other investment activities.","ocr_status":"ok","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_m/Internal-audits/44377%2C%20issued%20February%201%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["investment records","FOIA denial","audit report","burden of proof"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"|\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 1, 2017\n\nMr. Barry B. Burr\n\nEditorial Page Editor\nPensions & Investments |\n\n150 North Michigan Avenue, Floor 19\nChicago, Illinois 60618 |\nbburr@pionline.com\n\n|\nt\nVia electronic mail |\nt\n\nVia electronic mail\nMs. Tondalaya Lloyd\nInvestment Compliance Officer\nIllinois State Board of Investment\n[street address redacted for site publication -- see original PDF]\ntondalaya. lloyd@illinois. gov\"\nRE: FOIA Request for Review — 2016 PAC 44377\n\n|\n|\n|\n|\n|\n|\n|\n|\n|\n|\n|\n|\n|\n3\nDear Mr. Burr and Ms. Loyd: |\n|\nThis determindtion is issued pursuant to section)9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons explained below, the\nPublic Access Bureau concludes that the Illinois State Board of Investment (Board) improperly\nwithheld certain information responsive to the request made by Mr. Barry Burr on behalf of\nPensions & Investments.\n\nOn September'19, 2016, Mr. Burr submitted a FOIA request to the Board seeking\nnine records or categories of records pertaining to the Board's real estate and other investments.\nOn September 23, 2016, the Board partially denied Mr. Burr's Tequest. In his Request for\nReview, Mr. Burr sought review of three of the Board's responses. First, he challenged the\nBoard’ 's denial of his second request, for \"[dJetails about the North Dakota housing investing that\nthe board discussed at last Thursday’ 's morning [sic]? In which Clarion fund is that North Dakota\n\n500 South Second Street, Springfield, Illinois 62706 + (217) 782-1090 * TTY: (217) 785 -2771 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 * TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, , Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 + Fax: (618) 529-6416\n\n|\n\nI\n\nl\n\nl\n\nMr. Barry Burr |\nMs. Tondalaya Lloyd\nFebruary 1, 2017 |\n|\n\n|\n\n|\n\nPage 2\n\ninvestment?” The Board responded that it is not required to answer questions posed by a FOIA\nTequester and asserted that it did not possess any responsive documents. The Board noted that\nMr. Burr might find relevant information in the September 15, 12016, Investment Policy\nCommittee meeting minutes, once they are ratified and made public. Second, regarding his\nfourth request, Mr. Burr sought review of the redactions to the!Courtland Partners, LTD. report\nunider section 7(1)(g) of FOIA (5 ILCS 140/7(1)(g) (West 201 5 Supp.), as amended by Public\nAct 99-642, effective July 28, 2016). Third, regarding his ninth request, Mr. Burr challenged the\nBoard’ 's decision to withhold the KPMG audit report pursuant to section 7(1)(m) of FOIA (5\nILCS 140/7(1)(m) (West 2015 Supp.), as amended by Public Act 99-642, effective July 28,\n\n2016). |\n\nOn October 14, 2016, the Public Access Bureau sent a copy of the Request for\nReview to the Board and asked it to provide a description of the measures it took to search for\nrecords responsive to Mr. Burt's second request, including the specifi c recordkeeping systems\nthat were searched and the individuals who were consulted. Further, we asked the Board to\nprovide the Public Access Bureau with un-redacted copies of records responsive to Mr. Burr's\nfourth and ninth requests and|to submit a detailed explanation of the factual and legal bases for\nthe applicability of the section 7(1)(g) and 7(1)(m) exemptions to the information that was\nwithheld. |\n\n|\nOn October 24, 2016, the Board furnished a written response and an un-redacted\ncopy of the Courtland Partners, LTD. report. On December 1, 2016, the Board provided an un-\nredacted copy of the KPMG audit report. On December 23, 2016, the Board provided a\n\nsupplemental response to the Public Access Bureau. Mr. Burr did not reply.\n\n| !\n; DETERMINATION |\n\n| |\nSecond Request: North Dakota Investment\n|\nSection 1.2 of FOIA (5 ILCS 140/1.2 (West 2014) provides that “[a]ll records in\n\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"\nHowever, \"[a] request to inspect or copy must reasonably identify a public record[.]\" Chicago\n\nTribune Co. v. Department of, Financial and Professional Regulation, 2014 IL App (4th)\n\n130427, 433, 8 N.E.3d 11, 19) (2014). A FOIA request \"reasonably describes records if ‘the\nagency is able to determine precisely what records are being requested. \" Kowalczyk y.\nDepartment of Justice, 73 F. 3d 386, 388 (D.C. Cir. 1996) (quoting Yeager v. Drug Enforcement\n\nAdmin., 678 F.2d 315, 326 ©. C. Cir. 1982)). Public bodies aré not required to search beyond\nthe four corners of a FOIA request, nor are they required to divine the requester's intent. Manna\nv. United States Department of Justice, 106 F. Supp. 3d 16, 19\\(D.D.C. 2015).\n\n| ‘E-mail from Barty Burr, Editorial Page Editor, Pensions Investments, to William Atwood\n(September 19, 2016). |\n\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\nFebruary 1, 2017\nPage 3\n\nThe first part of Mr. Burr's second request sought \"[dletails about the North\nDakota housing investing that|the board discussed at last Thursday's morning [sic].\" Although\nnot framed as a question, seeking \"details\" about a topic does not reasonably identify a public\nrecord. Not only does the request fail to make clear the records that are being requested, the\nrequest requires the Board to interpret its records and determine what information could be\nconsidered a \"detail\" about the investment, a subjective exercise that is beyond the requirements\nin FOIA. |\n\n| The second part of Mr. Burr's second request asked \"[i]Jn which Clarion fund is\nthat North Dakota investment?\" This request is plainly a question rather than a request fora\nrecord. A public body is not required to answer questions in response to a FOTA request\n(Kenyon y. Garrels, 184 Ill. App. 3d 28, 32 (4th Dist. 1989)); nor is a public body required to\ncreate new records in response to a FOIA request. Krohn v. Department of Justice, 628 F.2d\n195, 198 (D.C. Cir. 1980). |\n\nAccordingly, this office finds that the Board's response to Mr. Burr's second\nrequest did not violate FOIA.! Mr. Burr may wish to submit a revised FOIA request seeking\nspecific records maintained by the Board from which he could obtain the details about the North\nDakota housing investments that he seeks.\nt\n\nFourth Request: Courtland Partners, LTD. Report\n\nIn response to Mr. Burr's fourth request, the Board redacted information from ten\npages of the Courtland Partners, LTD. report (Courtland report) prepared by Courtland Partners,\nLTD., (Courtland) as trade secrets pursuant to section 7(1)(g) of FOIA. The Board also argued\nin its response to the Public Access Bureau that information on page four is exempt pursuant to\nboth section 7(1)(g) and section 7(1)(r) (5 ILCS 140/7(1)(r) (West 2015 Supp.), as amended by\nPublic Act 99-642, effective iy 28, 2016) of FOIA.\n\n‘ In its respons¢ to the Public Access Bureau, the Board indicated that it is willing\nto provide to Mr. Burr the information on pages two, four, ten, and 11 of the Courtland report's\nExecutive Summary. Accordingly, the Public Access Bureau will not address whether those\npages were properly withheld in the Board's response to Mr. Burr.\n\n' i\n\n. t\n\n' |\n\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\nFebruary 1, 2017\nPage 4\n\nSection 70)(g)\n\n\\\nt\n|\n1\n|\n'\ni\n|\n\nSection 7(1}(g) exempts from disclosure:\n\n(g) Trade secrets and commercial or fi nancial information\nobtained from! a person or business where the trade secrets or\ncommercial or financial information are furnished under a claim\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness, and only insofar as the claim directly applies to the\nrecords requested. |\n\n|\n\nThe information included under this exemption includes all\ntrade secrets and commercial or financial information obtained by\na public body, including a public pension fund,' from a private\nequity fund or a privately held company within|the investment\nportfolio of a private equity fund as a result of éither investing or\nevaluating a potential investment of public funds in a private\nequity fund. The exemption contained in this item does not apply\nto the aggregate financial performance information of a private\nequity fund, nor to the identity of the fund's managers or general\npartners. The exemption contained in this item does not apply to\nthe identity ofa privately held company within/the investment\nportfolio of a private equity fund, unless the disclosure of the\nidentity of a privately held company may cause competitive harm.\n\n|\n\nTrade secrets and commercial or financial information in the context of FOIA is \"confidential\nonly if disclosure would either inflict substantial competitive harm on the supplier of the\ninformation or impair the recipient agency's ability to induce people to submit similar\ninformation to it in the future.\" Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007,\n1013 (Ist Dist. 1994); see also BlueStar Energy Services, Inc. . Illinois Commerce Commission,\n374 Il. App. 3d 990, 995 (1st Dist. 2007). \"To show substantial competitive harm, the agency\nmust show by specific factual or evidentiary material that: (1) the person or entity from which\ninformation was obtained actually faces competition; and (2) substantial harm to a competitive\nposition would likely result from disclosure of the information i in the agency's records.'\" Cooper,\n266 Ill. App. 3d at 1013 (quoting Calhoun v. Lyng, 864 F.2d 34, 36 (Sth Cir. 1988)). \"Parties\nopposing disclosure need not demonstrate actual competitive harm; instead, they need only show\nactual competition and a likelihood of substantial competitive|injury in order to bring [that]\ncommercial information within the realm of confidentiality.\"\" New Hampshire Right to Life v.\n\nUnited States Department of Health & Human Services, 778 F .3d 43, 50 (1st Cir. 2015) (quoting\n\n[\n|\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\nFebruary 1, 2017\nPage 5\n\nPublic Citizen Health Research Group v. Food & Drug A dministration, 704 F.2d 1280, 1291\n(DIC. Cir, 1983).\n\nIn discussing the potential competitive harm that would result from disclosure of\nthe redacted sections of the Courtland report, the Board addressed the competitive interests of (1)\n\nCourtland, (2) the funds mentioned in the report, and (3) itself. | Courtland is a consultant that the\nBoard pays for investment advice, which includes researching funds and recommending funds to\nthe Board for consideration of future investment. The Board paid for the Courtland report,\n\nwhich contains information provided by Courtland as well as information Courtland obtained\nfrom private equity funds. The Board confirmed in an e-mail to an Assistant Attorney General in\nthe Public Access Bureau that the Courtland report was presented i in full at the September 15,\n\n2016, Investment Policy Committee meeting. The publically available minutes of the meeting\n\nindicate that a representative from Courtland led the discussion! of the report.” The meeting was\nopen to the public and in addition to the Board's Investment Policy Committee members, Board\nmembers, and staff, members of the public were present, including Mr. Burr and a representative\n\nfrom Financial News. |\n' |\n\nThe Board asserted that Courtland could be harmed by disclosure of the\ninformation on page five of the report. The Board has not argued directly that the Courtland\nreport was furnished under a claim that it contained proprietary, privileged or confidential\n\ninformation, but the Board contended that information Provided by Courtland is proprietary.\n\n|\n\nIn Cooper, the Illinois Appellate Court considered whether a list of vendors of\nlottery tickets and a \"media plan developed by Bozell Inc. (the ‘Bozell Plan’) to advertise and\npromote the Illinois State Lottery\" were exempt from disclosure pursuant to section 7(1)(g).\nCooper, 266 Ill. App. 3d at 1010. The Illinois Department of the Lottery contended that\ndisclosure of the Bozell Plan would cause competitive harm to Bozell. Cooper, 266 Ill. App. 3d\n\nat 1013. The court, however, concluded that \"to the extent that! [the Department of the Lottery]\nis reluctant to release the disputed material on Bozell's behalf rather than its own behalf, the\nexemption on which it relies is inapplicable. * * * [T]he Bozell! ‘Plan, commissioned and paid for\nby [the Department of the Lottery], is not the type of confi dential business information that\nsection 7(1)(g) exempts.\" Cooper, 266 Ill. App. 3d at 1013. The court further explained that the\n\nDepartment:\n\nassumes that ‘Bozell has a proprietary interest in ithe ideas and\nrecommendations it developed,’ when, in fact, if anyone has a\n‘proprietary’ interest in the Bozell plan, it is the [Department of the\nLottery] who commissioned and paid for the plan. Unlike the\nusual 7(1)(g) case, where a third party's trade secrets are submitted\nin the course of bidding on a government proj ect or in response to\n\"Investment Policy Committee, Meeting, September 15, sb Minutes 3.\n\n| ;\n\n|\n|\n[\ni\n|\n\n\nMr. Barry Burr !\nMs. Tondalaya Lloyd\nFebruary 1, 2017 |\nPage 6 |\n|\n|\n\nan agency's investigation, the ‘business strategies and information'\n* * * are those of [the Department of the Lottery] and not Bozell.\nCooper, 266 ib. App. 3d at 1014.\n\nCourtland created the Courtland report at the request of the Board. Thus, the\nreport is proprietary information of the Board rather than of Courtland and the information on\npage five may not be withheld on the basis of Courtland's interests pursuant to section 7(1)(g) of\nFOIA. See Cooper, 266 Ill. App. 3d at 1013-14. Moreover, the Board's arguments regarding\nany potential harm to Courtland are conclusory, stating only that \"Courtland faces competition\nfor its consulting services, which include researching funds and recommending such funds to\n[the Board] for consideration of future investment\" and that the pipeline of investments that\nCourtland i is monitoring is \"proprietary and disclosure would cause competitive harm to\"\nCourtland and \"would impair,its competitive position.\" 3 Not only is the competitive harm\nargument unsupported by facts, it is further diminished by the Board! 's confirmation that the\nreport was presented in full at the September 15, 2016, meeting. A review of the publically\navailable minutes from the meeting confirms that a representative from Courtland presented the\nreport during an open meeting. See General Electric Co. v. United States Nuclear Regulatory\nCammission, 750 F.2d 1394, 1403 (7th Cir. 1984) (noting that the fact that some of the\ninformation at issue was revealed during congressional hearings undercuts a finding that the third\nparty could be harmed severely by the record's further disclosure). Were there a serious concern\nabout competitive harm resulting from disclosure of the information on page five, Courtland\n\nlikely would have taken precautions before sharing that information with members of the press\n\nand the general public. | |\n\nThe Board also contended that its own competitive interests could be harmed by\ndisclosure of information on pages three, four, and five, and pages eight, 12, and 13 of the\nExecutive Summary. Regarding the redactions on page three of the Courtland report, the Board\nexplained that the redacted information included \"reference to specific pending investments as\nwell as future investment plans which are confidential and its disclosure would cause\ncompetitive harm to [the Board]. \"A comparison of the disclosures on the Board's website to\nthe redacted information reveals that the investments that were: withheld on page three are no\nlonger pending.» The Board confirmed for an Assistant Attorney General in the Public Access\n\nBureau that once the investments are made, the redacted information i is no longer confidential.\n\n|\n| | |\n3Letter from Chris Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\nAssistant Attorney General, at 3 (October 24, 2016). |\n\n|\n‘Letter from chs Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\nAssistant Attorney General, at 3 (October 24, 2016). |\n\n5See Illinois State Board of Investment, Reporting and Disclosures,\nhttps://www. illinois.gov/isbi/Pages/Reporting.aspx (last visited February 1, 2017).\n\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\nFebruary 1, 2017 '\nPage 7 ;\nt\ni\nAccordingly, the Board no longer has a valid claim of confidentiality over the information on\npage three and should release the information to Mr. Burr.\n\nWith respect to pages four and five, and pages eight, 12, and 13 of the Executive\nSummary, an analysis of a public body's interests in the trade secret context begins with a\ndetermination of whether disclosure of the information would \"make it more difficult for the\nagency to induce people to submit similar information in the future.\" BlueStar Energy Services,\nInc., 374 Ul. App. 3d at 995; see also Cooper, 266 Ill. App. 3dlat 1013. Nowhere in its response\nto|the Public Access Bureau has the Board argued that disclosure of the information in the\nCourtland report would make it difficult for it to obtain similar consultant reports in the future.\nInjany event, such an argument would strain credulity, as the report was disclosed by Courtland\nitself at the open meeting of the Board's Investment Policy Committee, suggesting that Courtland\n\nhad no objection to the disclosure of the information in that setting. Given that the disclosure\n\nwas made to members of the public, including members of the press, it is reasonable to expect\nthat the disclosure at an open meeting could lead to a wider dissemination of the information in\n\nthe report. ;\n\nThe Board also repeatedly asserted that it would suffer competitive harm from\ndisclosure of the redacted information i in the Courtland report.| In addition to the two-part test for\ntrade secret confidentiality articulated by the courts in Cooper|and BlueStar Energy Services, that\ninlorder to be exempt, disclosure would have to (1) \"either inflict substantial competitive harm\non the supplier of the information or [(2)] impair the recipient agency's ability to induce people\nto|submit similar information to it in the future\" (Cooper, 266 'Ill. App. 3d at 1013), some courts\nhave recognized that there might be other governmental interests protected by the trade secret\nexemption to FOIA. See Critical Mass Energy Project v. Nuclear Regulatory Commission, 975\nF, 2d 871, 879 (D.C. Cir. 1992); 9 to 5 Organization v. Board of Governors of the Federal\nReserve, 721 F.2d 1 (1st Cir.'1983). A public body's claim that it would face competitive harm\nfrom disclosure of a trade secret is an interest that courts may consider. See News Group Boston,\nIne. vy. National Railroad Passenger Corp., 799 F. Supp. 1264, 1268-69 (D. Mass. 1992)\n(analyzing Amtrak's claim that its interest in its ability to compete in the marketplace would be\n\nharmed by disclosure of a certain record). |\n|\n\nLike the standard for establishing competitive harm to the suppliers of trade\nsecrets, to meet its burden under section 7(1)(g), the Board must demonstrate by specific facts\nand evidence that it faces actual competition and that disclosure would result in a likelihood of\nsubstantial competitive harm, See Cooper, 266 Ill. App. 3d at'1013; New Hampshire Right to\nLife, 778 F.3d at 50; News Group Boston, Inc., 799 F. Supp. at 1268-69. For the redacted\ninformation regarding pending real estate sales on page four, the Board contended that \"[pJublic\ndisclosure of future specific disposition plans would harm ime Board's] ability to retain\n\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\n\nFebruary 1, 2017\n\nPage 8\n\nmaximum negotiating power and contro} over the sale process: 6 Regarding the withheld\ninformation on page five, which included details about potential investments, the Board argued\nthat it \"seeks to make the best investments in funds that are frequently capped and\noversubscribed. Information made public regarding potential [Board] investments would hurt\n[the Board's} ability to invest in these capped funds[. ]\"” For the fund information on pages eight,\n12, and 13 of the Executive Summary, the Board asserted that the redacted information\n\n'reflect[s] current investment strategies paid for by the Board and are therefore proprietary trade\nsecrets that could cause competitive harm to [the Board]. ]\"* These explanations are conclusory\nand are unsupported by facts or evidence that demonstrate how disclosure of the information\nwould result in substantial harm to the Board. In particular, the Board failed to explain what\ncompetition it faces for its real estate dispositions or its investments, Further, its contentions\nregarding competitive harm are vague and do not detail how harm would arise or how substantial\nthe harm would be. Moreover, the Board did not address howlits likelihood of substantial injury\nis affected by the fact that it previously disclosed the information during the Investment Policy\nCommittee meeting. As noted above, it seems likely that any claim of harm would be\ndiminished t by the partial public disclosure. In sum, the Board has failed to demonstrate by clear\nand convincing evidence that the redacted information on pages four and five, and pages eight,\n12, and 13 of the Executive Summary should be withheld on the basis of the potential for\n\ncompetitive harm to its own interests.\n\nThe remaining information in the Courtland report that the Board claims is\nexempt under 7(1)(g) pertains to specific fund information on pages eight, 12, and 13 of the\nExecutive Summary. In its supplemental response to this office, the Board explained that the\nsource of the information on these pages was the fund managers, who then provided the\ninformation to Courtland. Page eight of the Executive Summary contains information on the\nproportions of public equity, private equity, public debt, and private debt within each of the\nfunds in the Board's portfolio. In its response, the Board indicated that it is willing to disclose\nthe names of the funds, but it asserted that the remaining information could cause competitive\nharm to the funds. The information on page eight of the Executive Summary falls within the\nplain language of section 7(1)(g) because it constitutes \"fi nancial information obtained by a\npublic body * * * from a private equity fund[,]\" albeit indirectly, as a result of the public body\ninvesting in the funds. See Ill. Att'y Gen. Req. Rev. Ltr. 9147; issued May 1, 2012, at 6 (finding,\nwithout consideration of competitive harm to the equity fundslat issue, that fair market value\nback- -up information from fund managers falls within the 70S) exemption). Accordingly, the\n\n|\n\n‘Letter from Chris Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\n\nAssistant Attomey General, at 3 (October 24, 2016). 1\n|\n| TLetter from Chris Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\nAgsistant Attorney General, at 3 (October 24, 2016).\n\n|\n5Letter from Chris Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\nAssistant Attorney General, at 4 (October 24, 2016).\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\nFebruary 1, 2017\nPage 9\n\nPublic Access Bureau conclutles that the Board did not violate|FOIA by withholding the equity\nand debt information on page eight of the Executive Summary!\n\n. |\n| For pages 12 and13 of the Executive Summary,} ithe Board indicated that it is\n\nwilling to provide all information except for the leverage ratios. However, the Board previously\ndisclosed the leverage ratios in its response to Mr. Burr, redacting only the fund names. As the\n\nBoard is no longer asserting that section 7(1)(g) exempts from disclosure the names of the funds\nand because it has previously disclosed the leverage ratios, the Board should release to Mr. Burr\n\npages 12 and 13 in full. ! 1\n\n|\n! 1\nSection 7(1)(r) |\n|\n\n|\n\nIn its response to the Public Access Bureau, the! Board asserted for the first time\nthat the real estate investment information on page four of the Courtland report is exempt under\n7) as information regarding areal estate sale. Section 7) of FOIA exempts from\ninspection and copying \"records, documents, and information relating to real estate purchase\nnegotiations until those negotiations have been completed or otherwise terminated. * * * The\nrecords, documents and information relating to a real estate sale shall be exempt until a sale is\nconsummated. \" | !\n\n|\nIn its supplemental response, the Board clarified that only two of the planned\ndispositions listed on page four were still pending. The names|of the assets qualify as\n“information” relating to a real estate sale and therefore fall within the scope of section 7(1)(r).\nHowever, as described above, the Courtland report was shared in full at the September 15, 2016,\n\n|\n\nmeeting of the Board's Investment Policy Committee. !\n\n|\nA public body|may waive the right to withhold records under FOIA if it has\nvoluntarily disclosed the same records on a previous occasion. | Lieber v. Board of Trustees of\nSouthern Illinois University, | 176 Ill. 2d 401, 412-13 (1997). This \"waiver rule must not be\nmechanically applied whenever there is disclosure of information but, rather, requires\nconsideration of the circumstances related to the disclosure, including the purpose and extent of\nthe disclosure as well as the confidentiality surrounding the disclosure.\" Chicago Alliance for\nNeighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 202 (Ist Dist. 2004). In Chicago\nAlliance, the court concluded! that the City did not waive the right to redact the names and\naddresses of people who attended community meetings to prornote neighborhood safety because\nit had disclosed that information on a confidential basis to a public policy research organization\nmonitoring and evaluating the City's alternative policing strategies. Chicago Alliance for\nNeighborhood Safety, 348 Ill: App. 3d at 203. The court emphasized that the disclosure \"was\nmade for consultation purposes and limited to a single entity which treated the names and\naddresses as confidential.\" Chicago Alliance for Neighborhood Safety, 348 Ill. App. 3d at 202.\n\nI\n\n|\n|\n|\n\n\nMr. Barry Burr\nMs. Tondalaya Lloyd |\nFebruary 1, 2017 |\nPage 10 |\n\nIn contrast, the information on page four of the|Courtland Report was disclosed\nduring an open meeting in the presence of members of the public and the media, including the\nrequester. The Board had no reasonable expectation that information disclosed in such a public\nsetting would be maintained confidentially or that its dissemination would be limited in any\nmanner. Accordingly, the Board waived the assertion that the information i is exempt from\ndisclosure pursuant to section 7(1)(r) of FOIA. |\n\n|\n\nNinth Request: KPMG Audit Report\n\n|\nThe Board withheld in full the document responsive to Mr. Burr's ninth request,\nreferred to in the request as the \"KPMG audit report,\" pursuant to section 7(1)(m), which\nexempts from disclosure: | |\n\nCommunications between a public body and an attorney or\n\nauditor representing the public body that would not be subject to\ndiscovery in litigation, and * * * materials prepared or compiled\nwith respect to internal audits of public bodies, (Emphasis\nadded.)\n\nThe Board contended that the report was created by the Board's auditor\n\nspecifically for and with respect to the Board's upcoming internal audit, and was therefore\nexempt under section 7(1)(m). However, the report in question was prepared for an audit to be\nconducted by KPMG, a private accounting firm. The Public Access Bureau has previously\ndetermined that audits prepared by private firms do not constitute materials prepared or compiled\n\nwith respect to internal audits of public bodies. See Ill Att'y Gen. Req. Rev. Ltr. 17844, issued\nApril 11, 2012 (\"[a]!though the] portion of the audit report [at issue] may pertain to ‘internal\n\ncontrol, that does not mean that it is an internal audit. \"); IL. Att! y Gen. Req. Rev. Ltr. 14434,\nissued September 6, 2011 (distinguishing an internal audit as one prepared by an organization's\npersonnel from an independent audit, which is prepared by anloutside person or firm).\nAccordingly, we conclude that that the Board has not sustained its burden of demonstrating by\nclear and convincing evidence that the record in question is exempt from disclosure under\n\nsection 7(1)(m). |\n|\n|\n| In accordance with. the conclusions expressed in this letter, this office requests\nthat the Board provide Mr. Burr with copies of the records determined not to be exempt from\ndisclosure. The records to be disclosed include the Courtland report, with redactions only to the\ndebt and equity information on page eight of the Executive Summary, in response to Mr. Burr's\n\nfourth request, and the KPMG audit report in response to Mr. eum s ninth request.\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\nFebruary 1, 2017\nPage 11\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\n\nany questions, please contact'me at the Springfield address on the first page of this letter.\n\nVery truly yours, |\n\nLAURA S. HARTER\nAssistant Attorney General\nPublic Access Bureau\n\n|\n44377 f 7(1)(g) improper proper 7(1)(r) improper 7(1)(m) imptoper sa\n\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A journalist requested investment records from the Illinois State Board of Investment. The Board partially denied the request, and the Attorney General's office reviewed three specific requests. It found that the Board's response to the request for details about a North Dakota investment did not violate FOIA because the request did not reasonably identify a public record. For the Courtland Partners report, the Board indicated it would release certain pages, so the Bureau did not address whether those pages were properly withheld. Regarding the KPMG audit report, the Board provided an un-redacted copy to the Bureau, but the source does not state the Bureau's final determination on that request.","card_headline":"Audit reports on a board's real estate and investment activities","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":885,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-12-02","case_number":null,"request_numbers":["44649"],"title":"City of Collinsville properly classified online publisher as recurrent requester, not news media","filename":"44649, issued December 2, 2016.pdf","rel_path":null,"word_count":2290,"summary":"A requester challenged the City of Collinsville's classification of them as a 'recurrent requester' under FOIA, arguing they qualified as 'news media.' The PAC determined the requester did not meet the statutory definition of news media and that no further action was warranted.","plain_summary":"A citizen requested public records from the City of Collinsville, but the City treated them as a 'recurrent requester,' which allows for longer response times. The citizen argued they should be exempt from this status because they act as 'news media.' The Attorney General's office reviewed the evidence and decided the citizen did not qualify as news media, meaning the City's original decision was appropriate.","holding":"The PAC concluded that the requester failed to demonstrate they are a member of the 'news media' as defined by FOIA, thereby upholding the City's classification of the requester as a recurrent requester.","legal_question":"Does a requester who publishes local government findings online qualify as 'news media' under 5 ILCS 140/2(f) to exempt them from the recurrent requester provisions of 5 ILCS 140/3.2?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/2","5 ILCS 140/3.2"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Collinsville","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"recurrent requester","subject_description":"The requester sought City cellular phone bills and credit card expenditures while disputing their status as a recurrent requester.","ocr_status":"ok","ocr_quality":94.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_f/44649%2C%20issued%20December%202%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["recurrent requester","news media","FOIA response time","public records"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nDecember 2, 2016\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review — 2016 PAC 44649\n\nDear\n\nThis determination is issued pursuant\n\nto section 9. 5( c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that no further action is warranted as to this matter. \n\nOn October 13, 2016, you submitted a FOIA request to the City of Collinsville\n\nCity) seeking a digital copy of City cellular telephone bills for the months of July, August, and\nSeptember, 2016, and copies of all City credit card expenditures and receipts for the same period. \nYou asserted that you are \" a member of the press. i' \n\nOn October 20, 2016, the City responded by stating that it had examined your\n\npress credentials\" issued by the website CFAPA. org and that it had determined that you are not\na \" news media\" requester as defined by section 2( f) of FOIA (5 ILCS 140/ 2( 0 (West 2015\nSupp.)). Therefore, the City stated that it would continue to classify you as a recurrent requester\nunder section 3. 2 of FOIA ( 5 ILCS 140/ 3. 2 ( West 2014)) and respond to your requests within the\ntime period allowed for recurrent\n\nrequesters. \n\nIn this Request\n\nfor Review, you contend that the City has misinterpreted section\n\n2( f) of FOIA because you \" regularly and periodically electronically publish [ your] FOIA\nfindings with commentary for residents; for many it is the only way they get local news since\nthere is not a local community paper covering local municipal city government. i2 You also\n\nE- mail\n\nfrom\n\nto Kimberly Wasser ( October 13, 2016). \n\n2E -mail from\n\nto Public Access [ Bureau] ( October 21, 2016). \n\n500 South Second Street, Springfield Illinois 62706 • ( 217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, ;Illinois, 60601 • (\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fDecember 2, 2016\nPage 2\n\nargue that Internet journalists should be treated like print media, citing the New Hampshire\nSupreme Court's decision in Mortgage Specialists, Inc. v. Implode -Explode Heavy Industries, \nInc., 160 N.H. 227, 999 A.2d 184 ( N.H. 2010). \n\nOn October 26, 2016, an Assistant Attorney General\n\nin the Public Access Bureau\n\nasked you to provide an example of your electronic publications. In response, you furnished\naddresses of the websites www. collinsvillemalcontents. com and www. madisontaxpayer. com. \nOn November 3, 2016, you also sent this office a photograph of press credentials issued to you\nby the Madison County Sheriff's Office. During a telephone conversation with an Assistant\nAttorney General on November 3, 2016, you stated that you published\nwww.collinsvillemalcontents. com, and you and other members of the public posted information\non www. madisontaxpayer.\n\ncom. \n\nDETERMINATION\n\nrequester\" as: \n\nSection 2( g) of FOIA ( 5 ILCS 140/ 2( g) ( West 2015 Supp.), defines a \" recurrent\n\na person that, in the 12 months immediately preceding the request, \nhas submitted to the same public body ( i) a minimum of 50\nrequests for records, ( ii) a minimum of 15 requests for records\nwithin a 30 -day period, or ( iii) a minimum of 7 requests for records\nwithin a 7 -day period. For purposes of this definition, requests\nmade by news media and non-profit, scientific, or academic\norganizations shall not be considered in calculating the number\nof requests made in the time periods in this definition when the\nprincipal purpose of the requests is ( i) to access and disseminate\ninformation concerning news and current or passing events, ( ii) for\narticles of opinion or features of interest\nthe purpose of academic, scientific, or public research or\neducation. ( Emphasis added.) \n\nto the public, or ( iii) for\n\nSection 2( 0 defines \" news media' in relevant part as a \" newspaper or other periodical\nregular intervals whether in print or electronic format, a news service whether in print or\nelectronic format[.]\" \n\nissued at\n\n\fDecember 2, 2016\n\nPage 3\n\nThe Public Access Bureau has previously determined that the plain language of\n\nsection 2( f) limits the definition of \"news media\" to a medium such as a \" newspaper,\" \nperiodical,\" or a \" news service,\" or an electronic version thereof. 3 See Ill. Att'y Gen. PAC Req. \nRev. Ltr. 35187, 35393, issued May 27, 2015, at 3. With respect to a self -published website, this\noffice has concluded that the statutory definition requires more than simply establishing a\n\nwebsite as a means to communicate: \n\nMerely disseminating information or criticism electronically\nthough a website, for via e- mail, does not meet the statutory\ndefinition of \"news media.\" If it did, then any person who chose to\npost an opinion or, comment on a matter of public interest\nelectronically would become a news medium, which was clearly\nnot the intent of the General Assembly when it enacted the\nexception. Ill. Att'y Gen. PAC Req. Rev. Ltr. 33323, issued\nFebruary 13, 2015, at 4. \n\nThe Illinois appellate courts have not analyzed whether the statutory definition of \"news media\" \nin FOIA or an analogous statutory definition such as \" news medium\" contained in the \" reporter's\nprivilege act\" 4 may apply to individuals or entities that self -publish material on the Internet. \nHowever, courts in other jurisdictions have recognized that \" self-appointed journalists or\nentities\" who claim statutory protection under reporter shield laws as media members \" require\nmore scrutiny\" than traditional newspaper or television reporters. Too Much Media, LLC v. \nHale, 206 N.J. 209, 242, 20 A.3d 364, 383 ( N.J. 2011). \n\nIn Too Much Media, the New Jersey Supreme Court reviewed whether the\ndefinition of \"news media\" contained in New Jersey' s reporter shield law included blogger\npostings on an on- line bulletin board. The shield law defined \" news media\" as \" newspapers, \nmagazines, press associations, wire services, radio, television or other similar printed, \nphotographic, mechanical or electronic means of disseminating news to the general public.\" Too\n\n3The definition of \"news media\" also includes radio stations, television stations, television\n\nnetworks, community antenna television services, or persons or corporations engaged in making news reels or other\nmotion picture news for public showing This Request for Review does not suggest that either online publication\nconstitutes one of these types of media. \n\nnews medium\" as: \n\n4Section 8- 902( b) of the Code of Civil Procedure ( 735 ILCS 5/ 8- 902( b) ( West 2014)) defines\n\nissued at regular intervals whether in print or\n\nany newspaper or other periodical\nelectronic format and having a general circulation; a news service whether in\nprint or electronic format; a radio station; a television station; a television\nnetwork; a community antenna television service; and any person or corporation\nengaged in the making of news reels or other motion picture news for public\nshowing. \n\n\fDecember 2, 2016\n\nPage 4\n\nMuch Media, 206 N.J. at 229, 20 A.3d at 376. The court focused its analysis on whether the\nmaterial was \" similar\" to those produced by traditional media sources, and concluded that the\nblogger had not demonstrated that she was \" news media\" because the posted content was\nunedited personal commentary that was not sufficiently similar to a newspaper or other\ntraditional media. Too Much Media, 206 N.J. at 234- 37, 20 A.3d at 378- 80. \n\nSimilarly, in Obsidian Finance Group, LLC v. Cox, CV - 11 - 57 -HZ, 2011 WL\n\n5999334, at * 1 ( D. Or. Nov. 30, 2011), a federal district court rejected an internet blogger's claim\nthat she was protected under the Oregon reporter shield law, which defined a \" medium of\ncommunication\" as \" any newspaper, magazine or other periodical, book, pamphlet, news service, \nwire service, news or feature syndicate, broadcast station or network, or cable television system.\" \nThe court identified several factors relevant to its determination that the blogger was not a\nmember of the media: (\n1) education in journalism; ( 2) credentials or proof of an affiliation with\na recognized news entity; ( 3) proof of adherence to journalistic standards such as editing, fact - \nchecking, or disclosures of conflicts of interest; ( 4) keeping notes of conversations and\ninterviews conducted; ( 5) mutual understanding or agreement of confidentiality with sources; ( 6) \ncreation of an independent product rather than assembling writings and posting of others; and ( 7) \ncontacting both sides of a story. Obsidian Finance Group, 2011 WL 5999334, at * 5. The court\nconcluded that \"[ w] ithout evidence of this nature, defendant\n\nis not ' media.'\" \n\nIn contrast, in O'Grady v. Superior Court, 139 Cal. App. 4th 1423, 44 Cal. Rptr. \n3d 72 ( Cal. Ct. App. 2006), the California Court of Appeals held that the \" reporter shield\" in the\nCalifornia Constitution and a related statute protected two websites from being held in contempt\nof court based on the websites' similarities to the types of media specified in those constitutional\nlanguage that extended protection\nand statutory provisions. Both provisions contained identical\nto a \" publisher, editor, reporter, of other person connected with or employed upon a newspaper, \nmagazine, or other periodical publication, or by a press association or wire service, or any person\nwho has been so connected or employed,\" and a \" radio or television news reporter or other\nperson connected with or employed by a radio or television station, or any person who has been\nso connected or employed[.]\" Cal. Const. Art. 1, § 2( b); Cal. Evid. Code § 1070( a) ( West 2006). \nThe court emphasized that the websites \" reflect a kind and degree of editorial control that makes\nthem resemble a newspaper or magazine far more closely than\" web -based bulletin boards and\nreasoned that \" the open and deliberate publication in a news -oriented Web site of news gathered\nfor that purpose by the site' s operators * * * \npublishing a newspaper[.]\" O' Grady, 139 Cal. App. 4th at 1450, 1459, 44 Cal. Rptr. 3d at 91, \n99. \n\nappears conceptually indistinguishable from\n\nAs you cited, the New Hampshire Supreme Court also held that a website was\n\nsubject to its constitutional newsgathering privilege. Mortgage Specialists, 160 N. H. at 234, 999\nA.2d at 189. Notably, the court was construing the provision of the New Hampshire Constitution\nN.H. Const. Part 1, Art. 22)) that generally provides for freedom of speech and freedom of the\npress without defining covered press entities or otherwise limiting its application to certain types\n\n\fDecember 2, 2016\nPage 5\n\nof media, as section 2( f) of FOIA does. In addition, the court accepted the trial court' s findings\nthat the website at issue was \" a legitimate publisher of information and a member of the press.\" \nMortgage Specialists, 160 N.H. at 233- 34, 999 A.2d at 189. Accordingly, Mortgage Specialists\nis not instructive on the issue of how section 2( f) applies to the websites at issue in this matter. \n\nAs described in the other cases discussed above, in order to be considered a\n\nmember of the news media covered by reporter shield statutes, an individual or entity that self - \npublishes information on the Internet generally must demonstrate some adherence to recognized\njournalistic standards such as editorial oversight or the creation of original content similar to that\nof traditional media. These courts' rationales are consistent with the plain statutory language of\nsection 2( t) of FOIA that limits its application to a \" newspaper,\" \" periodical\" or \" news service\" \nand their electronic versions. The General Assembly has not expanded the definition in FOIA to\ninclude other individuals or entities apart from those traditional media sources and their\n\nelectronic\n\nversions. \n\nThis office has reviewed the websites you provided. The website\n\nwww.collinsvillemalcontents consists of links to public records that it appears were obtained\nthrough FOIA or public court files. The website www.madisontaxpayer.com consists of links to\nnews publications. Neither website contains original content or credits particular authors with\nany material posted on them. Given the absence of features such as editorial oversight and\noriginalincontent, \n\nthe websites do riot resemble a \" newspaper,\" \" periodical,\" or \" news service\" in\n\nt\n\nan\n\nform\n\nYou also have provided evidence of both your credentials and education. As\n\ndescribed by the City, the website CFAPA. org and its operator the Constitution First\nAmendment Press Association also do not appear to be news media, but rather a means to issue\npress \" credentials\" to those who request them via the website. The press \" credentials\" issued by\nthe Madison County Sheriffs Office identifies that you are associated with the\nwww.madisontaxpayer. com website discussed above. Neither set of \"credentials,\" however, \ndemonstrates a connection with one of the \" news media\" described in section 2(0 of FOIA. \nLikewise, your degree in mass communications, standing on its own, does not demonstrate you\nare currently working as a member of the \" news media.\" \n\n\fDecember 2, 2016\nPage 6\n\nAccordingly, this Office concludes thatou are not exempted bythe\nexception from the recurrent requester provision of FOIA, and that no further action is warranted\nas to this matter. If you have any questions, please contact me at ( 217) 782- 9078. \n\nnews - media\n\nY\n\np\n\nVery truly yours, \n\nNEIL P. OLSON\n\nDeputy Public Access Counselor\nAssistant Attorney General, Public Access Bureau\n\n44649 f no fi war mun\n\ncc: \n\nVia electronic mail\n\nMs. Kim Wasser\nFreedom of Information Officer\nCity of Collinsville\n125 South Center Street\nCollinsville, Illinois 62234\nkwasser@collinsvilleil. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Cellular phone bills and credit card expenditures","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":886,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-11-17","case_number":null,"request_numbers":["44651"],"title":"Village of Pingree Grove properly denied unduly burdensome calendar request","filename":"44651, issued November 17, 2016.pdf","rel_path":null,"word_count":1072,"summary":"The requester sought three years of electronic calendars for a village official, and the PAC determined that the Village of Pingree Grove properly denied the request as unduly burdensome under section 3(g) of FOIA.","plain_summary":"A citizen requested three years of calendar records from a village official. The village argued that reviewing nearly 7,000 appointments was too burdensome, and the Attorney General's office agreed, closing the case without requiring the village to provide the records.","holding":"The Village of Pingree Grove did not improperly deny the request because the burden of complying with the categorical request outweighed the public interest in disclosure.","legal_question":"Whether a request for three years of electronic calendars constitutes an unduly burdensome request under section 3(g) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Pingree Grove","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"unduly burdensome","subject_description":"The request sought three years of electronic calendar appointments for a village official.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_g/Categorical-requests/44651%2C%20issued%20November%2017%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["unduly burdensome","calendar records","FOIA request","public official"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nNovember 17, 2016\n\nRE: FOIA Request for Review — 2016 PAC 44651\n\nDear\n\nThis determination is issued pursuant to section 9. 5( c) of the Freedom of\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2014)). Because it would be unduly\nburdensome for the Village of Pingree Grove ( Village) to comply with your categorical request, \nthis office has determined that no further action is warranted as to this matter. \n\nOn October 7, 2016, you submitted a FOIA request to the Village seeking: \n\nAll electronic calendars for Dean Frieders for the period of\n\nSeptember\n\n1, 2013, to October 31, 2016, that relate to the business\n\nof the Village of Pingree Grove. Since Mr. Frieders uses google\n\napps for his email, if he uses google calendar for his calendar, \n\nplease print the information in agenda format and portrait to\n\nminimize the number of pages. If Mr. Frieders uses another\n\ncalendar product, please print out in the week view with each week\nprinted on one page.111\n\nOn October 12, 2016, the Village responded by asserting that your request is unduly burdensome\nunder section 3( g) of FOIA ( 5 ILCS 140/ 3( g) ( West 2014)) because Mr. Frieders would need to\ngather and review records from 1, 399 calendar days consisting of roughly 6, 995 appointments. \nThe Village offered you the opportunity to narrow your request to more manageable proportions. \n\nFOIA request\n\nto foia@pingreegove. org ( October 7, 2016). \n\n500 South Second Street, Springfield, \n\nIllinois 62706 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • \n\nFax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fNovember 17, 2016\n\nPage 2\n\nOn October 21, 2016, you submitted this Request\n\nfor Review contesting the\n\nVillage' s response. Specifically, you alleged that, based on the requested format, the responsive\nrecords should comprise only approximately\n164 pages of Mr. Frieders' s calendar. Furthermore, \nyou contended that the Village previously provided similar responsive records for other public\nemployees. \n\nSection 3( g) of FOIA provides, in pertinent part: \n\nRequests calling for all records falling within a category\n\nshall be complied with unless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\nin the information. Before invoking\noutweighs the public interest\nthis exemption, the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions. \n\nThis office has previously determined that a request seeking all records in a category over an\nextended period of time, which would require a public body to review a large quantity of\nresponsive records, is unduly burdensome under section 3( g) of FOIA in the absence of an\nidentified public interest in disclosure of all of the records that outweighs the burden of\ncompliance with the request. See, e. g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 20002, issued August\n29, 2012, at 3 ( a request for all grievance records spanning a 12 -month period was unduly\nburdensome); Ill. Att' y Gen. PAC Req. Rev. Ltr. 21102, issued November 19, 2012, at 3- 4 ( a\nrequest for financial records spanning a 5 -year period was unduly burdensome); see also\nNational Assn of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, \n17 ( 1st Dist. 2010) (\" A request\nreview, redact and arrange for inspection a vast quantity of material that is largely unnecessary to\nthe [ requester's] purpose constitutes an undue burden.\"). \n\nthat is overly broad and requires the public body to locate, \n\nIt is clear that compliance with this request would require the Village to review\n\nand redact a vast quantity of material that is largely unnecessary to any purpose pertaining to Mr. \nFrieders's work for the Village, given that Mr. Frieders also works for other clients and attends to\npersonal matters. You categorically requested 38 months of records without articulating a public\nthat could outweigh the Village' s burden. Your reason of wanting \" an overview of what\ninterest\nMr. Frieders spends time [ on] for his compensation of over $ 50, 000 per year\" 2 is insufficient\nfor\nthe Village to be required to review, redact, and prepare for disclosure all of the responsive\nrecords, particularly because your request encompasses records that do not pertain to the public\nbusiness of the Village over an extended period of time. Moreover, a careful review of the\n\n2E - mail from\n\nPublic Access ( October 21, 2016). \n\n\fNovember 17, 2016\nPage 3\n\nrecords would be justified to identify portions of the records that are exempt from disclosure\nunder FOIA. In particular, portions of a public official's calendar that reveal the substance of\nattomey- client communications may be properly withheld under section 7( 1)( m) of FOIA ( 5\nILCS 140/ 7( 1)( m) ( West 2015 Supp.), as amended by Public Act 99-642, effective July 28, \n2016). See I11. Att'y Gen. Pub. Acc. Op. No. 15- 008, issued September 15, 2016. And even if\nthe Village has complied with requests for calendars of other public officials in the past, it is not\nobligated to comply with an unduly burdensome request\navailable information indicates that — under these circumstances — the Village' s burden of\ncomplying with your request for electronic calendars for a more than three- year period\noutweighs the public interest in disclosure of that information, this office concludes that the\nVillage did not improperly deny that request as unduly burdensome. Accordingly, this office has\ndetermined that no further action is warranted as to this matter. \n\nfor a different calendar. Because the\n\nme at the Springfield address listed on the first page of this letter. \n\nThis letter serves to close this file. If you have any questions, you may contact\n\nVery truly yours, \n\nCHRISTOPHER R. BOGGS\n\nAssistant Attorney General\nPublic Access Bureau\n\n44651 f no fi war mun\n\ncc: \n\nVia electronic mail\n\nMs. Mary Brandes\nDeputy Village Clerk\nVillage of Pingree Grove\n14N042 Reinking Road\nPingree Grove, Illinois 60140\nfoia@pingreegrove.org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village official's electronic calendar appointments","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":887,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-03-07","case_number":null,"request_numbers":["45170"],"title":"Illinois DOC violated FOIA by withholding Gang Renunciation program info under 7(1)(a)","filename":"45170, issued March 7, 2017.pdf","rel_path":null,"word_count":2291,"summary":"The PAC determined that the Illinois Department of Corrections (IDOC) improperly denied a FOIA request for information regarding its Gang Renunciation Program by failing to prove the records were exempt under state law.","plain_summary":"A legal clinic requested general information about the Illinois Department of Corrections' Gang Renunciation program, but the agency denied the request, claiming the information was confidential under state law. The Attorney General's office reviewed the case and found that the IDOC violated FOIA by improperly denying the request. The office also determined that the IDOC failed to provide sufficient evidence to justify the exemption, but the document does not include any order requiring the agency to release the records.","holding":"The IDOC violated FOIA by improperly denying the request, but the source does not state any specific order or remedy.","legal_question":"Whether the IDOC properly invoked FOIA section 7(1)(a) to withhold records based on the confidentiality provisions of section 3-2-5(c) of the Unified Code of Corrections.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Illinois Department of Corrections","requesting_party":"Ms. Alexandra Scott (Mandel Legal Aid Clinic)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"exemption 7(1)(a)","subject_description":"The requester sought general information and structural details regarding the Illinois Department of Corrections' Gang Renunciation program.","ocr_status":"ok","ocr_quality":94.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/9.5/9.5_c/45170%2C%20issued%20March%207%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["IDOC","gang renunciation program","denial of records","burden of proof"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nMarch 7, 2017\n\nVia electronic mail\n\nMs. Alexandra Scott\n\nMandel Legal Aid Clinic\n\n[street address redacted for site publication -- see original PDF]\najscott@uchicago.\n\nedu\n\nVia electronic mail\n\nMr. Joel M. Diers\nFreedom of Information Office\nIllinois Department of Corrections\n1301 Concordia Court\nP. O. Box 19277\n\nSpringfield, Illinois 62794- 9277\njoel. diers@doc. illinois. gov\n\nRE: FOIA Request\n\nfor Review — 2016 PAC 45170; IDOC 16 1110066\n\nDear Ms. Scott and Mr. Diers: \n\nThis determination is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that the Illinois Department of Corrections ( IDOC) violated\nFOIA by improperly denying Ms. Alexandra Scott' s November 10, 2016, FOIA request. \n\nOn that date, Ms. Scott, on behalf of the Mandel Legal Aid Clinic, submitted a\nFOIA request to IDOC seeking \" information regarding the Illinois Department of Corrections\nGang Renunciation program under the Freedom of Information Act. I request any general\ninformation you may have, including, but not limited to the structure of the program.\"' On\nNovember 14, 2016, IDOC denied Ms. Scott' s request pursuant\nILCS 140/ 7( 1)( a) ( West 2015 Supp.), as amended by Public Act 99- 642, effective July 28, \n2016), citing section 3- 2- 5( c) of the Unified Code of Corrections ( UCC) ( 730 ILCS 5/ 3- 2- 5( c) \n\nto section 7( I)( a) of FOIA ( 5\n\nWeitekamp, \n\nLetter from Alexandra Scott, Mandel Legal Clinic, to Freedom of Information Officer Lisa\n10, 2016). \n\nIllinois Department of Corrections ( November\n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMs. Alexandra Scott\nMr. Joel Diers\n\nMarch 7, 2017\n\nPage 2\n\nWest 2014)), which exempts information collected and maintained by the gang intelligence unit\nfrom \" disclosure under the Freedom of Information Act as the information contained is highly\nconfidential and may be harmful if disclosed.\" \nIn her Request for Review, Ms. Scott disputed\nIDOC' s denial, arguing that the records she sought pertained to the structure of the Gang\nRenunciation Program, not confidential information about the particularities of inmate gang\npopulations, and therefore are not prohibited from being disclosed under section 3- 2- 5( c) of the\nUCC. \n\nOn December 7, 2016, this office forwarded a copy of the Request for Review to\nIDOC and asked it to provide the Public Access Bureau with ( i) copies of any records responsive\nto Ms. Scott's request and ( ii) a detailed explanation of the factual and legal bases for the\nexemptions asserted, addressing in particular whether the records sought by Ms. Scott pertaining\nto the structure of the Gang Renunciation Program were collected and maintained by the gang\nintelligence unit pursuant to the unit' s responsibilities as described in section 3- 2- 5( c) of the\nUCC. On December 8, 2016, IDOC submitted a written response, but did not provide this office\nwith copies of records responsive to Ms. Scott's request. Ms. Scott did not reply. On February\n24, 2017, an assistant attorney general\nrenewing this office' s request for copies of the records that were withheld for confidential\nreview. On the same day, IDOC's legal counsel responded by stating that because the records\ncontain \" highly sensitive\" information, \" the statute gives IDOC discretion on who this\ninformation gets disseminated to and [ in] this instance we cannot comply with your request.\" 2\n\nin the Public Access Bureau sent an e- mail to IDOC\n\nDETERMINATION\n\nSection 9. 5( c) \n\nreview. Section 9. 5( c) \n\nAs a threshold matter, the plain language of section 3- 2- 5( c) of the UCC cited\nbelow does not address the Request for Review process or give IDOC discretion to refuse to\nprovide copies of records to the Public Access Counselor for confidential\nof FOIA (5 ILCS 140/ 9.5( c) ( West 2014)) expressly and unambiguously provides that each\npublic body \" shall provide copies of records requested and shall otherwise fully cooperate with\nthe Public Access Counselor.\" ( Emphasis added.) Section 9. 5( c) does not afford IDOC\ndiscretion to disregard its statutory obligation to fully cooperate with this inquiry. The General\nAssembly clearly recognized that the Public Access Counselor must have access to all pertinent\nrecords in order to conduct a complete review of a public body' s compliance with FOIA. The\nfollowing colloquy between Representative Elaine Nekritz and Representative Michael Madigan, \nthe House sponsor of the bill, during the House debate on Senate Bill 189 ( which, as Public Act\n96- 542, effective January 1, 2010, created the Office of the Public Access Counselor), evinces\nthe General Assembly's intention to vest the Public Access Counselor with complete authority to\nconduct confidential reviews of records: \n\n2E -mail\n\nfrom Joel M. Diers to Laura Harter ( February 24, 2017). \n\n\fMs. Alexandra Scott\nMr. Joel Diers\nMarch 7, 2017\n\nPage 3\n\nI just have some questions * * * \nIt' s my\n\nNekritz: Thank you Mr. Speaker. \nto clarify the legislative intent under this. * * * \nunderstanding that under this Bill, an agency' s required to provide\nrecords requested by the public access counselor. What if some\nother State or Federal Law precludes disclosure of those records to\nsome other party like HIPAA, an IG report or something like that? \nHow does that * * * get resolved? \n\nMadigan: Point number one, the Attorney General will review\nthose documents in confidence. They would be kept confidential. \nPoint number two, if it were a Federal Law in conflict, why, the\nFederal Law would control. \n\nNekritz: [ A] nd if some investigating authority such as the U. S. \nAttorney asked to have that certain records not be disclosed * * * \nwhat would be the result there? \n\nMadigan: * * * [ T] he Office of the U. S. Attorney could interact\nwith the Office of the Attorney General, make a request, but the\nfinal judgment... the final decision would be made by the\nAttorney General. ( Emphasis added.) Remarks of Rep. Nekritz\nand Rep. Madigan, May 27, 2009, House Debate on Senate Bill\nNo. 189, at 105. \n\nThe General Assembly clearly did not intend to allow public bodies to decide\n\nwhat records they would or would not submit for the Public Access Counselor' s review. IDOC' s\nrefusal to provide copies of the records in question undermines the Public Access Counselor's\nduty to conduct the type of comprehensive review that the General Assembly deemed to be\ncrucial when it enacted Public Act 96- 542. This refusal violates section 9.5( c) of FOIA (see Ill. \nAtt'y Gen. Pub. Acc. Op. No. 12- 007, issued April 2, 2012). \n\nDespite IDOC's lack of cooperation, this office will analyze the assertion of\nsection 7( 1)( a) based on the limited information available for our review. A court \" need not\nconduct an in camera review where the public body meets its burden of showing that the\nstatutory exemption applies by means of affidavits.\" \nIllinois Education Ass' n v. Illinois State\nBoard ofEducation, 204 Ill. 2d 456, 469 ( 2003). However, such affidavits \" will not suffice if\nthe public body' s claims are conclusory, merely recite statutory standards, or are too vague or\nsweeping.\" Illinois Education Ass'n, 204 Ill. 2d at 469. Because IDOC has refused to provide\nthis office with the records in question for our confidential review, we will determine whether\nthe response letter submitted by IDOC provides clear and convincing evidence that the withheld\nrecords are exempt from disclosure under section 7( 1)( a). \n\n\fMs. Alexandra Scott\nMr. Joel Diers\nMarch 7, 2017\n\nPage 4\n\nSection 7( 1)( a) \n\nFOIA provides that \"[ a] I1 records in the custody or possession of a public body\n\nare presumed to be open to inspection or copying. \nhas the burden of proving by clear and convincing evidence\" that a record is exempt from\ndisclosure. 5 ILCS 140/ 1. 2 ( West 2014). \" To meet\nthe public body must\nprovide a detailed justification for its claim of exemption, addressing the requested records\nspecifically and in a manner allowing for adequate adversarial testing.\" Rockford Police\nBenevolent and Protective Assn, Unit No. 6 v. Morrissey, 398 Ill. App. 3d 145, 150 ( 2nd Dist. \n2010). \n\n5 ILCS 140/ 1. 2 ( West 2014). A public body\n\nits burden * * *, \n\nSection 7( I)( a) of FOIA exempts from inspection and copying \"[ ijnformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" The General Assembly \" has authorized exemptions to the\nFOIA's expansive disclosure policy when a given disclosure is not just prohibited 'by federal or\nState law or rules and regulations adopted under federal or State law' but specifically so\nprohibited.\" ( Emphasis in original.) Better Government Assn v. Blagojevich, 386111. App. 3d\n808, 814 ( 4th Dist. 2008). \n\nquestion under section 7( 1)( a) of FOIA. Section 3- 2- 5( c) provides: \n\nIDOC cited section 3- 2- 5( c) of the UCC as its basis for denying the records in\n\nThe Department shall create a gang intelligence unit under\n\nthe supervision of the Director. The unit shall be specifically\ndesigned to gather information regarding the inmate gang\npopulation, monitor the activities of gangs, and prevent\nthe\nfurtherance of gang activities through the development and\nimplementation of policies aimed at deterring gang activity. The\nDirector shall appoint a Corrections Intelligence Coordinator. \n\nAll information collected and maintained by the [ gang\nintelligence] unit shall be highly confidential, and access to that\ninformation shall be restricted by [ IDOC]. * * * Due to the highly\nsensitive nature of the information, the information is exempt from\nrequests for disclosure under the Freedom of Information Act as\nthe information contained is highly confidential and may be\nharmful\n\nif disclosed. ( Emphasis added.) \n\nGenerally, principles of statutory construction interpret the term \"and\" as conjunctive rather than\ndisjunctive. City of Carbondale v. Bower, 332 Ill. App. 3d 928, 933 ( 2002), citing People ex rel. \nAramburu v. City of Chicago, 73 Ill. App. 2d 184 ( 1966). \" As a general rule, the use of the\nconjunctive, as in the word ' and,' indicates that the legislature intended for all of the listed\n\n\fMs. Alexandra Scott\n\nMr. Joel Diers\nMarch 7, 2017\n\nPage 5\n\nrequirements to be met.\" Byung Moo Soh v. Target Marketing Systems, Inc., 353 Ill. App. 3d\n126, 131 ( 2004). \n\nSection 3- 2- 5( c) of the UCC provides that the gang intelligence unit is \" designed\nto gather information regarding the inmate gang population, monitor the activities ofgangs, \nand prevent the furtherance of gang activities through the development and implementation of\npolicies aimed at deterring gang activity.\" Section 3- 2- 5( c) further provides that \"[ a] ll\ninformation collected and maintained by the [ gang intelligence] unit shall be highly\nconfidential, and access to that information shall be restricted by [ IDOC]\". ( Emphasis added.) \n\nMs. Scott does not seek information regarding the inmate gang population or gang\n\ninformation regarding the Gang Renunciation Program\n\nactivities. Rather, she seeks general\nincluding, but not limited to, the structure of that program. \nIDOC' s response to this office stated\nthat the \"[ t] he information regarding renunciation sought by Ms. Scott is maintained by the gang\nintelligence unit.i3 The mere fact that the unit \"maintains\" such general program information, \nhowever, does not mean that it is exempt from disclosure under section 3- 2- 5( c) of the UCC. \nThe information must be both \" collected and maintained\" by the unit to fall within the scope of\nthat provision. \n\nThere is no indication from IDOC' s response that the records it identified as\n\nresponsive to Ms. Scott' s request included information \" collected\" by the gang intelligence unit. \nIt seems more likely that the general program information she is seeking would have been\ncreated by the gang intelligence unit or perhaps other divisions of IDOC. Because IDOC has\nrefused to provide this office with copies of the responsive records, we are unable to verify the\nrecords' origins. \nIn light of IDOC' s scant assertions and lack of supporting evidence, this office\ncannot conclude that IDOC has met its burden of demonstrating by clear and convincing\nevidence that the records Ms. Scott sought are prohibited from being disclosed by section 3- 2- \n5( c) of the UCC. Accordingly, this office finds that IDOC violated FOIA by denying Ms. Scott's\nrequest pursuant to section 7( 1)( a). This office requests that IDOC provide Ms. Scott with\nrecords responsive to her request for general information on the Gang Renunciation Program, \nincluding, but not limited to the structure of the program. \n\nGeneral, Office of the Illinois Attorney General ( December 8, 2016). \n\nLetter from Joel M. Diers, Freedom of Information Office, to Laura Harter, Assistant Attorney\n\n\fs. Alexandra Scott\n\nMr. Joel Diers\n\nMarch 7, 2017\n\nPage 6\n\nThe Public Access Counselor has determined that resolution of this issue does not\nrequire the issuance of a binding opinion. This letter shall serve to close the matter. If you have\nany questions, please contact me at the Springfield address listed on the first page of this letter. \nThank you. \n\nVery truly yours, \n\nLAURA S. HARTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n45170 f 71a improper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A corrections department's gang renunciation program records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":888,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-02-09","case_number":null,"request_numbers":["45372"],"title":"Chicago Police Department lawfully charged copying fee after initially deeming request unduly burdensome","filename":"45372, issued February 9, 2017.pdf","rel_path":null,"word_count":1650,"summary":"A requester challenged the Chicago Police Department's imposition of a $334 copying fee for crime scene photographs, arguing the fee was improper. The PAC determined that the Department properly charged for the copies under section 6(b) of FOIA after initially treating the request as unduly burdensome.","plain_summary":"A requester asked the Chicago Police Department for numerous complaint records and crime scene photos. The Department initially denied the request as too large but later offered to provide the photos for a $334 copying fee, which the requester challenged. The Attorney General's office found that the Department followed the law and was permitted to charge the actual cost of reproducing the requested photographs.","holding":"The Chicago Police Department did not improperly impose copying fees for the requested records.","legal_question":"Whether a public body may charge a fee for the reproduction of records after initially asserting that a request was unduly burdensome.","disposition":"no_violation","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Police Department","requesting_party":"an inmate at Pontiac Correctional Center","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester challenged the imposition of copying fees for crime scene photographs provided by the police department.","ocr_status":"ok","ocr_quality":97.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_b/45372%2C%20issued%20February%209%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","copying costs","unduly burdensome","police records"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nFebruary 9, 2017\n\nPontiac Correctional Center\n[street address redacted for site publication -- see original PDF]\nVia electronic mail\nMsl Charise Valente, General Counsel\nChicago Police Department\n\npacola@chicagopolice. org\n\nRE: Request\n\nfor Review — 2016 PAC 45372\n\nDear\nI ' \n\nand Ms. Valente: \n\nThis determination letter is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that the Chicago Police Department (CPD) did not improperly\nimpose copying fees in response to a FOIA request from\n\nOn October 17, 2016, \n\nsubmitted a FOIA request to CPD seeking all\ncomplaint registers ( CR) filed againstnine specified officers and all crime scene photographs of\nthe homicides at 6120 South Hermitage, Chicago, Illinois 60636 on April 4, 2008. On October\nrequest as unduly burdensome under section 3( g) of FOIA\n26, 2016, CPD denied\n5 ILCS 140/ 3( g) ( West 2014)). CPD stated that there are 154 CR log numbers responsive to his\nrequest and each log number averages 5- 100 pages of records. CPD provided\nwith\ncopies of 18 pages of CR report listings and forms to assist him should he choose to narrow his\nrequest. CPD also stated thai it had forwarded his request for crime scene: photographs to its lab\nin the forensic division and would notify him if it located any photographs responsive to his\nrequest. On November 7, 2016, CPD notified\nthat were available to him and that it would provide\nupon receipt of a check or money order for $334. 00. On December 5, 2016, \nsubmitted this Request for Review asserting that CPD was prohibited from imposing a fee for\ncopies of the 334 photographs because it did not respond to his request within 5 business days\n\nthat it had located 334 photographs\nwith copies of the photographs\n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: ( 2 7) 785 - 2771 • Fax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 3 2) 814- 3374.. Fax: ( 312) 814-3806\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMs. Charise Valente\nFebruary 9, 2017\nPage 2\n\ni\n\nafter receipt of his request. \nCPD' s responses to his FOIA request. The envelopes showed that CPD' s October 26, 2016, letter\nwas postmarked on October 28, 2016, and CPD' s November 7, 2016, letter was postmarked on\nNovember 10, 2016.' \n\nalso enclosed copies of the envelopes that contained\n\nOn December 19, 2016, this office forwarded a copy of the Request for Review to\n\nrequest, and requested\n\nwas due on October 28, 2016. CPD stated that it denied\n\nCPD, requested that it explain its receipt and handling of\nthat it clarify the date CPD received the request. On January 29, 2017, CPD responded by\nstating that it received\n\nFOIA request on October 21, 2016, and that its response to\nFOIA request\nwithin 5 business days of receiving his request. CPD stated that sent its November 7, 2016, letter\nlisting the \" number of photographs and [ the] fee that would be charged[ ] to assist\nto\nhim in narrowing his request\nnarrowing his request.. Ori.February 1, 2016, this\nreceived any correspondence from\noffice forwarded a copy of the CPR's response to\nHe replied on February 6, 2016, \nasserting that CPD only denied Part 1 of his FOIA request as unduly burdensome, and that it did\nnot respond to Parts 2 and 3 of his request within 5 business days. \nasserted that CPD\nshould have extended the time for response by 5 business days under section 3( e) of FOIA ( 5\nILLS 140/ 3( e) ( West 2014)) if it needed additional time to respond to Parts 2 and 3 of his\n\nto Parts 2 and 3 if he wished to do so.\"' CPD stated it had not\n\nrequest. -. \n\nDETERMINATION. \n\nSection 3( a) of FOIA ( 5 ILCS 140/ 3( a) ( West 2014)) provides that \"[ e] ach public\n\nbody shall make available to any person for inspection or copying all public records, except as\notherwise provided in Sections 7 and' 8. 5 `of this Act.\" Section 3( d) of FOIA ( 5 ILCS 140/ 3( d) \nWest 2014)) states that a public body shall \" either comply with or deny, a request for public\nrecords within 5 business days after ifs receipt of the request[.]\" \n\nSection 3( d) further states that\na] public body that fails to respond to a request within the requisite periods in this Section but\n\nthereafter provides the requester with copies of the requested public records may not impose a\nfee for such copies.\" Section 6( b) of FOIA ( 5 ILCS 140/ 6( b) ( West 2014)), which concerns fees\nfor copies, provides, in pertinent; part: ; \n\ndemonstrated that the\nresponse letter was not postmarked until October 28, 2016. Accordingly, for the purposes of this determination, \noffice will refer to CPD' s letter by the date it ivaspostmarked. \n\n1CPD states that its response was sent on October 26, 2016. \n\nthis\n\nAffairs, to Matt Hartman, Assistant Attorney General, Public Access Bureau ( January 29, 2017), at 1. \n\n2Letter from Wendi P. Lis's, Associate Staff Attorney, Chicago Police Department, Office of Legal\n\n\fMs. Charise Valente\n\nFebruary 9, 2017\nPage 3\n\nExcept when a fee is otherwise fixed by statute, each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \nby any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black\nand white, letter or legal sized copies requested by a requester. \nThe fee for black and white, letter or legal sized copies shall not\nexceed 15 cents per page. If a public body provides copies in color\nor in a size other than letter or legal, the public body may not\ncharge more than its actual cost for reproducing the records. \n\nasserted that CPD may not impose a fee for copies of the crime scene\n\nphotographs because it failed to respond to that portion of his request within 5 business days\nafter receiving his request. It is undisputed that CPD denied Part 1 of\nrequest as unduly burdensome under section 3( g) of FOIA within 5 business days of receiving\nthe request. The resolution of this matter hinges on whether CPD' s October 28, 2016, unduly\nburdensome denial applied to Parts 2 and 3 of\n\nrequest. \n\nFOIA\n\nSection 3( g) of,FOIA provides: \n\nRequests calling for all records falling within a category\n\nshall be complied withrunless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information. Before invoking\nthis exemption,; the .public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions. If any public body\nresponds to a categorical request by stating that compliance would\nunduly burden its operation and the conditions described above are\nmet, it shall do so in writing, specifying the reasons why it would\nbe unduly burdensome and the extent to which compliance, will so\nburden the operations of the public body. Such a response shall be\ntreated as a denial of the request\n\nfor information. \n\nThe plain language of section 3( g) of FOIA states that a public body may treat a\nFOIA request as unduly burdensome if it is categorical and if the burden on the public body of\ncomplying with the request outweighs the public interest\nin the information. Section 3( g) does\nnot require a public body to individually assess whether each portion a request seeking\nmultiple types of records is unduly burdensome. Instead, if compliance with the request as a\n\n\fMs. Charise Valente\nFebruary 9, 2017\nPage 4\n\nis unduly burdensome, \nwhole or any portion of the request\nunder section 3( g) of FOIA. CPD' s October 28, 2016, response letter recites the entire text of\n\nthen the entire request may be denied\n\nFOIA request and then states \"[ y]our request was reviewed by the undersigned and\nthe Bureau of Internal Affairs ( BIA). Your request as written is unduly burdensome, as the BIA\ndetermined that there are over 500 pages of records responsive to your request. i3 Thus, CPD' s\ndenial of\nrequest under section 3( g) applied to his, entire request. Accordingly, \nCPD' s subsequent correspondence to\nresponse to his request, but an attempt to assist him with narrowing his request. Because CPD\nresponded to the request for crime scene photographs and other records within 5 business days\nafter its receipt, we conclude that CPD, may impose fees for copies in accordance with section\n6( b) of FOIA. If\nwishes to receive copies of the cnme scene photographs, he may\nwish to submit a narrowed request to CPD and tender the appropriate sum to reimburse CPD's\nactual cost of reproducing the photographs. \n\nof photographs was not a late\n\nabout the\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\nany questions, please contact me at ( 217) 782- 9054 listed on the first page of this letter. \n\nVery truly ours, \n\n1\" 1 I RTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n45372 6b fee proper pd\n\nof Legal Affairs, to\n\nOctober 28, 2016), at 1. \n\n3Letter from P.O. Sanders # 13769, Freedom of Information Officer, Department of Police, Office\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Copying fees for crime scene photographs","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":889,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-05-02","case_number":null,"request_numbers":["46913"],"title":"Village of Cambridge violated FOIA by not providing electronic copies of records","filename":"46913, issued May 2, 2017.pdf","rel_path":null,"word_count":1321,"summary":"The requester sought various financial and administrative records from the Village of Cambridge, which the PAC determined the Village failed to properly provide. The PAC concluded the Village must provide electronic copies where available and clarify copying costs for hard-copy records.","plain_summary":"A citizen requested several years of financial and administrative documents from the Village of Cambridge. The Attorney General's office found that the Village violated FOIA by failing to provide electronic copies of records it maintained electronically, but its response was proper for records kept only in hardcopy. The Village's fee schedule—first 50 pages free, then $0.15 per page—was found to comply with FOIA. The Village was directed to provide the electronic records and to inform the requester of the cost for hardcopy records.","holding":"The Village of Cambridge violated section 6(a) of FOIA by failing to provide electronic copies of records it maintained electronically, but its fee schedule and handling of hardcopy-only records did not violate FOIA.","legal_question":"Whether the Village of Cambridge violated FOIA by failing to provide responsive records in the requested format and by failing to properly communicate fee requirements.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Cambridge","requesting_party":"Anonymous (redacted in text)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought access to various municipal financial reports, budgets, and ordinances.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_a/46913%2C%20issued%20May%202%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","electronic records","copying costs","FOIA request"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMay 2, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Dwaine VanMeenen\nVillage Administrator\n\nVillage of Cambridge\n\n124 West Exchange\nCambridge, Illinois 61238\n\nadmnvoc@gmail. com\n\nRE: FOIA Request\n\nfor Review — 2017 PAC 46913\n\nDear\n\nand Mr. VanMeenen: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that the Village of Cambridge ( Village) violated FOIA in its\ns January 17, 2017 FOIA request. \nresponse to\n\nOn that date, \n\nto the Village seeking the\nfollowing categories of records for years 2013, 2014, 2015, 2016 to present: appropriation\nordinances, financial\nresolutions. \nwebsite as \" immediately available.\" On January 17, 2017, the Village sought clarification from\n\nreports, board policies, paid expenses, external audit reports, budgets, and\n\ncontended that these categories of information were listed on the Village' s\n\nsubmitted a FOIA request\n\nregarding his request. Among other things, it noted that it would supply electronic\n\ncopies where available, but that not all of the requested records were available in an electronic\nformat. The Village wrote, \" Ulf you are looking for hard copies there will be a charge for this as\nyou know and we will let you know what the cost will be?\"' On January 18, 2017, \n\nE- mail\n\nfrom Dwaine VanMeenen to\n\nJanuary 17, 2017). \n\n500 South Second Street, Springfield, Illinois 62701 • (\n100 West Randolph Street, Chicago, Illinois 60601 • (\n\n217) 782- 1090 • TTY: ( 217) 785- 2771 • Fax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Dwaine VanMeenen\nMay 2, 2017\nPage 2\n\nreplied that \" [u] nless only available otherwise, the requester seeks any and all responsive records\nas specified in the FOIA Request * * * \nthat PDF or JPEG format was preferable. He noted that he could not find a fee schedule or\nnotice regarding copying costs and requested that the Village advise him of any costs the Village\nmust impose to provide the responsive records. On January 24, 2017, the Village granted\n\nto be provided in an electronic format. i2 He specified\n\ns request, providing PDF versions of external audit reports and informing\n\nthat\nhardcopies of records responsive to the other portions of his request were available for pickup. \ns request, the Village made 467 copies; the first 50 pages were free, \nIn responding to\nbut the remaining 417 copies cost $ 62. 55, based on a fee of $0. 15 per page. On March 15, 2017, \n\nsubmitted this Request for Review contesting the Village' s response to his FOIA\n\nrequest. Specifically, \navailable in an electronic format and challenged the charges that the Village sought to impose for\n\nalleged that many of the responsive records should have been\n\ncopies. \n\nOn March 22, 2017, this office sent a copy of the Request for Review to the\ns allegation that the Village did not provide the\n\nVillage and asked it to respond to\nrecords in the format that he requested. We asked the Village to clarify whether the requested\nrecords, aside from the external audit report, were maintained in an electronic format and if so, \nelectronically. On March 31, 2017, \nwhether it was feasible to provide the records to\nthe Village responded, explaining that it could provide appropriation ordinances, financial\nreports, paid expense lists, and budgets in an electronic format. \nIt indicated that board policies\nand resolutions were maintained in hardcopy format only. The Village explained that it would\nprovide the first 50 pages of copies for free and that any additional pages would cost $0. 15 per\npage. On April 12, 2017, \n\nreplied. \n\nDETERMINATION\n\nSection 3( b) of FOIA ( 5 ILCS 140/ 3( b) ( West 2014)) provides: \n\nSubject to the fee provisions of Section 6 of this Act, each\npublic body shall promptly provide, to any person who submits a\nrequest, a copy of any public record required to be disclosed by\nsubsection ( a) of this Section and shall certify such copy if so\nrequested. \n\nAdditionally, section 6( a) of FOIA ( 5 ILCS 140/ 6( a) ( West 2014) provides: \n\nE- mail\n\nfrom\n\nto Dwaine VanMeenen ( January 18, 2017). \n\n\fMr. Dwaine VanMeenen\nMay 2, 2017\nPage 3\n\nWhen a person requests a copy of a record maintained in\n\nan electronic format, the public body shall furnish it in the\nelectronic format specified by the requester, if feasible. If it is not\nfeasible to furnish the public records in the specified electronic\nformat, then the public body shall furnish it in the format in which\nit is maintained by the public body, or in paper format at the option\nof the requester. ( Emphasis added.) \n\nelectronically, if feasible. However, because the Village does not\n\nUnder the plain language of section 6( a), if the Village maintained the appropriation ordinances, \nfinancial reports, paid expense lists, and budgets in an electronic format, it was required to\nprovide them to\nmaintain the board policies and resolutions in an electronic format, it was not required to provide\nthose records electronically. See Ill. Att' y Gen. PAC Req. Rev. Ltr. 28697, issued April 18, \n2014, at 2 (\" The plain language of section 6( a) requires a public body to provide records in\nelectronic format ifthe public body maintains those records in electronic format. This office has\npreviously determined that section 6( a) does not require a public body to furnish in electronic\nformat records maintained solely in paper format, even if the public body has the resources to\nreproduce those records in PDF.\" ( Emphasis in original.). Accordingly, this office finds that the\nVillage violated section 6( a) of FOIA with regard to the records maintained electronically, but its\nresponse was proper regarding the records maintained only in hardcopy. \n\nFOIA ( 5 ILCS 140/ 6( b) ( West 2014)) sets forth the general\n\nfee provisions for FOIA requests: \n\nalso challenges the Village' s fee schedule for copies. Section 6( b) of\n\nExcept when a fee is otherwise fixed by statute, each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \nby any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black and\nwhite, letter or legal sized copies requested by a requester. The fee\nfor black and white, letter or legal sized dopies shall not exceed 15\ncents per page. \n\nThe Village has indicated that it will provide the first 50 pages of copies for free, but that it will\ncharge $ 0. 15 per page for any additional pages. Those fees are authorized by section 6( b) of\nFOIA. Accordingly, this office concludes that the Village' s fee schedule does not violate the\nrequirements of FOIA. \n\nIn conclusion, this office requests that the Village ( 1) provide\n\nwith\n\nelectronic copies of the records responsive to his request that are maintained electronically, and\n\n\fMr. Dwaine VanMeenen\nMay 2, 2017\nPage 4\n\n2) inform\n\nof the cost of copying the responsive records maintained in hardcopy and, if\n\nconsents to pay the applicable fees, to provide him those records. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at the Springfield address on the first page of this letter or at\n217) 524- 7958. \n\nVery truly yours, \n\nLAURA S. HARTER\nAssistant Attorney General\nPublic Access Bureau\n\n46913 f 6a improper proper 6b proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Municipal financial reports, budgets, and ordinances","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":890,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-08-10","case_number":null,"request_numbers":["47187"],"title":"Perry County Sheriff's Office did not violate FOIA over former employee's personal records","filename":"47187, issued August 10, 2017.pdf","rel_path":null,"word_count":1707,"summary":"The requester sought various records regarding a former deputy, including personal electronic communications, and the PAC determined the Sheriff's Office conducted an adequate search for records in its possession.","plain_summary":"A citizen requested records about a former deputy, including private text messages and emails. The Attorney General's office found that the Sheriff's Office did not break the law because they provided all the records they actually had and tried to ask the former employee for the personal records, even though they lacked the legal power to force him to turn them over.","holding":"The Sheriff's Office did not violate FOIA because it disclosed all responsive records in its custody and attempted to obtain records from the former employee.","legal_question":"Did the Sheriff's Office conduct an adequate search for records under FOIA when it failed to produce personal electronic communications of a former employee?","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Perry County Sheriff's Office","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought investigative files, work schedules, and personal electronic communications of a former deputy sheriff.","ocr_status":"ok","ocr_quality":92.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_d/Personal-Accounts/47187%2C%20issued%20August%2010%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","adequate search","personal devices","former employee"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nAugust\n\n10, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Martin M. Beltz\n\nFOIA Officer\n\nPerry County Government\n\n1 Public Square\n\nPinckneyville, Illinois 62274\n\nperrycountyfoia@gmail.\n\ncom\n\nRE: FOIA Request for Review — 2017 PAC 47187\n\nDear\n\nand Mr. Beltz: \n\nThis determination is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)). For the reasons stated below, the\nPublic Access Bureau concludes that the response by the Sheriffs Office ( Sheriff' s Office) to\n\nMarch 6, 2017, FOIA request did not violate FOIA. \n\nOn that date, \n\nsubmitted a six -part FOIA request\n\nto the Sheriffs Office\nseeking various records regarding a former deputy, including: (\n1) any complaints made against\nthe deputy alleging inappropriate communications with any minor( s); ( 2) records showing any\nspecific dialogue, exchanged between the deputy and any minor( s); ( 3) documents regarding the\nSheriffs Office' s investigation of any such complaints; ( 4) the complete work schedule for the\ndeputy for a specific timeframe; ( 5) records pertaining to the deputy being assigned to the\nposition of the school resource officer along with documents regarding suspensions, \nreassignments, and resignation of the deputy, and ( 6) a request for the following: \n\nA] II electronic communications, \nmessages from both department -issued and personal cellphones of\n\nincluding cellphone text\n\n500 South Second Street, Springfield, \n\nIllinois 62706 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Martin M. Beltz\n\nAugust 10, 2017' \n\nPage 2\n\nnamed deputy], email messages from both department issued and\npersonal email accounts of [named deputy], Facebook messages\nfrom both department\nof [named deputy], sent and received by [ named deputy] during all\ntimes he was on duty as the Perry County Resource Officer. [II\n\nissued and personal Facebook accounts * * * \n\nOn March 13, 2017, the Sheriffs Office responded by providing\n\nwith\n\nsome responsive records? \n\nRegarding part six of the request, the Sheriffs Office provided\n\ndocuments from the department - issued cell phone and pages from the Sheriffs Office' s School\nResource Facebook page. However, the Sheriffs Office indicated any records from the deputy' s\npersonal accounts did not meet the definition of public records under FOIA because the Sheriffs\nOffice never possessed or controlled such records. On March 31, 2017, \nRequest for Review alleging that the Sheriffs Office failed to produce all records responsive to\nhis request. \n\nfiled this\n\nOn April 6, 2017, this office forwarded a copy of the Request for Review to the\nallegation that its response to the request\n\nIn addition, this office requested that the Sheriffs Office provide a detailed\n\nSheriff' s Office and asked it to respond to\nwas incomplete.\ndescription of the measures taken by the Sheriffs Office to search for records responsive to each\npart of\nthe\nmethod of the search, and the individuals who were consulted. Also, this office asked the\nSheriffs Office to provide the factual and legal bases for the Sheriffs Office' s assertion that any\nresponsive records from the deputy' s personal accounts did not meet the definition of a public\nrecord under FOIA. \n\nrequest, including the specific recordkeeping systems that were searched, \n\nOn April 24, 2017, this office received the Sheriff' s Office's response in which the\n\nSherriffs Office maintained that it had provided\npossession. However, the Sherriffs Office response also indicated that after receiving the\nRequest\nrequesting that he inform the Sheriffs Office if he possessed any records responsive to\n\nfor Review from this office, it sent a letter to the former -deputy on April 24, 2017, \n\nwith all the responsive records in its\n\nrequest, and if so, to provide copies of the records to the Sheriff' s Office by May 5, 2017. \n\nOn April 25, 201/, \n\nthis office forwarded the Sheriffs Office' s response to\n\nhe replied\n\nMarch 6, 2017). \n\nLetter from\n\nto Steve Bareis, Perry County Sheriff, Perry County Sheriffs Office\n\n2Certain portions of the provided responsive records were redacted pursuant\n7( 1)( 6), and 7( 1)( c) of FOIA ( 5 ILCS 140/ 7( I)( a), (\nI)( b), (\nhowever, does not dispute the redactions to the records provided to him. Therefore, the scope of this review is\nlimited to whether the measures performed by the Sheriffs Office appear to be reasonably calculated to locate all\n\nto sections 7( 1)(\nRequest for Review, \n\nI)( c) ( West 2016)). \n\na), \n\nrecords\n\nresponsive to\n\nrequest. \n\n\fMr. Martin M. Beltz\n\nAugust\n\n10, 2017\n\nPage 3\n\non May 1, 2017... On July 27, 2017, an Assistant Attorney General\nconfirmed with the Sheriffs Office, by e- mail, that the former -deputy did not respond to its April\n24, 2017, \n\nin the Public Access Bureau\n\nletter. \n\nDETERMINATION\n\nThe requirements of FOIA apply to \" public records,\" which is defined as: \n\nAJII records, reports, forms. writings, letters, memoranda, books, \n\npapers, maps, photographs, microfilms, cards, tapes, recordings, \n\nelectronic data processing records, electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction ofpublic business, regardless of\nphysical form or characteristics, having been prepared by or for, \nor having been or being used by, received by, in the possession\nof or under the control of any public body. ( Emphasis added.) \n5 ILCS 140/ 2( c) ( West 2016) \n\nWhen presented with a FOIA request, a public body is required to conduct a\n\nreasonable search tailored to the nature of a particular request.\" Campbell v. U.S. Department\nofJustice, 164 F. 3d 20, 28 ( D.C. Cir. 1998). A public body is not required to \" search every\nrecord system[,];, but it \" cannot limit its search to only one record system if there are others that\nare likely to turn up the requested information.\" Oglesby v. U.S. Department of the Army, 920\nF. 2d 57, 68 ( D. C. Cir. 1990). Neither the destruction of responsive records nor speculation that\n\nadditional\n\nrecords may exist \" undermines the reasonableness of the agency' s search[.]\" Moore v. \n\nF.B.I., 366 Fed. Appx. 659, 661 ( 7th Cir. 2010); see Yeager v. Drug Enforcement Admin., 678\nF. 2d 315, 321 ( D. C. Cir. 1982) (\" A requester is entitled only to records that an agency has in fact\nchosen to create and retain.\"); Miller v. United States Dep' t of State, 779 F. 2d 1378, 1385 ( 8th\nCir. 1985) (\" The fact that a document once existed does not mean that it now exists; nor does the\nfact that an agency created a document necessarily imply that the agency has retained it.\"). \n\nThe Attorney General has issued a binding opinion which determined that\n\nelectronic messages pertaining to the transaction of public business that are stored on personal\naccounts are \" public records\" as defined by section 2( c) of FOIA. III. Att'y Gen. Pub. Acc. Op. \nNo. 16- 006, issued August 9, 2016, at 10. The binding opinion explained that while FOIA does\nnot specifically prescribe how a public body should search for responsive e- mails maintained on\nprivate accounts, depending on the circumstances, a public body may satisfy the requirement\nto\nconduct a reasonable search by directing the applicable employee to turn over any responsive e- \nmails. See 111. Att' y Gen. Pub. Acc. Op. No. 16- 006 at 10- 11. \n\n\fMr. Martin M. Beltz\n\nAugust 10, 2017\n\nPage 4\n\nThe Sheriffs Office' s response to this office explained that\n\nit searched the former\n\ndeputy' s work phone and work e- mail account, and provided all responsive records in its physical\npossession to\nAdditionally, with respect to any responsive records that may be stored\nit asked the\non the former -deputy' s personal accounts, the Sheriff' s Office has demonstrated that\nformer -employee to conduct a search and turn over any responsive records, but has not received\n\na response. \n\nfor Review, \n\nIn his Request\n\nasserts that the Sheriff' s Office should be\nrequired to provide any records from the deputy' s personal accounts even if it must obtain the\nrecords from a communications provider. This office, however, has previously determined that a\npublic body is not required to use a subpoena process to obtain records from a communications\nfor text messages. See 111. Att' y Gen. PAC Req. \nprovider\nRev. Ltr. 29327, issued March 27, 2015, at 2- 3 (\" There is no indication that the General\n\nin order to respond to a FOIA request\n\nAssembly intended to require a public body to generate a lawsuit and issue or obtain a subpoena\nit does not maintain in the ordinary course of business\nin order to gain control over records that\nin order to respond to a FOIA request.\"). \n\nIn this instance, other than by filing a lawsuit or obtaining a subpoena seeking to\nthe former -deputy to search his personal e- mail, phone, and Facebook accounts and turn\ncompel\nover any records responsive to\nrequest, the Sheriff' s Office does not appear to have\nany way to require the former -deputy to cooperate because he is no longer an employee of the\nSheriffs Office. ;,Because the available information indicates that the Sheriffs Office disclosed\nall responsive records in its physical possession or custody, and because it contacted the former - \ndeputy and asked him to search his personal accounts, this office is unable to conclude that the\nSheriffs Office violated the requirements of FOIA by failing to conduct an adequate search. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. \nIf you have any questions, you may contact me by\nmail at the Chicago address listed on the first page of this letter, by phone at ( 312) 550- 4480, or\nby e- mail at sbargaby@atg. state. il.us. This letter serves to close this file. \n\nVery truly yours, \n\nSHANNON BARNAB\n\nAssistant Attorney General\nPublic Access Bureau\n\n47187 f 3a search proper 3d response complete county\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Investigative files and schedules of a former deputy sheriff","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":891,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-08-28","case_number":null,"request_numbers":["47422","47571","47800","48007","48008"],"title":"Elgin Police Department properly designated requester as recurrent requester","filename":"47422 47571 47800 48007 48008, issued August 28, 2017.pdf","rel_path":null,"word_count":1243,"summary":"The requester challenged the Elgin Police Department's designation of him as a 'recurrent requester' under FOIA. The PAC determined that the Department did not improperly designate the requester as such because he failed to identify himself as news media in his requests.","plain_summary":"A requester challenged the Elgin Police Department for labeling him a 'recurrent requester,' which allows a public body more time to respond to FOIA requests. The Attorney General's office found that the police department acted correctly because the requester did not claim to be a member of the news media when he submitted his requests. Consequently, the PAC closed the files without finding a violation.","holding":"The Elgin Police Department did not improperly designate the requester as a recurrent requester.","legal_question":"Whether the Elgin Police Department properly designated the requester as a 'recurrent requester' under section 2(g) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/2(g)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Elgin Police Department","requesting_party":"Mr. O'Neill","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"recurrent requester","subject_description":"The requester challenged the police department's classification of his status as a recurrent requester, which impacts response timelines.","ocr_status":"llm_reocr","ocr_quality":97.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_g/47422%2047571%2047800%2048007%2048008%2C%20issued%20August%2028%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["recurrent requester","FOIA response time","news media exception"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nAugust 28, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Russell E. Matson\n\nPolice Records Supervisor\nElgin Police Department\n\n[street address redacted for site publication -- see original PDF]\nmatson_ r@cityofelgin. org\n\nRE: FOIA Requests for Review — 2017 PAC 47422; 47571; 47800; 48007; \n\n48008\n\nDear\n\nand Mr. Matson: \n\nThis determination letter is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that Elgin Police Department ( Police Department) did not\nimproperly designate\nreferenced files. \n\nas a recurrent requester in each of the above - \n\nOn March 12, 2017, \n\nsubmitted a FOIA request to the Police\n\nDepartment seeking copies of any and all records concerning the enforcement of Federal\nImmigration laws or policy from any law enforcement agency, Immigration and Customs\nEnforcement, or Homeland Security. On March 20, 2017, the Police Department notified\n\nthat, because he was a recurrent requester, it would provide its initial response in 15\n\nbusiness days. On April 14, 2017, the Police Department provided Mr. O' Neill with that\nresponse. On April 17, 2017, \n\nsubmitted a Request\n\nfor Review ( 2017 PAC 47422), \n\n500 South Second Street, Springfield, Illinois 62706 • (\n100 West Randolph Street, Chicago, \nIllinois, 60601 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Russell E. Matson\n\nAugust 28, 2017\n\nPage 2\n\nwhich, he then clarified, was intended to contest\nqualified as a recurrent\n\nrequester. \n\nthe Police Department' s assertion that he\n\nsubsequently submitted additional FOIA requests to the Police\n\nDepartment and corresponding Requests for Review, all of which likewise contested his\ndesignation as a recurrent requester. This office has consolidated these files for purposes of this\ndetermination because they involve the same parties and same issue. \n\nThis office sent copies of\n\nfirst two Requests for Review to the Police\n\nDepartment and asked for a detailed explanation as to why it designated\nrecurrent requester. On May 31, 2017, the Police Department provided a detailed accounting of\nbetween October 4, 2016, and October 10, 2016, \nnine FOIA requests submitted by\nincluding copies of those requests and its responses. The Police Department\nthat on October 18, 2016, it had informed\nOn June 20, 2017, \nrequester designation because he qualifies as news media. \n\nsubmitted a reply, asserting that he was exempt from the recurrent\n\nthat he qualified as a recurrent requester. \n\nfurther explained\n\nas a\n\nIn a July 19, 2017, telephone conversation with an Assistant Attorney General in\n\nthe Public Access Bureau, \nrecurrent requester by the Police Department. \n\nconfirmed that he contests only his designation as a\n\nDETERMINATION\n\nSection 2( g) of FOIA ( 5 ILCS 140/ 2( g) ( West 2016)) provides, in pertinent part: \n\nRecurrent requester\", as used in Section 3. 2 of [FOIA], \n\nmeans a person that, in the 12 months immediately preceding the\nrequest, has submitted to the same public body ( i) a minimum of\n50 requests for records, ( ii) a minimum of 15 requests for records\nwithin a 30 -day period, or ( iii) a minimum of 7 requests for\nrecords within a 7 -day period. For purposes of this definition, \nrequests made by news media and non- profit, scientific, or\nacademic organizations shall not be considered in calculating the\nnumber of requests made in the time periods in this definition\nwhen the principal purpose of the requests is ( i) to access and\ndisseminate information concerning news and current or passing\nevents, ( ii) for articles of opinion or features of interest to the\npublic, or ( iii) for the purpose of academic, scientific, or public\nresearch or education. ( Emphasis added.) \n\n\fMr. Russell E. Matson\n\nAugust 28, 2017\n\nPage 3\n\nThe Police Department has documented that\n\nsubmitted nine separate\n\nrequests for records in the 7 -day period from October 4, 2016, through October 10, 2016. \nSection 2( g) of FOIA unambiguously provides that a requester who has already submitted seven\nrequester upon the submission of\nrequests for records within a 7 -day period becomes a recurrent\none further request to the same public body. Thus, under the plain language of section 2( g) of\nFOIA, \nrequest when he submitted his eighth FOIA request on\nOctober 10, 2016, unless he falls under one of the exceptions to that provision. \n\nqualified a recurrent\n\nIn his June 20, 2017, reply to this office, \n\nargued that his requests met\n\nthe news media exception in section 2( g)' because: (\nexisted as a media information service\" for 21 years; ( 2) his Youtube channel has over 650, 000\nviews and has covered matters in and around Elgin; ( 3) he has accumulated a Facebook audience\nof over 2, 500 people in two years; ( 4) his \" Media Photography page\" was created at least ten\nyears ago and has over 10 million views; and ( 5) he won an award for one of his photographs in\n2010.2 However, \n\n1) his website, www. elginet. com, \" has\n\nalso stated: \n\nIn the past, the city has not required me to make FOIA\n\nrequests as Elginet Media. I can however, resubmit these FOIA\nrequests as Elginet Media this will relieve any confusion on their\npart but I feel they will then simply deem them as \" Duplicate\nRequests\". ( Emphasis in original.) 131\n\nBased on this office' s review, the October 2016, requests were not identified as\n\nbeing from a \" news media\" entity, or assert that the principal purpose of the requests was among\nthe three principle purposes that are excluded from the definition of \"recurrent requester\" in\nsection 2( g) of FOIA. Elginet Media does not appear to be a traditional news media outlet such\nas a newspaper and there is no indication that the Police Department was aware that\nsought Elginet Media to be recognized as news media in order to avoid being treated as a\n\nSection 2( 0 of FOIA ( 5 ILCS 140/ 2( 0 (West 2016)) provides: \n\nNews media\" means a newspaper or other periodical issued at regular\nin print or\n\nintervals whether in print or electronic format, a news service whether\nelectronic format, a radio station, a television station, a television network, a\ncommunity antenna television service, or a person or corporation engaged in\nmaking news reels or other motion picture news for public showing. \n\nAccess Bureau\n\nletter from\nJune 20, 2017), at\n\n1- 2. \n\nto Christopher Boggs, Assistant Attorney [ General], Public\n\nAccess Bureau\n\nLetter from\n\nJune 20, 2017), at 2. \n\nto Mr. Christopher Boggs, Assistant Attomey [ General], Public\n\n\fMr. Russell E. Matson\nAugust 28, 2017\n\nPage 4\n\nrequester. Moreover, \n\nonly claimed that he qualified as news media in his\n\nrecurrent\nreply in these matters, rather than in his FOIA requests or in his Requests for Review. Therefore\nthis office did not ask the Police Department to address whether\nnews media exception. Because\nmedia entity for a purpose excluded from definition of \"recurrent requester\" and because neither\nhis FOIA requests nor his Requests for Review claim that his requests qualified as being from\nnews media, this office is unable to conclude that the Police Department\nimproperly designated\nhim as a recurrent requester in connection with his FOIA requests in these matters. \n\nrequests met the\ndid not identify his requests as being from a news\n\nThe Public Access Counselor has determined that resolution of these matters does\n\nnot require the issuance of a binding opinion. This letter serves to close these files. If you have\nany questions, please contact me at ( 217) 785- 7438 or at the Springfield address listed on the\nfirst page of this letter. \n\nVery truly yours, \n\nHRISTOPHER R. BOGGS\n\nAssistant Attorney General\nPublic Access Bureau\n\n47422 47571 47800 48007 48008 consol f 2g recurrent\n\nreq proper pd\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nAugust 28, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Russell E. Matson\n\nPolice Records Supervisor\nElgin Police Department\n\n[street address redacted for site publication -- see original PDF]\nmatson_ r@cityofelgin. org\n\nRE: FOIA Requests for Review — 2017 PAC 47422; 47571; 47800; 48007; \n\n48008\n\nDear\n\nand Mr. Matson: \n\nThis determination letter is issued pursuant to section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that Elgin Police Department (Police Department) did not\nimproperly designate\nreferenced files. \n\nas a recurrent requester in each of the above - \n\nOn March 12, 2017, \n\nsubmitted a FOIA request to the Police\n\nDepartment seeking copies of any and all records concerning the enforcement of Federal\nImmigration laws or policy from any law enforcement agency, Immigration and Customs\nEnforcement, or Homeland Security. On March 20, 2017, the Police Department notified\n\nthat, because he was a recurrent requester, it would provide its initial response in 15\n\nbusiness days. On April 14, 2017, the Police Department provided Mr. O' Neill with that\nresponse. On April 17, 2017, \n\nsubmitted a Request\n\nfor Review (2017 PAC 47422), \n\nwhich, he then clarified, was intended to contest\nqualified as a recurrent\n\nrequester. \n\nthe Police Department's assertion that he\n\nsubsequently submitted additional FOIA requests to the Police\n\nDepartment and corresponding Requests for Review, all of which likewise contested his\ndesignation as a recurrent requester. This office has consolidated these files for purposes of this\ndetermination because they involve the same parties and same issue. \n\nThis office sent copies of\n\nfirst two Requests for Review to the Police\n\nDepartment and asked for a detailed explanation as to why it designated\nrecurrent requester. On May 31, 2017, the Police Department provided a detailed accounting of\nbetween October 4, 2016, and October 10, 2016, \nnine FOIA requests submitted by\nincluding copies of those requests and its responses. The Police Department\nthat on October 18, 2016, it had informed\nOn June 20, 2017, \nrequester designation because he qualifies as news media. \n\nsubmitted a reply, asserting that he was exempt from the recurrent\n\nthat he qualified as a recurrent requester. \n\nfurther explained\n\nas a\n\nIn a July 19, 2017, telephone conversation with an Assistant Attorney General in\n\nthe Public Access Bureau, \nrecurrent requester by the Police Department. \n\nconfirmed that he contests only his designation as a\n\nDETERMINATION\n\nSection 2(g) of FOIA (5 ILCS 140/ 2(g) (West 2016)) provides, in pertinent part: \n\nRecurrent requester\", as used in Section 3. 2 of [FOIA], \n\nmeans a person that, in the 12 months immediately preceding the\nrequest, has submitted to the same public body (i) a minimum of\n50 requests for records, (ii) a minimum of 15 requests for records\nwithin a 30 -day period, or (iii) a minimum of 7 requests for\nrecords within a 7 -day period. For purposes of this definition, \nrequests made by news media and non- profit, scientific, or\nacademic organizations shall not be considered in calculating the\nnumber of requests made in the time periods in this definition\n\nThe Police Department has documented that\n\nsubmitted nine separate\n\nrequests for records in the 7 -day period from October 4, 2016, through October 10, 2016. \nSection 2(g) of FOIA unambiguously provides that a requester who has already submitted seven\nrequester upon the submission of\nrequests for records within a 7 -day period becomes a recurrent\none further request to the same public body. Thus, under the plain language of section 2(g) of\nFOIA, \nrequest when he submitted his eighth FOIA request on\nOctober 10, 2016, unless he falls under one of the exceptions to that provision. \n\nqualified a recurrent\n\nIn his June 20, 2017, reply to this office, \n\nargued that his requests met\n\nthe news media exception in section 2(g)' because: (existed as a media information service\" for 21 years; (2) his Youtube channel has over 650, 000\nviews and has covered matters in and around Elgin; (3) he has accumulated a Facebook audience\nof over 2, 500 people in two years; (4) his \" Media Photography page\" was created at least ten\nyears ago and has over 10 million views; and (5) he won an award for one of his photographs in\n2010.2 However, \n\n1) his website, www. elginet. com, \" has\n\nalso stated: \n\nIn the past, the city has not required me to make FOIA\n\nrequests as Elginet Media. I can however, resubmit these FOIA\nrequests as Elginet Media this will relieve any confusion on their\npart but I feel they will then simply deem them as \" Duplicate\nRequests\". (Emphasis in original.) 131\n\nBased on this office's review, the October 2016, requests were not identified as\n\nbeing from a \" news media\" entity, or assert that the principal purpose of the requests was among\nthe three principle purposes that are excluded from the definition of \"recurrent requester\" in\nsection 2(g) of FOIA. Elginet Media does not appear to be a traditional news media outlet such\nas a newspaper and there is no indication that the Police Department was aware that\nsought Elginet Media to be recognized as news media in order to avoid being treated as a\n\nSection 2(0 of FOIA (5 ILCS 140/ 2(0 (West 2016)) provides: \n\nNews media\" means a newspaper or other periodical issued at regular\nin print or\n\nintervals whether in print or electronic format, a news service whether\nelectronic format, a radio station, a television station, a television network, a\ncommunity antenna television service, or a person or corporation engaged in\nmaking news reels or other motion picture news for public showing. \n\nAccess Bureau\n\nletter from\nJune 20, 2017), at\n\n1- 2. \n\nrequester. Moreover, \n\nonly claimed that he qualified as news media in his\n\nrecurrent\nreply in these matters, rather than in his FOIA requests or in his Requests for Review. Therefore\nthis office did not ask the Police Department to address whether\nnews media exception. Because\nmedia entity for a purpose excluded from definition of \"recurrent requester\" and because neither\nhis FOIA requests nor his Requests for Review claim that his requests qualified as being from\nnews media, this office is unable to conclude that the Police Department\nimproperly designated\nhim as a recurrent requester in connection with his FOIA requests in these matters. \n\nrequests met the\ndid not identify his requests as being from a news\n\nThe Public Access Counselor has determined that resolution of these matters does\n\nnot require the issuance of a binding opinion. This letter serves to close these files. If you have\nany questions, please contact me at (217) 785- 7438 or at the Springfield address listed on the\nfirst page of this letter. \n\nVery truly yours, \n\nHRISTOPHER R. BOGGS\n\nAssistant Attorney General\nPublic Access Bureau\n\n47422 47571 47800 48007 48008 consol f 2g recurrent\n\nreq proper pd","plain_summary_pre_resummarize":null,"card_headline":"A police department's recurrent requester designation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":892,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-09-13","case_number":null,"request_numbers":["47540"],"title":"Central School District No. 104 improperly withheld notice to remedy for teacher performance","filename":"47540, issued September 13, 2017.pdf","rel_path":null,"word_count":2273,"summary":"The requester sought a 'notice to remedy' resolution approved by the Central School District No. 104, but the District withheld an attached exhibit claiming it was a confidential performance evaluation. The PAC determined that the document related to the public duties of a public employee and was therefore improperly withheld.","plain_summary":"A newspaper requested a notice to remedy that was attached to a school board resolution, but the district withheld it, claiming it was a confidential performance evaluation. The Illinois Attorney General's Public Access Bureau ruled that the notice to remedy is not a 'performance evaluation' under the School Code or the Personnel Record Review Act because it addresses specific instances of misconduct rather than a comprehensive periodic evaluation. Therefore, the district improperly denied the request.","holding":"Central School District No. 104 improperly withheld the requested exhibit to the notice to remedy resolution.","legal_question":"Whether a 'notice to remedy' regarding a teacher's performance constitutes an unwarranted invasion of personal privacy under FOIA section 7(1)(c) or is otherwise exempt as a performance evaluation.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(c)","7.5(q)"],"public_body":"Central School District No. 104","requesting_party":"Mr. Jeff Egbert (O'Fallon Weekly)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request concerned an exhibit attached to a school district's 'notice to remedy' resolution regarding a teacher's performance.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_q/47540%2C%20issued%20September%2013%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","teacher performance","notice to remedy","privacy exemption"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nSeptember 13, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMr. Jeff Egbert\n\nAdvertising Director\nO' Fallon Weekly\njeff@ofallonweekly. com\n\nVia electronic mail\n\nMr. Garrett P. Hoerner\n\nBecker, Hoerner, Thompson & Ysursa, P. C. \n\n5111 West Main Street\n\n[street address redacted for site publication -- see original PDF]\ngph@bhtylaw.\n\ncom\n\nRE: FOIA Request\n\nfor Review — 2017 PAC 47540\n\nDear Mr. Egbert and Mr. Hoerner: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes Central School District No. 104 ( District) improperly denied\nMr. Jeff Egberts February 16, 2017, FOIA request. \n\nOn that date, Mr. Egbert, on behalf of O' Fallon Weekly, submitted a FOIA request\nto the District seeking a copy of the notice to remedy resolution approved at the District' s special\nmeeting on the same day. On February 24, 2017, the District provided a copy of the resolution\nbut withheld Exhibit A referenced in the resolution pursuant to sections 7( 1)( a) and 7( 1)( c) ( 5\nI)( c) ( West 2016)) as well as section 7. 5( q) of FOIA ( 5 ILCS 140/ 7. 5( q) \n\nILCS 140/ 7( 1)( a), (\nWest 2016)); the District's response asserted that the requested record is a performance\nevaluation that is confidential under section 11 of the Personnel Record Review Act ( PRRA) \n\n820 ILCS 40/ 11 ( West 2016)). Mr. Egbert disputes the denial of the exhibit. \n\nOn April 28, 2017, this office forwarded a copy of the Request for Review to the\n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\nFax: ( 312) 814- 3806\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • \n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Jeff Egbert\n\nMr. Garrett Hoerner\n\nSeptember\n\n13, 2017\n\nPage 2\n\nDistrict and asked it to provide an unredacted copy of the record at issue for this office' s\nconfidential\nEgbert did not reply to the District' s response. \n\nreview. On May 19, 2017, counsel for the District furnished those materials; Mr. \n\nDETERMINATION\n\nAll records in the possession or custody of a public body are presumed to be open\n\nto inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. Illinois\nDept. of Public Health, 218 I11. 2d 390, 415 ( 2006). A public body \" has the burden of proving\nby clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS 140/ 1. 2\nWest 2016). \n\nSections 7( 1)( a) and 7.5( q) of FOIA\n\nSection 7( 1)( a) of FOIA exempts from inspection and copying \"[ i] nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" In Better Gov't Assn v. Blagojevich, 386 Ill. App. 3d 808, \n816 ( 2008), the Illinois Appellate Court stated that \" an exemption restricting the expansive\nnature of the FOIA's disclosure provisions must be explicitly stated— that is, such a proposed\ndisclosure must be specifically prohibited.\" Better Gov' t Ass' n v. Blagojevich, 386 Ill. App. 3d\n808, 816 ( 4th Dist. 2008) \n\nSection 7. 5( q) of FOIA exempts from disclosure \"[ i] nformation prohibited from\nto the\n\nbeing disclosed by the Personnel Records Review Act.\" The District denied the exhibit\nresolution under sections 7( 1)( a) and 7. 5( q) of FOIA based on section 11 of PRRA, which\nprovides: \" This Act shall not be construed to diminish a right of access to records already\notherwise provided by law, provided that disclosure of performance evaluations under the\nFreedom of Information Act shall be prohibited.\" \n\nIn its response to\nThe record in question is a notice to remedy issued to a teacher. \nthis office, the District asserted that the notice to remedy constitutes a \" performance evaluation\" \nthat is prohibited from being disclosed by section 11 of PRRA as well as section 24A- 7. 1 of the\nSchool Code ( 105 ILCS 5/ 24A- 7. 1 ( West 2016)).' Neither statute defines the term \" performance\n\nevaluation.\" \n\nA notice to remedy is a written notice that generally must be provided to a tenured\nteacher before a school board may proceed with disciplinary proceedings that could result in the\n\ndisclosure of public school\n\nteacher, principal, and superintendent\n\nperformance evaluations is prohibited.\" \n\nSection 24A- 7.\n\n1 of the School Code provides: \" Except as otherwise provided under this Act, \n\n\fMr. Jeff Egbert\n\nMr. Garrett Hoerner\n\nSeptember 13, 2017\n\nPage 3\n\nteacher' s dismissal. 105 ILCS 5/ 24- 12( d)( 1) ( West 2016). The Public Access Bureau has\npreviously determined that a notice to remedy is not a \" performance evaluation\" under the\nSchool Code or PRRA: \" The fact that both statutory provisions refer to ' performance\nevaluations' indicates that the General Assembly intended only to bar disclosure of documents in\nwhich an employee' s overall performance is evaluated, not documents that merely address\nspecific instances of misconduct and issue directives to the employee relating to the\nI11. Att'y Gen. PAC Req. Rev. Ltr. 12095, issued April 17, 2012, at 4. \nmisconduct.\" \n\nThe District' s response to this office asserts that our determination in 2011 PAC\n\n12095 \" exalts form over substance, as the same statement would be confidential\nin an annual\nperformance evaluation but not in a notice to remedy[.]\" 2 Yet performance evaluations may\ncontain references to information in numerous types of other records that are subject to\ndisclosure under FOIA, such as resumes, employment applications3 and Complaint Register\nfiles.° If the General Assembly had intended section 24A- 7. 1 of the School Code or section 11\nof PRRA to prohibit disclosure of any records that contain such information other than\nperformance evaluations, it would have done so expressly. Further, the District' s conclusory\nassertion that a \" notice to remedy is tantamount to a performance evaluationi5 does not provide\nclear and convincing evidence in support of the section 7( 1)( a) and 7. 5( q) exemptions. \n\nIn construing a statute, the primary goal\n\nis to ascertain and give effect to the\n\nintent of the General Assembly. Wisnasky- Bettorf v. Pierce, 2012 IL 111253, ¶ 16, 965 N. E. 2d\n1103, 1106 ( 2012). \" We view the statute as a whole, construing words and phrases in light of\nother relevant statutory provisions and not in isolation. Each word, clause, and sentence of a\nstatute must be given a reasonable meaning, if possible, and should not be rendered superfluous.\" \nPeople v. Gutman, 2011 IL 110338, ¶ 12, 959 N. E. 2d 621, 624 ( 2011). When a term is used in\n\ndifferent portions of statute, it is presumed to have the same meaning throughout unless the\ncontext provides otherwise. Guillen v. Potomac Insurance Co. of Illinois, 203 Ill. 2d 141, 152\n2003). \n\n2Letter from Garrett P. Hoerner, Becker, Hoerner, Thompson & Ysursa, to Steve Silverman, \n\nAssistant Attorney General, Public Access Bureau ( May 19, 2017), at 2. \n\nPersonnel Record Review Act prohibits a public body from disclosing resumes or employment applications.\"). \n\n3111. Att' y Gen. Pub. Acc. Op. No. 14- 015, issued November 25, 2014, at 9 (\" No provision of the\n\nFraternal Order of Police, Chicago Lodge No. 7 v. City of Chicago, 2016 IL App ( 1st) 143884, \n\n53, 59 N. E. 3d 96, 108 ( 2016) ( concluding that Complaint Register files detailing investigations of misconduct\nagainst police officers are subject to disclosure). \n\n5Letter from Garrett P. Hoerner, Becker, Hoerner, Thompson & Ysursa, to Steve Silverman, \n\nAssistant Attorney General, Public Access Bureau ( May 19, 2017), at 2. \n\n\fMr. Jeff Egbert\n\nMr. Garrett Hoerner\n\nSeptember 13, 2017\n\nPage 4\n\nNotably, the provision of the School Code that the District relied upon to\n\ncharacterize the notice to remedy as a performance evaluation and deny Mr. Egbert' s request is\nincluded in Article 24A. The purpose of the Article is to \" improve the educational services of\nthe elementary and secondary public schools of Illinois by requiring that all certified school\ndistrict employees be evaluated on a periodic basis and that the evaluations result in remedial\naction being taken when deemed necessary.\" ( Emphasis added.) 105 ILCS 5/ 24A- 1 ( West\n2016). Each school district\nis required to develop a \" teacher evaluation plan\" providing that\nis \" evaluated\" at least once every two years and given an overall rating such as\nevery teacher\nexcellent, satisfactory, or unsatisfactory. 105 ILCS 5/ 24A-4, 24A- 5, 24A -5( c) ( West 2016). In\naddition, the provision immediately preceding section 24A- 7. 1 provides for the development of\nrules governing the evaluation process in collaboration with a \" Performance Evaluation Advisory\nCouncil\" that includes \" persons with expertise in performance evaluation processes and\n\nsystem[.]\" \n\n105 ILCS 5/ 24A- 7 ( West 2016). \n\nConsidering section 24A of the School Code as a whole, it is apparent that the\n\nin\nterm \" evaluation\" in sections 24A- 1, 24A- 4, and 24A- 5 and the term \" performance evaluation\" \nsection 24A- 7 is intended to apply to periodic comprehensive evaluations rather than a document\nconcerning specific instances of misconduct. Because a notice of remedy concerns specific\ninstances of misconduct, it is not a \" performance evaluation\" that section 24A- 7. 1 of the School\nCode prohibits the District from disclosing. Accordingly, we conclude that the District\nimproperly denied the notice to remedy on that basis. \n\nNor does section 11 of the PRRA prohibit disclosure of a notice to remedy. The\n\nSenate Debates on House Bill 5154, which amended section 11 of the Act to add the language\nbarring disclosure of \"performance evaluations,\" indicates that the term was intended to apply to\nperiodic comprehensive evaluations: \n\nThe premise is, there is -- some protection should be in place for\n\nemployees and employers. If there is a performance evaluation\n\npiece — you work all year, you know your supervisor has set some\n\ngoals for you to meet —I don't know that it' s your business or\n\nanyone else's business on what this particular staff person have\nobtained within that year' s evaluation. I think what is and what\n\nshould be known is, perhaps, the title that the person is in, how\n\nmuch they' re actually being paid, even so far just to say whether or\nnot they are an employee of the State of Illinois or any other public\nemployee. But how well you did on your actual performance\nevaluation year- to-year, I think is a -- a measure of privacy. \nEmphasis added.) Remarks of Sen. Lightford, April 29, 2010, \n\nSenate Debate on House Bill No. 5154, at 182. \n\n\fMr. Jeff Egbert\n\nMr. Garrett Hoerner\n\nSeptember\n\n13, 2017\n\nPage 5\n\nSee also remarks of Rep. Chapa LaVia, March 11, 2010, House Debate on House Bill No. 5154, \nI] t' s just a thorough and constructive evaluation. Employees should receive guidance, \nat 107. \"[\n\ncorrective action and further development all within the goal of helping employees achieve\n\nexcellence.\" \n\nAs with section 24A- 7. 1 of the School Code, there is no indication that the term\nperformance evaluation\" in section 11 of PRRA was intended to apply to specific instances of\nmisconduct. Accordingly, this office concludes that the District has not sustained its burden of\ndemonstrating that the notice of remedy is exempt from disclosure pursuant to section 7( 1)( a) or\nsection 7. 5( q) of FOIA. \n\nSection 7( 1)( c) of FOIA\n\nLastly, the District asserts that the notice to remedy is exempt from disclosure\ninformation of the subject teacher.\" 6 Section 7( 1)( c) \n\npursuant to section 7( 1)( c) \" as personal\npermits a public body to withhold: \n\nPersonal\n\ninformation contained within public records, the\n\ndisclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to\nin writing by the individual subjects of the information. \nUnwarranted invasion of personal privacy\" means the disclosure\nof information that is highly personal or objectionable to a\nreasonable person and in which the subject' s right to privacy\noutweighs any legitimate public interest in obtaining the\ninformation. The disclosure of information that bears on the\npublic duties of public employees and officials shall not be\nconsidered an invasion ofpersonal privacy. ( Emphasis added.) \n\nBased on this office' s review of the notice to remedy, it directly bears on the\n\nteacher' s performance of her public duties. Because the above -definition of \"unwarranted\ninvasion of personal privacy\" expressly excludes information that bears on the public duties of\npublic employees, this office concludes that the District\nremedy under section 7( 1)( c) of FOIA. \n\nimproperly withheld the notice to\n\nLetter from Garrett P. Hoerner, Becker, Roemer, Thompson & Ysursa, to Steve Silverman, \n\nAssistant Attorney General, Public Access Bureau ( May 19, 2017), at 2. \n\n\fr. Jeff Egbert\n\nMr. Garrett Hoerner\n\nSeptember\n\n13, 2017\n\nPage 6\n\nIn accordance with the conclusions expressed in this determination, we request\n\nthat the District provide Mr. Egbert with a copy of the notice to remedy. The Public Access\nCounselor has determined that resolution of this matter does not require the issuance of a binding\nopinion. If you have any questions, please contact me at ( 312) 814- 6756. This file is closed. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n47540 f 71a improper 71c improper 7. 5( q) improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An exhibit to a teacher's notice to remedy resolution","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":893,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-10-03","case_number":null,"request_numbers":["48297"],"title":"Chicago Public Schools improperly redacted student cell size data under privacy exemptions","filename":"48297, issued October 3, 2017.pdf","rel_path":null,"word_count":2376,"summary":"WBEZ reporter Sarah Karp requested data from Chicago Public Schools regarding the feeder grammar schools for selective enrollment high school students, which CPS redacted based on student privacy concerns. The PAC determined that CPS failed to prove that disclosing small cell sizes (fewer than 10 students) would lead to the identification of individual students.","plain_summary":"A reporter asked Chicago Public Schools for data showing which grammar schools students came from to attend selective high schools. The school district hid some of the numbers, claiming that showing small groups of students might reveal their identities. The Attorney General's office concluded that the district improperly redacted that information.","holding":"Chicago Public Schools improperly redacted student cell size counts of less than 10 from the requested records.","legal_question":"Whether Chicago Public Schools met its burden to prove that disclosing student enrollment counts of less than 10 per school would constitute an unwarranted invasion of personal privacy or violate student record confidentiality laws.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7.5(r)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7.5(r)"],"public_body":"Chicago Public Schools","requesting_party":"Sarah Karp, WBEZ","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"student records","subject_description":"The request sought data on the feeder grammar schools for students enrolled in selective enrollment high schools.","ocr_status":"ok","ocr_quality":96.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_r/Masked-records-data/48297%2C%20issued%20October%203%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["student records","privacy","school data","redaction"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nOctober 3, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMs. Sarah Karp\nReporter, WBEZ\n\nskarp@wbez. org\n\nVia electronic mail\n\nMs. Elyssa Shull\n\nFreedom of Information Act Officer\n\nChicago Public Schools\n\n42 West Madison, 3rd Floor\n\n[street address redacted for site publication -- see original PDF]\neashull@cps. edu\n\nRE: FOIA Request for Review — 2017 PAC 48297\n\nDear Ms. Karp and Ms. Shull: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the Chicago Public Schools ( CPS) improperly redacted\ncertain information from records responsive to Ms. Sarah Karp's May 16, 2017, FOIA request. \n\nOn that date, Ms. Karp, on behalf of WBEZ, submitted a FOIA request\n\nto CPS\n\nseeking \" the names of the GRAMMAR SCHOOLS from which the freshmen enrolled in [ each\nselective enrollment high school] came from for the current school year of 2017.\" ( Emphasis in\n\noriginal.)' She also sought similar records \" for the students who have ACCEPTED slots in the\nselective enrollment high schools for the school year 2018.\" ( Emphasis in original.) 2 On June 7, \n2017, CPS provided a responsive spreadsheet and stated that it had redacted certain information\n\npursuant\n\nto sections 7( 1)( b), 7( 1)( c) and 7. 5( r) of FOIA ( 5 ILCS 140/ 7( 1)( b), ( 1)(\n\nc) ( West 2016); \n\nOnline FOIA Request submitted by Sarah Karp to CPS FOIA Center ( May 16, 2017). \n\n2Online FOIA Request submitted by Sarah Karp to CPS FOIA Center ( May 16, 2017). \n\n500 South Second Street, Springfield. \nIllinois 62701 • (\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \nFax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMs. Sarah Karp\nMs. Elyssa Shull\n\nOctober 3, 2017\n\nPage 2\n\n5 ILCS 140/ 7. 5( r) ( West 2016)). Specifically, CPS stated that it had redacted \" student identifiers\nwhere there are less than 10. i3\n\nOn June 13, 2017, this office received Ms. Karp' s Request\n\nfor Review disputing\n\nthe redactions to the spreadsheet. She stated: \" There is no way that I can identify any individual\nstudent with the information requested, nor is it my intention. i4 On June 23, 2017, this office\nforwarded a copy of the Request for Review to CPS and asked it to provide an unredacted copy\nof the record that was withheld for this office' s confidential review, together with a detailed\n\nexplanation of the legal and factual basis for the asserted exemptions. On July 18, 2017, CPS\nprovided the requested materials. On July 19, 2017, this office forwarded a copy of CPS' \nresponse to Ms. Karp. She replied on September 6, 2017, noting that WBEZ had received the\nsame type of record without redactions from CPS in 2011. Ms. Karp also provided this office\nwith a copy of the record that WBEZ had received that year. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 III. 2d 390, 415 ( 2006). A public body that redacts\ninformation in a record \" has the burden of proving by clear and convincing evidence\" that the\nredacted information is exempt from disclosure. 5 ILCS 140/ 1. 2 ( West 2016). The exemptions\n\nfrom disclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois\nUniversity, 176 I11. 2d 401, 407 ( 1997). \n\nSection 7. 5( r) of FOIA\n\nSection 7. 5( r) of FOIA exempts from inspection and copying \"[ i] nformation\n\nprohibited from being disclosed by the Illinois School Student Records Act.\" Section 6( a) of the\nIllinois School Student Records Act (ISSRA) ( 105 ILCS 10/ 6( a) ( West 2016)) provides that\n\nn] o school student records or information contained therein may be released, transferred, or\n\ndisclosed or otherwise disseminated, except\" in certain specified instances. Section 2( d) of\n\nISSRA ( 105 ILCS 10/ 2( d) ( West 2016)) defines \" school student record\" as \" any writing or\nrecorded information concerning a student and by which a student may be individually\nidentified, maintained by a school or at its direction or by an employee of a school, regardless of\nhow or where the information is stored.\" \n\nPublic Schools, to Sarah Karp (June 7, 2017). \n\nCPS FOIA Center response signed by Ana Diaz, Freedom of Information Act Officer, Chicago\n\nAttorney General ( June 13, 2017). \n\nLetter from Sarah Karp, Reporter, WBEZ, to Sarah Pratt, Public Access Counselor, Office of the\n\n\fMs. Sarah Karp\nMs. Elyssa Shull\n\nOctober 3, 2017\n\nPage 3\n\nIn its response to this office, CPS stated that it had furnished Ms. Karp with \" a\n\ndocument\n\nlisting offers made by each * * * \n\nselective enrollment high school and the\n\ncorresponding grammar school of the student( s) receiving the offer\" but had redacted certain\nstudent cell sizes of less than 10 students so as not to personally identify any student who\nreceived an offer\" where the total number of students from a specific grammar school totaled less\nthan 10 students. 5 CPS asserted, in pertinent part: \n\nThe small number of students offered enrollment at a particular\n\nselective enrollment school that also attended a particular\n\nelementary school makes it possible for a reasonable person within\nthe school community to identify a student even without\nrelease of the student' s name, therefore pursuant\n\nto ISSRA parent\n\nthe\n\nconsent is required for release of this information. \n\nChicago Public Schools' standard redaction practice is to\n\nuse the ' Rule of 10.' This standard is used when redacting\naggregate reporting of student record information involving small\ncell size prior to public release. This standard is one that both the\n\nIllinois State Board of Education ( ISBE) and the Chicago Public\n\nSchools have long -employed to comply with the student record\nprivacy requirements found in the Illinois Student Records Act\n\n105 ILCS 10/ 1)(\nPrivacy Act ( 20 U. S. C. § 1232g; 34 CFR Part 99)( FERPA). \n\nISSRA) and the Federal Educational Rights and\n\nThe guiding principle behind establishing a minimum cell\n\nsize for redactions is [ to] ensure that the release of de -identified\nstudent information for a small number of students would not\n\nallow those students to be indirectly identified by a reasonable\nperson in the student' s school community thereby revealing their\nconfidential student information. 161\n\nCPS' response to this office also alluded to the following example from the Federal guidelines on\nprotecting personally identifiable student information issued by the U. S. Department of\nEducation ( Department of Education): \n\n5Letter from Elyssa Shull, Freedom of Information Act Officer, Chicago Public Schools, to Teresa\n\nLim, Assistant Attorney General, Public Access Bureau ( July 18, 2017). \n\nLim, Assistant Attorney General, Public Access Bureau ( July 18, 2017). \n\nLetter from Elyssa Shull, Freedom of Information Act Officer, Chicago Public Schools, to Teresa\n\n\fMs. Sarah Karp\nMs. Elyssa Shull\n\nOctober 3, 2017\n\nPage 4\n\nI] t might be well known among students, teachers, \n\nadministrators, parents, coaches, volunteers or others at a local\n\nthat a student was caught bringing a gun to class last\n\nhigh school\nmonth but generally unknown in the town where the school\nlocated. \nthat a high school student was suspended for bringing a gun to\nclass last month, even though a reasonable person in the\n\nIn these circumstances, a school district may not disclose\n\nis\n\ncommunity where the school\nidentify the student, because a reasonable person in the high school\nwould be able to identify the student.\" ( See 73 FR 74806 at\n7832). 2\n\nis located would not be able to\n\nThis office has reviewed additional Federal guidelines issued by the Department. \nt] he simple removal of nominal or direct identifiers, such\n\nAccording to the Federal guidelines, \"[\nas name and SSN ( or other ID number), does not necessarily avoid the release of personally\nidentifiable information\" because \"[ o] ther information, such as address, date and place of birth, \n\nrace, ethnicity, gender, physical description, disability, activities and accomplishments, \ndisciplinary actions, and so forth, can indirectly identify someone depending on the combination\noffactors and level of detail released.\" ( Emphasis added.) 8 Thus, the Federal guidelines\nexplain, the \" reasonable person\" standard is intended to \" provide[ ] the standard an agency or\ninstitution should use to determine whether statistical\n\ninformation or a redacted record will\n\nidentify a student, even though certain identifiers have been removed, because of a well- \npublicized incident or some other factor known in the community.\" ( Emphasis added.) 9 The\nDepartment' s Privacy Technical Assistance Center has issued further guidance on the\n\nreasonable person\" standard: \n\nLetter from Elyssa Shull, Freedom of Information Act Officer, Chicago Public Schools, to Teresa\n\nLim, Assistant Attorney General, Public Access Bureau ( July 18, 2017). \n\n74831 ( Dec. 9, 2008) ( codified at 34 C. F. R. Pt. 99). \n\n8Department of Education; Family Educational Rights and Privacy; Final Rule, 73 Fed. Reg. \n\n74831- 32 ( Dec. 9, 2008) ( codified at 34 C. F. R. Pt. 99). \n\n9Department of Education; Family Educational Rights and Privacy; Final Rule, 73 Fed. Reg. \n\n\fMs. Sarah Karp\nMs. Elyssa Shull\n\nOctober 3, 2017\n\nPage 5\n\nThe FERPA [ Family Educational Rights and Privacy Act] standard\nfor de -identification assesses whether a \" reasonable person in the\n\nschool community who does not have personal knowledge of the\nrelevant circumstances\" could identify individual students based\non reasonably available information ( 34 CFR § 99. 3 and\n99. 31( b)( 1)). \n\nThis includes other public information released by\nan agency, such as a report presenting detailed data in tables with\nsmall size cells. The \" reasonable person\" standard should be used\n\nby state and local educational agencies and institutions to\ndetermine whether statistical\n\ninformation or records have been\n\nsufficiently redacted prior to release such that a \" reasonable\nperson\" ( i. e., a hypothetical, rational, prudent, average individual) \nin the school community should not be able to identify a student\nbecause of some well- publicized event, communications, or other\nsimilar factor. School officials, including teachers, \nadministrators, coaches, and volunteers, are not considered in\n\nmaking the reasonable person determination since they are\npresumed to have inside knowledge of the relevant circumstances\nand of the identity of the students. ( Emphasis added.) 11°\n\n1\n\nIn this matter, the contested information is markedly different\nstudent information to which the rule of 10 applies pursuant to the Federal guidelines. With\n\nfrom the types of\n\nstudent demographic data, certain fields may be redacted to protect the identity of students when\nthe fields taken together would enable students to be individually identified. The question with\nstudent demographic data is how many descriptors of an individual student must be removed in\norder to avoid identifying that student. For example, if there are a very small number of students\nof a particular\nrace or ethnicity at a school, redaction of those students' race or ethnicity may be\nnecessary to prevent those students from being identified in demographic data. In contrast, the\nrecords at\nissue here contain no attributes of specific students— they merely reflect\nstudents from certain elementary schools who were given offers to attend particular selective\nenrollment schools. Student cell size counts do not individually identify students absent\nadditional details about the students, such as demographic information or a description of a well- \npublicized event\nSeptember 14, 2017, at 3- 4 ( student discipline data properly redacted where students' identities\ncould be ascertained from small group sizes combined with the release of various racial and\nethnographic data about the students); Ill. Att' y Gen. PAC Req. Rev. Ltr. 44301, issued January\nfrom disclosure because \" specific events\n27, 2017, at 4 ( records of school\n\ninvolving the students. Cf. Ill. Att' y Gen. PAC Req. Rev. Ltr. 46840, issued\n\ninvestigation exempt\n\nthe number of\n\n10Privacy Technical Assistance Center, U. S. Department of Education, Frequently Asked\n\nQuestions — Disclosure Avoidance (revised July 2015), \nhttp:// ptac. ed. gov/ sites/ default/ files/ FAQ_ DisclosureAvoidance. pdf, at 2. \n\n\fs. Sarah Karp\nMs. Elyssa Shull\n\nOctober 3, 2017\n\nPage 6\n\nand circumstances are discussed that could be used to identify individual students who were the\nsubject of the records\"). CPS has not identified any well- publicized event or other circumstance\nfrom which students in the data at issue may be individually identified. \n\nAlthough a person in a school community may be independently aware of\n\nstudents who were chosen for selective enrollment, a \" Rule of 10\" standard would be no more\n\neffective at protecting students' identities under those circumstances than a \" Rule of 100\" or a\nRule of 1, 000\" because it would be solely the community member' s independent knowledge, \nrather than any information within the list of how many students came from each school, that\ncould individually identify the students. A reasonable person in a school community who does\nnot have personal knowledge of which students were selected would not be able to ascertain the\n\nidentity of any student if the cells with less than ten students were to be disclosed. Therefore, \nthis office concludes that CPS has not demonstrated by clear and convincing evidence that\nstudent cell size counts of less than 10 are exempt from disclosure under section 7. 5( r) of FOIA. \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that CPS disclose to Ms. Karp the student cell size counts consisting of less than 10\nstudents. The Public Access Counselor has determined that resolution of this matter does not\n\nrequire the issuance of a binding opinion. This letter shall serve to close this matter. If you have\nany questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n48297 f 75r improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Student enrollment counts by feeder grammar school","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":894,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-08-31","case_number":null,"request_numbers":["48793"],"title":"Springfield Police Department properly withheld body camera recordings under 7.5(cc)","filename":"48793, issued August 31, 2017.pdf","rel_path":null,"word_count":1586,"summary":"The requester sought officer-worn body camera recordings from the Springfield Police Department, which the City denied under section 7.5(cc) of FOIA. The PAC determined the City properly withheld the records because the requester did not meet the statutory criteria for access under the Body Camera Act.","plain_summary":"A citizen requested police body camera footage, but the City of Springfield denied the request. The Attorney General's office reviewed the case and agreed with the City, finding that the requester was not authorized to receive the footage under the specific rules of the Illinois Body Camera Act. Consequently, the case was closed with no violation found.","holding":"The Springfield Police Department did not improperly withhold the requested body camera recordings.","legal_question":"Whether the Springfield Police Department properly withheld officer-worn body camera recordings pursuant to section 7.5(cc) of FOIA and the Illinois Body Camera Act.","disposition":"no_violation","primary_statute":["5 ILCS 140/7.5(cc)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(cc)"],"public_body":"Springfield Police Department","requesting_party":"Requester (name redacted in source document)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request involved access to officer-worn body camera recordings from a specific police dispatch incident.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_cc/Definition-of-subject-of-encounter/48793%2C%20issued%20August%2031%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["body camera","police records","FOIA","exemption 7.5(cc)"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nAugust 31, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Brenda Hunsley\nFOIA Records Clerk\n\nSpringfield Police Department\n\nCity of Springfield\n[street address redacted for site publication -- see original PDF]\nbrenda.hunsley@springfield. il.us\n\nRE: FOIA Request for Review — 2017 PAC 48793\n\nDear\n\nand Ms. Hunsley: \n\nThis determination is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2016)). For the reasons explained below, the\nPublic Access Bureau concludes that the City of Springfield ( City) did not improperly withhold\nrecordings responsive to\n\nFOIA request. \n\nOn July 17, 2017, \n\nsubmitted a FOIA request to the City seeking\n\nofficer -worn body camera recordings and transcripts of the supervisors who were dispatched to\n2127 East Stuart on February 27, 2017. On July 18, 2017, the City denied the recordings citing\nsection 7. 5( cc) of FOIA ( 5 ILCS 150/ 7. 5( cc) ( West 2016)), but did not address the request\nfor\ntranscripts. On July 19, 2017, the Public Access Bureau received a Request for Review from\n\ncontesting only the City' s denial of the recordings. \n\nOn July 24, 2017, the Public Access Bureau sent a copy of the Request for\n\nReview to the City and asked it to provide copies of the officer -worn body camera recordings it\nhad withheld together with a detailed explanation of the factual and legal bases for its assertion\nthat the recordings are exempt\n\nfrom disclosure under section 7. 5( cc) of FOIA. On July 24, 2017, \n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMs. Brenda Hunsley\nAugust 31, 2017\n\nPage 2\n\ncontacted this office stating that he \" was, in fact, the subject of the video in\n\nquestion.\"' On August\nreview and a written response. On August 4, 2017, this office forwarded the City' s written\nresponse to\n\n1, 2017, the City furnished copies of the recordings for our confidential\n\nhe did not reply. \n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. \nIllinois Department ofPublic Health, 218 Ill. 2d 390, 415 ( 2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 ( West 2016). \n\nSection 7. 5( cc) of FOIA and Section 10- 20( b) of the Body Camera Act\n\nSection 7. 5( cc) of FOIA exempts from inspection and copying \"[ r] ecordings made\n\nunder the Law Enforcement Officer -Worn Body Camera Act [ Body Camera Act], except to the\nextent authorized under that Act.\" ( Emphasis added.) Section 10- 20( b) of the Body Camera\nAct ( 50 ILCS 706/ 10- 20( b) ( West 2016)) provides: \n\nb) Recordings made with the use of an officer -worn body\n\ncamera are not subject to disclosure under the Freedom of\nInformation Act, except that: \n\n1) if the subject of the encounter has a reasonable\n\nexpectation of privacy, at the time of the recording, any\nrecording which is flagged, due to the filing of a complaint, \ndischarge of a firearm, use of force, arrest or detention, or\n\nresulting death or body harm, shall be disclosed in\naccordance with the Freedom of Information Act if: \n\nA) the subject of the encounter captured on\n\nthe recording is a victim or witness; and\n\nB) the law enforcement agency obtains\nwritten permission of the subject or the subject' s\nlegal representative; \n\nE- mail\nGeneral ( July 24, 2017). \n\nfrom\n\nto Barbara Yattoni, [ Administrative Clerk], Office of the Attorney\n\n\fMs. Brenda Hunsley\nAugust 31, 2017\n\nPage 3\n\n2) except as provided in paragraph ( 1) of this\n\nsubsection ( b), any recording which is flagged due to the\nfiling of a complaint, discharge of a firearm, use of force, \narrest or detention, or resulting death or bodily harm shall\nbe disclosed in accordance with the Freedom of\nInformation Act; and\n\n3) upon request, the law enforcement agency shall\n\ndisclose, in accordance with the Freedom of Information\nAct, the recording to the subject of the encounter captured\non the recording or to the subject' s attorney, or the officer\nor his or her legal representative. \n\nSection 10- 20( a)( 7)( B) of the Body Camera Act provides: \n\nA] ny and all recordings made with an officer -worn body\ncamera must be destroyed [ after 90 days], unless any\nencounter captured on the recording has been flagged. An\nencounter is deemed to be flagged when: \n\ni) a formal or informal complaint has been filed; \n\nii) the officer discharged his or her firearm or used\n\nforce during the encounter; \n\niii) death or great bodily harm occurred to any\n\nperson in the recording; \n\niv) the encounter resulted in a detention or an\narrest, excluding traffic stops which resulted in only a\nminor traffic offense or business offense; \n\nv) the officer is the subject of an internal\ninvestigation or otherwise being investigated for possible\n\nmisconduct; \n\nvi) the supervisor of the officer, prosecutor, \ndefendant, or court determines that the encounter has\nevidentiary value in a criminal prosecution; or\n\n\fMs. Brenda Hunsley\nAugust 31, 2017\n\nPage 4\n\nvii) the recording officer requests that the video be\n\nflagged for official purposes related to his or her official\nduties. \n\nThe City' s response stated that the withheld recordings capture \" follow up\n\nconducted on February 28, 2017 by Sgt. Joe Behl and Lt. Andrew Dodd related to an altercation\nthat took place between\nand a family member of a suspect in Domestic Violence call\nfrom service on February 27, 2017.\" 2 The City further stated that although the officer -worn body\ncamera recordings of the incident on February 27, 2017, were flagged, the requested recordings\ncaptured by the sergeant and lieutenant from February 28, 2017, were not flagged. The City\nasserted that it did not provide\nwere not flagged and because he was not the subject of the encounter captured on the recordings. \n\nwith copies of the recordings because the recordings\n\nThe Public Access Bureau has previously determined that, under section 10- 20( b) \nof the Body Camera Act, the subject of the encounter may obtain copies of an officer worn body\ncamera recording even if the recording has not been flagged. See Ill. Att'y Gen. PAC Req. Rev. \nLtr. 46719, issued August 16, 2017, at 5; Ill. Att'y Gen. PAC Req. Rev. Ltr. 41069, issued, July\n20, 2016, at 4. The plain language of section 10- 20( b)( 3) of the Body Camera Act (50 ILCS\n706/ 10- 20(b)( 3) ( West 2016)) restricts the disclosure of a non -flagged recording to the subject of\nthe encounter captured on the recordings, the subject' s attorney, the officer who captured the\nrecording, and the officers legal representative. \n\nasserted that he is authorized to receive copies of the recordings\nbecause he was the subject of the videos. As noted above, section 10- 20( b)( 3) of the Body\nCamera Act permits the \" subject of the encounter\" appearing on the recording to receive copies\nof the recording. Although the Body Camera Act does not define the term \" subject of the\nencounter,\" it does define \" law enforcement -related encounters or activities\" as \" traffic stops, \npedestrian stops, arrests, searches, interrogations, \ninvestigations, pursuits, crowd control, traffic\ncontrol, non -community caretaking interactions with an individual while on patrol, or any other\ninstance in which the officer is enforcing the laws of the municipality, county, or State.\" 50\nILCS 706/ 10- 10 ( West 2016). Thus, the \" subject of the encounter\" is the person who interacted\nwith a law enforcement officer in the course of a law enforcement activity. \n\nBased on our review of the withheld recordings, \n\ndoes not appear on\nthe recordings. Accordingly, he is not the subject of the encounter captured on the recordings. \nis not the attorney of the subject of the\nFurther, based on the available information, \nencounter, one of the officers who captured the recordings, or the legal representative of one of\n\nHartman, Assistant Attorney General, Public Access Bureau ( August 1, 2017), at 2. \n\n2Letter from Brenda M. Hunsley, FOIA Records Clerk, Springfield Police Department, to Matt\n\n\fMs. Brenda Hunsley\nAugust 31, 2017\n\nPage 5\n\nis not one\nthe officers. Because the recordings have not been flagged and because\nof the persons who are authorized to obtain copies of non -flagged recordings under section 10- \n20( b)( 3) of the Body Camera Act, this office concludes that the City did not improperly withhold\ncopies of the body camera recordings from\n\npursuant to section 7. 5( cc) of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This correspondence serves to close this matter. If\nyou have questions, you may contact me at ( 217) 782- 9054 or the Springfield address listed at\nthe bottom of the first page. \n\nVery truly yours, \n\nT HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n48793 f 75cc proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police body-camera recordings of a dispatch incident","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":895,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-12-06","case_number":null,"request_numbers":["48891","49032"],"title":"Village of Skokie improperly withheld police records and 9-1-1 recordings under 7(1)(b) etc","filename":"48891 49032, issued December 6, 2017.pdf","rel_path":null,"word_count":3079,"summary":"The PAC determined that the Village of Skokie improperly denied requests for police reports and 9-1-1 recordings related to a retail theft and homicide, finding that the Village failed to meet its burden of proving the records were exempt from disclosure.","plain_summary":"A reporter requested police records and 9-1-1 calls related to a high-profile crime, but the Village of Skokie denied the request entirely, citing exemptions under the Freedom of Information Act. The Illinois Attorney General's Public Access Bureau reviewed the case and concluded that the Village did not meet its burden to prove by clear and convincing evidence that the records were exempt from disclosure. The Bureau determined that the Village improperly denied the requested records in their entireties.","holding":"The Village of Skokie improperly withheld the requested police reports and 9-1-1 recordings in their entireties.","legal_question":"Whether the Village of Skokie properly invoked FOIA exemptions to withhold police reports and 9-1-1 recordings in their entirety.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(d)(iv)"],"public_body":"Village of Skokie","requesting_party":"Jonah Meadows (Patch)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The records concern a retail theft and subsequent homicide involving an Uber driver in Skokie.","ocr_status":"ok","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_a/Waiver/48891%2049032%2C%20issued%20December%206%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","9-1-1 recordings","FOIA denial","privacy exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember\n\n6, 2017\n\nVia electronic mail\n\nMr. Jonah Meadows\n\nNorth Shore Editor\n\nPatch\n\njonah.meadows@patch.com\n\nVia electronic mail\n\nMr. Phillip Love\nMr. Nicholas Wyatt\n\nFreedom of Information Act Officers\n\nVillage of Skokie\n\n5127 Oakton Street\n\n[street address redacted for site publication -- see original PDF]\nphillip. love@skokie. org\nfoia@skokie. org\n\nRE: FOIA Requests for Review— 2017 PAC 48891; 2017 PAC 49032\n\nDear Mr. Meadows, Mr. Love, and Mr. Wyatt: \n\nThis determination is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)). For the reasons stated below, the\nPublic Access Bureau concludes that the Village of Skokie ( Village) improperly denied in their\nentireties the requested police report, 9- 1-\nJonah Meadows. \n\n1 recordings, and related records requested by Mr. \n\nMr. Meadows, on behalf of Patch, submitted two FOIA requests to the Village\n\nseeking information about the retail theft at the Walmart on Touhy Avenue and subsequent\nemergency calls. These requested records concern a well- publicized theft of a knife and machete\nfrom a Walmart\n2017. 1\n\nin Skokie and the stabbing and hacking death of an Uber driver, on May 30, \n\ndetails revealed in murder of Uber driver in Lincolnwood, WGN9 ( May 31, 2017, 3: 51 p.m., updated June I, 2017, \n\nSee, e.g., Tonya Francisco, Elyse Russo, and Gaynor Hall, ' Help me! I' m going to die': New\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • \n\nFax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Jonah Meadows\n\nMr. Phillip Love\nMr. Nicholas Wyatt\n\nDecember 6, 2017\n\nPage 2\n\nOn July 13, 2017, Mr. Meadows submitted a FOIA request\n\nto the Village seeking\nreceived by\ncopies of calls for service regarding an incident on the\nthe Skokie Police Department between May 30, 2017, and June 1, 2017, and associated records. \nThat same day the Village denied the request pursuant\nFOIA ( 5 ILCS 140/ 7( 1)( d)( i), (\n\nto sections 7( 1)( d)( i) and 7( 1)( d)( vii) of\n1)( d)( vii) ( West 2016)). On August 3, 2017, this office received\n\nMr. Meadows' s Request for Review ( 2017 PAC 49032) contesting that denial. \n\nOn July 20, 2017, Mr. Meadows submitted a FOIA request\n\nto the Village seeking\n\na copy of \"[a] ll incident and investigatory records concerning any reports of retail theft at the\nWal- Mart, 3626 Touhy Avenue, between April 31 and July 1, 2017.\" 2 On July 25, 2017, the\nVillage provided responsive records but redacted certain portions pursuant to sections 7( 1)( a), \n\n7( 1)( b), 7( 1)( c), and 7( 1)( d)( iv) of FOIA ( 5 ILCS 140/ 7( 1)( a), (\n\n1)( b), ( 1)( c), (\n\n1)( d)( iv) ( West\n\n2016)). On that same day, Mr. Meadows asked the Village if any records were withheld and the\nVillage responded that report 17- 04622 was withheld pursuant to section 7( 1)( d)( i) of FOIA (5\nILCS 140/ 7( 1)( d)( i) ( West 2016)). On July 25, 2017, this office received Mr. Meadows' Request\nfor Review ( 2017 PAC 48891) contesting the denial of the withheld report. \n\nThe Public Access Bureau forwarded a copy of each of Mr. Meadows' Requests\n\nfor Review to the Village and asked it to provide copies of the withheld records, as well as a\ndetailed written explanation of the factual and legal bases for withholding the requested records\nin their entireties. The Village provided this office the requested records for our confidential\n\nreview, and a substantially similar response to each matter containing an affidavit from Robert\nLaMantia, Chief of Police for the Village of Lincolnwood, explaining why the records were\nwithheld. This office forwarded a copy of each of the Village' s responses including the affidavit\nto Mr. Meadows; he submitted a reply for each file. This office has consolidated these files for\npurposes of this determination because they involve the same parties and same issues. \n\n4: 11 a. m.), http:// wgntv. com/ 2017/ 05/ 31/ help- me- im- going- to- die- new- details- revealed- in- murder- of-uber- driver- \nin- Lincolnwood/; Mitchell Armentrout, Girl stole knife, machete before attacking Uber driver: prosecutors, \nCHICAGO SUN -TIMES ( June 3, 2017, 2: 28 a. m.), https:// chicago.suntimes. com/ news/ police- 34- year-old- man- \nstabbed- to-death- in- Lincolnwood/; Susan Berger, Family of Uber driver killed with stolen knife, machete sues\nWalmart, CHICAGO TRIBUNE ( June 26, 2017), http:// www. chicagotribune. com/ news/ local/ breaking/ ct- uber- \ndriver- ki Iled- fami ly- sues- walmart- met- 20170626- story. htm I. \n\n2E -mail from Jonah Meadows, North Shore Editor, Patch to [ Skokie] FOIA ( July 20, 2017). \n\n\fMr. Jonah Meadows\n\nMr. Phillip Love\nMr. Nicholas Wyatt\n\nDecember 6, 2017\n\nPage 3\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. \nopen to inspection or copying.\" \nIllinois Dept. ofPublic Health, 218 Ill. 2d 390, 415 ( 2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 ( West 2016). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees of Southern Illinois Univ., 176 Ill. 2d 401, 408 ( 1997). \n\nConsolidation\n\nAs a preliminary matter we note that in his Request for Review ( 2017 PAC\n\n48891), Mr. Meadows informed our office that he had no objection to consolidating his file with\nIndeed, this\nother Requests for Review concerning the same records, such as 2017 PAC 48351. \noffice previously received a Request for Review from Mr. Andrew Schroedter, on behalf of CBS\n2 Chicago, seeking reports related to the shoplifting incident at the Walmart and related 9- 1-\n1\ncalls ( 2017 PAC 48351). The Village inadvertently sent Mr. Schroedter copies of the withheld\npolice report, communications event report, and 9- 1-\nclosed. Because the Village inadvertently disclosed the records, its disclosure to Mr. Schroedter\nwas not an intentional relinquishment, and thus it did not waive its right to assert exemptions in\n\n1 audio and, therefore, that matter was\n\nthe present matters. See Gallagher v. Lenart, 226 111. 2d 208, 229 ( 2007) (\"'[ w] aiver arises from\n\nan affirmative act, is consensual, and consists of an intentional relinquishment of a known\n\nright.\") ( internal citations omitted). Therefore, we will review Mr. Meadows's matters on the\n\nmerits. \n\nSection 7( 1)( d) of FOIA\n\nSection 7( 1)( d) of FOIA exempts from disclosure, in pertinent part: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\ni) interfere with pending or actually and reasonably\n\ncontemplated law enforcement proceedings conducted by\nany law enforcement or correctional agency that is the\nrecipient of the request[.] \n\n\fMr. Jonah Meadows\n\nMr. Phillip Love\nMr. Nicholas Wyatt\n\nDecember 6, 2017\n\nPage 4\n\niii) create a substantial likelihood that a person will\n\nbe deprived of a fair trial or an impartial hearing; \n\nvii) obstruct an ongoing criminal\n\ninvestigation by\n\nthe agency that is the recipient of the request. \n\n7( 1)( d)( iii) of FOIA\n\nSection 7( 1)( d)( iii) of FOIA corresponds with a provision of Federal FOIA ( 5\n\nU. S. C. 552( b)( 7)( B) ( 2012)) which exempts from disclosure records compiled for law\n\nenforcement purposes to the extent that disclosure would \" deprive a person of a right to a fair\n\ntrial or an impartial adjudication.\" Illinois courts have recognized that because Illinois' FOIA\n\nstatute is based on the Federal FOIA statute, decisions construing the latter, while not\ncontrolling, may provide helpful and relevant precedents in construing the state Act. See\nMargolis v. Director, Ill. Department of Revenue, 180 I11. App. 3d 1084, 1087 ( 1st Dist. 1989). \nWhile there are no published decisions by Illinois courts analyzing the applicability of section\n7( 1)( d)( iii), Federal courts have held that in order to withhold records pursuant to the \" fair trial\" \nexemption, a public body must establish: \"( 1) \nimminent; and ( 2) that it is more probable than not that disclosure of the material sought would\nseriously interfere with the fairness of those proceedings.\" Washington Post Co. v. U.S. Dep' t of\nJustice, 863 F. 2d 96, 102 ( D.C. Cir. 1988); see also Chiquita Brands Int'1 Inc. v. S.E.C., 805 F. 3d\n\nthat a trial or adjudication is pending or truly\n\n289, 298 ( D. C. Cir. 2015) ( the exemption applies \" when the release of documents would likely\ndeprive a party of a fair trial[]\"). \n\nIn his affidavit Chief LaMantia stated that a 16 -year old juvenile was arrested and\n\ncharged with first degree murder for the death of Mr. Nelson. i3 Chief LaMantia also stated that\n\nreleasing the records may deprive the suspect of a fair trial because the records would likely\nreceive significant media attention and make it more difficult\nMeadows contends that the Cook County State' s Attorney' s Office has already released a great\ndeal of the highly inflammatory information, both at the initial bond hearing and subsequent\ncourt hearings, making it unlikely that anything within the records would deprive the suspect of a\nfair trial. \n\nto assemble a non -biased jury. Mr. \n\nAffidavit of Robert LaMantia, Chief of Police, Village of' Lincolnwood ( July 10, 2017), at ¶ 5. \n\n\fMr. Jonah Meadows\n\nMr. Phillip Love\nMr. Nicholas Wyatt\n\nDecember 6, 2017\n\nPage 5\n\nThe Public Access Bureau has reviewed the withheld records which consist of an\n\neight page police report, an eight page communications event report, and audio of three 9- 1-\n\n1\n\nemergency calls. A review of these records and of a sample of information already in the public\ndomain at the time of the FOIA requests reveals that much of the potentially inflammatory\ninformation concerning this highly -publicized incident has already been disclosed to the public.4\nFurther, the Village' s explanation for the applicability of section 7( 1)( d)( iii) is largely\nconclusory. The Village has not provided any information on how providing these particular\nrecords to Mr. Meadows would hamper the selection of a non -biased jury or otherwise make it\nmore probable not that the defendant would be deprived of fair trial or impartial hearing. \nAccordingly, this office concludes that the Village did not sustain its burden of proving by clear\nand convincing evidence that the records are exempt from disclosure under section 7( 1)( d)( iii) of\nFOIA. \n\n7( 1)( d)( i) and 7( 1)( d)( vii) \n\nAs a threshold matter, Mr. Meadows contends that sections 7( 1)( d)( i) and\n\n7( 1)( d)( vii) are inapplicable to the records in question because the Lincolnwood Police\n\nDepartment rather than the Skokie Police Department\nIn his affidavit, Chief LaMantia averred that Lincolnwood' s Police Department is the lead\nagency in charge of investigating the death, and that it has been assisted in the investigation by\nthe Skokie Police Department and the North Regional Major Crimes Task Force, and that the\n\nis the agency conducting the investigation. \n\nSkokie Police Department maintains portions of the investigation file. Because the available\ninformation indicates that the records at issue concern a pending, ongoing investigation in which\nthe Skokie Police Department is actively participating, the Village is not precluded from\nto sections 7( 1)( d)( i) and\nasserting that the records are exempt\n7( 1)( d)( vii) of FOIA. \n\nfrom disclosure pursuant\n\nThe classification of information as ' law enforcement' or ' investigatory' does not\n\nnecessarily foreclose access unless it can be shown, in a particular case, that disclosure would\ninterfere with law enforcement and would, therefore, not be in the public interest.\" Baudin v. \nDepartment of Crystal Lake, 192 I11. App. 3d 530, 536 ( 2d Dist. 1989). Conclusory statements\nthat the disclosure of records would obstruct a law enforcement proceeding are insufficient to\nsupport\nChicago, 388 Ill. App. 3d 70, 74- 77 ( 1st Dist. 2009) ( reciting the language of FOIA exemption, \nwithout describing how disclosure would obstruct proceedings, is inadequate); see also I11. Att'y\nGen. Pub. Acc. Op. No. 17- 001, issued March 14, 2017 ( the mere commencement of an\n\nthe assertion of the pending law enforcement proceeding exemption. Day v. City of\n\nSee, e. g. footnote 1 above. \n\n\fMr. Jonah Meadows\n\nMr. Phillip Love\nMr. Nicholas Wyatt\n\nDecember 6, 2017\n\nPage 6\n\ninvestigation or prosecution does not constitute clear and convincing evidence that any records\nare exempt from disclosure). Rather, a public body must demonstrate how disclosure of records\nwould interfere with or obstruct a criminal prosecution or investigation in order to properly\nwithhold records pursuant\n\nto section 7( 1)( d)( i) or 7( 1)( d)( vii) of FOIA. \n\nIn his affidavit Chief LaMantia averred that ( 1) \n\nthe release of records will obstruct\n\nan ongoing investigation because witnesses are still being interviewed, may need to be re - \ninterviewed as new evidence is obtained from forensic testing and subpoenas, and therefore, the\nrelease of the records may cause witnesses to alter his or her testimony, make them less likely to\ncooperate, or cause subpoenaed recipients to withhold or destroy evidence; 5 and ( 2) release of\nthe records will interfere with the pending law enforcement proceeding because ( a) it would\nmake it harder for the investigating agencies to bring the investigation to a proper conclusion and\nto obtain a plea deal or conviction; and ( b) it would be more difficult to identify fake tips from\nreal tips. 6 Mr. Meadows contends that these arguments are highly speculative. \n\nThe concerns presented in the affidavit are mostly generalized, and do not explain\n\nhow disclosure of specific types of records or information could interfere with or obstruct the\n\ninvestigation. A public body sustains its burden of proving by clear and convincing evidence\nthat requested records fall within an exemption by providing \" a detailed justification for its\nclaimed exemption, addressing the requested documents specifically[.]\" Day, 388 I11. App. 3d at\n74 ( emphasis in original and internal quotation marks omitted). Chief LaMantia' s claims that\nrelease of the records would interfere with the pending law enforcement proceeding by ( 1) \nmaking it harder to bring the investigation to a proper conclusion and to obtain a plea deal; ( 2) \ndiscouraging witness cooperation; or ( 3) causing recipients of subpoena to destroy evidence are\nconclusory. Although Chief LaMantia' s assertion that release of the records will make it more\ndifficult\nmatter, much of the information in these records appears to have already been provided to the\npublic. Further, if the Village could demonstrate that disclosure of any specific information in\nthe records that had not been provided to the public would make it more likely to receive fake\ntips, it could have asserted that those specific portions are exempt from disclosure pursuant to\n\nto distinguish fake tips from legitimate tips is a valid concern in such a highly publicized\n\nsections 7( 1)( d)( i) and 7( 1)( d)( vii) and redacted them from the records. Instead the Village\n\nwithheld the records in their entireties. Therefore, the Village has not sustained its burden of\n\nproving by clear and convincing evidence that the withheld records are exempt\nin their entireties under sections 7( 1)( d)( i) or 7( 1)( d)( vii) of FOIA. \n\nfrom disclosure\n\n5Affidavit of Robert LaMantia, Chief of Police, Village of Lincolnwood ( July 10, 2017), at ¶ 8. \n\n10. \n\n6Affidavit of Robert LaMantia, Chief of Police, Village of Lincolnwood ( July 10, 2017), at ¶¶ 9- \n\n\fr. Jonah Meadows\n\nMr. Phillip Love\nMr. Nicholas Wyatt\n\nDecember 6, 2017\n\nPage 7\n\nIn accordance with the conclusions discussed above, this office requests that the\n\nVillage to provide Mr. Meadows with copies of the withheld records subject only to permissible\nredactions under section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2016), as amended by Public Acts 100- \n026, effective August 4, 2017; 100- 201, effective August 18, 2017). Specifically, home\naddresses and personal\nFOIA ( 5 ILCS 140/ 7( 1)( b) ( West 2016), as amended by Public Acts 100- 026, effective August\n4, 2017; 100- 201, effective August 18, 2017); names of the callers and witnesses may be\nredacted pursuant to section 7( 1)( d)( iv) of FOIA8 ( 5 ILCS 140/ 7( 1)( d)( iv), ( West 2016), as\n\ntelephone numbers may be redacted pursuant\n\nto sections 7( 1)( b) of\n\namended by Public Acts 100- 026, effective August 4, 2017; 100- 201, effective August 18, 2017); \nand the dates of birth and races of subjects may be redacted pursuant section to 7( 1)( c) of FOIA\n5 ILCS 140/ 7( 1)( c) ( West 2016), as amended by Public Acts 100- 026, effective August 4, 2017; \n100- 201, effective August 18, 2017). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at 312- 814- 5201 or at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nEDIE STEINBERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n48891 49032 f 71di\n\nimproper 7ldiii improper 7ldvii improper mun\n\nSection 7( 1)( b) exempts from disclosure \" private information,\" which section 2( c- 5) of FOIA ( 5\n\nILCS I40/ 2( c- 5) ( West 2016)) defines to include \" home or personal telephone numbers\" and \" home address * * * \n\nexcept as otherwise provided by law or when compiled without possibility of attribution to any person.\" \n\nSection 7( 1)( d)( iv) of FOIA permits a public body to redact\n\ninformation that would\n\nunavoidably disclose the identity of a confidential source, confidential\n\ninformation furnished only by the\n\nconfidential source, or persons who file complaints with or provide information to administrative, \n\ninvestigative, \n\nlaw\n\nenforcement, or penal agencies[.]\" \n\n9Section 7( 1)( c) of FOIA exempts \"[ p] ersonal\n\ninformation contained within public records, the\n\ndisclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]\" \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports and 9-1-1 recordings in a retail theft and homicide case","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":896,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-11-21","case_number":null,"request_numbers":["49142"],"title":"Macoupin County Sheriff's Department properly denied jail security records under 7(1)(d)(vi)","filename":"49142, issued November 21, 2017.pdf","rel_path":null,"word_count":1792,"summary":"The requester sought jail inspection records and electronically recorded rounds from the Macoupin County Sheriff's Department, which were denied based on security concerns and the non-existence of the inspection report. The PAC determined the Sheriff's Department did not improperly withhold the records.","plain_summary":"A former employee of the Macoupin County Sheriff's Department requested copies of the department's annual jail inspection report for 2017 and electronic records of security rounds from 2015 to support a potential legal claim. The Sheriff's Department initially denied the request for the round records under section 2.15(c) of FOIA and stated that the 2017 inspection report had not yet been created. After review, the Illinois Attorney General's Public Access Bureau concluded that the round records were exempt from disclosure under section 7(1)(d)(vi) of FOIA, because releasing the detailed staffing and location information could endanger the life or physical safety of law enforcement personnel or any other person. The Bureau also noted that FOIA does not require public bodies to answer questions or create records in response to a request.","holding":"The Macoupin County Sheriff's Department did not improperly withhold records responsive to the FOIA request.","legal_question":"Whether the Sheriff's Department properly denied a FOIA request for security-related jail records and whether it was required to answer the requester's specific questions regarding those records.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(v)"],"public_body":"Macoupin County Sheriff's Department","requesting_party":"Anonymous (redacted in source text)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request involved jail inspection reports and electronic logs of security rounds conducted by jail staff.","ocr_status":"ok","ocr_quality":92.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_vi/49142%2C%20issued%20November%2021%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["jail records","security rounds","FOIA request","records creation"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nNovember 21, 2017\n\nMr. JordanJ. Garrison\nAssistant State' s Attorney\nMacoupin County State' s Attorney' s Office\nP: O. Box 287\nCarlinville, Illinois 62626\n\nRE: FOIA Request for Review — 2017 PAC 49142\n\nDear\n\nand Mr. Garrison: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)). For the reasons thatfollow, the\nPublic Access Bureau concludes that the Macoupin County Sheriffs Department ( Sheriff' s\nDepartment) did not improperly withhold records responsive to\nFOIA request, \n\nJuly, 23, 2017, \n\nOn that date, \n\nsubmitted a FOIA request\n\nto the Sheriffs Department\n\nseeking acopy of its annual jail: inspection for 2017 and the electronically recorded rounds for\nthree time' periods: January 1, 2015, through January 7, 2015; April \"1,- 2015, through April 7, \n2015, and; July 1, 2015, through July 7, 2015. On July 27, 2017, the Sheriffs Department\ndenied the electronically recorded rounds pursuant to section 2.15( c) of FOIA ( 5 ILCS\n140/ 2. 15( c) ( West 2016)) and stated that the annual\n\ninspection for 2017 had yet to be scheduled. \n\nOn August 10, 2017, this office received\n\nRequest for Review disputing\n\nfor the electronically recorded rounds. He asserted that the rounds\n\nthe denial of his request\noccurred more than two years ago and thus that disclosure of the information would not pose a\nsecurity risk to thejail. He also stated that he sought the information in connection with a\npotential\ndemonstrating that he had completed his required rounds while employed with the Sheriffs\nDepartment. \n\nlegal action against the Sheriffs Department and that the records would assist him in\n\n500 South Second Street, Springfield, \nIllinois 62701 • (\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \nFax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main. Carbondale_ \n\nIllinois 62901 • MIR) 5) 9. 6ann . TTV. / 6I 21 s) o_‘ nna . \n\nc.,,,. ( Al vi con CAI\n\n\fMr. Jordan J. Garrison\n\nNovember 21, 2017... \nPage 2\n\nOn August 16, 2017, this office forwarded a copy of the Request for Review to\n\nthe Sheriffs Department and asked' it to provide copies of the records thatwere withheld for.this\noffice' s confidential review, together with a detailed explanation of the legal and: factual basis for\nthe asserted exemption.: On August 28, 2017, this office received those materials from the\nMacoupin County' s State' s Attorney' s Office ( State' s Attorney' s Office) on behalf ofthe Sheriffs\nDepartment, including both a complete and a redacted 'version of its written response.' The\nState' s Attorneys Office maintained that the requested records were` exempt from disclosure\nunder section 2. 15( c) of FOIA but asserted that the records were further exempt pursuant to\nsection 7( 1)( d)( vi) of FOIA ( 5. ILCS 140/ 7( 1)( d)( vi) (West 2016)). ; On' Septerrtber 1, 2017, this\noffice -forwarded a copy ofthe State's Attorney's Office's redacted response to\nHe\nreplied on September 10, 2017,\"asserting that as a former correctional officer, who had worked\nOfthe Sheriffs Department\nsomeone out of the facility.\" 2\n\nfor 26 years, he \" ha[ d] no reason to;cause'harm or try to get\n\nDETERMINATION\n\nAll records m the custody or' possession of a public body are, presumed` to be: `, \nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2( 16); Ave also\"Southern Illinoisan v.\" \nIllinois Department ofPublic Health, 218 I11. 2d 390, 415 ( 2006)_ A public body that withholds.' \nrecords \" has the burden of proving by clear and convincing: evidence\" that the records are' exefnpt\nfrom disclosure. 5 ILCS 140/ 1. 2 ( West 2016): The exemptions from disclosure are to be\n\nowly.construed. Lieber v. Board of Trustees of\n\nLeila is University; 176I11. 2d 401, \n\n407 1997). \n\nAs an initial matter, this office notes that section 2: 15( c) of FOIA pertains only to\n\narrest reports. Section' 7( 1)( d)( vi) of FOIA, however, contains the same language as section' \n2. 15( c)( ii) of FOIA ( 5 ILCS' 140/ 2. 15( c)( ii) (West 2016)), and section 7( 1)( d)( vi) is not limited\n\nto arrest reports.' \n\nSee 5 ILCS ,140/ 9. 5( d) ( west 2016) (\" The Public Access Counselor shall forward a copy of the\n\nanswer to the person submitting the request for review, with any alleged confidential\nrequest pertains redacted from the copy.\"). „ \n\ninformation to which the ' \n\nState of Illinois ( September' 10, 2017). \n\n2Letterfrom\n\nto Teresa Lim, Assistant' Attorney General, Attorney General Office, \n\nSimilarly, section 7( 1)( e) of FOIA ( 5 ILCS 140/ 7( 1)( e) ( West 2016)), which exempts from\n\ndisclosure \"[ r] ecords that relate to oraffect the security of correctional\nanalogous to section 2. 15( c)( iii) of FOIA ( 5 ILCS 140/ 2. 15( c)( iii) ( West 2016)). \n\ninstitutions and detention facilities[,]\" is\n\n\fMr. Jordan J. Garrison\n\nNovember 21, 2017\n\nPage 3\n\nSection 7( 1)( d)( vi) of FOIA\n\nSection 7( 1)( d)( vi) of FOIA exempts from disclosure: \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\n4 * \n\nvi) endanger the life or physical safety of law\n\nenforcement personnel or any other person[.] \n\nIn its redacted response, the State' s Attorneys Office stated that the Sheriffs\n\nDepartment' s current staffing and jail monitoring policies and procedures are the same as those\nin effect in 2015. According to the State' s Attorneys Office, the Macoupin County jail consists\nof two levels with five general population rooms for men, two for women, and a work release\nroom. The Sheriff' s Department' s policy is to check each room every 30 minutes. During these\nchecks, the State's Attorneys Office stated, the correctional officer on duty records his or her\nround through an electronic machine, which documents the officers time, location, and status of\nthe room. The State' s Attorney' s Office asserted that disclosure of the recorded information\nwould reveal \"\nincluding\n\nthe times and locations of our correctional officers while on duty[,]\" \nwhen the control room is occupied by only one correctional officer and when officers are away\nfrom certain rooms. 4 The State' s Attomey' s office further asserted: \n\nThe information can be used to aid in breaking individuals out of\nour jail or knowing where a correctional officer is isolated to harm\nhim or her. Furthermore, it can be used to help inmates learn the\npattern of our correctional officers to gain opportunities to harm\neach other or staff 151\n\nThis office has reviewed copies of the records documenting the rounds at issue and determined\nthat the records contain detailed information about jail staffing and scheduling. The information\nincludes the specific times and locations of the correctional officers on duty for each shift and\n\nto Teresa Lim, Assistant Attorney General, Public Access Bureau ( August 28, 2017). \n\n4Letter from Jordan J. Garrison, Assistant State's Attorney, State's Attorney of Macoupin County, \n\nto Teresa Lim, Assistant Attorney General, Public Access Bureau ( August 28, 2017). \n\n5Letter from Jordan .1. Garrison, Assistant State' s Attorney, State' s Attorney of Macoupin County, \n\n\fMr. Jordan J. Garrison\n\nNovember 21, 2017\n\nPage 4\n\nsought records of rounds from two years ago, the State' s\n\nvacant areas of the jail not covered by officers. This office agrees that the disclosure of such\ndetailed information could endanger the life or physical safety of the correctional officers\nmonitoring the jail by identifying their locations and potential vulnerable spots where officers are\nless supported. Although\nAttorney' s Office explained that the shift policies and duties of the correctional officers have not\nchanged since 2015. Consequently, jail round records from 2015 would still reveal relevant\ndetails about staffing that, if released, could pose a risk to the safety of correctional officers who\nmay not have intended to use\ncurrently work at the jail as well as the detainees. While\nthe records in a manner that would pose any type of safety risk, the disclosure and potential\nfurther dissemination of the records may lead, inadvertently or otherwise, to a person using the\nrecords in a manner that would pose a significant safety risk to law enforcement\npersonnel. Accordingly, this office concludes that the records are exempt\npursuant to section 7( 1)( d)( vi) of FOIA. \n\nfrom disclosure\n\nIn his reply to this office, \ncomplaint. He stated, in pertinent part: \n\noffered an alternative option to resolve his\n\nDue to the business of my request and trying to work with the\nsheriff department I will alter my request to the following\nconditions that I think we can all agree to. If the sheriff\ndepartment will in writing state that all rounds were made in my\nrequest for a total of 48 rounds in a calendar day for all days that I\noriginally requested. That they will run the print offs on the\ncomputer program stating the rounds for your review to verify that\nthe rounds were made. I do not need the actual copies of the\nrounds from the program. * * * \n\nIf you see the print outs and all the\nrounds were made on all the days I originally requested then I will\nbe satisfied. If there are rounds not made that the program shows I\nneed to know the dates and times of the incident and who the\nofficers were on that day and time. 161\n\nWhile the Sheriffs Department may elect to confirm whether or not the rounds at\n\nissue were made, it is not obligated to do so under FOIA, nor is this office authorized to reveal\nthe specific contents of the records the Sheriff' s Department provided for this office' s\nconfidential review. FOIA does not require a public body to answer questions or create records\nin response to a FOIA request. Kenyon v. Garrels, 184 Ill. App. 3d 28, 32 ( 4th Dist. 1989). \n\nState of Illinois ( September 10, 2017). \n\n6Letter from\n\nto Teresa Lim, Assistant Attorney General, Attorney General Office, \n\n\fMr. Jordan J. Garrison\n\nNovember 21, 2017\n\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n49142 f 71 dvi proper co\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Jail inspection reports and security-round logs","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":897,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-10-30","case_number":null,"request_numbers":["49942"],"title":"Illinois Department of Natural Resources improperly conditioned FOIA release on data license agreement","filename":"49942, issued October 30, 2018.pdf","rel_path":null,"word_count":4532,"summary":"The requester sought records regarding the gating of Griffith Cave, and the PAC determined the Illinois Department of Natural Resources improperly withheld records by requiring a data license agreement for access to Natural Heritage Database information.","plain_summary":"A requester asked the Illinois Department of Natural Resources for records about the gating of Griffith Cave from 2013 to 2014. The Department provided some records but withheld others, and offered the requester a chance to view certain withheld information if he signed a Data License Agreement. The Public Access Bureau found that the Department did not meet its burden to justify withholding records under sections 7.5(aa) and 7(1)(i) of FOIA, and noted that FOIA does not allow a public body to decline to provide copies when copies are requested. The source document does not state a final ruling on the Data License Agreement issue.","holding":"","legal_question":"Whether a public body may condition the release of public records under FOIA upon the requester's execution of a data license agreement.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(f)"],"public_body":"Illinois Department of Natural Resources","requesting_party":"Individual requester","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"records access","subject_description":"The request concerned records related to the gating of Griffith Cave and access to information within the Natural Heritage Database.","ocr_status":"ok","ocr_quality":97.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_aa/49942%2C%20issued%20October%2030%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["data license agreement","Natural Heritage Database","records access","FOIA compliance"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nOctober 30, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. John Heidinger\n\nFOIA Officer\n\nIllinois Department of Natural Resources\n\n[street address redacted for site publication -- see original PDF]\nJohn. Heidinger@illinois. gov\n\nRE: FOIA Request for Review — 2017 PAC 49942\n\nDear\n\nand Mr. Heidinger: \n\nThis determination letter is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the Illinois Department of Natural Resources ( Department) \n\nimproperly responded to\n\nSeptember 5, 2017, FOIA request. \n\nOn September 5, 2017, \n\nsubmitted an amended FOIA request' to the\n\nDepartment seeking copies of records concerning the gating of Griffith Cave, from January 1, \n2013, to December 31, 2014, that had not already been publically released. On that same date, \nto submit payment for estimated fees for copies of responsive\nthe Department asked\n\nrecords pursuant\n\nto section 6( a- 5) of FOIA ( 5 ILCS 140/ 6( a- 5) ( West 2016)). On September 20, \n\n2017, the Department provided some responsive records to\n\nbut redacted certain\n\ninformation pursuant to sections 7( 1)( b) and 7( 1)(\n2016), as amended by Public Acts 100- 026, effective August 4, 2017; 100- 201, effective August\n18, 2017). The Department also withheld other records in full pursuant to sections 7( 1)(\n\nc) of FOIA ( 5 ILCS 140/ 7( 1)( 6), ( 1)( c) ( West\n\nf), \n\nfor Review with this office on August 28, 2017, contesting the\nDepartment's unduly burdensome categorization of his August 24, 2017, request, but he withdrew that Request for\nfor Review pertains to his amended request. \nReview on September\n\n11, 2017. See 2017 PAC 49430. This Request\n\nfiled a prior Request\n\n500 South Second Street, Springfield, \n\nIllinois 62701 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois, 60601 • (\n\n312) 814- 3000 • '\n\nFTY: ( 312) 814- 3374 • \n\nFax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. John Heidinger\n\nOctober 30, 2018\n\nPage 2\n\n7( 1)( m), and 7. 5( aa) of FOIA ( 5 ILCS 140/ 7( 1)( f), (1)( m) ( West 2016), as amended by Public\nActs 100- 026, effective August 4, 2017; 100- 201, effective August 18, 2017; 5 ILCS 140/ 7. 5( aa) \n\nWest 2016), as amended by Public Acts 100- 020, effective July 1, 2017; 100- 201, effective\nAugust 18, 2017; 100-464, effective August 28, 2017; 100- 465, effective August 31, 2017), as\n\nwell as section 2. 37 of the Wildlife Code ( 520 ILCS 5/ 2. 37 ( West 2016)). Additionally, the\nDepartment stated that it was extending its time to respond pursuant\nILCS 140/ 3( e) ( West 2016)) with regard to several non -e- mail records where it needed to\ncommunicate with the authors/ federal government, to determine if they are exempt. i2\n\nto section 3( e) of FOIA ( 5\n\nOn September 27, 2017, the Department sent an additional\n\nrecord to\n\nand denied other information pursuant\n2016), as amended by Public Acts 100- 026, effective August 4, 2017; 100- 201, effective August\n18, 2017). The Department also stated that\nhad previously declined an opportunity to\nview certain withheld information that would require signing its Data License Agreement, stating\nthat this requirement was authorized through the Illinois Nature Preserves Commission and the\n\nto section 7( 1) 0) of FOIA ( 5 ILCS 140/ 7( 1)(\n\ni) ( West\n\nIllinois Endangered Species Protection Board; the Department offered him the opportunity again. \nFurther, the Department indicated that it was still checking whether six additional records were\nexempt from disclosure. On October 4, 2017, the Department appears to have provided those\n\nrecords to\n\nOn that same date, this office received correspondence from\n\nindicating that he wished to file a Request\nthe Department' s assertion\nthat he could not view certain responsive records without signing its Data License Agreement, \nand ( 2) the denial of records under sections 7( 1) 0) and 7. 5( aa) of FOIA. On October 18, 2017, \n\nfor Review contesting ( 1) \n\nsubmitted the additional materials necessary to file a Request for Review of the\n\nDepartment' s partial denial of his request on those grounds. \n\nfor Review to\nOn October 19, 2017, this office forwarded a copy of the Request\nthe Department and asked it to provide un -redacted copies of the records that it had redacted or\n\nwithheld pursuant\n\nto sections 7( 1)(\n\ni) or 7. 5( aa) of FOIA, or its Data License Agreement, \n\nfor our\n\nconfidential review, together with a detailed explanation of the factual and legal bases for the\nfor the Department\napplicability of those three rationales. 3 On October 30, 2017, counsel\nresponded, but did not address section 7. 5( aa) of FOIA. On October 31, 2017, this office\n\nforwarded a copy of the Department' s response to\n\nOn November\n\n1, 2017, \n\nreplied, arguing that the Department incorrectly applied the section 7. 5( aa) and 70) 0) \n\nexemptions, and that its improperly used its Data License Agreement\n\nin place of FOIA to impose\n\nResources, to\n\nSeptember 20, 2017), at 2. \n\n2Letter from Diana E. Wise, FOIA Officer, Labor & Employment Counsel, Department of Natural\n\n3This office also asked the Department\n\nto explain how it assessed the fees charged. However, in\n\nan e- mail on December 21, 2017, from\nBureau, he clarified that he is no longer interested in contesting the fee. \n\nto an Assistant Attorney General ( AAG) in the Public Access\n\n\fMr. John Heidinger\n\nOctober 30, 2018\n\nPage 3\n\nconditions on access to the records. This office attempted to informally resolve parts of this\nRequest for Review, and also received a large volume of correspondence from\n\nthat\n\nmostly concerned matters outside the scope of this office' s review. See 15 ILCS 205/ 7( c) ( West\n2016) ( limiting the Public Access Counselor' s authority to reviewing disputes concerning FOIA\nand the Open Meetings Act ( 15 ILCS 205/ 7( c) ( West 2016). \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" \n5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218111. 2d 390, 415 ( 2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2. \n\nSection 7. 5( aa) of FOIA\n\nSection 7. 5( aa) of FOIA allows a public body to withhold \"[\nis exempted from disclosure under Section 2. 37 of the Wildlife Code.\" Section 2. 37 of the\n\ni] nformation which\n\nWildlife Code exempts from disclosure under FOIA the locations of traps and snares authorized\n\nby the Department or another governmental body to kill wildlife responsible for property damage\nor causing a risk to human health or safety. The Department did not address this exemption in its\nIn his reply, the requester stated that he believes the Department misused\nresponse to this office. \nthe exemption. \n\nThe Department did not provide any explanation of how this provision would\n\napply to the records\nof demonstrating that any pertinent information is exempt from disclosure pursuant to section\n7. 5( aa) of FOIA. \n\nrequested. Accordingly, the Department did not meet its burden\n\nSection 7( 1)(\n\ni) of FOIA\n\nSection 7( 1) 0) of FOIA allows a public body to withhold \"[ v] aluable formulae, \n\ncomputer geographic systems, designs, drawings and research data obtained or produced by any\npublic body\" in circumstances in which \" disclosure could reasonably be expected to produce\nprivate gain or public loss.\" \n\nIn its response to this office, the Department stated that it \" withholds the location\n\nof endangered or threatened species or wildlife in order to protect endangered and threatened\n\nspecies from poachers, etc., so that endangered\n\nor threatened species are not captured, killed, or\n\n\fMr. John Heidinger\n\nOctober 30, 2018\n\nPage 4\n\notherwise removed from public lands for private gain. i4 The Department explained that it\n\nwithheld \" any data obtained or used by [ the Department] \nused to pinpoint the specific physical location\" of such species, such as cave names, maps, GPS\n\nin conducting research that could be\n\ncoordinates, or land descriptions. The Department also noted that it redacted the name of a cave\n\nor mine only if the record made reference to an endangered species there. On January 26, 2018, \nthe Department\nNatural Heritage Database, which is discussed in greater detail below, would allow an individual\n\nfurther asserted that disclosure of information concerning a location in its\n\nto locate endangered species in the area and \" deduce [ the Department' s] formula and find other\n\nareas that species could be found. If someone really wanted to, they could remove a species\nfrom Illinois using the data gathered from a database request of a specific area.\" 6\n\nIn his reply, \n\nargued that the Department is incorrectly applying this\n\nexemption \" to withhold natural heritage data\" and that it cannot exercise a blanket exemption for\nsuch records \" due to concerns of 'public loss' relating to poaching.\"\n\n7\n\nThe Department did not provide sufficient information from which this office\n\ncould determine whether there would be a likelihood of a private gain or public loss if the\n\nrecords at issue were released. The Department' s sole argument about such a consequence is the\n\npossibility that releasing any information about the location of any endangered species could\nresult in poaching or other harms to endangered species. That generalized and conclusory\nexplanation does not establish that disclosure of the specific records that\nis seeking\ncould reasonably be expected to produce private gain or public loss.\" Further, the Department\ndid not identify which exemption( s) ( out of the several originally cited) it asserts apply to which\nof the thousands of pages of records provided to this office. This precludes the Public Access\n\nBureau from accurately assessing what records were withheld and for what reason. Accordingly, \nthe Department did not meet its burden of demonstrating that records are exempt from disclosure\npursuant\n\nto section 7( 1)(\n\ni) of FOIA. \n\nPublic Access Bureau ( October 30, 2017), at 6\n\nLetter\n\nfrom Diana E. Wise, Labor & Employment Counsel, \n\nIDNR, to Marie Hollister, AAG, \n\nPublic Access Bureau ( October 30, 2017), at 6. \n\n5Letter from Diana E. Wise, Labor & Employment Counsel, IDNR, to Marie Hollister, AAG, \n\n6E -mail from John Heidinger, Legal Counsel, IDNR, to [ Marie] Hollister (January 26, 2018). \n\n7E -mail from\n\nto the Public Access Bureau ( November 1, 2017). \n\n\fMr. John Heidinger\n\nOctober 30, 2018\n\nPage 5\n\nData License Agreement\n\nSection 3( b) of FOIA ( 5 ILCS 140/ 3( 6) ( West 2016)) provides: \n\nSubject to the fee provisions of Section 6 of this Act, each\n\npublic body shall promptly provide, to any person who submits a\nrequest, a copy of any public record required to be disclosed by\nsubsection ( a) of this Section and shall certify such copy if so\nrequested. ( Emphasis added.) \n\nWhen the language of a statute is clear and unambiguous, it must be given effect as written. \n\nDeLuna v. Burciaga, 223 I11. 2d 49, 59 ( 2006). \n\nThe language of section 3( b) is clear and unambiguous: it is the duty of a public\n\nbody to provide a requester who seeks copies of public records with copies of any responsive\nrecords that are not exempt from disclosure upon payment of any applicable fees. Section 3( b) \ndoes not provide a public body with the option to decline to provide copies when copies are\nrequested. Although a public body may offer a requester the opportunity to inspect and make\ncopies and the requester may elect to do so, a public body is required to provide copies if\nissued March 29, 2010. \nrequested to do so. See I11. Att' y Gen. Pub. Acc. Op. No. 10- 001, \n\nIn its response to this office, the Department stated that its \" Data License\n\nAgreement * * * \n\nallows persons to access\n\nthe Department' s] research data, including the names\n\nof caves that house endangered or threatened species, while still protecting the location of\nendangered species.\" 8\nAAG) from the Public Access Bureau, the Department confirmed that the Natural Heritage\n\nIn a January 23, 2018, telephone call with an Assistant Attorney General\n\nDatabase was not searched for responsive records because the Department maintained that\n\nindividuals need to sign the data license agreement\n\nto view the records. The Department\n\nconfirmed the requester' s claim that it prohibits individuals who sign the data license agreement\nfrom copying the records. The agreement also states that it is revocable, requires the licensee to\nacknowledge that the data is exempt under FOIA, and requires the licensee to take reasonable\nprecautions to keep the data confidential. \n\nPublic Access Bureau ( October 30, 2017), at 6. \n\nLetter from Diana E. Wise, Labor & Employment Counsel, IDNR, to Marie Hollister, AAG, \n\n\fMr. John Heidinger\n\nOctober 30, 2018\n\nPage 6\n\nIn his reply, the requester argued that the Department cannot \" facilitate the use of\na data license agreement and an alternative means of records release that is to be used in place of\nFOIA.\" 9\n\nThe Department seems to have asserted that FOIA does not require it to provide\ncopies of, or even search for, responsive records in its Natural Heritage Database. On January\n26, 2018, the Department provided a sample \" unredacted snapshot\" of the Natural Heritage\nDatabase. 10 This office' s review of the sample indicates that it is, on its face, a public record\nsubject to the requirements of FOIA as it is in the possession of the Department and\nunequivocally pertains to the transaction of public business.'' Section 3( b) of FOIA clearly\nrequires public bodies to furnish copies of public records in response to a request for copies. \n\nThe Department, however bypassed FOIA' s procedures and unilaterally\n\nestablished separate requirements for obtaining information from the Natural Heritage Database. \nSection 6. 01 of the Natural Areas Preservation Act ( 525 ILCS 30/ 6. 01 ( West 2016)) authorizes\n\nthe Department to: \n\ncompile and maintain inventories, registers and records of nature\n\npreserves, other natural areas and features, and species of plants\n\nand animals and their habitats and establish a fee, by rule, to be\n\ncollected to recover the actual cost of collecting, storing, \nmanaging, compiling, and providing access to such inventories, \nregisters, and records. All fees collected under this Section shall be\n\ndeposited into the Natural Areas Acquisition Fund. The monies\n\ndeposited into the Natural Areas Acquisition Fund under this\nSection shall not be subject to administrative charges or\n\nchargebacks unless otherwise authorized by this Act. \n\nAlthough that statute authorizes the Department to \" compile and maintain\" rather than withhold\n\nrecords, the Department implemented an administrative rule that provides: \" Natural heritage data\n\nare exempt from disclosure as valuable formulae, computer geographic systems, designs, \n\n9E -mail from\n\nto the Public Access Bureau ( November 1, 2017). \n\n2018). \n\n19E - mail from John Heidinger, Legal Counsel, Illinois DNR, to Marie Hollister ( January 26, \n\nSection 2( c) of FOIA ( 5 ILCS 140/ 2( c) ( West 2016)) defines \" public records\" as \" all records\n\nand other documentary materials pertaining to the transaction of public business, regardless of physical form or\ncharacteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or\n\nunder\n\nthe control of any public body.\" \n\n\fMr. John Heidinger\n\nOctober 30, 2018\n\nPage 7\n\ndrawings and research data obtained or produced by any public body when disclosure could\nreasonably be expected to produce private gain or public loss, as allowed by Section 7[ 1](\ni) of\nthe Freedom of Information Act.\" 17 III. Adm. Code § 4020. 230( c) ( 2018), adopted at 38 Ill. \n\nReg. 2879, effective January 10, 2014. A related rule permits requesters to seek natural heritage\ndata by providing the Department with certain information, including an \"[ e] xplanation of how\nthe data will be used and who will have access to the data[.]\" \n\n17 Ill. Adm. Code § 4020. 230( b)( 4) \n\n2018), adopted at 38 Ill. Reg. 2879, effective January 10, 2014. In addition, the Department\nrequires: \n\nAll persons requesting and receiving natural heritage data\nfirst be required to sign a one- year Data\n\nvia written request shall\n\nLicensing Agreement\ndata. Fees shall be paid in full before natural heritage data is\n\nthat dictates the conditions for use of the\n\nprovided unless alternate arrangements are made. Licensing\nagreements may be renewed on a yearly basis. Distribution of data\nto third parties, including that from a consultant\nsubcontractor\n\nto contractor, is prohibited. 17 Ill. Adm. Code\n\nto client or\n\n4020. 220( c) ( 2018), adopted at 38 Ill. Reg. 2879, effective\n\nJanuary 10, 2014. \n\nThere will be a base fee for each request in addition to spatial data and report fees. The base fee\nis $ 75 per request.\" \n\n17 Ill. Adm. Code § 4020. 240( a) ( 2018), adopted at 38 Ill. Reg. 2879, \n\neffective January 10, 2014. \n\nThe $ 75 base fee and additional\n\nfees for spatial and report data are fixed by an\n\nadministrative rule— not a statute. The plain language of section 6( c) of FOIA ( 5 ILCS 140/ 6( c) \nWest 2016)) provides that the fee provisions of FOIA apply \"[ e] xcept when a fee is otherwise\nfixed by statute[.]\" With respect to records maintained in electronic format, section 6( a) of\nFOIA (5 ILCS 140/ 6( a) ( West 2016)) further provides: \n\nWhen a person requests a copy of a record maintained in an\nelectronic format, the public body shall furnish it in the electronic\nformat specified by the requester, if feasible. If it is not feasible to\nfurnish the public records in the specified electronic format, then\n\nthe public body shall furnish it in the format\nmaintained by the public body, or in paper format at the option of\nthe requester. A public body may charge the requester for the\nactual cost of purchasing the recording medium, whether disc, \ndiskette, tape, or other medium. If a request is not a request\n\nin which it is\n\nfor a\n\n\fMr. John Heidinger\n\nOctober 30, 2018\n\nPage 8\n\ncommercial purpose or a voluminous request, a public body\nfor the costs of any search for\nmay not charge the requester\ncosts associated\nand review of the records or other personnel\n\nwith reproducing the records. Except\nGeneral Assembly expressly provides, statutory fees applicable\nto copies of public records when furnished in a paper format\n\nto the extent that the\n\nshall not be applicable to those records when furnished in an\n\nelectronic\n\nformat.\" ( 5 ILCS 140/ 6( a) ( West 2016)). ( Emphasis\n\nadded.) \n\nBy its own terms. the current version of section 6 of the FOIA does not allow a\n\nfee in excess of the cost of the electronic medium for the reproduction of electronic records\n\nunless another statute expressly provides that the fees for producing paper records also apply to\nelectronic copies.\" Sage Information. Services v. Humm, 2012 IL App ( 5th) 110580, ¶ 18, 977\nN. E. 2d 895, 900 ( 2012); Sage Information Services v. Suhr, 2014 IL App ( 2d) 130708, ¶¶ 17- 20, \n10 N.E.3d 241, 245- 46 ( 2014) ( copying fees for electronic copies are limited to the cost of the\nrecording medium unless a statute expressly authorizes a public body to charge additional\nfees\nfor electronic copies). The Public Access Bureau has previously determined that copying fees\nestablished by administrative rules rather than statutes do not supersede the fees set out in section\n6 of FOIA. Ill. Att' y Gen. PAC Req. Rev. Ltr. 17989, issued February 5, 2014, at 2) (\" If the\nGeneral Assembly had intended for fees fixed by both statutes and administrative rules to apply\nto records requested under FOIA, it would have done so expressly as it did in crafting the section\n7( 1)( a) exemption to apply to records that statutes, as well as administrative rules implementing\nstatutes, prohibit from being disclosed.\"). Because the Department has not identified a statute\nthat fixes the fees that the Department assessed\n\nthose fees are inapplicable to his\n\nrequest. \n\nFurther, courts in other jurisdictions have found restrictions on the use of\n\npublic records similar to the Department' s data license agreement\n\nincompatible with their\n\nversions of FOIA. In County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1309, \n89 Cal. Rptr. 3d 374, 379 ( Cal. Ct. App. 2009), as modified ( Feb. 27, 2009), the California Court\nof Appeals rejected a county' s assertion that it could require a requester to sign an end user\nagreement imposing restrictions on the use of a Geographic Information Systems ( GIS) \nbasemap.\" The court emphasized that section 6257. 5 of the California Public Records Act\nCPRA) ( GOVT. CODE § 6257. 5 ( West 2008)) \"' does not allow limitations on access to a public\nrecord based upon the purpose for which the record is being requested, if the record is otherwise\nsubject to disclosure.\"' Santa Clara, 170 Cal. App. 4th at 1335, 89 Cal. Rptr. 3d at 399. The\ncourt concluded that the CPRA' s public policy of ensuring access to records maintained by\nagencies \" would be undercut by permitting the County to place extra - statutory\n\ngovernment\n\n\fMr. John Heidinger\n\nOctober 30, 2018\n\nPage 9\n\nrestrictions on the records that it must produce. through the use of end user agreements.\" Santa\nClara, 170 Cal. App. 4th at 1335, 89 Cal. Rptr. 3d at 400; see also Microdecisions, \nSkinner, 889 So. 2d 871, 875- 76 ( Fla. Dist. Ct. App. 2004) ( county property appraiser prohibited\nfrom requiring commercial requester to enter into licensing agreement to obtain GIS maps\nbecause a \" requester'\n\ns motive for a seeking a copy of documents is irrelevant[ ]\" and because\n\nInc., v. \n\nthe fact that a person seeking access to public records wishes to use them in a commercial\nenterprise does not alter his or her rights under Florida' s public records law.\"); but see County of\nSuffolk, New York v. First American Real Estate Solutions, 261 F. 3d 179, 192 ( 2d Dist. 2001) \n\nan agency' s choice to notify the recipient\n\nthat a portion of the record is protected by copyright\nlaw or an agency' s requirement that the recipient enter into a licensing agreement if it wishes to\ndistribute the record commercially does not restrict initial access but only what the recipient may\ndo once it acquires access.\"). \n\nIllinois FOIA provides that \" it is declared to be the public policy of the State of\n\nIllinois that all persons are entitled to full and complete information regarding the affairs of\ngovernment and the official acts and policies of those who represent\n\nthem as public officials and\n\npublic employees\n\nconsistent with the terms of this Act.\" ( Emphasis added.) 5 ILCS 140/ 1 ( West\n\n2016). A requester' s purpose in seeking records is only relevant to obtaining access in limited\ncircumstances that do not apply to\nseeking records for a commercial purpose. Even if he was, having a commercial purpose would\nnot diminish his right to obtain the records, though the Department would have additional\nrespond ( 5 ILCS 140/ 3.\nof FOIA ( 5 ILCS 140/ 6( f) (West 2016)). \n\ntime to\n1 ( West 2016)) and could potentially assess higher fees under section 6( f) \n\n12 There is no indication that\n\nis\n\non freedom of information, except\n\nSection 1 of FOIA also provides: \" This Act shall be the exclusive State statute\nto the extent that other State statutes might create additional\n\nrestrictions on disclosure of information or other laws in Illinois might create additional\n\nobligations\n\nfor disclosure of information to the public.\" ( Emphasis added.) Notably, section\n\n7( 1)( a) of FOIA ( 5 ILCS 140/ 7( 1)( a) ( West 2016), as amended by Public Acts 100- 026, effective\nAugust 4, 2017; 100- 201, effective August 18, 2017) exempts \"[ i] nformation specifically\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\" FOIA does not, however, authorize a public body to create administrative rules\nthat declare records exempt under other exemptions, such as section 7( 1)(\nindividual' s access to records on entering into agreements that restrict their use for limited\npurposes. Section 6. 01 of the Natural Areas Preservation Act authorizes the Department\ncompile and maintain natural heritage data— not prohibit or limit disclosure of that data. \n\ni), or that condition an\n\nto\n\n12For example, section 3( g) of FOIA ( 5 ILCS 140/ 3( g) ( West 2016)) permits a public body to deny\n\na request as unduly burdensome after fulfilling certain procedural\nrequest and the burden on the public body outweighs the public interest\n\nrequirements if \"there is no way to narrow the\n\nin the information.\" \n\n\fMr. John Heidinger\n\nOctober 30, 2018\n\nPage 10\n\nAlthough this office recognizes that the Department' s use of data license\n\nagreements may be intended to further the public interest\nserves to improperly restrict public access to copies of records that are subject to disclosure\nunder FOIA. Because the Department has not demonstrated that the records are exempt from\ndisclosure under FOIA, the Department has no basis for withholding them. The Act does not\npermit a public body to unilaterally set up an alternative system separate from FOIA that\nimposes conditions on the use of public records and empowers a public body to refuse to provide\naccess unless a requester agrees to its terms. \n\nin protecting endangered species, it\n\nAccordingly, this office concludes that the Department improperly responded that\nit is not required to provide the requester with copies of public records from the Natural Heritage\nDatabase and that he may not inspect the records unless he signs a data license agreement. In\naccordance with this determination, this office asks the Department to provide\n\nwith\n\ncopies of the responsive records from the Natural Heritage Database, subject to the payment of\nany fee properly imposed pursuant to FOIA and redactions pursuant to any exemptions that\napply to discrete portions of the records. 13\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 793- 0865 or the Chicago address listed on the bottom of the first page of this letter. This\n\nletter serves to close this matter. \n\nVery truly yours, \n\nMARIE HOLLISTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n49942 f 3b improper 71i improper 75aa improper sa\n\nspecifically as stated in the January 26, 2018, e- mail\ndatabase record, section 7(\n\n1) 0) may still be applicable to portions of records in the database. \n\nBased on the explanation provided by the Department as to the contents of the database, \nfrom the Department\n\nto this office that contained the sample\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Records on gating Griffith Cave and Natural Heritage Database access","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":898,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-02-15","case_number":null,"request_numbers":["50347"],"title":"University of Illinois did not violate FOIA by withholding professor's personal emails on public email account","filename":"50347, issued February 15, 2018.pdf","rel_path":null,"word_count":1834,"summary":"The PAC determined that the University of Illinois did not violate FOIA by denying a request for a professor's emails because the emails were personal in nature and did not constitute 'public records' under the Act.","plain_summary":"The question was whether emails sent to and from a University of Illinois professor's university email account, concerning his outside consulting work for a cryptocurrency venture, were \"public records\" subject to FOIA under 5 ILCS 140/2(c). The Public Access Bureau concluded the University did not improperly deny the request because the emails were not public records at all -- they related to the professor's personal consulting activities, not the transaction of public business. The reasoning applied is that a communication must first pertain to public business, as opposed to private affairs, before the further analysis of whether it was prepared, used, received, or controlled by a public body is even reached; use of a university email address alone does not convert personal communications into public records. Because the withheld emails concerned the professor's private outside consulting relationship rather than University business, they fell outside FOIA's scope.","holding":"A communication is not a public record under 5 ILCS 140/2(c) unless it first pertains to public business as opposed to an employee's private affairs, and use of a public body's email system to send or receive personal communications does not by itself convert them into public records subject to FOIA.","legal_question":"Whether emails sent or received by a university professor on a university-provided account regarding personal matters constitute 'public records' subject to disclosure under FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/2"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"University of Illinois","requesting_party":"Mr. Steve Stecklow (Reuters)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"public records","subject_description":"The request sought emails from a university professor's account that the university claimed were personal and unrelated to official business.","ocr_status":"ok","ocr_quality":90.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c/50347%2C%20issued%20February%2015%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public records","university email","personal emails","FOIA definition"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nFebruary 15, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMr. Steve Stecklow\n\nSenior Correspondent\n\nReuters\n\n1 Royal Court\n\nLondon, SEI6 7TA\n\nUnited Kingdom\n\nsteve. stecklow@thomsonreuters. com\n\nVia electronic mail\n\nThomas P. Hardy\nExecutive Director and Chief Records Officer\n\nUniversity of Illinois\n108 Henry Administration Building\n506 South Wright Street, MC -370\n\n[street address redacted for site publication -- see original PDF]\nfoia@uillinois. edu\n\nRE: FOIA Request for Review — 2017 PAC 50347\n\nDear Mr. Stecklow and Mr. Hardy: \n\nThis determination letter is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)). For the reasons discussed below, this\n\noffice concludes that University of Illinois ( University) did not improperly deny Mr. Steve\nStecklow' s October 23, 2017, FOIA request because the e- mails in question were not public\n\nrecords subject\n\nto the requirements of FOIA. \n\nBACKGROUND\n\nOn October 23, 2017, Mr. Stecklow, on behalf of Reuters, submitted a FOIA\n\nto the University seeking copies of all e- mails sent to or from a particular university\n\nrequest\ne- mail address during the period from October 18, 2017, through the date that the University\n\n500 South Second Street, Springfield, \n\nIllinois 62706 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Steve Stecklow\n\nMr. Thomas P. Hardy\nFebruary 15, 2018\nPage 2\n\nprocessed the FOIA request, containing the words \" Tezos or Reuters.\"' On November 3, 2017, \nthe University responded by stating that it had identified nine pages of responsive e- mails. The\nUniversity, however, contended that the e- mails were not subject to the requirements of FOIA\nbecause they did not pertain to the transaction of public business, and therefore, did not fall\nwithin the definition of a \" public record\" as defined in section 2( c) of FOIA ( 5 ILCS 140/ 2( c) \nWest 2016)). Mr. Stecklow' s Request for Review disputes the University' s response. \nSpecifically, Mr. Stecklow asserts that \"[ tjhis is a case of a university professor who I believe\nmay be consulting privately to a highly controversial cryptocurrency venture called Tezos using\nuniversity resources — including its email system.\" 2\n\nOn November 8, 2017, this office sent a copy of the Request for Review to the\nUniversity and asked it to provide copies of the responsive e- mails for this office' s confidential\nreview, together with a detailed explanation of the factual and legal bases for the University's\nassertion that the e- mails in question are not public records subject to the requirements of FOIA. \nOn November 22, 2017, the University provided those materials. Later that day, this office\nforwarded the University' s response to Mr. Stecklow; he replied on November 29, 2017. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that\n5 ILCS\nit is exempt.\" \n140/ 1. 2 ( West 2016). Section 3( a) of FOIA ( 5 ILCS 140/ 3( a) ( West 2016)) provides that \"[ e] ach\npublic body shall make available to any person for inspection or copying all public records, \nexcept as otherwise provided in Section 7 of this Act.\" FOIA defines \"[ Nubile records\" as: \n\nall records, reports, forms, writings, letters, memoranda, books, \n\npapers, maps, photographs, microfilms, cards, tapes, recordings, \n\nelectronic data processing records, electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction ofpublic business, regardless of\nform or characteristics, having been prepared by or for, or\nphysical\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body. ( Emphasis added.) \n\nThe Public Access Bureau has previously determined that records related to a\n\ntrustee' s personal conversations on the trustee' s personal cell phone that took place during a\npublic meeting were not public records. This office noted that the fact that the personal\nconversations took place at a public meeting did not mean that those conversations pertained to\n\nE- mail from Steve Stecklow, Senior Correspondent, Reuters, to foia@uillinois. edu ( October 22, \n\n2017). \n\n2E - mail\n\nfrom Steve Stecklow, Reuters, London, to Public Access Counselor ( November 3, 2017). \n\n\fMr. Steve Stecklow\n\nMr. Thomas P. Hardy\nFebruary 15, 2018\nPage 3\n\nthe transaction of public business. See III. Att' y Gen. PAC Req. Rev. Ltr. 35374, issued June 30, \n2015, at 3; see also III. Att' y Gen. Pub. Acc. Op. No. 11- 006, issued November 15, 2011, at 7\n\no] nly those communications on private equipment\n\nthat pertain to public business are subject to\ndisclosure under the requirements of FOIA[.]\"); accord City of Champaign v. Madigan, 2013 IL\nApp. ( 4th) 120662, ¶ 31, 992 N. E. 2d 629, 637 ( 2013) (\"\ncommunication must first pertain to business or community interests as opposed to private\naffairs\") ( intemal quotation omitted). \n\nto qualify as a public record a\n\nIn Madigan, the Illinois Appellate Court noted that FOIA does not define the term\n\npublic business.\" 2013 IL App ( 4th) 120662, ¶ 31, 992 N. E. 2d at 636. Turning then to the\ndictionary' s definition of \" public,\" the court stated \" to qualify as a public record a\ncommunication must first pertain to business or community interests as opposed to private\naffairs. Indeed, FOIA is not concerned with an individual' s private affairs.\" Madigan, 2013 IL\nApp (4th) 120662, ¶ 31, 992 N. E. 2d at 637 ( internal quotation omitted). Therefore, the threshold\ndetermination of whether a communication is a \" public record\" for the purposes of FOIA is\nwhether that communication pertains to \" public business.\" Only if this threshold is met does the\nanalysis proceed to whether the communication was \"( 2) prepared by, ( 3) prepared for, ( 4) used\nby ( 5) received by, ( 6) possessed by, or (7) controlled by a public body.\" City of Champaign v. \nMadigan, 2013 IL App ( 4th) 120662, ¶ 42, 992 N. E. 2d 629, 639- 40 ( 2013). \n\nIn his reply to this office, Mr. Stecklow contends that the communications are\n\nrelated to the transaction of public business. Specifically, Mr. Stecklow asserted that the\nprofessor' s activities as a consultant to Tezos is interconnected with his duties as a public\nemployee because the professor used the University' s e- mail system and because Tezos used the\nprofessor' s affiliation with the University in its marketing materials, which Mr. Stecklow states\nhelped Tezos \" raise millions of dollars. i3\n\nThe University' s response to this office acknowledged that the e- mails in question\n\nwere created using public resources— the professor' s University e- mail address — and are in the\npossession of the University. However, citing a Michigan Appellate Court case, Howell\nEducation Association MEA/ NEA v. Howell Board of Education, 287 Mich. App. 228, 789 N. W. \n2d 495 ( 2010), the University contended that the e- mails do not fall within the above definition\nof \" public records\" because the e- mails are related to the professor' s private outside consulting\nwork, rather than the transaction of any University business. Specifically, the University\n\nasserted: \n\nIn this situation, Professor [ name] is a technical advisor\n\nfor Tezos and provides consulting on cryptography and\ncryptocurrency design and implementation. Professor [ name] \n\nGeneral], [ Public Access Bureau] ( November 29, 2017). \n\nE- mail from Steve Stecklow, Reuters, London, to Shannon Bamaby, [ Assistant Attorney\n\n\fMr. Steve Stecklow\n\nMr. Thomas P. Hardy\nFebruary 15, 2018\nPage 4\n\ndiscloses this outside consulting work on his faculty website and\non his economic disclosure form. [ Footnote.] Professor [ name] also\n\nuses a private email for outside consulting activities. \nNotwithstanding, between October 17 and October 19, Professor\nname] received a series of unsolicited emails to his account and\n\nparticipated in a brief email exchange. This exchange does not\nconstitute the definition of a public record under FOIA simply\nbecause Professor [ name] responded. 141\n\nIn Howell, the Michigan Appellate Court determined that e- mails sent by public - \n\nteachers using their school district e- mail addresses to communicate about union matters\n\nschool\nwere not public records subject to disclosure under Michigan' s FOIA because they did not relate\nfunctions. Howell, 287 Mich. App. at\nto the furtherance of the teachers' performance of official\n246. The Court stated: \n\ninvolve teachers acting in their\n\nSuch communications do not\nofficial capacity as public employees, but in their personal capacity\nas HEA members or leadership. Thus, any e- mail sent\ncapacity is personal. This holding is consistent with the underlying\npolicy of FOIA, which is to inform the public \" regarding the\naffairs of government and the official acts of ... public\n\nin that\n\nemployees.\" [ citation omitted]. The release of e- mail\ninternal union communications would only reveal\nregarding the affairs of a labor organization, which is not a public\nbody. Howell, 287 Mich. App. at 244. \n\ninformation\n\ninvolving\n\nThis office has reviewed the withheld communications\n\nand can confirm that\n\nthe\n\nrequested records appear to relate to the professor' s outside consulting work, which is neither\nrelated to his performance of an official function in his capacity as an employee of the University\nnor to the transaction of any University business. The fact that the professor, in his personal\ncapacity, acts as a consultant to a particular startup company and the fact that the startup\ncompany uses the professor's affiliation with the University as marketing tool, does not convert\nhis personal endeavors into the business of the University. Likewise, the fact that the personal e- \nmails were received and created on the professor' s university e- mail address does not transform\nthem into public records. Accordingly, we conclude that the requested records are not \" public\nrecords\" as defined by section 2( c) of FOIA, and that the University did not improperly respond\nto Mr. Stecklow' s request. \n\nLetter from Thomas P. Hardy, Executive Director and Chief Records Officer, University of\n\nIllinois, to Shannon Barnaby, Assistant Attorney General, Office of the Illinois Attorney General ( November 20, \n2017). \n\n\fMr. Steve Stecklow\n\nMr. Thomas P. Hardy\nFebruary 15, 2018\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, you may contact me by\nmail at the Chicago address listed on the first page of this letter or by e- mail at\nsbarnaby@atg. state. il. us. Thank you. \n\nVery truly yours, \n\nSHANNON BARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n\n50347 f not a public record univ\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Emails from a professor's university account","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":899,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-11-17","case_number":null,"request_numbers":["50407"],"title":"Algonquin Township not required to respond to FOIA request sent to personal email","filename":"50407, issued November 17, 2017.pdf","rel_path":null,"word_count":619,"summary":"The requester submitted a FOIA request to a Township Clerk's personal email address rather than an official public body address, and the PAC determined that because the request was not properly directed to the public body, no further action was required.","plain_summary":"A citizen sent a public records request to a Township Clerk's personal email address instead of using the official Township email. The Attorney General's office ruled that because the request wasn't sent to the public body through an official channel, the Township was not legally required to respond. This means FOIA requests must be directed to the public body's official contact methods to be valid.","holding":"The PAC determined that a FOIA request sent to a public official's personal email address, rather than an official public body channel, does not constitute a valid request under FOIA.","legal_question":"Whether a FOIA request sent to a public official's personal email address constitutes a request 'directed to the public body' under 5 ILCS 140/3(c).","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Algonquin Township","requesting_party":null,"pac_outcome":"Closed - no further action","pac_law_type":null,"subject_category":"FOIA procedure","subject_description":"The requester attempted to submit a FOIA request via the personal email address of the Algonquin Township Clerk.","ocr_status":"ok","ocr_quality":92.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_c/50407%2C%20issued%20November%2017%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["FOIA request","proper submission","public body","email address"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nNovember 17, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review — 2017 PAC 50407\n\nDear Mr. \n\nThis determination is issued pursuant\n\nto section 9. 5( c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)). For the reasons that follow, the\n\nPublic Access Bureau concludes that no further action in this matter is warranted. \n\nOn October 31, 2017, you submitted a FOIA request to the personal e- mail\n\naddress of Ms. Karen Lukasik seeking all e- mails that she exchanged with another individual\nbetween October 25, 2017, and October 31, 2017. Ms. Lukasik is the Algonquin Township\nTownship) Clerk. On November 9, 2017, you submitted a Request\nAccess Bureau alleging that the Township did not respond to your FOIA request and copied the\nTownship Clerk on your Request for Review. On the same day you submitted your Request for\nReview, the Township Clerk responded to you and to this office by stating that she had not\nreceived the request via her Township e- mail address, and asking you to re -submit the request to\nher Township e- mail address. \n\nfor Review to the Public\n\nSection 3( c) of FOIA ( 5 ILCS 140/ 3( c) ( West 2016)) expressly requires that\n\nrequests be \" directed to the public body.\" A requester may submit a FOIA request to a public\nbody by personal delivery, mail, e- mail, fax, \" or other means available to the public body.\" 5\nILCS 140/ 3( c) ( West 2016). The Attorney General has concluded that a public official\nrepresenting the public body may receive a FOIA request by personal delivery at the public\nbody's principal place of business or during a public meeting of the public body, but a public\nofficial\nsidewalk, or at his or her private residence or place of business.\" \nNo. 12- 004, issued January 26, 2012, at 3. \n\nis not \" obligated to accept delivery of a FOIA request during a chance encounter on the\nIll. Att' y Gen. Pub. Acc. Op. \n\n500 South Second Street, Springfield, Illinois 62706 • (\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \nFax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. \n\nNovember 17, 2017\n\nPage 2\n\nInstead of directing your request to the Township, you submitted it to the personal\ne- mail address of the Township Clerk. The Township Clerk has an official e- mail address issued\nby the Township. Further, you have not asserted or demonstrated that the Township Clerk uses\nher personal e- mail address— rather than her official Township e- mail address— as a means of\nconducting Township business such as receiving or responding to FOIA requests. Because your\nFOIA request was not directed to a public body, as required by section 3( c) of FOIA, the\nTownship did not receive or deny your FOIA request. Accordingly, no further action by this\noffice is warranted. \n\nIf you have any questions, you may contact me at ( 217) 782- 9054, \n\nmhartman@atg. state. il.us, or the Springfield address on the first page of this letter. This letter\nserves to close this matter. \n\nVery truly yours, \n\nMATT H\n\n12\n\nTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n50407 f no fi war mun\n\ncc: \n\nVia electronic mail\n\nMs. Karen Lukasik, Township Clerk\nAlgonquin Township\n3702 U. S. Highway 14\nCrystal Lake, Illinois 60014\n\nklukasik@algonquintownship. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A FOIA request sent to a township clerk's personal email","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":900,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-07-03","case_number":null,"request_numbers":["50831"],"title":"Southern Illinois University properly withheld consultant review under 7(1)(t)","filename":"50831, issued July 3, 2018.pdf","rel_path":null,"word_count":2544,"summary":"The Daily Egyptian requested a consultant review of Southern Illinois University's athletics game operations, which the University withheld under FOIA exemption 7(1)(t). The PAC determined the University properly withheld the record because the Athletic Director is not the 'head of the public body' and therefore could not waive the exemption.","plain_summary":"A student newspaper requested a consultant's report regarding university athletics operations. The university refused to release the report, claiming it was exempt from disclosure. The Attorney General's office agreed with the university, finding that the report was properly withheld and that the Athletic Director did not have the authority to waive that legal protection.","holding":"Southern Illinois University did not improperly withhold the requested consultant review record.","legal_question":"Whether the University's Athletic Director qualifies as the 'head of the public body' with the authority to waive the applicability of FOIA exemption 7(1)(t) regarding a consultant's review.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(t)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(t)"],"public_body":"Southern Illinois University","requesting_party":"Mr. Brian Munoz (The Daily Egyptian)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(t)","subject_description":"The request sought a consultant's review of university athletics game operations and the associated contract.","ocr_status":"ok","ocr_quality":92.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_e/50831%2C%20issued%20July%203%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["consultant report","university athletics","exemption 7(1)(t)","waiver of exemption"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 3, 2018\n\nVia electronic mail\n\nMr. Brian Munoz\n\nPhotography and Multimedia Editor\nThe Daily Egyptian\nbmunoz@dailyegyptian. com\n\nVia electronic mail\n\nMr. Douglas McCarty\nAssociate General Counsel\n\nSouthern Illinois University\nAnthony Hall 318 — Mail Code 4307\n1265 Lincoln Drive\n\n[street address redacted for site publication -- see original PDF]\ndjmccarty@siu. edu\n\nRE: FOIA Request\n\nfor Review — 2017 PAC 50831\n\nDear Mr. Munoz and Mr. McCarty: \n\nThis determination letter is issued pursuant to section 9. 5( 1) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)). For the reasons that follow, the\n\nPublic Access Bureau concludes that Southern Illinois University ( University) did not\nimproperly withhold a record responsive to Mr. Brian Munoz' s November 30, 2017, FOIA\n\nrequest. \n\nOn that date, Mr. Munoz, on behalf of The Daily Egyptian, submitted a FOIA\nrequest to the University seeking \"[ t] he 2016 and/ or 2017 consultant review of [University] \nAthletics game operations AND the contract with the consultant.\" ( Emphasis in original.)' Mr. \n\nMunoz further stated that the consultant \" review was mentioned by Thomas Tommy' Bell, [ the\nUniversity' s] Director of Athletics in an interview with the Southern Illinoisan on November 17, \n\nDaily Egyptian ( November 30, 2017). \n\nSouthern Illinois University Request for Public Records form submitted by Brian Munoz, The\n\n500 South Second Street. Springfield. Illinois 62701 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main. Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Brian Munoz\n\nMr. Douglas McCarty\nJuly 3, 2018\nPage 2\n\n2017.\" 2 On December 7, 2017, the University extended the time to respond pursuant to section\n3( e) of FOIA ( 5 ILCS 140/ 3( e) ( West 2016)). On December 14, 2017, the University provided\nMr. Munoz with a copy of the consultant' s contract with certain information redacted pursuant\nsection 7( 1)( b) of FOIA ( 5 ILCS 140/ 7( 1)( b) ( West 2017 Supp.)). The University, however, \nf) of\ndenied the portion of the request seeking the consultant review pursuant to section 7( 1)(\nFOIA ( 5 ILCS 140/ 7( 1) 0 (West 2017 Supp.)). \n\nto\n\nOn December 15, 2017, this office received Mr. Munoz's Request for Review\n\ndisputing the denial of his request for the consultant' s review. He asserted that Mr. Bell had\npublicly mentioned the consultant' s review of University game operations in an article published\nin the Southern Illinoisan3 and had specifically attributed changes that were made to the\nplacement of cheerleaders at games to one of the consultant' s recommendations. He stated that\n\nthe change was implemented after some cheerleaders took a knee during the national anthem. \nMr. Munoz further asserted: \n\nAt the Daily Egyptian, we have reason to believe that these \" drafts, \nnotes, recommendations, memoranda and other records\" are at this\n\ntime not preliminary and have been put into effect, because Bell\nsaid this report is the reason the cheerleaders have been placed in\n\ndifferent areas during games, and because the portion of the report\nwe received indicates that the consultant' s findings were shared\nwith staff in 2016. 141\n\nOn December 26, 2017, this office forwarded a copy of the Request for Review to\n\nthe University and asked it to provide a copy of the consultant' s review for this office' s\nconfidential review, together with a detailed explanation of the legal and factual basis for the\n\nasserted exemption. On January 5, 2018, this office received a written response, a copy of the\nreport at issue, and an affidavit from Mr. Bell. In its written response, the University denied that\nMr. Bell was the \" head of the public body\" under FOIA but nevertheless contended that his\nstatement to the Southern Illinoisan did not publicly cite and identify the report. On January 11, \n2018, this office forwarded a copy of the University' s response to Mr. Munoz; he replied on\n\nDaily Egyptian (November 30, 2017). \n\nSouthern Illinois University Request\n\nfor Public Records form submitted by Brian Munoz, The\n\n3K. Janis Esch, Change in procedure keeps SIU cheerleaders gfffield, court during national\n\nanthem, Southern Illinoisan (November 17, 2017), http:// thesouthern. com/ news/ local/ siu/ change- in- procedure- \nkeeps- siu- cheerleaders- off-field- court- during/ article_ 69060890- 3eb3- 5b6a- 9cbd- a74d529b210a. html ( last visited\nJanuary 30, 2018). \n\nmay concern ( December\n\n15, 2017). \n\n4E -mail from Brian Munoz, Photography and Multimedia Editor, The Daily Egyptian, to whom it\n\n\fMr. Brian Munoz\n\nMr. Douglas McCarty\nJuly 3, 2018\nPage 3\n\nJanuary 18, 2018. Mr. Munoz maintained that the consultant' s report was not preliminary and\ndisputed the University' s claim that Mr. Bell was not \" the head of the public body.\" He\ncontended that Mr. Bell was the head of the University' s athletics department. Additionally, Mr. \nMunoz argued that the University used public funds to perform the review and, thus, it was in the\npublic interest\nadditional\nof the public body\" under FOIA. On June 5, 2018, the University provided a supplemental\nresponse to this office addressing that claim. On June 18, 2018, this office forwarded a copy of\nthat supplemental\n\nto know the contents of the report. On May 22, 2018, this office requested\ninformation from the University concerning its claim that Mr. Bell was not the \" head\n\nresponse to Mr. Munoz; he did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 I11. 2d 390, 415 ( 2006). A public body that withholds\na record \" has the burden of proving by clear and convincing evidence\" that the record is exempt\nfrom disclosure. 5 ILCS 140/ 1. 2 ( West 2016). The exemptions from disclosure are to be\n\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 111. 2d 401, \n407 ( 1997). \n\nSection 7( 1)( f) of FOIA exempts from disclosure: \n\nPreliminary drafts, notes, recommendations, memoranda\nand other records in which opinions are expressed, or policies or\n\nactions are formulated, except that a specific record or relevant\n\nportion of a record shall not be exempt when the record is publicly\ncited and identified by the head of the public body. \n\nThe section 7( 1)(\nf) exemption applies to \" inter- and intra -agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 ( 1st Dist. 2003). The exemption\nis \" intended to protect the communications process and encourage frank and open discussion\n\namong agency employees before a final decision is made.\" Harwood, 344 Ill. App. 3d at 248. \nSection 70)( f) does not exempt from disclosure purely factual material. See 111. Att' y Gen. Pub. \nAcc. Op. No. 13- 015, issued September 24, 2013, at 7. Rather, \"[ o] nly those portions of a\npredecisional document\nwithheld.\" Kalven v. City of Chicago, 2014 IL App ( 1st) 121846, ¶ 24, 7 N. E. 3d 741, 748 ( 2014) \nquoting Public Citizen, Inc. v. Office of Management & Budget, 598 F. 3d 865, 876 ( D. C. Cir. \n2010)). \"[ T] he critical question is whether ' disclosure of the materials would expose an agency' s\ndecision- making process in such a way as to discourage candid discussion within the agency and\nthereby undermine the agency' s ability to perform its functions.\" Chemical Weapons Working\n\nthat reflect the give and take of the deliberative process may be\n\n\fMr. Brian Munoz\n\nMr. Douglas McCarty\nJuly 3, 2018\nPage 4\n\nGroup v. US. E.P.A., 185 F. R. D. 1, 3 ( D. D. C. 1999) ( quoting Dudman Communications v. \nDepartment of the Air Force, 815 F. 2d 1565, 1568 ( D. C. Cir. 1987)). \n\nFurther, courts have determined that the section 7( 1)(\n\nf) exemption may include\nf)] \n\nconsultants' reports: \" The pivotal fact that remains constant in each case in which the [ 7( 1)(\n\nexemption has been extended to consultants' documents is that 'the consultant does not represent\n\nan interest of its own, or the interest of any other client, when it advised the agency that hires it.'\" \nHarwood, 344 Ill. App. 3d at 248 ( citing Department of the Interior v. Klamath Water Users\nProtective Ass' n, 532 U. S. 1, 11, 121 S. Ct. 1060, 1067 ( 2001)). \n\nIn its response to this office, the University asserted that \" Section 7( 1)(\n\nf) applies\n\nbecause the report in question was relied upon by the University as part of the deliberative\nprocess regarding improving its practices and procedures for sporting events.\" 5 The University\ncontended that the report was preliminary in nature, even if any of the report' s recommendations\nwere later implemented or shared with staff, because the \" report was integral to the University' s\npre -decisional deliberations regarding the implementation of changes to procedures at sporting\nevents which is sufficient\n\nto bring the report fully within the ambit of Section 7( 1)(\n\nf)[.]\"\n\n6\n\nThis office' s review of the report in question confirmed that it reflects a\n\nconsultant' s assessment of procedures and practices at University sporting events; the report\nreveals the consultant' s notes and recommendations for improving the events. Although Mr. \nMunoz asserted that the report was shared with staff and that new event procedures have since\n\nbeen put into effect, that claim does not undermine the Department' s assertion that the report\n\nconstitutes predecisional and deliberative material under section 7( 1)(\n\nf). There is no indication\n\nthat the University adopted the report as final University policy, as opposed to considering it in\nthe process of formulating a policy. Accordingly, the report is exempt from disclosure pursuant\nto section 7( 1)( f) unless Mr. Bell\npublished in the Southern Illinoisan waived the exemption by publicly citing and identifying the\nreport. \n\nis the head of a public body and his statement\n\nin the article\n\nThe article in question concerned moving cheerleaders to the entrances to athletic\n\nfacilities before games after three cheerleaders participated in an off -field protest during the\nNational Anthem. The article quoted Mr. Bell as follows: \n\n5Letter from Doug McCarty, Associate General Counsel, Southern Illinois University, to Teresa\n\nLim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( January 5, 2018). \n\nLim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( January 5, 2018). \n\n6Letter from Doug McCarty, Associate General Counsel, Southern Illinois University, to Teresa\n\n\fMr. Brian Mufioz\n\nMr. Douglas McCarty\nJuly 3, 2018\nPage 5\n\nOur spirit teams have greeted customers at the entrances in\n\nthe past, so this is not a new procedure for Athletics. In fact, we\n\nhad a consultant review our game operations last year, and one of\n\nhis recommendations was to make arriving to a game an event in\nand of itself 171\n\nThe University denied that Mr. Bell was the \" head of the public body,\" which\nFOIA defines as \" the president, mayor, chairman, presiding officer, director, superintendent, \nmanager, supervisor or individual otherwise holding primary executive and administrative\nauthority for the public body, or such person' s duly authorized designee.\" ( Emphasis added.) 5\nILCS 140/ 2( e) ( West 2016). The meaning of \"public body\" includes \" all\nlegislative, executive, \nadministrative, or advisory bodies of the State, state universities and colleges, * * * all other\nmunicipal corporations, boards, bureaus, committees, or commissions of this State, [ and] any\nsubsidiary bodies of any of the foregoing including but not limited to committees and\nsubcommittees thereofj.'\" 5 ILCS 140/ 2( a) ( West 2016). \n\nIn its supplemental response to this office, the University described its\n\norganizational structure and provided this office with copies of organizational charts identifying\nleadership within the University. 8 According to the University, the Director of Athletics\nAthletic Director) reports to the Chancellor of Southern Illinois University Carbondale\nChancellor). The Chancellor, who is the chief operating officer of the University' s Carbondale\ncampus, in turn reports to the Southern Illinois University President ( President). The President is\nthe Chief Executive Officer of the entire University system and reports to the University' s Board\nof Trustees ( Board). The University argued that the Athletic Director does not have \" primary\nexecutive and administrative authority\" and therefore is not the \" head of the public body.\" The\nUniversity asserted, in pertinent part: \n\nK. Janis Esch, Change in procedure keeps SIU cheerleaders offfeld, court during national\n\nanthem, Southern Illinoisan ( November 17, 2017), http:// thesouthern.com/ news/ local/ siu/ change- in- procedure- \nkeeps- siu- cheerleaders- off-field-court- during/article_69060890- 3eb3- 5b6a-9cbd- a74d529b210a.html ( last visited\nJanuary 30, 2018). \n\norganization- chart. pdf and http:// siusystem. edu/ about/ organizational-\n\nstructure. shtml. \n\nCopies of the organizational charts are available online at: https:// siu. edu/_ documents/ siu- \n\n\fMr. Brian Munoz\n\nMr. Douglas McCarty\nJuly 3, 2018\nPage 6\n\nThe Athletic Director may not bind the University to contracts\nunless specifically delegated that authority by the Chancellor, \nBoard or President. The Athletic Director may not hire or fire\nemployees without the consent of the Chancellor. Thus, while the\n\nAthletic Director certainly exercises managerial authority over his\nor her individual department, the position is not vested with actual\n\nprimary executive and administrative authority.\" \nprimary executive and administrative authority\" is exercised at. the\nlowest\n\nfor the Carbondale campus. 191\n\nlevel by the Chancellor\n\nInstead, the\n\nThe University' s description of its leadership hierarchy and organizational charts\n\nindicates that the Department is merely a component of the University rather than a \" public\nbody\" in its own right with independent operations or the authority to make primary executive\nand administrative decisions. While Mr. Bell\n\nis the head of the Department of Intercollegiate\n\nAthletics ( Department), the Department\nand is subject to the Chancellor's direction. It does not appear that the Athletic Director has the\n\nis part of the University' s formal organizational structure\n\nauthority to make primary executive or administrative decisions for the University. Because the\nDepartment' s activities are a component of the programs and services offered by the University\nand because the Athletic Director's authority over the University is limited in terms of final\ndecision- making, this office concludes that Mr. Bell\nAccordingly, this office concludes that his reference to the consultant' s review could not have\nimproperly\nwaived the applicability of section 7( 1)(\nwithhold that record pursuant to that exemption. \n\nt) of FOIA, and that the University did not\n\nis not the \" head of the public body.\" \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nRESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n50831 f 71f proper univ\n\nCarbondale, to Teresa Lim ( June 5, 2018). \n\n9E -mail from Douglas J. McCarty, Associate General Counsel, Southern Illinois University\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Consultant's review of university athletics operations and contract","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":902,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-01-21","case_number":null,"request_numbers":["51630"],"title":"Illinois Department of Human Services improperly redacted mental health policy under 7(1)(e)","filename":"51630, issued January 21, 2020.pdf","rel_path":null,"word_count":1412,"summary":"The requester sought various policies from the Illinois Department of Human Services, which the Department partially redacted under FOIA Section 7(1)(e). The PAC determined that the Department failed to meet its burden of proof to justify the redactions in policy 2735.","plain_summary":"A requester asked the Illinois Department of Human Services for policies from the Elgin Mental Health Center. The Department provided some policies but blacked out parts of three, claiming they contained sensitive security information. The Attorney General's office reviewed the redacted portions and agreed with the Department that redactions about contraband searches and medication security were proper, but found the redactions about routine incident response in policy 2735 were not justified. The Department was instructed to provide an unredacted copy of policy 2735 to the requester.","holding":"The Illinois Department of Human Services improperly redacted portions of the requested policy 2735.","legal_question":"Whether the Illinois Department of Human Services properly invoked the FOIA exemption for records related to security procedures (Section 7(1)(e)) to redact portions of a mental health center policy.","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(e)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(e)"],"public_body":"Illinois Department of Human Services","requesting_party":"S. Piya Mukherjee (on behalf of requester)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(e)","subject_description":"The request involved access to internal policies and incident reporting procedures for the Elgin Mental Health Center and Forensic Treatment Program.","ocr_status":"ok","ocr_quality":97.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_e/51630%2C%20issued%20January%2021%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["mental health records","security exemption","redaction","policy disclosure"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nA\"ITORNEY GENERAL\n\nJanuary 21, 2020\n\nVia electronic mail\n\nMr. Thomas D. Mulcrone\n\nAssociate General Counsel\n\nIllinois Department of Human Services\n\n100 West Randolph, Suite 6- 400\n\n[street address redacted for site publication -- see original PDF]\nDHS. FOIAOfficer@illinois. gov\n\nRE: FOIA Request for Review — 2018 PAC 51630\n\nDear\n\nand Mr. Mulcrone: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the Illinois Department of Human Services ( Department) \nimproperly redacted certain records responsive to\nFOIA request. \n\nDecember 12, 2017\n\nOn December 12, 2017, \n\nsubmitted a FOIA request to the\n\nDepartment seeking copies of twelve Elgin Mental Health Center and Forensic Treatment\nProgram policies and one of its policy indexes. On January 9, 2018, the Department provided\nwith ten of the requested policies but redacted certain information from policy\n\n2731 and 2735 pursuant to section 7( 1)( e) of FOIA ( 5 ILCS 140/ 7( 1)( e) ( West 2016), as\namended by Public Act 100- 026, effective August 4, 2017; 100- 201, effective August 18, 2017). \nfor Review disputing the denial of\nsubmitted this Request\nOn January 24, 2018, \nthe \" FTP policy index\"; ( 2) \" Ppm 1703 Medication and Ppm 3510 Interpersonal relations\n1) \nand ( 3) Ppm 2735 Incident reporting of allegations of abuse and\n\nbetween staff and patients(;]\" \nneglect.\" I\n\nLetter from\n\nto Public Access Counselor ( January 24, 2018). \n\n500 South Second Street, Springfield, \n\n100 Rtcsr Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 •'\n601 South University Ave., Carbondale, \n\n217) 782- 1090 • \" Ii' Y: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n1\" IY: (800) 964- 3013 • Fax: ( 312) 814- 3806\nII, 62901 • ( 618) 529- 6400 • \" 19Y: (877) 675- 9339 • Fax ( 618) 529- 6416 • \n\nIllinois 62701 • (\n\n\fMr. Thomas D. Mulcrone\n\nJanuary 21, 2020\nPage 2\n\nOn February 23, 2018, this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide unredacted copies of the records that it redacted or withheld\n\npursuant to section 7( 1)( e) for our confidential review. This office also requested a detailed\n\nexplanation of the factual and legal bases for the assertion of section 7( 1)( e). On March 6, 2018, \n\nthe Department provided this office with unredacted copies of the records at issue and its written\n\nanswer. \n\nIn this response, the Department acknowledged that it originally failed to send\n\na copy of the Elgin Mental Health Center Forensic Treatment Program Policy Index. \n\nThat same day, DHS provided\n3510 and a redacted version of policy 1703. On April 23, 2018, this office forwarded a copy of\nhe did not reply. \nDHS' response letter to\n\nwith this document as well as a copy of policy\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2018); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 ( 2006). A public body \" has the burden of\nproving by clear and convincing evidence\" \n140/\n\nfrom disclosure. 5 ILCS\n\nthat a record is exempt\n\n1. 2 ( West 2018). \n\nSections 7( 1)( e) of FOIA\n\nSection 7( 1)( e) of FOIA exempts from disclosure \"[ r] ecords that relate to or affect\n\ninstitutions and detention facilities.\" The Public Access Counselor\nthe security of correctional\nhas determined that disclosure of a requested record must pose a security risk to a correctional\nfacility to fall within the scope of section 7( 1)( e). See, e. g.,. Ill. Att' y Gen. PAC Req. Rev. Ltr. \n32159, issued April 17, 2015, at 3 (\" Construing section 7( 1)( e) in light of the purpose of FOIA\nand its other provisions, it better comports with FOIA to conclude that section 7( 1)( e) applies to\n\nrecords that could jeopardize the security of a correctional\nrecords merely pertaining to security in any manner whatsoever.\"). \n\ninstitution if disclosed, rather than any\n\nIn this matter, \nMental Health Center because it is a hospital\nfacility. DHS' response to this office asserts that: \n\nargues that section 7( 1)(\nrather than a correctional\n\ne) does not apply to Elgin\ninstitution or detention\n\nCertain portions of EMHC * * * are designated for\n\ninpatient and outpatient treatment for individuals referred through\n\nthe court system who are found \" not guilty by reason of insanity\" \nor \" unfit to stand trial.\" These patients, also referred to as forensic\n\npatients, reside on secure units and receive court- ordered\n\ntreatment. As a result, the Department may exempt records related\n\n\fMr. Thomas D. Mulcrone\n\nJanuary 21, 2020\nPage 3\n\nto the security and safety of Elgin Mental Health Center under\nSection 7( 1)( e) of FOIA. 121\n\nSection 7( 1)(\nas prisons. Even though Elgin Mental Health Center does operate as a hospital, it detains\n\ne) of FOIA encompasses detention facilities as well as correctional\n\ninstitutions such\n\npatients pursuant to court orders and therefore unquestionably serves as a detention facility for\nforensic patients; the plain language of section 7( 1)( e) does not restrict its applicability to\nfacilities run solely by the Illinois Department of Corrections. See Ill. Att' y Gen. PAC Req. Rev. \nLtr. 35184, issued July 22, 2015, at 2 ( treatment center that detains individuals under civil\ncommitment orders constitutes a detention facility for purposes of section 7( 1)( e) of FOIA). \n\nIn it response to this office, the Department stated that the redacted information\n\ncontains details about searching for weapons and contraband, procedures for responding to\ncriminal activity, serious incidents and resident deaths, and the locations of psychotropic\nmedications and procedures for validating medication orders. The Department asserted that all\nof the redacted information directly relates to security and that disclosure of the information\nwould endanger security by enabling patients' to evade detection of weapons and contraband, \nfrustrate investigations, and gain unauthorized access to medications. \n\nThis office has reviewed the redacted portions of the requested policies, which\n\ncontain detailed information of how the Elgin Mental Health Center conducts contraband\nsearches, the location and security of controlled substances within the facility, and measures\ntaken by staff in response to certain types of incidents. Our office agrees with the Department\nthat the polices on conducting contraband searches and the location and security of controlled\nsubstances within the facility fall within the scope of section 7( 1)( e) of FOIA. Disclosure of this\ndetailed information about how the Department searches for contraband and secures medications\nwould provide insights that detainees could be used to undermine the security of the Elgin\nMental Health Center. Therefore, this office concludes that the Department has sustained its\nburden of demonstrating that information redacted from these two policies is exempt from\ndisclosure under section 7( 1)( e) of FOIA. \n\nHowever, the redacted portions of the policy on how staff responds to certain\n\ntypes of incidents consists of general\ninformation and evidence and contacting certain employees or agencies. Unlike the redacted\nportions of the two other policies, the redacted portions of this policy do not appear to contain\nspecific details of confidential procedures that could be exploited by patients to jeopardize the\nsecurity of the Elgin Mental Health Center. Accordingly, this office concludes that the\n\ninformation about routine steps such as gathering\n\n2E -mail from Thomas Mulcrone, Associate General Counsel/ FOIA Officer, Illinois Department of\n\nHuman Services, to S. Piya Mukherjee, Esq., Office of the Illinois Attorney General, Public Access Bureau ( March\n6, 2018). \n\n\fMr. Thomas D. Mulcrone\n\nJanuary 21, 2020\nPage 4\n\nDepartment has not met its burden of demonstrating that the redacted portions of this policy are\nexempt from disclosure under section 7( 1)( e) of FOIA. \n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat the Department provide\nwith an unredacted copy of policy 2735. The Public\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\n\nbinding opinion. This letter serves to close this file. Please contact me at ( 312) 814- 5383 or the\nChicago address on the first page of this letter if you have any questions. \n\nVery truly your, \n\nCHRISTINA M. LUCENTE- MCCULLOUGH\n\nAssistant Attorney General\nPublic Access Bureau\n\n51630 f 71e proper\n\nimproper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Internal policies and incident reporting procedures for a mental health center","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":903,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-04-01","case_number":null,"request_numbers":["51711"],"title":"City of Chicago Department of Public Health improperly denied FOIA request as unduly burdensome","filename":"51711, issued April 1, 2019.pdf","rel_path":null,"word_count":1174,"summary":"The requester sought communications and performance reports regarding the operation of specific mental health centers, which the City of Chicago Department of Public Health denied as unduly burdensome. The PAC determined the Department failed to follow the required procedures for claiming an unduly burdensome exemption and ordered the release of the records.","plain_summary":"A requester asked the Chicago Department of Public Health for records about mental health center operations, but the City claimed the request was too broad and burdensome to fulfill. The Attorney General's office found that the City did not follow the correct legal steps to prove the request was burdensome. Consequently, the City was ordered to provide the requested records, subject to any appropriate redactions.","holding":"The Department of Public Health improperly denied the request as unduly burdensome because it failed to comply with the procedural requirements of section 3(g) of FOIA.","legal_question":"Whether the Department of Public Health properly invoked the 'unduly burdensome' exemption under section 3(g) of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Chicago Department of Public Health","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"fees","subject_description":"The request sought communications and performance reports regarding the operation of the CCHHS-Roseland Community Triage and Mental Health Centers.","ocr_status":"ok","ocr_quality":96.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_f/51711%2C%20issued%20April%201%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["unduly burdensome","FOIA request","public health","records access"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nApril\n\n1, 2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Monica Hernandez\n\nFreedom of Information Act Officer\n\nDepartment of Public Health\n\nCity of Chicago\n333 South State Street, Room 200\n\nChicago, Illinois 60604\n\ncdphfoia@cityofchicago.\n\norg\n\nRE: FOIA Request for Review — 2018 PAC 51711\n\nDear\n\nand Ms. Hernandez: \n\nThis determination is issued pursuant to section 9. 5( I) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)). For the reasons discussed below, the\nPublic Access Bureau concludes that the City of Chicago Department of Public Health\nDepartment) \n\nJanuary 10, 2018, FOIA request. \n\nimproperly denied a portion of\n\nOn that date, \nseeking, in relevant part, copies of records: \n\nsubmitted a three- part FOIA request to the Department\n\nof Cook County Health and Hospitals System ( CCHHS) \ncommunications with [ the Department] ( emails, memos, letters, \n\nother records), during the past 12 months, about\nincluding that of its agent, Community Counseling Centers of\nChicago, \" C4\") of the CCHHS- Roseland Community Triage and\nCCHHS- Roseland Mental (\" Behavioral\") Health Centers. Please\n\nthe operation\n\ninclude copies of any quarterly and annual performance reports\nand financial\n\nreports, reports of staffing and any other reports\n\n500 South Second Street, Springfield, \n\nIllinois 62701 • (\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601 South University Ave., Carbondale, \n\nIllinois 62901 • ( 618) 529. 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Monica Hernandez\n\nApril\n\n1, 2019\n\nPage 2\n\npertaining to the performance and cost of the Behavioral Health\nServices\" and communications and amended agreements on the\n\nplanned change in CCHHS contracted service provider from C4 to\nanother agency. t11\n\ninformed\n\nto section 3( e) of FOIA ( 5 ILCS 140/ 3( e) ( West 2016)). In a\n\nOn January 12, 2018, the Department\nby five business days pursuant\nJanuary 30, 2018, e- mail, the Department sent\nthe above -quoted portion of\nFOIA ( 5 ILCS 140/ 3( g) ( West 2016)). On February 14, 2018, this office received\nRequest for Review challenging the Department' s denial of the above -quoted portion of her\nrequest pursuant to section 3( g) of FOIA. \n\nrequest as unduly burdensome pursuant to section 3( g) of\n\nthat it was extending its time to respond\n\na letter dated January 29, 2018, denying\n\nOn February 20, 2018, this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide an explanation for treating the relevant portion of\nrequest as unduly burdensome. On March 2, 2018, the Department provided a written response. \nOn March 5, 2018, this office forwarded the Department' s response to\n2018, \n\non March 15, \n\nreplied. \n\nDETERMINATION\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with [ FOIA].\" . 5 ILCS\n140/ 1 ( West 2016). Under section 1. 2 of FOIA ( 5 ILCS 140/ 1. 2 ( West 2016)), \"[ a] ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\" \nSection 3( d) of FOIA ( 5 ILCS 140/ 3( d) ( West 2016)) provides that \"[ e] ach public body shall, \npromptly, either comply with or deny a request for public records within 5 business days after its\nreceipt of the request, unless the time for response is properly extended under subsection ( e) of\nthis Section.\" Section 3( e) permits a public body to extend its time for response by five business\ndays. \n\nThe Department deemed\n\nJanuary 10, 2018, FOIA request unduly\n\nburdensome under section 3( g) of FOIA, which provides, in pertinent part: \n\nRequests calling for all records falling within a category\n\nshall be complied with unless compliance with the request would\n\nbe unduly burdensome for the complying public body and there is\n\nLetter from\n\nto Jennifer Herd, CDPH FOIA Officer ( January 10, 2018). \n\n\fMs. Monica Hernandez\n\nApril\n\n1, 2019\n\nPage 3\n\nno way to narrow the request and the burden on the public body\noutweighs the public interest\nin the information. Before invoking\nthis exemption, the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions. If any public body responds\nto a categorical\nburden its operation and the conditions described above are met, it\nshall do so in writing, specifying the reasons why it would be\nunduly burdensome and the extent to which compliance will so\nburden the operations of the public body. Such a response shall be\ntreated as a denial of the request for information. \n\nrequest by stating that compliance would unduly\n\nSection 3( d) of FOIA, however, provides: \" A public body that fails to respond to a request\nreceived may not treat the request as unduly burdensome under subsection ( g).\" \n\nThe Department does not dispute that it received\n\nFOIA request on\n\nJanuary 10, 2018. On January 12, 2018, the Department\ntimely extended its time to respond to\nthe request by five business days. Accordingly, taking into account the January 15, 2018, Dr. \nMartin Luther King, Jr. holiday, the Department' s response to\n2018. However, the Department did not respond to\ndays after receipt. The Department has not asserted that it and\nagreed to an extension\nbeyond January 25, 2018, nor is there any indication that they did. Therefore, the Department' s\nJanuary 30, 2018, response was untimely, and the Department waived the opportunity to deny\nthe relevant portion of\nrequest as unduly burdensome. See Ill. Att'y Gen. Pub. Acc. \nOp. No. 14- 007, issued August 14, 2014, at 8 ( public body that failed to issue timely response\nand failed to comply with the requisite procedures in section 3( g) improperly denied request as\nunduly burdensome). \n\nuntil January 30, 2018, thirteen\n\nwas due on January 25, \n\nAccordingly, this office requests that the Department provide the requested\nsubject only to appropriate redactions under section 7 of FOIA ( 5 ILCS\nrecords to\n140/ 7 ( West 2017 Supp.), as amended by Public Act 100- 732, effective August 3, 2018). \nIn\naccordance with section 9( a) of FOIA (5 ILCS 140/ 9( a) ( West 2016)), the Department must\nprovide a detailed factual basis for the applicability of any exemption under which information is\n\nredacted or withheld. \n\n\fMs. Monica Hernandez\n\nApril\n\n1, 2019\n\nPage 4\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at ( 217) 524- 7958, or LHarter@atg. state. il.us. \n\nVery truly yours, \n\nLAURA S. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n51711 f 3g and burd improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Communications and performance reports on mental health centers","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":904,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-05-07","case_number":null,"request_numbers":["51718"],"title":"Chicago Police Department partially violated FOIA by not providing database reports","filename":"51718, issued May 7, 2018.pdf","rel_path":null,"word_count":2757,"summary":"The requester sought specific police case reports and the Chicago Police Department's Automated Incident Reporting Application (AIRA) user manual. The PAC determined the CPD improperly responded to the request for case reports but correctly withheld the manual under a security exemption.","plain_summary":"A requester asked the Chicago Police Department for case reports and a copy of the AIRA user manual. The Attorney General's office found that the police department improperly responded to the request for the case reports, concluding that the requester sought existing data from a database, not a new record. The determination does not address whether the police department properly withheld the AIRA manual; it only describes the department's claim of an exemption and the requester's dispute, without reaching a final conclusion on that item.","holding":"","legal_question":"Whether the Chicago Police Department violated FOIA by failing to provide requested case reports and by withholding an internal software manual.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(o)"],"public_body":"Chicago Police Department","requesting_party":"Teresa Lim (Assistant Attorney General) / Requester name redacted","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request involved access to police case reports and an internal technical manual for the department's incident reporting software.","ocr_status":"ok","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_o/51718%2C%20issued%20May%207%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","software manual","security exemption","FOIA request"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMay 7, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Charise Valente\n\nGeneral Counsel\n\nChicago Police Department\n\n3510 South Michigan Avenue\n\nChicago, Illinois 60653\n\npacola@chicagopolice. org\n\nRE: FOIA Request for Review — 2018 PAC 51718; CPD No. \n\nDear\n\nand Ms. Valente: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the Chicago Police Department ( CPD) improperly\nresponded to the first item of\nimproperly deny the second item. \n\nJanuary 10, 2018, FOIA request, but did not\n\nOn that date, \n\nsubmitted a FOIA request to CPD seeking the following: \n\nI) \n\nA Display copy of the following case reports that are not\n\nshown on the attached document under \" Query RD Number\nStatuses\" \n\n2) \n\nA copy of AIRA' s ( AUTOMATED INCIDENT\n\nREPORTING APPLICATION[)] User ManuaL11J\n\nLetter from\n\nto [ CPD] FOIA Officer (January 10, 2018). \n\n500 South Second Street, Springfield, \n\nIllinois 62701 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • \n\nFax: ( 312) 814- 3806\n\n1001 East Main_ Carbondale_ Illinois 62901 • ( 61R) 529- 6400 • TTY• ( 6l Rl 529- 6407 • Far (61R) 529- 6416\n\n\fMs. Charise Valente\n\nMay 7, 2018\nPage 2\n\nIn reference to the first requested item, \n\nprovided CPD with a\n\nscreenshot of a \" Query RD Number Statuses\" report\npertaining to a specific RD number. \nalso indicated in her request that she had\nattempted to access the AIRA manual via CPD' s website but was unsuccessful because a\n\nfrom a database, which listed case statuses\n\nhyperlink to the manual was blocked to the public. On January 12, 2018, CPD requested\nclarification from\nregarding the first item of her request, asking if she sought a copy\nof the case report associated with the RD number listed in the attached screenshot. Later on that\n\nclarified that she had provided the first page of a \" computer preview\nsame date, \nscreen which has a total of 13 listings per page. i2 She stated that she sought the remaining\nlistings, around 43 listings total: \" If there are 13 listings per page there should be an addition[ al] \n\n3 or 4 pages that I' m looking for. i3 Later that day, CPD responded: \" A screen capture of this\nnature is not something that is provided under the FOIA. The FOIA provides records which are\ncreated from the activities of a public body. A screen capture is not considered this type of\nrecord. Therefore, we cannot consider this a FOIA request. i4 With regard to the second item of\n\nthe request, CPD asserted that it had already responded and referenced a CPD FOIA case\nnumber, \nresponded to CPD, stating that she could not\naccess the AIRA user manual using the link that was provided in the referenced FOIA case\nnumber and reiterating that the provided link was blocked to the public. On January 16, 2018, \nafter additional communications with\n\nregarding the website link, CPD informed\n\nThat same day, \n\nthat it was re -opening her FOIA request with regard to the second item of her request. On\n\nJanuary 23, 2018, CPD denied the portion of the request seeking a copy of the AIRA manual\npursuant to section 7( 1)( o) of FOIA ( 5 ILCS 140/ 7( 1)( o) ( West 2016), as amended by Public\nActs 100- 026, effective August 4, 2017; 100- 201, effective August 18, 2017). \n\nOn February 14, 2018, this office received\n\nRequest for Review\n\ndisputing the denial of her request. She stated that the requested AIRA user manual came out in\nJune of 2003 in the 14th District and that a CPD FOIA officer had directed her to a specific CPD\n\nwebpage where she could print the manual. Yet, she asserted that the site that she was directed\n\nto was blocked to the public. She further stated that the first page of the screenshot that she had\n\nincluded in her request was provided to her husband in response to a separate FOIA request. She\n\nstated that she sought the remaining listings. \n\nOn February 26, 2018, this office forwarded a copy of the Request for Review to\nCPD and asked it to provide a copy of the AIRA user manual, or a representative sample, for this\noffice' s confidential review, together with a detailed explanation of the legal and factual basis for\n\n2E -mail\n\nfrom\n\n3E -mail\n\nfrom\n\nto Whom It May Concern ( January 12, 2018). \n\nto Whom It May Concern ( January 12, 2018). \n\nE- mail\n\nfrom CPD FOIA Intake to\n\nJanuary 12, 2018). \n\n\fMs. Charise Valente\n\nMay 7, 2018\nPage 3\n\nthe asserted 7( 1)( o) exemption. This office also asked CPD to provide a detailed explanation of\n\nits response to the first item of Ms. Ridley' s request, addressing\nclaim that the\nscreenshot included in her request had been previously provided by CPD to her husband. \n\nHaving received no response from CPD, this office sent additional\n\nletters to the\n\ndepartment on March 12, 2018, and April 10, 2018, again asking it to respond. On April 11, \n2018, CPD responded that it had sent a written response to this office on March 12, 2018; CPD\n\nprovided this office with a copy of that response as well as a sample set of pages from the AIRA\nmanual\n\nIn its response, CPD asserted that the database\n\nfor this office' s confidential\n\nreview. \n\ncaptured in the screenshot included preliminary information that was also exempt from\ndisclosure under section 7( 1)(\nActs 100- 026, effective August 4, 2017; 100- 201, effective August 18, 2017). That same day, \nthis office forwarded a copy of the written response to\nIn an April 18, 2018, \ntelephone conversation with an Assistant Attorney General in the Public Access Bureau, \n\nf) of FOIA ( 5 ILCS 140/ 7( 1)( 0 (West 2016), as amended by Public\n\nemphasized that she needed the requested items to assist her husband. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. \nIllinois Department ofPublic Health, 218 I11. 2d 390, 415 ( 2006). A public body that withholds\na record \" has the burden of proving by clear and convincing evidence\" \nthat the record is exempt\nfrom disclosure. 5 ILCS 140/ 1. 2 ( West 2016). The exemptions from disclosure are to be\n\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 III. 2d 401, \n407 ( 1997). \n\nQuery RD Number Statuses\" Display\n\nWhen presented with a FOIA request, a public body is required to conduct a\n\nreasonable search tailored to the nature of [that] particular request.\" Campbell v. U.S. \n\nDepartment offustice, 164 F. 3d 20, 28 ( D. C. Cir. 1998). A public body is not required to\nanswer questions or create new records in response to a FOIA request. Kenyon v. Garrels, 184\n\nIll. App. 3d 28, 32 ( 4th Dist. 1989). However, the contents of a database constitute \" public\nrecords\" subject\nto disclosure under FOIA. Hites v. Waubonsee Cmty. Coll., 2016 IL App ( 2d) \n150836, ¶ 70, 56 N. E. 3d 1049. 1064 ( 2016), appeal denied sub nom. Hites v. Waubon.see Cmty. \nColl., 65 N.E. 3d 840 ( 2016) ( concluding that \" data in [ a community college' s database] \nconstitutes public records under FOIA because such data is clearly 'recorded information * * * \npertaining to the transaction of public business * * * \nprepared by * * * being used by * * * or\nunder the control of [a] public body.\"'). \n\n\fMs. Charise Valente\n\nMay 7, 2018\nPage 4\n\nIn its response to this office, CPD argued that the document\n\nthat\n\nprovided with regard to the first item of her request did not constitute a public record. \n\nSpecifically, CPD claimed that the document \" is a screen capture of an internal CPD database, \nnot a public record. i5\n\nHowever, CPS appears able to search that database and retrieve a listing of all\n\ncase reports or status updates that have been entered for a specified Case Report ID Number and\n\nRD number. In contrast to a request that asks a public body to interpret or analyze case history\ninformation or otherwise create a record that did not previously exist, a request that asks for all\ncase updates that have been entered into a database with respect to a particular case merely\nrequires a compilation of existing data. \nhas conveyed that she seeks a listing of all\ncase statuses that have been entered for a certain Case Report ID number and RD number with\n\nthe specification that the listing be provided based on a \" Query RD Number Statuses\" search. \nThe screenshot\nprovided simply illustrates the underlying case status information she\nseeks; CPD does not dispute that this data resides in its database. A search and gathering of data\nalready present in a database does not constitute the creation of a new record, even if the public\nbody must perform a computerized search and sorting of its database. See Hites, 2016 IL App\n2d) 150836, ¶ 80, 56 N.E. 3d at 1066- 67 ( request for zip codes of students enrolled in certain\nclasses for certain years and other existing data requiring \" the application of [computer] code or\nprogramming to retrieve stored information, or to sort a database by particular data fields ( e. g., \nby zip code or ' raw input' for a specific registration -form field), does not create a new record.\"). \nBecause\nconcludes that CPD improperly responded that she did not seek copies of public records. \n\nrequest sought existing data maintained in CPD' s database, this office\n\nSection 7( 1)( f) of FOIA\n\nSection 7( 1)(\n\nf) of FOIA exempts from disclosure: \n\nPreliminary drafts, notes, recommendations, memoranda\nand other records in which opinions are expressed, or policies or\n\nactions are formulated, except that a specific record or relevant\n\nportion of a record shall not be exempt when the record is publicly\ncited and identified by the head of the public body. \n\nThe section 7( 1)( f) exemption applies to \" inter- and intra -agency predecisional\n\nand deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 ( 1st Dist. 2003). \nThe exemption is \" intended to protect the communications process and encourage frank and open\n\n5Letter from Sarah Bown, Freedom of Information Act Officer, Chicago Police Department, \n\nOffice of Legal Affairs, Unit 114, to Teresa Lim, Assistant Attorney General, Office of Attorney General, Public\nAccess Bureau ( March 12, 2018). \n\n\fMs. Charise Valente\n\nMay 7, 2018\nPage 5\n\nthat reflect the give and take of the deliberative process may be\n\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App. \n3d at 248. Section 7( 1)( f) does not exempt from disclosure purely factual material. See Ill. Att'y\nGen. Pub. Acc. Op. No. 13- 015, issued September 24, 2013, at 7. Rather, \"[ o] nly those portions\nof a predecisional document\nwithheld.\" Kalven v. City of Chicago, 2014 IL App ( 1st) 121846, ¶ 24, 7 N.E. 3d 741, 748 ( 2014) \nquoting Public Citizen, Inc. v. Office of Management & Budget, 598 F. 3d 865, 876 ( D. C. Cir. \n2010)). \"[ T] he critical question is whether ' disclosure of the materials would expose an agency' s\ndecision-making process in such a way as to discourage candid discussion within the agency and\nthereby undermine the agency' s ability to perform its functions.\" Chemical Weapons Working\nGroup v. U.S. E.P.A., 185 F. R. D. 1, 3 ( D. D. C. 1999) ( quoting Dudman Communications v. \nDepartment of the Air Force, 815 F. 2d 1565, 1568 ( D. C. Cir. 1987)). \n\nIn its response to this office, CPD contended that the database in question\n\ncontained preliminary information that is exempt from disclosure under section 7( 1)(\nf). This\noffice has reviewed the information contained in the computer display at issue and determined\nthat the information does not reflect the give-and- take deliberations of CPD as it investigated a\n\nmatter. Rather, the entries reflect factual information about case statuses that have been entered, \n\nsuch as the name of the CPD personnel who entered the update and when the status entry was\nit did not explain the role\ncreated. While CPD asserted that the information was \" preliminary,\" \nthat the information played in any deliberative process. Accordingly, this office concludes that\nCPD has not demonstrated by clear and convincing evidence that the responsive case history\ninformation is exempt from disclosure pursuant to section 7( 1)( f). This office requests that CPD\n\nprovide\nnumber based on a \" Query RD Number Statuses\" search. \n\nwith a printout of all case history information entered for the specified RD\n\nSection 7( 1)( o) of FOIA\n\nSection 7( 1)( o) exempts from disclosure: \n\nAdministrative or technical\n\ninformation associated with\n\nautomated data processing operations, including but not\nlimited to software, operating protocols, computer program\nabstracts, file layouts, source listings, object modules, load\n\nmodules, user guides, documentation pertaining to all logical and\nphysical design of computerized systems, employee manuals, and\n\nany other information that, if disclosed, would jeopardize the\nsecurity of the system or its data or the security of materials\nexempt under this Section. ( Emphasis added.) \n\n\fMs. Charise Valente\n\nMay 7, 2018\nPage 6\n\nWith regard to the second item of\n\nrequest, CPD stated that it had\n\nconsulted with its Information Services Division and determined that disclosure of the requested\n\nAIRA manual would cause a security breach of its Criminal History Records Information System\nCHRIS). Specifically, CPD contended that release of the manual would reveal\nthe \" schema\" or\ninternal structure of the database. CPD asserted, in pertinent part: \n\nThe court system accepts CPD reports as authentic because they\ncannot be modified without record; any changes are logged and the\noperator / creator of those changes noted in a way so that the entire\nreport can be verified at all stages. \n\nAllowing knowledge of the schema through a complete\n\ndisclosure of the database structure outside the department could\n\nallow the database integrity constraints to be circumvented. With\nsuch knowledge the possibility exists that the data tables could be\naltered. If the tables were ever altered the court would have no\n\ninto question any report generated by the system. \n\nchoice but to call\nUltimately, the court could find our electronic reports unreliable\nand not accept them any longer. 161\n\nThis office has reviewed a sampling of the AIRA manual and confirmed that the\n\nmanual is a user guide on how to use the AIRA system. The manual contains technical\n\ninformation about the various components of the AIRA system as well as detailed instructions on\n\nhow to enter reports or make changes to information that is already in the system. This office\nhas determined that disclosure of such specific information about AIRA' s structure and functions\n\nwould jeopardize the security of the system. In her Request for Review, \nCPD had initially provided her with a link to an online posting of the manual. However, as\n\nasserted that\n\nstated, the link to the manual was not accessible to the public. While it appears that CPD\nmistakenly referred her to the online link, the available information indicates that only authorized\nCPD personnel are permitted access to the manual. Because disclosure of the technical and\n\nadministrative information contained in the AIRA manual would potentially compromise the\nsecurity of the AIRA system, this office concludes that the AIRA manual\ndisclosure under section 7( 1)( o) of FOIA. \n\nis exempt\n\nfrom\n\n6Letter from Sarah Bown, Freedom of Information Act Officer, Chicago Police Department, \nOffice of Legal Affairs, to Teresa Lim, Assistant Attorney General, Office of Attorney General, Public Access\nBureau ( March 12, 2018). \n\n\fMs. Charise Valente\n\nMay 7, 2018\nPage 7\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n51718 f 3d response incomplete 71f improper 710 proper pd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police case reports and an internal software manual","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":905,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-03-29","case_number":null,"request_numbers":["51776"],"title":"Chicago Mayor's Office properly withheld Amazon HQ2 bid under 7(1)(h)","filename":"51776, issued March 29, 2018.pdf","rel_path":null,"word_count":1776,"summary":"Reporters requested the City of Chicago's bid proposal for Amazon's second headquarters, which the Mayor's Office denied. The PAC determined the denial was proper because the records were exempt under FOIA section 7(1)(h) as the final selection had not yet been made.","plain_summary":"Reporters asked the City of Chicago for its bid proposal to host Amazon's second headquarters. The City refused to release the document, and the Attorney General's office agreed, stating that state law allows public bodies to keep such bids secret until a final decision is reached by the company. This means the public does not have a right to see competitive bid proposals while the selection process is still ongoing.","holding":"The Mayor's Office did not violate FOIA by denying the request for the Amazon bid proposal because the records were exempt from disclosure under section 7(1)(h) until a final selection is made.","legal_question":"Whether the City of Chicago properly withheld its Amazon HQ2 bid proposal under the FOIA exemption for bids and proposals prior to a final selection.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(h)"],"public_body":"Office of the Mayor of the City of Chicago","requesting_party":"Ms. Sophia Tareen & Mr. John O' Connor (Associated Press)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(h)","subject_description":"The request sought the City of Chicago's bid proposal submitted to Amazon for its second headquarters.","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_h/51776%2C%20issued%20March%2029%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["Amazon","bid proposal","economic development","exemption 7(1)(h)"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 29, 2018\n\nVia electronic mail\n\nMs. Sophia Tareen & Mr. John O' Connor\n\nReporters, Associated Press\n\n440 South LaSalle, Suite 1000\n\n[street address redacted for site publication -- see original PDF]\nstareen@ap. org & joconnor@ap. org\n\nVia electronic mail\n\nMs. Tia Mathew\n\nAssistant Corporation Counsel\n\nCity of Chicago Department of Law\n30 North LaSalle Street, Suite 1720\n\nChicago, Illinois 60602\n\ntia. mathew@cityofchicago. org\n\nRE: FOIA Request for Review — 2018 PAC 51776\n\nDear Ms. Tareen, Mr. O' Connor, and Ms. Mathew: \n\nThis determination letter is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the Office of the Mayor of the City of Chicago ( Mayor' s\nOffice) did not violate FOIA by denying a FOIA request submitted by Ms. Sophia Tareen and\nMr. John O' Connor. \n\nOn February 8, 2018, Ms. Tareen and Mr. O' Connor submitted a FOIA request\n\nto\n\nthe Mayor' s Office seeking: \n\nC] opies of the following covering Sept. 1 to Nov. 1 [:] \n\nThe application made on behalf of Chicago and its suburbs\n\nto Amazon connected to the Request for Proposals issued by the\nfor a second headquarters. Please include\ncompany in September\n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: (877) 844- 5461 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • (\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 • \n\nFax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois\n\n62901 • (\n\n618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Sophia Tareen & Mr. John O' Connor\n\nMs. Tia Mathew\n\nMarch 29, 2018\n\nPage 2\n\nall cover letters; videos, attachments, and other files included along\nwith this application[ 11\n\nOn February 16, 2018, the Mayor' s Office denied the request as a repeated request\n\npursuant to section 3( g) of FOIA (5 ILCS 140/ 3( g) ( West 2016)), arguing that it had previously\nproperly denied the request under section 7( 1)( h) of FOIA ( 5 ILCS 140/ 7( 1)( h) ( West 2016), as\namended by Public Acts 100- 026, effedtive August 4, 2017; 100- 201, effective August 18, \nfor Review\n2017). On that same date, Ms. Tareen and Mr. O' Connor submitted this Request\n\ncontesting the Mayor' s Office's denial. \n\nOn February 21, 2018, this office sent a copy of the Request for Review to the\n\nMayor' s Office and asked it to provide this office with unredacted copies of the responsive\n\nrecords for this office' s confidential review, together with a detailed explanation for the assertion\n\nthat the Mayor' s Office had previously properly denied the same request under section 7( 1)( h). \nOn March 2, 2018, the Mayor's Office provided a written response but no records for this office' s\n\nreview. Ms. Tareen and Mr. O' Connor did not submit a reply. \n\nDISCUSSION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2016). A public body\nhas the burden of proving by clear and convincing evidence\" that any records it withholds are\nexempt from disclosure. 5 ILCS 140/ 1. 2 ( West 2016). The Act' s exceptions to disclosure \" are to\n\nbe read narrowly.\" Lieber v. Board of Trustees of Southern Illinois University, 176 I11. 2d 401, \n407 ( 1997). \n\nSection 3( g) of FOIA permits a public body to deny as unduly burdensome\n\nrepeated requests from the same person for the same records that are unchanged or identical to\nrecords previously provided or properly denied under this Act[.]\" Because the Mayor's Office\npreviously denied a request from Ms. Tareen and Mr. O' Connor for the same records, it is\nnecessary to analyze whether that previous denial was proper in order to determine whether the\nrequest at issue here was an unduly burdensome repeated request. \n\nSection 7( 1)( h) of FOIA exempts from disclosure: \n\nOffice of the Mayor ( February 8, 2018). \n\nFOIA request\n\nfrom Sophia Tareen & John O' Connor, The Associated Press, to FOIA Officer, \n\n\fMs. Sophia Tareen & Mr. John O' Connor\n\nMs. Tia Mathew\n\nMarch 29, 2018\n\nPage 3\n\nProposals and bids for any contract, grant, or agreement, \nincluding information which if it were disclosed would frustrate\nprocurement or give an advantage to any person proposing to enter\ninto a contractor agreement with the body, until an award or final\nselection is made. Information prepared by or for the body in\npreparation of a bid solicitation shall be exempt until an award or\n\nfinal selection is made. \n\nThere are no published cases in which an Illinois reviewing court has construed the scope of\nsection 7( 1)( h). \n\nIn its response to this office, the Mayor's Office argued: \n\nThe language provided in Section 7( 1)( h) clearly delineates\nthat proposals and bids are exempt until an award or final selection\n\nis made. In this instance, the requester seeks the bid and proposal\n\nrecords that the City submitted to Amazon. Because a final\nselection has not been made by Amazon, the records fit squarely\nwithin the ekemption provided in Section 7( 1)( h). t21\n\nThe Mayor' s Office acknowledged that section 7( 1)( h) contains a clause referring to procurement\nand contractor agreements, but claimed that \"[ t] he word ' including' connotes that what is listed\nafter this word is a part of a larger group that is exempt.\" 3\n\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n2006). \" The most reliable indicator of legislative intent\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56, 969 N.E. 2d 359, 372 ( 2012). A statute must be read \" as a whole, construing\nwords and phrases in light of other relevant statutory provisions and not in isolation.\" People• v. \nSmith, 2016 IL 119659, ¶ 27, 76 N. E. 3d 1251, 1258 ( 2016). \" When the statutory language is\nclear and unambiguous, it should be applied as written without resort to extrinsic aids or tools of\ninterpretation.\" Poris v. Lake Holiday Property Owners Ass' n, 2013 IL 113907, ¶ 47, 983 N. E. 2d\n993, 1004 ( 2013). If statutory language is ambiguous or unclear, a reviewing body may look\n\nis the statutory language, given its plain\n\nJoshua Jones, Deputy Bureau Chief, Office of the Illinois Attorney General ( March 2, 2018), at 2. \n\n2Letter from Tia Mathew, Assistant Corporation Counsel, City of Chicago Department of Law, to\n\nJoshua Jones, Deputy Bureau Chief, Office of the Illinois Attorney General ( March 2, 2018), at 2. \n\n3Letter from Tia Mathew, Assistant Corporation Counsel, City of Chicago Department of Law, to\n\n\fMs. Sophia Tareen & Mr. John O' Connor\n\nMs. Tia Mathew\n\nMarch 29, 2018\n\nPage 4\n\nbeyond the act' s language to construe its meaning. Nowak v. City of Country Club Hills, 2011 IL\n111838, ¶ 11, 958 N. E. 2d 1021, 1023 ( 2011). \n\nThe middle clause of the first sentence of section 7( 1)( h) —\" including\n\ninto a contractor agreement with the body\"— could possibly be\n\ninformation which if it were disclosed would frustrate procurement or give an advantage to any\nperson proposing to enter\ninterpreted as signaling that the exemption applies only to instances in which a public body\nsolicits bids or proposals, rather than including instances in which a public body submits bids or\nproposals. However, courts have interpreted \" the word ' including', in its most commonly\nunderstood meaning, to be a term of enlargement, not of limitation.\" Paxson v. Board of\nEducation of School District No. 87, 276 III. App. 3d 912, 920 ( 1st Dist. 1995). The General\nAssembly' s use of the word \" including\" rather than a limiting term such as \" only\" indicates that\nbids or proposals solicited by public bodies are not the only types of bids or proposals that\nsection 7( 1)( h) is intended to encompass. This interpretation is consistent with the meaning of\nsection 7( 1)( h) when it is read as a whole, as well. The beginning portion of section 7( 1)( h), \n\np] roposals and bids for any contract, grant, or agreement\" ( emphasis added), plainly includes\nall proposals and bids. The last sentence of section 7( 1)( h) provides that \"[ i] nformation prepared\nby or for the body in preparation of a bid solicitation shall be exempt until an award or final\nselection is made\" ( emphasis added), thus including proposals and bids both submitted by a body\nand submitted to a body within the exemption. \n\nAbsent case law or legislative history restricting the scope of section 7( 1)( h) to\nproposals or bids submitted to a public body, the Public Access Bureau has determined that the\nexemption applies to bids or proposals submitted by a public body. See Ill. Att' y Gen. PAC Req. \nRev. Ltr. 28257, issued February 21, 2017, at 3 ( sheriff' s office did not violate FOIA by\nwithholding materials prepared in preparation for a bid for a new contract with the U. S. Marshals\nService). \n\nIn this matter, the request sought\n\nthe City of Chicago' s bid for Amazon' s second\n\nheadquarters, and it is undisputed that Amazon had not yet made a final selection. Because\nsection 7( 1)( h) exempts from disclosure bids and proposals until a final selection is made, and\n\nbecause this office lacks a sufficient basis to conclude that section 7( 1)( h) is limited to bids and\n\nproposals submitted to a public body, the Public Access Bureau has determined that the Mayor' s\nOffice' s denial of Ms. Tareen' s and Mr. O' Connor' s previous request for the same records did not\n\nviolate FOIA. Therefore, the Mayor' s Office did not improperly deny their February 8, 2018, \nrequest as an unduly burdensome repeated request. \n\n\fs. Sophia Tareen & Mr. John O' Connor\n\nMs. Tia Mathew\n\nMarch 29, 2018\n\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. Should\nyou have questions, please contact me at ( 312) 814- 8413 or jjones@atg. state. il.us. \n\nVery truly yours, \n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n51776 f 71h proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A city's bid proposal for a corporate headquarters","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":906,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-04-17","case_number":null,"request_numbers":["51910"],"title":"Chicago Police Department improperly redacted burglary case records under FOIA exemptions","filename":"51910, issued April 17, 2018.pdf","rel_path":null,"word_count":2372,"summary":"The Chicago Police Department redacted records related to a 2007-2008 burglary, and the PAC determined that some of these redactions were improper while others were justified.","plain_summary":"The requester sought police reports concerning an old break-in, which the department produced with extensive redactions under FOIA's private-information, personal-privacy, and law-enforcement-source exemptions. The PAC determined that redactions of individuals' private identifying information, a partial license plate, victim and uninvolved-party identities, and information that would reveal confidential sources were proper, but that redactions of business contact information, ages, uninvolved business names, and general descriptions of the police response and the crime were not. The department was directed to release the improperly redacted portions.","holding":"The Chicago Police Department improperly redacted some portions of the records responsive to the request.","legal_question":"Whether the Chicago Police Department properly applied FOIA exemptions 7(1)(b), 7(1)(c), and 7(1)(d)(iv) to redact records concerning a past burglary investigation.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(d)(iv)"],"public_body":"Chicago Police Department","requesting_party":"Mr. Mitch Dudek (Chicago Sun-Times)","pac_outcome":"Improperly redacted records","pac_law_type":null,"subject_category":"police records","subject_description":"The records concern a 2007 or 2008 break-in and attempted burglary at a specific location.","ocr_status":"ok","ocr_quality":92.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_b/51910%2C%20issued%20April%2017%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","redaction","FOIA exemption","burglary records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nApril 17, 2018\n\nVia electronic mail\n\nMr. Mitch Dudek\n\nReporter\n\nChicago Sun - Times\n[street address redacted for site publication -- see original PDF]\nmdudek@suntimes. com\n\nVia electronic mail\n\nMs. Charise Valente\nGeneral Counsel\n\nChicago Police Department\n3510 South Michigan Avenue\nChicago, Illinois 60653\n\npacola@chicagopolice. org\n\nRE: Request\n\nfor Review — 2018 PAC 51910; CPD FOIA No.: P43861\n\nDear Mr. Dudek and Ms. Valente: \n\nThis determination letter is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the Chicago Police Department ( CPD) improperly redacted\nsome portions of the records responsive to Mr. Mitch Dudek' s January 16, 2018, FOIA request. \n\nOn that date, Mr. Dudek, on behalf of the Chicago Sun - Times, submitted a FOIA\nrequest to CPD seeking copies of records, including police reports and any surveillance videos, \nrelated to a break- in and attempted burglary at a named location that occurred in 2007 or 2008. \nOn February 22, 2018, CPD produced copies of the responsive records but extensively redacted\nto sections 7( 1)( b), 7( 1)( c), and 7( 1)( d)( iv) of FOIA ( 5 ILCS 140/ 7( 1)( b), \ninformation pursuant\n1)( c), (\n\n1)( d)( iv) ( West 2016), as amended by Public Acts 100- 026, effective August 4, 2017; \n\nand 100- 201, effective August 18, 2017). On February 27, 2018, this office received Mr. \nDudek' s Request\n\nfor Review contesting CPD' s redactions. \n\n500 South Second Street, Springfield, Illinois 62701 • (\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois, 60601 • ( 312) 814- 3000 • TTY: ( 312) 814-3374 • Fax: ( 312) 814- 3806\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Mitch Dudek\n\nMs. Charise Valente\n\nApril 17, 2018\n\nPage 2\n\nOn March 5, 2018, this office forwarded a copy of the Request\n\nfor Review to\n\nCPD and asked it to provide this office with unredacted copies of the requested records for our\nconfidential review, together with a detailed explanation of the factual and legal bases for the\napplicability of sections 7( 1)( b), 7( 1)( c), and 7( 1)( d)( iv). On March 7, 2018, CPD provided this\noffice with those materials, maintaining that the redactions were proper. On March 8, 2018, this\noffice forwarded a copy of CPD's response to Mr. Dudek; he replied on March 12, 2018. 1\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" \n5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. \nIllinois Dept. ofPublic Health, 218 III. 2d 390, 415 ( 2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt\n140/ 1. 2 ( West 2016). \n\nfrom disclosure. \n\n5 ILCS\n\nIn its response to Mr. Dudek' s FOIA request, CPD provided redacted copies of the\n\noriginal Case Incident Report and Case Supplementary Reports concerning the incident. CPD' s\n\nresponse stated: \n\nV] ictim ( s) personal\n\ninformation, witness ( s) personal\n\ninformation, witness statements, person ( s) interviewed personal\ninformation, person ( s) interviewed statements, Person ( s) \nreporting offense personal\n\ninformation, Chicago Police employee\n\nnumbers, and private computer numbers are exempt and were\n\nproperly redacted pursuant to Section 7( 1)( b), 7( 1)( c), and\n7( 1)( d)( iv)• 121\n\nSection 7( 1)( b) of FOIA\n\nSection 7( 1)( b) exempts from disclosure \"[ p] rivate information, unless disclosure\nlaw or a court order.\" Section 2( c- \n\nis required by another provision of this Act, a State or federal\n5) of FOIA ( 5 ILCS 140/ 2( c- 5) ( West 2016)) defines \" private information\" as: \n\nAlthough Mr. Dudek's reply references that CPD did not provide copies of surveillance videos, \n\nby March 16, 2018, e- mail to an Assistant Attorney General\nfurther review of that\n\nissue. \n\nin the Public Access Bureau, Mr. Dudek declined\n\nDepartment, Office of Legal Affairs, to Mitch Dudek ( February 22, 2018). \n\nLetter from P. O. W. Cousins # 8107, Freedom of Information Officer, Chicago Police\n\n\fMr. Mitch Dudek\n\nMs. Charise Valente\n\nApril 17, 2018\n\nPage 3\n\nU] nique identifiers, including a person' s social security number, \ndriver' s license number, employee identification number, \n\nbiometric identifiers, personal financial information, passwords or\n\nother access codes, medical\ntelephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\n\nrecords, home or personal\n\notherwise provided by law or when compiled without possibility of\nattribution to any person. ( Emphasis added.) \n\nThis office has previously determined that a CPD user identification number is a\n\nunique number that identifies an individual who is authorized to access certain CPD\nrecordkeeping systems, and therefore, constitutes a form of \"private information\" under section\n2( c- 5). See, e.g., I11. Att'y Gen. PAC Req. Rev. Ltr. 45656, issued July 18, 2017, at 3. \n\nThis office has reviewed an unredacted copy of the records in question and\n\ndetermined that CPD redacted employee identification numbers, home addresses, and personal\nphone numbers. Such details constitute \" private information\" under the plain language of that\nterm' s definition in section 2( c- 5) of FOIA. Additionally, CPD redacted user identification\nnumbers of specific CPD personnel. Because user identification numbers, as well as employee\n\nidentification numbers, home addresses, and personal phone numbers, constitute \" private\n\ninformation,\" \nsection 7( 1)( b). \n\nthis office concludes that CPD did not improperly redact\n\nthose details pursuant\n\nto\n\nCPD, however, also redacted business addresses and business telephone numbers. \nThis office has previously determined that the address and telephone number of a business is not\nexempt under section 7( 1)( b) because such information does not constitute \" private information\" \nwithin the scope of that exemption. See, e. g., III. Att' y Gen. PAC Req. Rev. Ltr. 22902, issued\nJune 27, 2016, at 3 ( finding the telephone number of a business was improperly redacted\npursuant\n2014, at 2 ( determining that business addresses are not exempt from disclosure under section\n7( 1)( b) of FOIA). Accordingly, this office concludes that CPD improperly redacted this\ninformation under section 7( 1)( b) of FOIA. \n\nto section 7( 1)( b) of FOIA); 111. Att' y Gen. PAC Req. Rev. Ltr. 23125, issued March 26, \n\nAdditionally, CPD redacted a reference to a personal\n\nlicense plate number. \n\nGenerally, under the plain language of section 7( 1)( b), a personal\nfrom disclosure. However, in this instance, the redacted portion contains only two numbers of\nthe license plate number\nlicense plate\nnumber does not allow for that license plate number to be attributed to any particular person. \nlicense plate\nTherefore, because the plain language of section 7( 1)( b) also states that personal\n\nin question. The disclosure of two numbers of a personal\n\nlicense plate number is exempt\n\nnumbers are not exempt\n\nfrom disclosure \" when compiled without possibility of attribution to any\n\n\fMr. Mitch Dudek\n\nMs. Charise Valente\n\nApril\n\n17, 2018\n\nPage 4\n\nperson\" this office concludes that CPD improperly redacted the partial personal\nnumber pursuant to section 7( 1)( b) of FOIA. \n\nlicense plate\n\nSection 7( 1)( c) of FOIA\n\nSection 7( 1)(\n\nc) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7( 1)(\n\nc) defines \" unwarranted invasion of personal privacy\" \n\nas: \n\nT] he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject' s\n\nright to privacy outweighs any legitimate public interest in\nobtaining the information. The disclosure of information that bears\non the public duties of public employees and officials shall not be\n\nconsidered an invasion of personal privacy. \n\nA public body' s assertion that the release of information would constitute an\n\nunwarranted invasion of personal privacy is evaluated on a case- by- case basis. Chicago\nJourneymen Plumbers' Local Union 130 v. Department of Public Health, 327 I11. App. 3d 192, \n196 ( 1st Dist. 2001). This office has consistently determined that the disclosure of information\nidentifying a victim of a criminal offense would constitute a clearly unwarranted invasion of\npersonal privacy and therefore that such information may be redacted from a record pursuant\nto\nsection 7( 1)( c). See, e. g., III. Att' y Gen. PAC Req. Rev. Ltr. 26904, issued April 16, 2014, at 2. \nLikewise, this office has previously determined that the disclosure of the names of third parties\nmentioned in police reports, such as suspects who were never arrested and other persons\n\nreferenced incidentally, constitutes a clearly unwarranted invasion of personal privacy. See, e. g., \nIII. Att' y Gen. PAC Req. Rev. Ltr. 31526, issued November 26, 2014, at 6; see also Citizens for\nResponsibility and Ethics in Washington v. United States Dep' t of Justice, 846 F. Supp. 2d 63, 71\nD. D. C. 2012) ( the right to privacy \" is strongest where the individuals in question ' have been\ninvestigated but never publicly charged.\" ( quoting American Civil Liberties Union v. United\nStates Dep' t of Justice, 655 F. 3d 1, 7 ( D. C. Cir. 2011))). Additionally, this office has previously\ndetermined that an individual' s race is highly personal\nwould constitute an unwarranted invasion of personal privacy. See, e. g., III. Att' y Gen. PAC\nReq. Rev. Ltr. 18274, issued March 27, 2012. \n\ninformation, the disclosure of which\n\nThis office' s review of the responsive records confirmed that CPD redacted the\n\nname of a victim of an alleged crime and that victim' s identifying information, including the\nvictim' s personal contact details and race. CPD also redacted information related to uninvolved\n\n\fMr. Mitch Dudek\n\nMs. Charise Valente\n\nApril 17, 2018\n\nPage 5\n\nthird parties. Because disclosure of this information would constitute a clearly unwarranted\ninvasion of personal privacy, this office concludes that CPD did not improperly redact this\ninformation pursuant to section 7( 1)( c). \n\nCPD also redacted the ages of individuals identified in the responsive records. As\n\nopposed to dates of birth, this office has determined that ages are not exempt from disclosure\nunder section 7( 1)( c) of FOIA. See, e. g., 111. Att'y Gen. PAC Req. Rev. 22982, issued July 29, \n2013, at 4. Additionally, CPD redacted the names of uninvolved businesses that were\nincidentally mentioned in the reports in question. Unlike the names of individuals, the disclosure\nof the names of businesses would not cause an unwarranted invasion of any individual' s personal\nprivacy. Accordingly, this office concludes that CPD improperly redacted these details under\nsection 7( 1)( c) of FOIA. \n\nSection 7( 1)( d)( iv) of FOIA\n\nSection 7( 1)( d)( iv) of FOIA exempts from disclosure: \n\nd) \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nr\n\niv) \n\nunavoidably disclose the identity of a confidential\n\nsource, confidential\nconfidential source, or persons who file complaints with or\nprovide information to administrative, investigative, law\n\ninformation furnished only by the\n\nenforcement, or penal agencies[.] \n\nThis provision allows police departments to protect\n\nthe anonymity of both\ninformants and other persons who provide them with information. See, e.g., \n\nconfidential\nChicago Alliance for Neighborhood Safety v. Town of Chicago, 348 Ill. App. 3d 188, 200- 01 ( 1st\nDist. 2004) ( names and addresses of beat meeting participants properly redacted because they\nprovided information to police department). A witness statement may be withheld in its entirety\nonly if disclosure of its contents \" would necessarily result in the disclosure of the identity of that\nsource\" of information and, therefore, \" redaction of the [ statement] cannot be meaningfully\naccomplished.\" Copley Press, Inc. v. City of Springfield, 266 III. App. 3d 421, 426 ( 4th Dist. \n1994). \n\n\fr. Mitch Dudek\n\nMs. Charise Valente\n\nApril\n\n17, 2018\n\nPage 6\n\nThis office' s review confirmed that certain portions that CPD redacted from the\n\nnarrative sections of the reports contain discrete information that would unavoidably identify\npersons who provided information to CPD, such as those individuals' names, titles, addresses, \nand telephone numbers. Under the plain language of section 7( 1)( d)( iv), CPD did not improperly\nredact this identifying information. Portions of the redacted responsive records, however, also\ndocument the manner in which the police handled the matter, descriptions of the general nature\nof the crime under investigation, and a description of images that the police officers viewed on\nsecurity surveillance footage. Such information does not fall within the scope of section\n7( 1)( d)( iv) because there is no indication that the disclosure of that information would reveal the\nidentity of the persons who provided information to CPD. \n\nIn accordance with the conclusions expressed in this determination, \n\nthis office\n\nrequests that CPD provide Mr. Dudek with copies of the non- exempt portions of the responsive\n\nrecords. With this letter to CPD, this office has attached a copy of the records in which we have\nhighlighted the portions of the records for which this office has concluded that CPD has\nsustained its burden of demonstrating are exempt from disclosure; the remaining portions should\nbe provided to Mr. Dudek. The highlighted copy of the report\nMr. Dudek. \n\nis not included with the letter to\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, you may contact me by mail at the Chicago address on the first page of this letter, \nby e- mail at sbarnaby@atg. state. il. us, or by phone at ( 312) 550- 4480. Thank you. \n\nVery truly yours, \n\nSHANNON BARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n\n51910 f 716 proper/ improper 71c proper/ improper\n\n71 div proper/ improper pd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested police records regarding an old burglary case, but the Chicago Police Department heavily redacted the documents they provided. The Attorney General's office reviewed the files and decided that the police department went too far with their redactions. The department must now release the portions of the records that the PAC determined were not legally exempt.","card_headline":"Police records of a past burglary investigation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":907,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-11-18","case_number":null,"request_numbers":["52130"],"title":"Village of East Dundee violated FOIA by improperly aggregating burden to deny request","filename":"52130, issued November 18, 2020.pdf","rel_path":null,"word_count":1467,"summary":"Representative Allen Skillicom requested emails between Village of East Dundee officials, which the Village denied as unduly burdensome. The PAC determined that the Village failed to provide the required opportunity for the requester to confer and narrow the request as mandated by FOIA.","plain_summary":"A state representative asked the Village of East Dundee for emails from the Finance Director to the Village Administrator during a specific month. The Village denied the request, claiming it was unduly burdensome, and cited the burden of multiple related requests from other individuals. The Attorney General's office found that the Village violated FOIA because it improperly combined the burden of separate requests and failed to show that the burden of complying with the representative's individual request outweighed the public interest. The Village was asked to provide the responsive emails, subject to permissible redactions.","holding":"The Village of East Dundee violated FOIA by improperly aggregating the burden of multiple related requests and failing to demonstrate that the burden of complying with the individual request outweighed the public interest.","legal_question":"Whether a public body may deny a FOIA request as unduly burdensome under section 3(g) without first providing the requester an opportunity to confer and narrow the request.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of East Dundee","requesting_party":"Representative Allen Skillicom","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"unduly burdensome","subject_description":"The request sought all emails between the Village Finance Director and the Village Administrator over a one-month period.","ocr_status":"ok","ocr_quality":95.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_g/Combining-requests/52130%2C%20issued%20November%2018%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["unduly burdensome","FOIA request","narrowing request","Village of East Dundee"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nNovember 18, 2020\n\nVia electronic mail\n\nThe Honorable Allen Skillicom\n\nState Representative, 66th District\n\n245 Dunridge Circle\n\n[street address redacted for site publication -- see original PDF]\nloudes13@yahoo. com\n\nVia electronic mail\n\nMs. Mallory A. Milluzzi\nKlein, Thorpe & Jenkins, Ltd. \n\n20 North Wacker Drive, Suite 1660\n\nChicago, Illinois 60606\n\nmamilluzzi@ktjlaw. com\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 52130\n\nDear Representative Skillicom and Ms. Milluzzi: \n\nThis determination letter is issued pursuant\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2018)). \n\nto section 9. 5( 0 of the Freedom of\n\nOn March 5, 2018, Representative Allen Skillicom submitted a FOIA request\n\nto\n\nthe Village of East Dundee ( Village) seeking \"[ a] ll emails from Finance Director Torres to\nVillage Administrator] \n\nJennifer Johnsen from March 1, 2017 to April\n\n1, 2017 in an electronic\n\nformat.\" On March 12, 2018, the Village responded that the request was unduly burdensome\nunder section 3( g) of FOIA ( 5 ILCS 140/ 3( g) ( West 2018)). The Village stated: \n\nA FOIA request was received on February 18, 2018 for all emails, \nincluding any attachments to emails, between Jennifer Johnsen and\nthe Finance Director from February 1st, 2017 through August 1st, \n2017. After numerous times of the requestor and I going back and\nforth with requests to narrow the scope of the request, efforts to\n\nreduce the request to manageable proportions were unsuccessful\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fThe Honorable Allen Skillicorn\n\nMs. Mallory A. Milluzzi\nNovember 18, 2020\n\nPage 2\n\nand the request was ultimately denied. \n\nSince then, I have come to realize that several\n\nindividuals\n\nare working in concert with each other and farming out the original\nrequest amongst each other with each requesting for the same exact\ninformation but for the next consecutive month. Therefore, all six\n\nrequests that have been received by six different individuals are\nbeing considered as one requestor. And although it is not\nappropriate to deny the requests individually, clearly all six\nrequesters are working together. Therefore, the Village is denying\nthe request based on the fact that the request is unduly burdensome\nbecause the burden on the Village of complying with your request\noutweighs the public interest in providing the specified records, the\nefforts to reduce the request\nunsuccessful and your refusal to narrow the scope by subject? t' 1\nEmphasis added.) \n\nto manageable proportions have been\n\nRepresentative Skillicorn submitted this Request\n\nfor Review contesting the\n\nVillage' s response. In addition, five other individuals submitted Requests for Review contesting\nthe denial of their FOIA requests for similar information in different time periods. Since a\n\nsignificant\ntime period has passed, this office recently asked each requester whether he or she\nwas still interested in pursuing their Request for Review. Representative Skillicorn is the only\nindividual who indicated to this office that he was still interested in receiving responsive records. \nAccordingly, this determination will review whether Representative Skillicorn' s FOIA request\nwas unduly burdensome. \n\nSection 3( g) of FOIA provides, in pertinent part, that: \n\nRequests calling for all records falling within a category\nshall be complied with unless compliance with the request would\n\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest\nin the information. Before invoking\nthis exemption, the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request\nresponds to a categorical\n\nrequest by stating that compliance would\n\nto manageable proportions. \n\nIf any public body\n\nE - mail\n\nfrom Katherine Holt ( March 12, 2018). \n\n\fThe Honorable Allen Skillicorn\n\nMs. Mallory A. Milluzzi\nNovember\n\n18, 2020\n\nPage 3\n\nunduly burden its operation and the conditions described above are\nmet, it shall do so in writing, specifying the reasons why it would\nbe unduly burdensome and the extent to which compliance will so\nburden the operations of the public body. Such a response shall be\ntreated as a denial of the request for information. \n\nA] public body asserting a section 3( g) exemption must make a clear and\n\nconvincing showing that the burden of compliance outweighs public interest\nthe requested records.\" Sargent Shriver National Center on Poverty Law, Inc. v. Board of\nEducation of City of Chicago, 2018 IL App ( 1st) 171846, ¶ 38, 122 N. E. 3d 729, 738 ( 2018). \nSection 3( g) does not define what constitutes an unduly burdensome request, other than that it is\na categorical\nfor records in which the burden on the public body of producing the records\nrequest\nwould outweigh the public interest\ninvolves a case- by- case analysis in which the public body must demonstrate the extent of the\nburden of compliance on its operations and that the burden outweighs the public interest\n\nin obtaining the information. Thus, section 3( g) necessarily\n\nin the disclosure of\n\nin\n\ndisclosure. See Sargent Shriver National Center on Poverty Law, Inc. v. Board ofEducation of\nCity of Chicago, 2018 IL App ( 1st) 171846, ¶ 38, 122 N. E. 3d 729, 738 ( 2018) (\" What constitutes\na clear and convincing showing of undue burden will\nlikely vary from case to case, depending on\nthe broadness of the request, the level of detail provided in the public body' s response, and the\nnature of the parties' exchange.\"). \n\nIn response to this office, the Village provided a chart which indicated that\n\nit had\n\napproximately 275 e- mails responsive to Representative Skillicom' s March 5, 2018, FOIA\nin\nrequest. Although Representative Skillicorn has not\n\nidentified a specific public interest\n\nviewing the approximately 275 e- mails responsive to his categorical request for all e- mails\nwithin a certain time period, there generally is a public interest\ncommunications\n\nin the disclosure of\nand Finance Director. Further, the Village\n\nbetween the Village Administrator\n\nacknowledged in its response to Mr. Skillicorn that\nindividual FOIA request as unduly burdensome. \n\nit would not be appropriate to deny his\n\nSection 3( g) requires a public body to specify the extent\n\nto which its operations\nrequest[.]\" Other provisions of FOIA\n\nwould be burdened by complying with each \" categorical\nare designed to address the burden of responding to separate requests submitted by multiple\n\n\fThe Honorable Allen Skillicom\n\nMs. Mallory A. Milluzzi\nNovember 18, 2020\n\nPage 4\n\nindividuals acting in concert.2 Section 3( g), however, does not permit a public body to measure\nthe burden of complying with an individual\nrequest by aggregating the burden of complying with\nother related requests. As such, the Village has not demonstrated that the burden of complying\nwith Representative Skillicorn' s March 5, 2018, FOIA request would outweigh the public interest\nin the requested e- mails. Accordingly, this office requests that the Village provide\nRepresentative Skillicom with those e- mails in an electronic format, subject to permissible\n\nredactions pursuant\n\nto section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2018)). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. Please contact me at ( 312) \n814- 5201 or at the Chicago address on the first page of this letter if you have questions. \n\nVery truly yours, \n\nEDIE STEINBERG\n\nSenior Assistant Attorney G\nPublic Access Bureau\n\n52130 f 3g and burd improper mun\n\n2Section 2( b) of FOIA ( 5 ILCS 140/ 2( b) ( West 2018)) defines \" person\" as \" any individual, \n\nfirm, organization or association, acting individually or as a group.\" ( Emphasis added.); \n\ncorporation, partnership, \nsee also 5 ILCS 1 40/ 2( g) ( West 2018) ( defining \" recurrent requester\" as \" a person that, in the 12 months\nimmediately preceding the request, has submitted to the same public body ( i) a minimum of 50 requests for records, \nii) a minimum of 15 requests for records within a 30 -day period, or ( iii) a minimuncof 7 requests for records within\na 7 - day period.\"); \nindividual requests that total requests for more than 5 different categories of records in a period of 20 business\ndays;\"); \n\n5 ILCS 140/ 2( h) ( West 2018) defining \" voluminous request\" to include \" a combination of\n\n5 ILCS 140/ 3. 2, 3. 6 ( West 2018) ( providing expanded time periods and options for responding to\n\nvoluminous requests and requests by recurrent\n\nrequesters). \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Emails between a finance director and a village administrator","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":908,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-06-27","case_number":null,"request_numbers":["52348"],"title":"Illinois State Police improperly withheld investigation records under 7(1)(d)(iii)","filename":"52348, Issued June 27, 2018.pdf","rel_path":null,"word_count":1467,"summary":"The requester sought records from the Illinois State Police regarding an investigation into New Lenox Police Department personnel, which the ISP denied under the fair trial exemption; the PAC determined the denial was improper and ordered the records disclosed with appropriate redactions.","plain_summary":"A citizen requested records from the Illinois State Police about an investigation into local police officers. The State Police refused to release any of the documents, claiming it would prevent a fair trial. The Attorney General's office disagreed, ruling that the agency must release the records while redacting sensitive private information.","holding":"The Illinois State Police improperly withheld the requested records in their entirety, as they failed to demonstrate that the disclosure would interfere with a fair trial or impartial hearing.","legal_question":"Whether the Illinois State Police properly invoked the section 7(1)(d)(iii) exemption to deny a request for records concerning an investigation of police officers.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(d)(iii)"],"public_body":"Illinois State Police","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request concerned records of an investigation into specific individuals within the New Lenox Police Department regarding an August 2016 incident.","ocr_status":"ok","ocr_quality":93.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_iii/52348%2C%20Issued%20June%2027%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","fair trial exemption","redaction","investigatory records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJune 27, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Kerry Sutton\nLegal Counsel\n\nIllinois State Police\n\n801 South Seventh Street, 1000- S\nSpringfield, Illinois 62703\nkerry_sutton@isp. state. il.us\n\nRE: FOIA Request for Review — 2018 PAC 52348; ISP FOIR 18- 0441\n\nDear\n\nand Mr. Sutton: \n\nThis determination letter is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the response by the Illinois State Police ( ISP) to\n\nFebruary 13, 2018, request violated the requirements of FOIA. \n\nOn that date, \n\nsubmitted a FOIA request to ISP seeking copies of\n\nany and all records involving the investigation of specific individuals within the New Lenox\nPolice Department concerning an August 2016 incident. On February 20, 2018, ISP extended its\ntime for response by five business days. On March 7, 2018, ISP denied the request in its entirety\n\npursuant\n\nto section 7( 1)( d)( iii) of FOIA ( 5 ILCS 140/ 7( 1)( d)( iii) ( West 2017 Supp.)). \n\nISP\n\nasserted: \n\n500 South Second Street, Springfield, Illinois 62706 • (\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Kerry Sutton\nJune 27, 2018\n\nPage 2\n\nlikelihood that\n\nThe information requested could create a substantial\na person will be deprived of a fair trial or an impartial hearing if\nthe information were made public, as this case has not yet been\nadjudicated. The entirety of the evidence in this case is related to\nstatements made by law enforcement officers against another law\nenforcement officer. The Appellate Prosecutor is currently\nreviewing this case for possible charges against the accused. With\nthe recent rash of news stories presenting law enforcement officials\nin a bad light, release of this information at this time would serve\nto taint a jury pool, thus preventing the accused officer from\nreceiving a fair trial. l' 1\n\nOn March 16, 2018, \n\nsubmitted this Request for Review\n\ncontesting ISP' s denial. \n\nOn April 11, 2018, this office sent a copy of the Request for Review to ISP and\n\nasked it to furnish this office with unredacted copies of the requested records for this office' s\nconfidential review, together with a detailed written explanation of the factual and legal bases for\nthe applicability' of the asserted exemption. On April 18, 2018, ISP provided the requested\nmaterials and a written response, asserting: \n\nThis is still an active investigation. The Appellate\nProsecutor' s office has received the reports and is in the process of\ngoing through the reports to determine the next steps, if any. Upon\nreview, the prosecutor may ask for additional\ninterviews or follow\nISP' s FOIA officer has personally spoken with\nup investigations. \nthe prosecutor' s office and they have requested that no documents\nbe released until their review has been completed. 121\n\nISP enclosed an e- mail from the appellate prosecutor' s office asking that the requested\ninformation not be released yet. \n\ndid not submit a reply. \n\n2018). \n\nE- mail\n\nfrom Erin Davis, Freedom of Information Officer, to\n\nMarch 7, \n\nAttorney General], Office of the Attorney General ( April\n\n2Letter from Lieutenant Kerry Sutton, Legal Counsel, to Mr. Christopher Boggs, Assistant\n18, 2018). \n\n\fMr. Kerry Sutton\nJune 27, 2018\n\nPage 3\n\nDETERMINATION\n\nFOIA provides that \"[ a] ll records in the custody or possession of a public body\n\nare presumed to be open to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2016); see also\nSouthern Illinoisan v. Illinois Department ofPublic Health, 218 111. 2d 390, 415 ( 2006). A\npublic body \" has the burden of proving by clear and convincing evidence\" \nexempt\n\n5 ILCS 140/ 1. 2 ( West 2016). \n\nthat a record is\n\nfrom disclosure. \n\nSection 7( 1)( d)( iii) of FOIA exempts from disclosure: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\niii) create a substantial\n\nlikelihood that a person will\n\nbe deprived of a fair trial or impartial hearing[.] \n\nTo demonstrate that records are exempt from disclosure under the corresponding provision in\nFederal FOIA ( 5 U. S. C. § 552 et seq. ( 1982 and Supp. 1988)), 3 an agency must establish \"(\n1) \nthat a trial or adjudication is pending or truly imminent; and ( 2) that it is more probable than not\nthat disclosure of the material sought would seriously interfere with the fairness of those\nproceedings.\" Washington Post Co. v. U.S. Dep' t of Justice, 863 F. 2d 96, 102 ( D. C. Cir. 1988). \nIn accordance with Illinois judicial precedent, the Attorney General has issued a binding opinion\nto ISP concluding that the mere existence of an ongoing investigation that could result\ncriminal charges does not constitute clear and convincing evidence that any records are exempt\nfrom disclosure. \n\nIll. Att' y Gen. Pub. Acc. Op. No. 17- 001, issued March 14, 2017, at 5. \n\nin\n\nISP' s assertion of section 7( 1)( d)( iii) is largely conclusory. \n\nISP' s response to this\n\noffice merely stated that the Appellate Prosecutor' s office was in the process of reviewing the\nrequested records to determine the next steps, ifany. ISP has neither demonstrated that a trial or\nadjudication is pending or truly imminent, nor explained how the release of any specific\nrecords— much less all of the records— would create a substantial\nlikelihood that a person would\nbe deprived of a fair trial. Because ISP has not set forth facts demonstrating how the disclosure\nof the withheld records would create a substantial likelihood that a person would be deprived of a\n\ndisclosure would \" deprive a person of a right\n\nto a fair trial or an impartial adjudication[.]\" \n\nThis provision exempts records compiled for law enforcement\n\npurposes to the extent\n\nthat\n\n\fMr. Kerry Sutton\nJune 27, 2018\n\nPage 4\n\nfair trial or an impartial hearing, this office concludes that ISP has not met its burden of\ndemonstrating by clear and convincing evidence that the requested records are exempt from\ndisclosure in their entireties under section 7( 1)( d)( iii) of FOIA. \n\nAlthough ISP did not raise any other exemptions in its response to\n\nFOIA request, this office notes that certain discrete portions of the responsive records\n\nthat bear on the rights of third parties contain information that may be properly redacted. \nparticular, private information may be redacted under section 7( 1)( b) of FOIA ( 5 ILCS\n140/ 7( 1)( b) ( West 2017 Supp.)).' \nIn addition, dates of birth may be properly redacted under\nsection 7( 1)( c) ofFOIA5 ( 5 ILCS 140/ 7( 1)( c) ( West 2017 Supp.)) and information identifying\nwitnesses who provided information may are exempt\n7( 1)( d)( iv) ( West 2017 Supp.)). See 11. Att' y Gen. Req. Rev. Ltr. 12887, issued July 20, 2011\nexempting names of public employees who provide information during the course of an\nadministrative investigation of another employee). \n\nfrom disclosure pursuant\n\nto section\n\nIn\n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat ISP provide\nwith copies of the requested records, subject only to permissible\nredactions of the records pursuant to section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2016), as amended\nby Public Acts 100- 026, effective August 4, 2017; 100- 201, effective August 18, 2017). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at the Springfield address on the first page of this letter. \n\nVery truly ours\n\nRIS i ' HER R. BOGGS\n\nAssistant Attorney General\nPublic Access Bureau\n\n52348 f 7ldiii improper pd sa\n\nSection 7( I)( b) exempts from disclosure \" private information,\" which FOIA defines to include\n\npersonal telephone numbers, home addresses, and employee identification numbers. 5 ILCS 140/ 2( c- 5) ( West\n2016). \n\nSection 7( 1)( c) permits a public body to withhold information that \" would constitute a clearly\n\nunwarranted invasion of personal privacy\" if disclosed. The Attomey General has issued a binding opinion\nconcluding that birth dates are exempt from disclosure pursuant to section 7( 1)( c). \n16- 009, issued November 7, 2016, at 12. \n\nIII. Att'y Gen. Pub. Acc. Op. No. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An investigation of police officers","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":909,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-12-04","case_number":null,"request_numbers":["52452"],"title":"Illinois Department of Public Health improperly redacted Staff Intensity Scale scores under 7(1)(i)","filename":"52452, issued December 4, 2018.pdf","rel_path":null,"word_count":2804,"summary":"The requester sought records from the Illinois Department of Public Health regarding oversight of facilities for the developmentally disabled, and the PAC determined the Department improperly redacted specific scoring data.","plain_summary":"A facility requested oversight records from the Illinois Department of Public Health, but the Department redacted scoring information from a Staff Intensity Scale, claiming it was a valuable formula under FOIA. The Illinois Attorney General's Public Access Bureau concluded that the Department improperly redacted the information because the scores do not meet the definition of 'valuable formulae' under section 7(1)(i) of FOIA. The Department failed to meet its burden of proof to justify the redaction.","holding":"The Illinois Department of Public Health failed to meet its burden of proof to justify redacting Staff Intensity Scale scores under section 7(1)(i) of FOIA.","legal_question":"Did the Department of Public Health meet its burden of proof to demonstrate that Staff Intensity Scale scores were exempt from disclosure under section 7(1)(i) of FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(i)"],"public_body":"Illinois Department of Public Health","requesting_party":"Mr. Jason T. Lundy (on behalf of Golfview Developmental Center)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(i)","subject_description":"The request concerned records related to the Department's oversight of Intermediate Care Facilities for the Developmentally Disabled, specifically Staff Intensity Scale scores.","ocr_status":"ok","ocr_quality":96.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_i/52452%2C%20issued%20December%204%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["redaction","public health","FOIA exemption","records request"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember 4, 2018\n\nVia electronic mail\n\nMr. Jason T. Lundy\nCounsel\n\nfor Golfview Developmental Center\n\nPolsinelli\n\n150 North Riverside Plaza, Suite 3000\n\n[street address redacted for site publication -- see original PDF]\njlundy@polsinelli. com\n\nVia electronic mail\n\nMr. William Bryant\n\nActing Freedom of Information Officer\nIllinois Department of Public Health\n\n525- 535 West Jefferson Street\n\nSpringfield, Illinois 62761- 0001\n\ndph. foia@illinois. gov\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 52452; IDPH FOIA # 1804314122\n\nDear Mr. Lundy and Mr. Bryant: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)). For the reasons discussed below, this\noffice concludes that the Illinois Department of Public Health ( Department) \nimproperly redacted\nportions of records in response to Mr. Jason Lundy' s November 6, 2017, FOIA request. \n\nOn that date, Mr. Lundy, on behalf of Golfview Development Center, submitted a\n10 -part FOIA request to the Department seeking records relating to the Department' s oversight of\nIntermediate Care Facilities for the Developmentally Disabled. On November 14, 2017, the\nDepartment responded by asserting that it did not possess records responsive to the request, and\non January 5, 2018, Mr. Lundy submitted a Request for Review to this office contesting the\nDepartment' s response to his request: After this office forwarded Mr. Lundy' s Request for\nReview to the Department, on January 29, 2018, the Department notified Mr. Lundy that it had\n\nThat Request\n\nfor Review was assigned the file number 2017 PAC 51123. \n\n500 South Second Street, Springfield, \n\nIllinois 62706 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Jason T. Lundy\nMr. William Bryant\n\nDecember 4, 2018\n\nPage 2\n\nconducted an additional search and identified a responsive record; the Department\n\nfurnished that\n\nrecord to Mr. Lundy with redactions pursuant\ni) \nWest 2017 Supp.)). On March 30, 2018, Mr. Lundy submitted the above - referenced Request\nfor Review contesting the redactions. \n\ni) of FOIA ( 5 ILCS 140/ 7( 1)(\n\nto section 7( 1)(\n\nOn April 4, 2018, this office sent a copy of the Request\n\nfor Review to the\nDepartment and asked it to provide an unredacted copy of the responsive records for our\nconfidential review, together with a detailed explanation of its legal and factual bases for\n\nwithholding it. On April 13, 2018, the Department provided this office with those records and a\nwritten response. On April 25, 2018, this office received Mr. Lundy' s reply. \n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1. 2 ( West 2016). Section 3( a) of FOIA (5 ILCS 140/ 3( a) ( West 2016)) further provides: \n\nEach public body shall make available to any person for inspection or copying all public\n\nrecords, except as otherwise provided in Sections 7 and 8. 5 of this Act.\" The exemptions from\n\ndisclosure contained in section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2017 Supp.)) are to be narrowly\nconstrued. See Lieber v. Board of Trustees ofSouthern Illinois University, 176 Ill. 2d 401, 407\n1997). \n\nThe record at issue is a seven - page document entitled \" Staff Intensity Scale of\n\nMaladaptive Behaviors.\" Other that the fact that the record furnished to Mr. Lundy uses roman\nnumerals in its headers, the unredacted parts of the form are identical\nto the Staff Intensity Scale\nfound at Table B of Section 144 of Title 89 of the Illinois Administrative Code ( 89 I11. Adm. \n\nCode § 144. Table B ( last amended at 19 Ill. Reg. 2890, effective February 22, 1995)). As\nexplained in Table A of that same section, the Staff Intensity Scale was designed \" to describe\nbehavior problems which are displayed by children and adults who have developmental\ndisabilities.\" 89 Ill. Adm. Code § 144. Table A (last amended at 19 Ill. Reg. 2890, effective\nFebruary 22, 1995). The scale measures 24 categories of behaviors, and between one and four\nspecific behaviors are listed within each category. Table A further explains that the scale can be\nused to rate an individual with developmental disabilities by recording the frequency of the\nobserved behavior so as to inform decision making about allocation of staffing resources. 89 I11. \nAdm. Code § 144. Table A( a)(\n1995). \nbe displayed in the section where the frequencies of each behavior\n\nIn the version furnished to Mr. Lundy, the Department redacted information that would\nis recorded. ( The version of\n\n1)( 4) ( last amended at 19 Ill. Reg. 2890, effective February 22, \n\nthe scale available in the Administrative Code contains blank lines where the frequencies of each\n\nbehavior would be recorded.) \n\nIn its response to the Request\n\nfor Review, the Department asserted\n\n\fMr. Jason T. Lundy\nMr. William Bryant\n\nDecember 4, 2018\n\nPage 3\n\nthat this record was responsive to the part of the FOIA request seeking scales or tools used by\nsurveyor during an Inspection of Care survey or to prepare the Inspection of Care summary in\nrelation to the determination of the level of specialized care required by residents of a facility\nand/ or the reimbursement rate. \n\nThe Department asserted that the information redacted from the scale consists of\n\nscoring formulas used to complete the Staff Intensity Scale. The Department\nthis information as the\n\nfurther described\n\nnumbers on the Form used internally by the Department\nevaluate each maladaptive behavior of an individual client. Based\nupon the frequency of the behavior, a \" score\" is calculated which is\nused, in part, to formulate the reimbursement\nrate for an individual\nclient that the facility receives and is intended to reimburse the\nfacility for the additional care requirements due to the maladaptive\nbehaviors. 121\n\nto\n\nFor each specific behavior, if a client engages in that behavior with the frequency listed on the\nscale, the client' s \" score\" is increased by the value assigned by the Department for that behavior\nand frequency level. \n\nThe Department\n\nredacted the scores it assigns to each behavior and frequency\n\nlevel pursuant to section 7( 1)(\n\ni) of FOIA, which exempts from disclosure: \n\nValuable formulae, computer geographic systems, designs, \n\ndrawings and research data obtained or produced by any public\nbody when disclosure could reasonably be expected to produce\nprivate gain or public loss. The exemption for \" computer\ngeographic systems\" provided in this paragraph ( i) does not extend\n\nto requests made by news media as defined in Section 2 of this Act\nwhen the requested information is not otherwise exempt and the\nonly purpose of the request is to access and disseminate\ninformation regarding the health, safety, welfare, or legal rights of\nthe general public. \n\nThe Department' s response to this office asserted that the scores redacted from\n\nthe record are a \" valuable formulae\" because: \n\n2Letter from William Bryant, Acting Freedom of Information Officer, Illinois Department of\n\nPublic Health, to Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General\nApril\n\n13, 2018), at 2- 3. \n\n\fMr. Jason T. Lundy\nMr. William Bryant\n\nDecember 4, 2018\n\nPage 4\n\nThe scoring information was developed through the expertise of\nthe Department, specifically staff knowledgeable of the care of\ndevelopmentally disabled clients, including individuals with\nmaladaptive behaviors, and is based upon their technical\n\nknowledge of treatment requirements intended to reduce\n\nmaladaptive behaviors. Based upon this knowledge and\n\nexperience, the Department has developed a scoring formula to\nrequired to reduce\napproximate the levels of care and treatment\n\nmaladaptive behaviors and utilizes this numerical formula to\n\nthe additional burdens placed upon a facility to provide\n\nrepresent\nthe required level of care to individuals with maladaptive\nbehaviors and reimburse the facility accordingly. * * * [ T] he\nnumbers associated with each frequency of maladaptive behavior\nare not random or simplistic, i. e. 1, 2, 3, 4, rather they reflect a\nrational evaluation of the severity of the behaviors which reflect a\nhigher number\nbehaviors21\n\nfor the more frequent and potentially harmful\n\nThe phrase \" valuable formulae\" is not defined in FOIA. Therefore, we look to the\n\nprinciples of statutory construction. When construing a statute, the primary purpose is to\nascertain and give effect to the intent of the General Assembly. Southern Illinoisan v. Illinois\nDepartment of Public Health, 218 Ill. 2d 390, 415, 844 N. E. 2d 1, 14 ( 2006). \" The best evidence\nof legislative intent is the language used in the statute itself, which must be given its plain, \nordinary and popularly understood meaning.\" Nelson v. Kendall County, 2014 IL 116303, ¶ 23, \n10 N. E. 3d 893, 988 ( 2014). When a term is undefined in a statute, it is entirely appropriate to\nuse a dictionary to help determine its meaning. Lacey v. Village of Palatine, 232 Ill. 2d 349, 363, \n904 N. E. 2d 18, 26 ( 2009). \"[ W] here two words or phrases of analogous meaning are employed\ntogether in a statute, they are understood to be used in their cognate sense, to express the same\nrelations, and give color and expression to each other.\" Environmental Protection Agency v. \nPollution Control Board, 186 I11. App. 3d 995, 999 ( 5th Dist. 1989). \n\nThe dictionary definition of \"formula\" is \" a general fact, rule, or principle\nexpressed in usually mathematical symbols\" and \" a group of symbols ( such as letters and\nnumbers) associated to express facts or data ( such as the number and kinds of teeth in the jaw) \n\nLetter from William Bryant, Acting Freedom of Information Officer, Illinois Department of\n\nPublic Health, to Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, \nApril 13, 2018), at 2. \n\n\fMr. Jason T. Lundy\nMr. William Bryant\n\nDecember 4, 2018\n\nPage 5\n\n4\n\nconcisely[.]\"\n\nIn Binding Opinion 14- 016, the Attorney General determined that the phrase\nvaluable formulae\" should be \" read in context with the rest of the exemption for ' computer\ngeographic systems, designs, drawings and research data',\" and that in doing so, it is clear \" that\nthe General Assembly intended ' valuable formulae' to mean something technical\n\nin nature,. \n\nsimilar\n\nto ' computer geographic systems' or ' research data.\" \n\nI11. Att' y Gen. Pub. Acc. Op. No. \n\n14- 016, issued December 2, 2014, at 9. \n\nAlthough the scores the Department has assigned to each behavior are meant\n\nto\n\nrepresent the additional burden of caring for a client exhibiting those behaviors, the scores\nthemselves do not meet the definition of \"formula\" because they merely set forth assigned values\nrather than the rule or principle used to calculate those values. Even accepting the Department' s\nassertion that the assigned scores are \" technical in nature\" because they are based on experience\nand technical knowledge, the scores are still not \" research data.\" \" Research\" is defined as: \n\nSerious study of a subject with the purpose of acquiring more knowledge, discovering new\nfacts, or testing new ideas[ ]\" or \"[ t] he activity of finding information that one needs to answer a\nquestion or solve a problem.\" Black' s Law Dictionary ( 14th ed. 2014), available at Westlaw\nBLACKS. Although the scores may be derived from an analysis of what could arguably— based\non the Department' s explanation— be considered observational and experiential data compiled\nduring \" research,\" the scores themselves are not \" research data \" \n\nFurthermore, the Department explained that the scores for each client are used, in\npart, to \" formulate the reimbursement rate for an individual client that the facility receives and is\nintended to reimburse the facility for the additional care requirements due to the maladaptive\nbehaviors.\" 5 However, the information redacted from the record does not include any formula\nthat incorporates the client' s score with other factors to calculate the reimbursement rate. \nAccordingly, based on this office' s review of the record itself and the explanation provided by\nthe Department, the scores redacted from the Staff Intensity Scale do not constitute \" valuable\nformulae,\" as that phrase is used in section 7( 1) 0) of FOIA. \n\nEven if the scores could be considered valuable formulae, they are only exempt\nfrom disclosure under section 7( 1) 0) if the Department demonstrates by clear and convincing\nevidence that \" disclosure could reasonably be expected to produce private gain or public loss.\" 5\nILCS 140/ 7( 1)(\n\nIn its response to this office, the Department asserted: \n\ni) ( West 2017 Supp.). \n\nvisited October 2, 2018). \n\nSee Formula, Merriam -Webster, https:// www.merriam- webster.com/ dictionary/ formula ( last\n\n5Letter from William Bryant, Acting Freedom of Information Officer, Illinois Department of\n\nPublic Health, to Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at\n1- 2 ( April\n\n13, 2018). \n\n\fMr. Jason T. Lundy\nMr. William Bryant\n\nDecember 4, 2018\n\nPage 6\n\nThe release of the scoring information is reasonably\nexpected to provide a private gain to facilities in possession of the\ninformation by potentially permitting the facility to reduce their\ncosts by not providing appropriate care to individuals exhibiting\nmaladaptive behaviors which do not increase the reimbursement\n\nrate. * * * \n\nAn unscrupulous facility may not direct the appropriate\n\nresources to treat a zero or low scoring behavior knowing that their\ntreatment will not be reimbursed despite the treatment still being a\n\nrequirement. \n\nAlternatively, release of the scoring information may\n\nprovide an incentive for unscrupulous facilities to overstate the\noccurrences of higher scoring behaviors in an effort to receive a\nThat] result can occur by a\nhigher rate of reimbursement. * * * [\nfacility instructing staff to more intensely observe clients for the\nbehaviors identified as high scoring or creatively charting incidents\nto fit the descriptions on the Form corresponding to high scoring\nbehaviors. 161\n\nfurther argued that this potential conduct by facilities could result in \" public\n\nThe Department\nloss\" due to inappropriately high reimbursement\nexhibit behaviors that do not score highly on the scale. \n\nrates, or facilities refusing to accept clients who\n\nIn reply, Mr. Lundy argues that Department cannot rely on the assumption that a\nfacility caring for these clients \" would ignore its regulatory and statutory obligations, jeopardize\nits licensure and risk the imposition of remedies for the sole basis of receiving a higher\nreimbursement rate,\" and presume that a facility would be able to estimate a potential client's\nscore\" prior to beginning to care for a client, such that it could accurately reject those clients\nwith lower scores. \n\nThe Department has not met its burden of demonstrating that \" disclosure could\n\nreasonably be expected to produce private gain or public loss.\" The Department has not\ndemonstrated that the scores have inherent value to someone who obtains them, unlike a\n\nLetter from William Bryant, Acting Freedom of Information Officer, Illinois Department of\n\nPublic Health, to Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at\n2 ( April 13, 2018). \n\nBureau, Office of the Attorney General, at 2 ( April 25, 2018). \n\nLetter from Jason Lundy, Polsinelli, to Leah Bartell, Assistant Attorney General, Public Access\n\n\fr. Jason T. Lundy\nMr. William Bryant\n\nDecember 4, 2018\n\nPage 7\n\nconfidential formula for a pharmaceutical or food additive. Instead, it is not only the scores, but\nalso the willingness of an \" unscrupulous\" facility to misuse that information to its financial\nadvantage, that could result in private gain or public loss. The Illinois Supreme Court has stated\nthat the exemptions from disclosure are to be narrowly construed. See Lieber v. Board of\nTrustees of Southern Illinois University, 176 Ill. 2d 401, 407 ( 1997). The Department' s argument\nis too speculative to satisfy its burden to demonstrate reasonable expectation of private gain or\npublic loss. \n\nAccordingly, the Department did not sustain its burden of demonstrating by clear\nand convincing evidence that the withheld scores are exempt from disclosure pursuant to section\n7( 1)(\ni) of FOIA. This office requests that the Department provide Mr. Lundy with an unredacted\ncopy of the responsive Staff Intensity Scale. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have questions, you may contact me at\n312) 814- 6437 or Ibartelt@atg. state. il.us. This letter serves to close this matter. \n\nVery truly yours, \n\nLEAH BARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n\n52452 f 71i improper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Staff Intensity Scale scores for intermediate care facilities","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":910,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-04-24","case_number":null,"request_numbers":["52595"],"title":"Village of Matteson closed no further action on voluminous financial records request","filename":"52595, issued April 24, 2018.pdf","rel_path":null,"word_count":1703,"summary":"The requester sought various financial and contract records from the Village of Matteson, and the PAC determined that no further action was warranted regarding the Village's handling of the requests.","plain_summary":"A citizen requested detailed financial and contract records from the Village of Matteson. The Attorney General's office reviewed the matter and decided that no further action was necessary, effectively closing the case without finding a violation.","holding":"The Public Access Counselor concluded that no further action is warranted regarding the requester's complaint.","legal_question":"Whether the Village of Matteson complied with FOIA in its response to the requester's voluminous requests for financial and contract records.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3.6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Matteson","requesting_party":"Mr. [Name Redacted]","pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"fees","subject_description":"The request concerned demolition contract details and detailed account payable transactions from business district tax funds.","ocr_status":"ok","ocr_quality":95.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_h/52595%2C%20issued%20April%2024%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["voluminous request","financial records","contract records","FOIA procedure"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nApril 24, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 52595\n\nDear Mr. \n\nThis determination is issued pursuant to section 9. 5( c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)). For the reasons set forth below, the\nPublic Access Bureau concludes that no further action is warranted. \n\nOn March 28, 2018, you submitted five separate FOIA requests to the Village of\n\nMatteson ( Village) seeking: \n\n1. 1 Contract details for the demolition on Lincoln Mall and who was\n\nawarded the contract and who won the bid for the contract; Was the\n\nfor the work completed and was that the company that was\n\ncontract appropriately bid on; Who and what companies received\npayment\napproved for the contract\ncompletion of the demolition and from what fund was it dispersed. \nProject scope and projected costs versus actual cost[.] llI\n\ninitially; the total amount paid for the\n\n2.] All of the individual account payable recipients and the transactions\nrecorded for every amount paid from every business district tax fund\nwithin the Village of Matteson for every year from the year 2010 through\n2018. And the detailed reason for each transaction. r21\n\nby\n\nby\n\nFreedom of Information Act ( FOIA) Request\n\nto Angela Simington, Chief FOIA Officer, signed\n\nMarch 28, 2018). \n\n2Freedom of Information Act ( FOIA) Request\n\nto Angela Simington, Chief FOIA Officer, signed\n\nMarch 28, 2018). \n\n500 South Second Street, Springfield, \nFax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: ( 312) 814- 3374 • Fax: (312) 814- 3806\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n217) 782- 1090 • TTY: ( 217) 785- 2771 • \n\nIllinois 62701 • (\n\n\fApril 24, 2018\n\nPage 2\n\n3.] All Village of Matteson individual TIF districts funds expenditures and\ntheir recipients for each individual year from the year 2005 until 2018. \nAnd what economic growth project was each transaction associated with\nand the project details for said project[.]\n\n131\n\n4.] All account receivables from the recording of the bond debt sale\n\ntransaction or any other transactions between the Village of Matteson\nand Cal Atlantic Builders and/ or Ryland Homes covering the years 2014\nto 2018; and the contract agreement details and payables from the\nV] illage of Matteson to Ryland Homes and/ or Cal Atlantic for that same\ntime period 2014 to 2018[.] 141\n\n5.] A complete organizational structure chart vertical and horizontal\nwith hierarchy and reporting structure. [ I] n addition the salaries\nassociated with every position and person within the requested reporting\nstructure. Also, the individual organizational units and their job\ndescriptions. 151\n\nlevels\n\nOn April 4, 2018, the Village responded by designating your FOIA requests as voluminous\n\npursuant\n\nto section 3. 6 of FOIA ( 5 ILCS 140/ 3. 6 ( West 2016)). The Village stated that your\n\nrequests included a combination of individual\ncategories of records in a period of 20 business days. The Village notified you that you may\namend your requests so that they are no longer voluminous requests. On April 10, 2018, the\nPublic Access Bureau received your Request for Review contesting the Village' s designation of\nyour FOIA requests as voluminous requests. \n\nrequests that total more than five different\n\nSection 2( h) of FOIA ( 5 ILCS 140/ 2( h) ( West 2016)) defines a \" voluminous\n\nrequest\" as: \n\nby\n\nby\n\nby\n\n3Freedom of Information Act (FOIA) Request to Angela Simington, Chief FOIA Officer, signed\n\nMarch 28, 2018). \n\nFreedom of Information Act (FOIA) Request to Angela Simington, Chief FOIA Officer, signed\n\nMarch 28, 2018). \n\n5Freedom of Information Act (FOIA) Request to Angela Simington, Chief FOIA Officer, signed\n\nMarch 28, 2018). \n\n\fApril 24, 2018\n\nPage 3\n\nA] request that: ( i) includes more than 5 individual\n\nrequests for more than 5 different categories of records or a\n\ncombination of individual requests that total requests for more than\n\n5 different categories of records in a period of 20 business days; or\n\nii) requires the compilation of more than 500 letter or legal -sized\n\npages of public records unless a single requested record exceeds\n\n500 pages. \" Single requested record\" may include, but is not\nlimited to, one report, form, e- mail, letter, memorandum, book, \n\nmap, microfilm, tape, or recording. \n\nWhen construing a statute, the primary purpose is to ascertain and give effect to the intent of the\nGeneral Assembly. Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, \n415, 844 N. E. 2d 1, 14 ( 2006). \" The best evidence of legislative intent is the language used in the\nstatute itself, which must be given its plain, ordinary and popularly understood meaning.\" \nNelson v. Kendall County, 2014 IL 116303, ¶ 23, 10 N.E. 3d 893, 988 ( 2014). When a term is\nundefined in a statute, it is entirely appropriate to use a dictionary to help determine its meaning. \nLacey v. Village of Palatine, 232 111. 2d 349, 363, 904 N. E. 2d 18, 26 ( 2009). FOIA does not\ndefine \" categories of records,\" but Webster' s Third New International Dictionary defines\ncategory\" as \" a class, group, or classification of any kind[.]\" Webster' s Third New International\nDictionary 352 ( 1993). \n\ntaken together, the five requests you submitted on March 28, 2018, \" include[] a combination of\n\nHere, the Village designated your requests as voluminous by contending that, \n\nindividual\n\nrequests that total requests\n\nfor more than 5' different categories of records[.]\" Based\n\non this office' s review of your March 28, 2018, FOIA requests, you seek more than five\n\ncategories of records. Specifically, your first request seeks at least three categories of records: \n1) details regarding the contract to demolish Lincoln Mall; ( 2) information regarding the\nbidding process for that project; and ( 3) the project' s cost records, including records to show all\ncompanies that received payment for work on the project, information on the total funds paid for\nthe project, and projected and actual costs. 6 Your second request seeks records in the category of\ntransaction details for amounts paid from every business district tax fund within the Village for a\ncertain period of time. Your third request seeks two categories of information: ( 1) \n\nthe\n\ntransactional\ninformation pertaining to TIF districts; and ( 2) details regarding the economic\ngrowth project associated with each TIF district. Your fourth request seeks not only ( 1) the\ntransactions between the Village of Matteson and Cali Atlantic Builders and/ or RylandiHomes for\n\na period of time, but also ( 2) the \" contract agreement details and payables from\" the Village and\n\nthe remainder of your request, it might seek additional categories of requests. \n\n6As noted by the Village, portions of your first request are vague. Depending on the meaning of\n\nby\n\nMarch 28, 2018). \n\nFreedom of Information Act ( FOIA) Request\n\nto Angela Simington, Chief FOIA Officer, signed\n\n\fApril 24, 2018\n\nPage 4\n\nRyland Homes and/ or Cal Atlantic for that same time period. Your fifth request sought: ( 1) \norganizational charts; ( 2) salary information for employees within the reporting structure; and, \n3) job descriptions for those employees. In sum, your five requests included requests for at least\n11 categories of information. \n\nBecause your five requests sought more than five different categories of records\n\nwithin a period of 20 business days, this office concludes that the Village did not improperly\ndesignate your requests as voluminous requests. Accordingly, you had ten business days, until\nApril 18, 2018, to amend the requests in such a way that the Village would no longer treat the\nrequest as a voluminous request. 8 The Village would then have had five business days to\nrespond, or, if you did not amend your request, it must respond by April 25, 2018. If you wish to\nfile a Request for Review of the Village's substantive response to your request, you may do so\nnot later than 60 days after the date of' the response. 5 ILCS 140/ 9. 5( a) ( West 2016). \n\nFor the reasons stated above, this office has determined that no further action is\n\nwarranted as to this matter. If you have questions, you may contact me at ( 217) 524- 7958 or\nLHarter@atg. state. il.us. This letter serves to close this matter. \n\nVery truly yours, \n\nLAURA S. HARTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n52595 f no ft war mun\n\nis sent to amend the request\n\nSection 3. 6 of FOIA sets forth the process for complying with or denying a voluminous request. \nOnce a public body designates a requester as a voluminous requester, the requester has \" 10 business days from the\ndate the public body' s response * * * \nthe public body will no longer\ntreat the request as a voluminous request.\" 5 ILCS 140/ 3. 6( b) ( West 2016). If the requester responds to the public\nbody and the request continues to be voluminous or the requester\nfails to respond to the public body within the 10\nday period, the public body is required to \" respond within the earlier of 5 business days after it receives the response\nfrom the requester or 5 business days after the final day for the requester to respond to the public body' s\nvoluminous request] notification.\" 5 ILCS 140/ 3. 6( c) ( West 2016). The public body' s response shall \"( i) provide\nan estimate of the fees to be charged, which the public body may require the person to pay in full before copying the\nto one or more of the exemptions set out in this Act; ( iii) notify\nrequested documents; ( ii) deny the request pursuant\nto reduce\nthe requester that the request\nthe request\n\nis unduly burdensome and extend an opportunity to the requester\n\nto manageable proportions; or ( iv) provide the records requested.\" \n\nin such a way that\n\nto attempt\n\n5 ILCS 140/ 3. 6( c) ( West 2016). \n\n\fApril 24, 2018\n\nPage 5\n\nMs. Angela Simington\nFOIA Officer\nVillage of Matteson\n4900 Village Commons\n\nMatteson, Illinois 60443\n\nasimington@villageofinetteson.\n\norg\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Demolition contract details and account payable transactions from business district tax funds","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":911,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-10-17","case_number":null,"request_numbers":["52748"],"title":"Wesley Township improperly withheld emails under attorney-client privilege exemption","filename":"52748, issued October 17, 2018.pdf","rel_path":null,"word_count":3056,"summary":"The requester sought emails between Wesley Township and its legal counsel, which the Township denied under the attorney-client privilege exemption. The PAC determined the Township failed to provide sufficient evidence to support the exemption and ordered the disclosure of the records.","plain_summary":"A resident requested emails between Wesley Township and its law firm, but the Township refused to release them, claiming they were protected by attorney-client privilege. The Attorney General's office reviewed the request and found that the Township did not provide enough proof to justify keeping the emails secret. Consequently, the Township was instructed to release the emails to the requester.","holding":"The Township improperly withheld the requested emails because it failed to meet its burden of proving the attorney-client privilege exemption applied to the specific records.","legal_question":"Did the Township meet its burden of proving that emails between the Township and its legal counsel were exempt from disclosure under the attorney-client privilege exemption of FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(m)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(m)"],"public_body":"Wesley Township","requesting_party":"Anonymous (redacted in source)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"legal records","subject_description":"The request sought all emails between Wesley Township and the law firm hired by the township supervisor over a six-month period.","ocr_status":"ok","ocr_quality":91.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/9.5/9.5_c/52748%2C%20issued%20October%2017%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["attorney-client privilege","legal advice","FOIA denial","email records"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nOctober 17, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Keri - Lyn J. Krafthefer\n\nAncel Glink, Diamond, Bush, DiCianni & Krafthefer, P. C. \n\n140 South Dearborn Street, 6th Floor\n\nChicago, Illinois 60603\n\nKKrafthefer@ancelglink. com\n\nRE: FOIA Request for Review — 2018 PAC 52748\n\nDear\n\nand Ms. Krafthefer, \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 93( 0 (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that Wesley Township ( Township) did not sustain its burden of\ndemonstrating by clear and convincing evidence that the records requested by\nare\nexempt\n\nfrom disclosure. \n\nOn April 11, 2018, \n\nsubmitted a FOIA request to the Township seeking\ncopies of \"ALL emails both to and from the lawyers firm that the supervisor hired representing\nthe township within the last 6 months.\" ( Emphasis\nTownship denied the request\n140/ 7( 1)( m) ( West 2017 Supp.)). On April 18, 2018, this office received\nReview contesting the denial. Specifically, he argued that there is no litigation currently being\nhandled by the firm hired by the current supervisor. \n\nto section 7( 1)( m) of FOIA ( 5 ILCS\n\nin original.? On April 17, 2018, the\n\nin its entirety pursuant\n\nRequest\n\nfor\n\nApril\n\n11, 2018). \n\nFOIA request\n\nfrom\n\nto wesleysuper2017@outlook.\n\ncom, wesleytwp20I7@outlook.\n\ncom\n\n500 South Second Street, Springfield, Illinois 62701 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • \n\nFax: ( 312) 814- 3806\n\n1001 East Main. Carbondale. \n\nIllinois 62901 • ( 6181 529- 6400 • TTY: ( 6181 529- 6403 • Fax: ( 61 81 529- 6416\n\n\fMs. Keri -Lyn J. Krafthefer\n\nOctober 17, 2018\n\nPage 2\n\nOn April 26, 2018, this office forwarded a copy of the Request for Review to the\nTownship and asked it to provide this office with unredacted copies of the requested records for\nour confidential review, together with a detailed explanation of the factual and legal bases for the\n\napplicability of section 7( 1)( m). On May 25, 2018, counsel for the Township provided this\noffice with a written response, maintaining that the Township properly withheld the responsive\nrecords except for certain records that the Township decided to disclose to\nupon \" re- \nreview.\"' However, instead of providing copies of the remaining withheld records to this office, \nthe Township provided a privilege log with information about each withheld e- mail. The\nTownship argued that releasing the records to this office would waive the attorney- client\nprivilege. On May 29, 2018, this office forwarded a copy of the Township' s response to\n\nhe replied later on that same date, arguing that the attorney- client privilege does not apply\n\nhere because the Township attorney' s \" client\" is the public. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" \n5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 I11. 2d 390, 415 ( 2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 ( West 2016). \n\nSection 9. 5( c) of FOIA\n\nAs an initial matter, this office will address the Township' s claim that it would\n\nwaive the attorney- client privilege by providing records for our confidential\ncourts have defined \" waiver\" as the \" voluntary relinquishment of a known right, claim or\nprivilege[.]\" Vaughn v. Speaker, 126 Ill. 2d 150, 161 ( 1998). A \" voluntary disclosure by the\nholder of the attorney- client privilege is inconsistent with the attorney- client confidential\nrelationship and thus waives the privilege.\" Powers v. Chicago Transit Auth., 890 F. 2d 1355, \n1359 ( 7th Cir. 1989). However, a party \" does not waive the attorney- client privilege for\ndocuments which he is compelled to produce.\" Transamerica Computer v. International\n\nreview. \n\nIllinois\n\nBusiness Machines, 573 F. 2d 646, 651 ( 9th Cir. 1978). \n\nSection 9. 5( c) of FOIA ( 5 ILCS 140/ 9.5( c) ( West 2016)) expressly and\n\nunambiguously provides that each public body \" shall provide copies of records requested and\nshall otherwise fully cooperate with the Public Access Counselor.\" ( Emphasis added.) Because\nsection 9. 5( c) does not afford the Township discretion to disregard its statutory obligation to\n\nSteve Silverman, Marie Hollister, Assistant[ ] Attorney[ s] General, Public Access Bureau ( May 25, 2018), at 3. \n\nLetter from Keri -Lyn . 1. Krafthefer, Ancel Glink, Diamond, Bush, DiCianni & Krafthefer, P. C., to\n\n\fMs. Keri -Lyn J. Krafthefer\n\nOctober 17, 2018\n\nPage 3\n\nfully cooperate with this inquiry, the Township would not waive the attorney- client privilege by\nfurnishing the records in question to the Public Access Counselor. The General Assembly\nclearly recognized that the Public Access Counselor must have access to all pertinent records in\norder to conduct a complete review of a public body' s compliance with FOIA. The following\ncolloquy between Representative Elaine Nekritz and Representative Michael Madigan, the\nHouse sponsor of the bill, during the House debate on Senate Bill 189 ( which, as Public Act 96- \n542, effective January I, 2010, created the Office of the Public Access Counselor), evinces the\nGeneral Assembly' s intention to vest the Public Access Counselor with complete authority to\n\nconduct confidential\n\nreviews of records. \n\nNekritz: Thank you Mr. Speaker. \nto clarify the legislative intent under\nunderstanding that under this Bill, an agency' s required to provide\nrecords requested by the public access counselor. What if some\nother State or Federal Law precludes disclosure of those records to\n\nI just have some questions * * * \n\nIt' s my\n\nthis. * * * \n\nsome other party like HIPAA, an IG report or something like that? \nHow does that * * * get resolved? \n\nMadigan: Point number one, the Attorney General will review\nthose documents in confidence. They would be kept confidential. \nPoint number two, if it were a Federal Law in conflict, why, the\nFederal Law would control. \n\nNekritz: [ A]nd if some investigating authority such as the U. S. \nAttorney asked to have that certain records not be disclosed * * * \nwhat would be the result there? \n\nMadigan: * * * [\n\nT] he Office of the U. S. Attorney could interact\nwith the Office of the Attorney General, make a request, but the\nfinal judgment...\nAttorney General. ( Emphasis added.) Remarks of Rep. Nekritz\nand Rep. Madigan, May 27, 2009, House Debate on Senate Bill\nNo. 189, at 105. \n\nthe final decision would be made by the\n\nIn its response to this office, the Township contended that this office' s position\n\nthat section 9. 5( c) of FOIA requires public bodies to provide this office with unredacted copies\n\nof records subject to a claim of attorney- client privilege \" varies from the express provisions of\nthe Open Meetings Act which permit the Public Access Counselor' s office to review verbatim\n\n\fMs. Keri -Lyn J. Krafthefer\n\nOctober 17, 2018\n\nPage 4\n\nrecordings of closed meetings.\n\ni3\n\nSee 5 ILCS 120/ 3. 5( b) ( West 2016) (\"[ T] he Public Access\n\nCounselor has the same right to examine a verbatim recording of a meeting closed to the public\nor the minutes of a closed meeting as does a court in a civil action brought to enforce this Act.\"). \nThe Township argued: \n\nYour office has contended in the past that, because Section 3. 5( b) \n\nexpressly provides your office the same right to examine a\nverbatim recording as a court, and because a court can inspect a\nverbatim recording in camera, thereby preserving the attomey- \nclient privilege, your office' s in camera review of a verbatim\nrecording would preserve the attorney- client privilege[.] 141\n\nThe Township further argued that \" similar disclosure or waiver protection language is not\nincluded in the Freedom of Information Act. i5 Additionally, the Township argued that\nRepresentative Madigan' s remarks during the House debate on Senate Bill 189 pertained to\nproviding this office with records under the Open Meetings Act ( OMA) rather than FOIA, and\nthat \"[ t] he General Assembly has amended Section 7 of the Freedom of Information Act seven\ntimes since that floor debate in 2010 and has never once sought to specify that the attorney- client\nprivilege is not waived by a public body' s voluntary disclosure of protected materials to the\nPublic Access Counselor' s Office. i6\n\nBoth section 9. 5( c) of FOIA and section 3. 5( b) of OMA provide that \" the public\nbody shall provide copies of the records requested and shall otherwise fully cooperate with the\nPublic Access Counselor.\" ( Emphasis added.) Despite the Township' s argument that \" if the\nGeneral Assembly had intended documents produced to the [ Public Access Bureau] under the\nFreedom of Information Act to be held confidential, as they are under the Open Meetings Act, \nthe General Assembly would have done so[,]\" \n\n7 section 9. 5( c) of FOIA clearly provides: \" To the\n\n3Letter from Keri -Lyn J. Krafthefer, Ancel Glink, Diamond, Bush, DiCianni & Krafthefer, P. C., to\n\nSteve Silverman, Marie Hollister, Assistant[ ] Attomey[ s] General, Public Access Bureau ( May 25, 2018), at 3. \n\nLetter from Keri -Lyn J. Krafthefer, Ancel Glink, Diamond, Bush, DiCianni & Krafthefer, P. C., to\n\nSteve Silverman, Marie Hollister, Assistant[ ] Attomey[ s] General, Public Access Bureau ( May 25, 2018), at 3. \n\n5Letter from Keri -Lyn J. Krafthefer, Ancel Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., to\n\nSteve Silverman, Marie Hollister, Assistant[ ] Attomey[ s] General, Public Access Bureau ( May 25, 2018), at 4. \n\n6Letter from Keri -Lyn J. Krafthefer, Ancel Glink, Diamond, Bush, DiCianni & Krafthefer, P. C., to\n\nSteve Silverman, Marie Hollister, Assistant[ ] Attomey[ s] General, Public Access Bureau ( May 25, 2018), at 4. \n\n7Letter from Keri -Lyn J. Krafthefer, Ancel Glink, Diamond, Bush, DiCianni & Krafthefer, P. C., to\n\nSteve Silverman, Marie Hollister, Assistant[ ] Attomey[ s] General, Public Access Bureau ( May 25, 2018), at 4. \n\n\fMs. Keri -Lyn J. Krafthefer\n\nOctober 17, 2018\n\nPage 5\n\nthat records or documents produced by a public body contain information that is claimed\nextent\nto be exempt from disclosure under Section 7 of this Act, the Public Access Counselor shall not\n\nfurther disclose that information.\" Additionally, neither Representative Nekritz nor\nRepresentative Madigan alluded to OMA. Their remarks plainly did not concern verbatim\nrecordings of closed sessions, which the Township appears to contend are the only records that\ncan be provided to the Public Access Counselor without waiving the attorney- client privilege. \nInstead, the remarks concerned this office' s access to review documents such as medical records\n\nreports that are denied under FOIA. Moreover, it is unnecessary for the\n\nand inspector general\nGeneral Assembly to amend FOIA to specifically state that this office is entitled to review\nrecords subject\nto claims of attorney client privilege in light of the plain language of section\n9. 5( c). If the General Assembly wished to carve out an exception in section 9. 5( c) that would\nhave permitted public bodies to withhold from the Public Access Counselor records asserted to\nbe exempt under section 7( 1)( m) of FOIA, the General Assembly would have done so expressly. \nThe Township' s refusal to provide this office with unredacted copies of the records in question\nthe type of comprehensive review that\nundermines the Public Access Counselor' s duty to conduct\nthe General Assembly deemed to be crucial when it enacted Public Act 96- 542. This refusal also\nviolates section 9. 5( c) of FOIA. See 111. Att' y Gen. Pub. Acc. Op. No. 12- 007, issued April 2, \n2012, at 7. \n\nDespite the Township' s lack of cooperation, this office will analyze whether the\n\nprivilege log and response letter submitted by the Township provide clear and convincing\nevidence that the withheld e- mails are exempt from disclosure under section 7( 1)( m). \n\nSection 7( 1)( m) of FOIA\n\nSection 7( 1)( m) of FOIA exempts from disclosure: \n\nCommunications between a public body and an attorney or\n\nauditor representing the public body that would not be subject to\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body, and materials prepared or compiled with respect\nto internal audits of public bodies. \n\nCommunications protected by the attorney- client privilege are within the scope of section\n7( 1)( m). See People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 ( 1st Dist. 1997). A party\nasserting that a communication to an attorney is protected by the attorney- client privilege must\nshow that: \"( 1) a statement originated in confidence that it would not be disclosed; ( 2) it\n\n\fMs. Keri -Lyn J. Krafthefer\n\nOctober 17, 2018\n\nPage 6\n\nwas made to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices; and ( 3) it remained confidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 ( 2nd\nDist. 2006). Moreover, \"[\n\nt] he privilege applies not only to the communications of a client to his\nattorney, but also to the advice of an attorney to his client.\" In re Marriage of Granger, 197 I11. \nApp. 3d 363, 374 ( 5th Dist. 1990); see also People v. Radojcic, 2013 IL 114197, ¶ 40, 998\nN. E. 2d 1212, 1221- 22 ( 2013) (\"[ T] he modern view is that the privilege is a two- way street, \nprotecting both the client' s communications to the attorney and the attorney' s advice to the\nclient.\"). A public body that withholds records under section 7( 1)( m) \" can meet its burden only\nby providing some objective indicia that the exemption is applicable under the circumstances.\" \nEmphasis in original.) \n456, 470 ( 2003). \n\nIllinois Education Ass' n v. Illinois State Board Of Education, 204111. 2d\n\nIn its response to this office, the Township contended that \"[ w]hile\nargues that the requested e- mails must be released as the firm is * * * not currently handling any\npending litigation for the Township, case law is clear that the attorney client privilege extends to\ncommunications of a corporate nature, as well as litigation. i8 The Township argued that because\nall of the communications listed in the privilege log are e- mails between Ancel Glink attorneys\nand Township Supervisor JoAnn Quigley or Township Clerk Susan Lyday, all of the\ncommunications are subject to the attorney- client privilege. \n\nAlthough the Township is correct that a communication between Supervisor\n\nQuigley or Clerk Lyday and the Township' s attorney need not concern pending litigation in order\nto fall within the scope of section 7( 1)( m), the attorney- client privilege does not apply to all\ncommunications between an attorney and a client. Rather, as set forth above, it is incumbent on\nthe public body to provide some objective indicia that the other elements of the privilege are met: \nthat the communication was made for the purpose of seeking or providing legal advice and was\nkept confidential. \n\nThe privilege log that the Township provided to this office lists e- mails with the\n\nsenders' and receivers' names, the dates and times of transmission, and brief, generalized\n\ndescriptions. A privilege log is insufficient if it contains only \" blanket assertions of privilege, \ndevoid of the factual basis necessary to properly establish entitlement\nprivilege.\" Novelty, Inc. v. Mountain View Marketing, Inc., 265 F. R.D. 370, 380 ( S. D. Ind. \n2009); see also Ill. Att' y Gen. PAC Req. Rev. Ltr. 50376, issued February 20, 2018, at 4\nprivilege log stating that redacted e- mails contained legal opinions was conclusory; public body\ndid not demonstrate that communications were for the purpose of securing legal advice or\nremained confidential); Ill. Att' y Gen. PAC Req. Rev. Ltr. 25694, issued August 13, 2014, at 5\n\nto some evidentiary\n\n8Letter from Keri -Lyn J. Krafthefer, Ancel Glink, Diamond, Bush, DiCianni & Krafthefer, P. C., to\n\nSteve Silverman, Marie Hollister, Assistant[ ] Attomey[ s] General, Public Access Bureau ( May 25, 2018), at 2. \n\n\fMs. Keri -Lyn J. Krafthefer\n\nOctober 17, 2018\n\nPage 7\n\nvague and very broad descriptions\" in connection with privilege log \"[ did] not provide the\nfactual detail needed to demonstrate that the records in question [ were], in fact, privileged.\"). \n\nHere, the Township did not provide adequate details to demonstrate that the\n\nwithheld e- mails are exempt\n\nfrom disclosure under section 7( 1)( m). The mere fact that the e- \n\nmails were exchanged by the Township and its outside counsel does not demonstrate that all of\nthose e- mails contain or seek legal advice. Additionally, the short and nonspecific descriptions\nof the withheld e- mails in the privilege log do not conclusively demonstrate that the e- mails\nconsist entirely of the seeking or giving of legal advice. The Township' s assertion that the\nwithheld e- mails involve legal advice is conclusory. Further, the extent\ncertain e- mails were kept confidential\nthat the contents of certain e- mails may potentially have been subject to subsequent public\ndiscussion, possibly waiving the protection of the attorney- client privilege. Accordingly, the\nTownship has not sustained its burden of demonstrating by clear and convincing evidence that\nthe records in question are exempt\n\nto which the contents of\ninstances, the privilege log indicates\n\nfrom disclosure under section 7( 1)( m). \n\nis unclear. \n\nIn several\n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat the Township disclose copies of the e- mails to\nredactions under section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2017 Supp.)). \n\nsubject only to permissible\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at the Chicago address on the first page of this letter. \n\nVery truly yours, \n\nMARIE HOLLISTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n52748 f 71m improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Emails between a township and its legal counsel","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":912,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-06-21","case_number":null,"request_numbers":["52871"],"title":"Lake County Sheriff's Office properly denied body camera footage under 7(1)(a)","filename":"52871, issued June 21, 2018.pdf","rel_path":null,"word_count":1519,"summary":"The requester sought body camera footage from a police response at a judicial circuit court, which the Sheriff's Office denied citing FOIA exemption 7(1)(a). The PAC determined that the Sheriff's Office did not improperly withhold the records.","plain_summary":"A requester asked for police body camera footage of an incident at a courthouse. The Sheriff's Office refused to release the video, and the Attorney General's office agreed that the refusal was lawful. This means the public does not have a right to access this specific footage under FOIA.","holding":"The Lake County Sheriff's Office did not violate FOIA by withholding the requested body camera footage.","legal_question":"Whether the Lake County Sheriff's Office properly denied a FOIA request for body camera footage under section 7(1)(a) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(a)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Lake County Sheriff's Office","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request involved body camera footage of officers responding to an incident at the 19th Judicial Circuit Court.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_a/Exclusion-of-judiciary/52871%2C%20issued%20June%2021%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["body camera","police records","FOIA exemption","court records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 21, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Christy Berkquist, FOIA Officer\nLake County Sheriffs Office\n25 South Martin Luther King Jr. Avenue\nWaukegan, Illinois 60085\n\ncberkquist@lakecountyil.\n\ngov\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 52871\n\nDear\n\nand Ms. Berkquist: \n\nThis determination is issued pursuant to section 9.5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2016)). For the reasons stated below, the\nPublic Access Bureau concludes that the Lake County Sheriffs Office ( Sheriffs Office) did not\nimproperly withhold body camera footage in response to a FOIA request submitted on behalf of\n\non behalf of the\n\nOn April 10, 2018, \n\nsubmitted a\nFOIA request to the Sheriffs Office seeking \" copies of the body camera footage ( audio & visual) \nof the officers who responded to an incident that occurred at the Clerk' s Office of the 19th\nJudicial Circuit Court in Waukegan on March 16, 2018 at approximately 11: 33 a.m.i1 On April\n25, 2018, the Sheriff' s Office denied\nrequest pursuant to section 7( 1)( a) of FOIA\n5 ILCS 140/ 7( 1)( a) ( West 2016), as amended by Public Acts 100- 026, effective August 4, 2017; \n100- 201, effective August 18, 2017). The Sheriffs Office cited Illinois Supreme Court Rule 63\nin connection with its assertion that the footage was exempt under section 7( 1)( a) of FOIA. On\nRequest for Review contesting the denial of\nApril 26, 2018, this office received\nthe FOIA request submitted on his behalf. \n\nOffice ( April 10, 2018). \n\nFreedom of Information Act Request Form from\n\nto the Lake County Sheriffs\n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 • TTY: ( 217) 785 - 2771 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois, 60601 • (\nFax: ( 312) 814- 3806\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • \n\n\fMs. Christy Berkquist\nJune 21, 2018\nPage 2\n\nOn May 1, 2018, this office sent the Sheriffs Office a copy of the Request for\nReview and requested copies of the withheld footage for our confidential review, as well as a\ndetailed explanation of the factual and legal bases for the asserted exemption. The Public Access\nBureau received a letter from The Honorable Jay W. Ukena, Chief Judge, Circuit Court, \nNineteenth Judicial Circuit, dated May 7, 2018, asserting that the body camera videos were\nproperty of the judicial branch and not subject to FOIA, or, alternatively, were exempt from\ndisclosure pursuant to section 7( 1)( a) of FOIA. On May 16, 2018, the Sheriffs Office responded\nby adopting the letter from Judge Ukena as its response to\nOn May 16, 2018, this office forwarded copies of Judge Ukena's letter and the Sheriff's Office's\nanswer to\n\nRequest for Review. \n\nhe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 ( 2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 ( West 2016). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees ofSouthern Illinois University, 176 Ill. 2d 401, 407 ( 1997). \n\nIn its answer to this office, the Sheriff's Office asserted that disclosure of the\n\nfootage sought by\nSheriffs Office asserted that footage captured inside the Lake County Circuit Clerk' s Office\nCircuit Clerk's Office) by Sheriff's Office deputies assigned to the Court Security Unit \"are not\npublic records but are records of the judicial branch and not subject to FOIA[. J' 2\n\nis limited by Illinois Supreme Court Rule 63. In particular, the\n\nIllinois Supreme Court's rules \" have the force of law, and the presumption must\n\nbe that they will be obeyed and enforced as written.\" Bright v. Dicke, 166 Ill. 2d 204, 210\n1995). The Illinois Supreme Court has explained: \n\nWhen interpreting supreme court rules, our court is guided by the\nsame principles applicable to the construction of statutes. \nis to ascertain\nCitations.] With rules, as with statutes, our goal\nand give effect to the drafters' intention. [ Citation.] The most\nreliable indicator of intent is the language used, which must be\ngiven its plain and ordinary meaning. People v. Marker, 233 I11. \n2d 158, 164- 65 ( 2009). \n\nCircuit, Lake County, Illinois, to Matt Hartman, Assistant Attorney General, Public Access Bureau ( May 7, 2018), \n\nat 3. \n\nLetter from The Honorable Jay W. Ukena, Chief Judge, Circuit Court, Nineteenth Judicial\n\n\fMs. Christy Berkquist\nJune 21, 2018\n\nPage 3\n\nIllinois Supreme Court Rule 63, titled \" A Judge Should Perform the Duties of\n\nJudicial Office Impartially and Diligently[,]\" is one of the canons of the Judicial Code of\nConduct? The Appendix to Rule 63 provides, in pertinent part: \n\nAll recordings from security cameras monitoring court\n\nfacilities are the property of the local circuit courts and are deemed\nto be in the possession of the local circuit courts notwithstanding\nactual possession by another party. ( Emphasis added.) Ill. S. Ct. \nR. 63, Appendix ( last amended February 2, 2017). \n\nOn the other hand, section 1. 2 of FOIA ( 5 ILCS 140/ 1. 2 ( West 2016)) provides\n\nthat all public records \" in the custody or possession of a public body are presumed to be open to\ninspection or copying.\" FOIA broadly defines \" public records\" as: \n\nall records, reports, forms, writings, letters, memoranda, books, \npapers, maps, photographs, microfilms, cards, tapes, recordings, \nelectronic data processing records, electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction of public business, regardless of\nphysical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body. 5 LCS 140/ 2( c) ( West\n2016). \n\nTo the extent Supreme Court Rule 63 conflicts with these provisions of FOIA by\ndesignating footage from security cameras monitoring court facilities as property of the circuit\ncourts, even if the footage is in the physical custody of a public body such as the Sheriff's Office, \nthe Rule takes precedence: \"\nIt is well settled in Illinois that where a supreme court rule conflicts\nwith a statute on the same subject, ' the rule will prevail.\"' Dalan/Jupiter, Inc. ex rel. JRC\nMidway Marketplace, L.P. v. Draper & Kramer, Inc., 372 III. App. 3d 362, 370 ( 1st Dist. 2007) \nquoting O' Connell v. St. Francis Hospital, 112 III. 2d 273, 281 ( 1986)). \n\nThe Illinois Supreme Court has held that \" clerks of the circuit courts in this State\n\nare nonjudicial members of the judicial branch of State government\" Drury v. McLean\nCounty, 89 I11. 2d 417, 420 ( 1982). Thus, the Circuit Clerk' s Office within the Lake County\nCourthouse ( Courthouse) is a \" court facility\" as that term is used in the Appendix to Rule 63. \n\n3111. S. Ct. R. 63. \n\n\fMs. Christy Berkquist\nJune 21, 2018\nPage 4\n\nBased on its plain language, the clear intent of the Illinois Supreme Court in\n\nadopting the Appendix to Rule 63 was to designate recordings captured for security purposes\nfrom inside the Courthouse as Circuit Court property. 4 In this matter, the footage was captured\nby members of the Court Security Unit, who are assigned to the Courthouse to \" maintain the\nsecurity of the courthouse.\" 55 ILCS 5/ 3- 6023 ( West 2016). The Circuit Court denied the\nSheriffs Office request to release the footage at issue.5 Because the requested footage is Circuit\nCourt property despite being in the physical custody of the Sheriffs Office, and because the\nCircuit Court directed the Sheriff's Office not to release the footage, this office concludes that\nthere is no basis on which to find that the Sheriff' s Office violated FOIA by withholding the\nfootage. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. Please contact me at ( 217) 782- 9054, \nmhartman@atg. state. il.us, or the Springfield address at the bottom of the first page if you have\nquestions. This letter serves to close this file. \n\nVery truly yours, \n\nMATT HARTMAN\nAssistant Attorney General\nPublic Access Bureau\n\n52871 71a proper co\n\ncc: \n\nThe Honorable Jay W. Ukena, Chief Judge\nCircuit Court, Nineteenth Judicial Circuit\nLake County, Illinois\n18 North County Street\nWaukegan, Illinois 60085\n\nThe Circuit Court is not subject to requirements of FOIA. See Copley Press, Inc. v. \n\nAdministrative Office of the Courts, 271 111. App. 3d 548, 553 ( 1995) (\" The lack of any reference to the courts or\njudiciary must be taken as an intent to exclude the judiciary from the disclosure requirements of the Act.\"). \n\nJudicial Circuit Court ( April 20, 2018) \n\nSCourt Surveillance/ Body Camera Video Request Form, Administrative Office of the Nineteenth\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police body-camera footage of a courthouse incident","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":913,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-02-01","case_number":null,"request_numbers":["53007","53008","53009"],"title":"University of Illinois improperly withheld IRB research investigation records under multiple exemptions","filename":"53007 53008 53009, issued February 1, 2019.pdf","rel_path":null,"word_count":3759,"summary":"The University of Illinois withheld portions of records related to a research investigation, citing various FOIA exemptions and the Medical Studies Act. The PAC determined the University improperly withheld portions of letters detailing findings and corrective actions from an IRB review process.","plain_summary":"A reporter requested records from the University of Illinois regarding an investigation into a professor's research. The University redacted or withheld portions of the records, citing exemptions under state and federal law. The Illinois Attorney General's Public Access Bureau concluded that the University improperly denied portions of the records responsive to the requests.","holding":"The University of Illinois improperly denied portions of records responsive to three FOIA requests.","legal_question":"Whether the University of Illinois properly applied FOIA exemptions 7(1)(a), (b), (c), (f), (j)(ii), (j)(iv), and (n), as well as the Medical Studies Act, to withhold records concerning an IRB research investigation.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)","7(1)(f)","7(1)(j)(ii)","7(1)(j)(iv)","7(1)(n)"],"public_body":"University of Illinois","requesting_party":"Ms. Jodi S. Cohen (ProPublica Illinois)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"research investigation","subject_description":"The records concern an internal University of Illinois investigation into a professor's research and the associated Institutional Review Board (IRB) process.","ocr_status":"ok","ocr_quality":93,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_j/53007%2053008%2053009%2C%20issued%20February%201%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["university records","research investigation","IRB","redactions","FOIA exemptions"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKwame Raoul\n\nATTORNEY GENERAL\n\nFebruary 1, 2019\n\nVia electronic mail\n\nMs. Jodi S. Cohen\n\nProPublica Illinois\n\n1 North State Street, Suite 1500\n\n[street address redacted for site publication -- see original PDF]\nJodi. Cohen@Propublica. org\n\nVia electronic mail\n\nMr. Thomas P. Hardy\nExecutive Director and Chief Records Officer\n\nUniversity of Illinois\n1737 West Polk Street\n\nChicago, Illinois 60612- 7228\n\nfoia-our@mx. illinois.edu\n\nRE: FOIA Request for Review — 2018 PAC 53007, 53008 and 53009\n\nDear Ms. Cohen and Mr. Hardy: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2016)). For the reasons stated below, the\nPublic Access Bureau concludes that the University of Illinois ( University) improperly denied\nportions of records responsive to three FOIA requests submitted by Ms. Jodi Cohen. \n\nOn February 21, 2018, Ms. Cohen submitted a FOIA request to the University\n\nseeking seven records or categories of records referenced in a November 28, 2017, letter related\nto an investigation into Professor Mani Pavuluri' s research. On March 7, 2018, the University\nprovided certain records but redacted or withheld portions pursuant\n7( 1)( c), 7( 1)( 0, 7( 1)(\n\nto sections 7( 1)( a), 7( 1)( b), \n1)( b), ( 1)( c), \n\niv), and 7( 1)( n) of FOIA ( 5 ILCS 140/ 7( 1)( a), (\n\nii), 7( 1)(\n\nj)(\n\nj)( ii), ( 1)(\n\n1)( 0, ( 1)(\nUniversity asserted that section 8- 2101 of the Code of Civil Procedure ( Medical Studies Act) \n735 ILCS 5/ 8- 2101 ( West 2016)) and Federal\nregulations ( 42 C. F. R. § 93. 108( a), ( c) ( 2018)) \nprohibited disclosure of letters dated March 22, 2013, and April 8, 2013. On May 3, 2018, Ms. \n\nIn connection with section 7( 1)( a), the\n\nj)(\nj)( iv), ( 1)( n) ( West 2017 Supp.)). \n\n500 South Second Street, Springfield, \n\n100 West Randolph Street, Chicago, \n\nIllinois 62706 • (\nIllinois, 60601 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \nTTY: ( 312) 814- 3374 • \n312) 814- 3000 • \n\nFax: ( 217) 782- 7046\nFax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMs. Jodi S. Cohen\n\nMr. Thomas P. Hardy\nFebruary 1, 2019\nPage 2\n\nCohen submitted a Request for Review ( 2018 PAC 53007) contesting the redaction or\nwithholding of letters dated March 22, 2013, and April 8, 2013. \n\nOn March 9, 2018, Ms. Cohen submitted another FOIA request\nseeking eight letters or reports with specific dates concerning the investigation into Professor\nPavuluri's research. On March 23, 2018, the University provided responsive records but\nredacted portions of a May 22, 2013, letter pursuant\n140/ 7( 1)(\n\nf) (West 2017 Supp.)). On May 3, 2018, Ms. Cohen submitted a Request for Review\n\nf) of FOIA ( 5 ILCS\n\nto section 7( 1)(\n\nto the University\n\n2018 PAC 53009) disputing those redactions. \n\nto the University\nOn March 28, 2018, Ms. Cohen submitted a third FOIA request\nseeking five records or categories of records related to Professor Pavuluri' s research grants. On\nApril 11, 2018, the University responded that it did not possess any records responsive to the\nfifth part of the request and denied the other four parts pursuant\nof FOIA (\n\nj)( ii) ( West 2017 Supp.)). \nthe University again asserted that section 8- 2101 of the Medical Studies Act and section 93. 108\nof title 42 of the Code of Federal Regulations prohibited disclosure of the records. On May 3, \n2018, Ms. Cohen submitted a Request\nfor Review ( 2018 PAC 53008) contesting the redaction or\nwithholding of letters dated September 23, 2015, and October 26, 2015, and documents attached\nto September 28, 2015, and November 6, 2015, e- mails from Dr. Teresa D. Johnston to \" IRPT\n\nj)( ii) \nIn connection with section 7( 1)( a), \n\nto sections 7( 1)( a) and 7( 1)(\n\n5 ILCS 140/ 7( 1)( a), (\n\n1)(\n\nHHS/ OASH).\"' \n\nOn May 11, 2018, the Public Access Bureau sent each Request for Review to the\n\nUniversity and asked it to provide copies of the records at issue together with a detailed\nexplanation of the factual and legal bases for the applicability of the exemptions under which\nthose records were denied. On June 8, 2018, the University furnished copies of the records and a\nconsolidated response letter clarifying that it redacted or denied the records in these matters\npursuant to sections 7( 1)( a), based on section 8- 2101 of the Medical Studies Act, and 7( 1)(\nFOIA. In connection with 2018 PAC 53008, the University also clarified that the documents\nattached to the September 28, 2015, and November 6, 2015, e- mails are the same September 23, \n\nf) of\n\n2015, and October 26, 2015, letters that were denied in response to the underlying request. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 ( 2006). A public body \" has the burden\n\nthe Attorney General, Public Access Bureau ( May 3, 2018), at 4. \n\nLetter from Jodi S. Cohen, ProPublica Illinois, to Sarah Pratt, Public Access Counselor, Office of\n\n\fMs. Jodi S. Cohen\n\nMr. Thomas P. Hardy\n\ni February 1, 2019\n\nPage 3\n\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 ( West 2016). \n\nSections 7( 1)( a) and 7( 1)( f) of FOIA\n\nSection 7( 1)( a) of FOIA exempts from inspection and copying \"[\n\ni] nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" ( Emphasis added.) \"[ A] n exemption restricting the\nexpansive nature of the FOIA' s disclosure provisions must be explicitly stated -that is, such a\nproposed disclosure must be specifically prohibited.\" ( Emphasis in original.) Better Gov' t Ass' n\nv. Blagojevich, 386 Ill. App. 3d 808, 816 ( 4th Dist. 2008). \n\nThe records denied in their entireties pursuant to section 7( 1)( a) consist of four\nfrom a University Institutional Review Board ( IRB) to\n\nletters concerning research misconduct\nthe United States Department of Health and Human Services. The United States Food and Drug\nAdministration requires IRBs to review and monitor biochemical research \" to protect the rights\n\nand welfare of humans participating as subjects in the research. To accomplish this purpose, \nIRBs use a group process to review research protocols and related materials ( e. g., informed\nconsent documents and investigator brochures) to ensure protection of the rights and welfare of\nhuman subjects of research.\" 2 The University' s response to this office asserts that disclosure of\nthe IRB letters is specifically prohibited by section 8- 2101 of the Medical Studies Act. \n\nf) exempts from inspection and copying \"[ p] reliminary drafts, notes, \nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nSection 7( 1)(\n\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 70)( f) exemption applies to \" inter- and intra -agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 ( 1st Dist. 2003). \nthe deliberative process exemption in Federal FOIA, 3 the United States Supreme Court held that\ncommunications with third parties that have independent\ngovernment benefit from the public body' s final decision cannot be characterized as intra -agency\ncommunications. Department ofInterior v. Klamath Water Users Protective Ass' n, 532 U. S. 1, \n14- 15, 121 S. Ct. 1060 1069 ( 2001). \n\ninterests and that stand to obtain a\n\nIn construing\n\nInformation Sheet, https:// www. fda. gov/ Regulatorytnformation/ Guidances/ ucm126420. htm ( last visited November\n\n2U. S. Food & Drug Administration, \n\nInstitutional Review Board Frequently Asked Questions — \n\n26, 2018). \n\n35 U. S. C. § 552( b)( 5) ( 2000). \n\n\fMs. Jodi S. Cohen\n\nMr. Thomas P. Hardy\nFebruary 1, 2019\nPage 4\n\nPursuant to section 7( 1) W, the University redacted the substantive portions of a\n\nfifth letter that responded to issues about Professor Pavuluri' s research raised by the National\nInstitute of Mental Health, which is part of the United States Department of Health and Human\nServices. Although the University' s response to this office acknowledged that the University and\nfederal agencies have independent interests in this matter, it cited Klamath° in support of its\n\nassertion that the letter is exempt\ncommunication\n\nthat\n\nis privileged under the MSA. \n\nfrom disclosure under section 7( 1)(\n\nf) as an inter -agency\n\nSection 8- 2101 of the MSA provides: \n\nInformation obtained. All information, interviews, reports, \n\nstatements, memoranda, recommendations, letters of reference or\n\nother third party confidential assessments of a health care\npractitioner' s professional competence, or other data of the Illinois\n\nDepartment of Public Health, local health departments, the\nDepartment of Human Services ( as successor to the Department of\n\nMental Health and Developmental Disabilities), the Mental Health\n\nand Developmental Disabilities Medical Review Board, Illinois\n\nState Medical Society, allied medical societies, health maintenance\norganizations, medical organizations under contract with health\n\nmaintenance organizations or with insurance or other health care\n\ndelivery entities or facilities, tissue banks, organ procurement\nagencies, physician -owned insurance companies and their agents, \n\ncommittees of ambulatory surgical\n\ntreatment centers or post- \n\nsurgical recovery centers or their medical staffs, or committees of\nlicensed or accredited hospitals or their medical staffs, \n\nincluding Patient Care Audit Committees, Medical Care\nEvaluation Committees, Utilization Review Committees, \n\nCredential Committees and Executive Committees, or their\n\ndesignees ( but not the medical records pertaining to the patient), \nused in the course of internal quality control or of medical\nstudy for the purpose of reducing morbidity or mortality, or\nfor improving patient care or increasing organ and tissue\ndonation, shall be privileged, strictly confidential and shall be\nused only for medical\ndonation, the evaluation and improvement of quality care, or\ngranting, limiting or revoking staff privileges or agreements\n\nresearch, increasing organ and tissue\n\n4\"\n\nTo qualify, a document must * * * \n\nsatisfy two conditions: its source must be a Government\n\nagency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern\nlitigation against the agency that holds it.\" Klamath, 532 U. S. at 8, 121 S. Ct. at 1065. \n\n\fMs. Jodi S. Cohen\n\nMr. Thomas P. Hardy\nFebruary 1, 2019\nPage 5\n\nfor services, except that in any health maintenance organization\nproceeding to decide upon a physician' s services or any hospital or\nambulatory surgical\ntreatment center proceeding to decide upon a\nphysician' s staff privileges, or in any judicial review of either, the\nclaim of confidentiality shall not be invoked to deny such\nphysician access to or use of data upon which such a decision was\n\nbased. ( Emphasis added.) \n\nThe purpose of the Medical Studies Act is to encourage candid and voluntary\n\nstudies and programs used to improve hospital conditions and patient care or to reduce the rates\n\nof death and disease.\" Grosshuesch v. Edward Hospital, 2017 IL App ( 2d) 160972, ¶ 15, 83\nN. E. 3d 1185, 1189 ( 2017). Section 8- 2101 of the Act \" protects against disclosure of the\n\nmechanisms of the peer -review process, including information gathering and deliberation leading\nto the ultimate decision rendered by a hospital peer -review committee.\" Chicago Trust Co., v. \nCook County Hospital, 298 111. App. 3d 396, 402 ( 1st Dist. 2003). \nIt does not, however, \" apply\nto the restrictions that may be imposed as a result of that process.\" Richter v. Diamond, 108 I11. \n2d 265, 269 ( 1985); Nielson v. SwedishAmerican Hospital, 2017 IL App ( 2d) 160743, ¶ 38, 80\nN. E. 3d 706, 715 ( 2017) (\" Results of the peer -review process are not privileged and are\n\ndiscoverable.\"). ( Emphasis in original.)). \n\nResults \" take the form of ultimate decisions made or actions taken by that\n\ncommittee, or the hospital, and include the revocation, modification or restriction of privileges, \n\nletters of resignation or withdrawal, and the revision of rules, regulations, policies and\n\nprocedures for medical staff.\" Ardisana v. Northwest Community Hospital, Inc., 342 Ill. App. 3d\n741, 747 ( 1st Dist. 2003); see also Anderson v. Rush - Copley Medical Center, Inc., 385 Ill. App. \n3d 167, 181 ( 2nd Dist. 2008) (\" actual changes, such as modifications to hospital policy or\nprocedure, that were adopted [ by the hospital] as a direct result of the recommendations\nintemal conclusions in the Action Plan must be disclosed, as they constitute the ' ultimate\ndecisions made or actions taken' as a result of the peer - review process.\"); Green v. Lake Forest\n\nand\n\nHospital, 355 111. App. 3d 134, 138 ( 2d Dist. 2002) (\" findings of a peer -review committee are not\nprivileged under\n\nthe Act.\"). \n\nThe letters denied in their entireties pursuant\n\nto section 7( 1)( a) on the basis of the\n\nMSA detail an IRB' s findings and corrective actions concerning research misconduct. The letter\nredacted pursuant to section 7( 1)( f) on the basis that it is an inter -agency communication\nprivileged under the MSA was sent to the National\ndirector of the Office for the Protection of Research Subjects and the vice chancellor for\n\nInstitute of Mental Health by the University' s\n\nresearch. The brief, unredacted portion states: \" Thank you for providing the University of\nIllinois at Chicago ( UIC) the opportunity to respond to the issue NIHM raises regarding Dr. \nPavuluri' s research. \n\nIt is hoped that the Agency will find the actions taken to date to be\n\n\fMs. Jodi S. Cohen\nMr. Thomas P. Hardy\nFebruary 1, 2019\nPage 6\n\nsatisfactory and reflective of our Institution's commitment regarding the protection of human\nsubjects participating in research at UIC.\" 5\n\nThe University' s response to this office stated that the confidentiality provisions\n\nof the MSA apply to the University because it is an allied medical society and a medical\norganization under contract with health maintenance organizations or with insurance or other\nhealth care delivery entities or facilities. Although Ms. Cohen does not dispute the applicability\nof the MSA to the University' s peer review process, she asserts that the MSA' s confidentiality\nprovisions do not apply to information originating from IRB files. According to Ms. Cohen, \nsection 8- 2101 of the MSA does not prohibit disclosure of the letters because they \" were created\nfor purposes of meeting the University's obligation to report certain events to [ the United States\nthey were not created and used exclusively for the\nDepartment of Health and Human Services], \npurposes of peer review or quality improvement, and, consequently, do not fall within the\nprotections of the MSA.\" 7 ( Emphasis in original.). \n\nWe disagree. In Doe v. Illinois Masonic Medical Center, 297 Ill. App. 3d 240, \n\n244 ( 1st Dist. 1998), the Illinois Appellate Court ruled that a hospital' s IRB was \" a ' committee of\nthe hospital\"' within the scope of section 8- 2101 of the MSA. The court rejected the assertion\nthat the confidentiality provisions of the MSA are only applicable to peer review committees and\nlaw: \" The IRB here\nthat IRBs are excluded from the MSA because they are creatures of Federal\nqualifies as the type of committee covered by the Act. Although we believe that peer review\nfunctions are probably an inherent and inextricable part of the IRB' s review process, promoting\npeer review is not the only purpose of the Act.\" ( Emphasis in original.) Doe, 297 Ill. App. 3d at\n243- 44. The court went on to conclude that section 8- 2101 of the MSA prohibited disclosure of\nrecords related to a genetic testing procedure which were submitted to a hospital' s IRB. Doe, \n\n5Letter from James H. Fischer, PharmD, Director, Office for the Protection of Research Subjects, \n\nHuman Protections Administrator, and Mitra Dutta, PhD, Vice Chancellor\nProfessor, Department of Electrical and Computer Engineering, to Rebecca Claycamp, M. S., CRA, Chief Grants\nManagement Officer, National Institute of Mental Health ( May 22, 2013), at 1. \n\nfor Research, UIC Distinguished\n\n6Section 46. 103( b)( 5) of title 45 of the Code of Federal Regulations ( 45 C. F.R. § 46. 103( b)( 5) \n\n2018)) provides: \" Written procedures for ensuring prompt reporting to the IRB appropriate institutional officials, \nand the department or agency head of (i) any unanticipated problems involving risks to subjects or others or any\nserious or continuing noncompliance with this policy or the requirements or determinations of the IRB and ( ii) any\nsuspension or termination of IRB approval.\" \n\nLetter from Jodi S. Cohen, ProPublica Illinois, to Sarah Pratt, Public Access Counselor, Office of\n\nthe Attorney General, Public Access Bureau ( May 3, 2018), at 7. \n\n\fMs. Jodi S. Cohen\n\nMr. Thomas P. Hardy\nFebruary 1, 2019\nPage 7\n\n297 Ill. App. 3d at 245- 46.8 Further, it is irrelevant for purposes of section 8- 2101 of the MSA\nthat an external source prompted the creation of records that clearly concern internal quality\ncontrol. See Anderson, 385 Ill. App. 3d at 182 ( characterizing as a \" red herring\" the fact that an\naction plan created by a hospital' s peer review committee may have been mandated by the Joint\nCommission on Accreditation of Healthcare Organizations). \n\nThe letters at issue pertain to allegations of research misconduct\n\nin connection\n\nwith a medical study. Based on this office' s confidential\nfor purposes that\nreviewed those allegations were concerned about\nincluded improving patient care. Portions of the letters describing fact gathering and other\naspects of this internal quality control process fall squarely within the scope of section 8- 2101 of\nthe MSA. Therefore, the University did not improperly withhold those portions of the letters\npursuant to section 7( 1)( a) of FOIA. \n\nreview, the IRB and medical staff who\n\ninternal quality control\n\nThe letters, however, largely consist of the IRB' s findings and corrective actions\n\nthat resulted from the IRB review process. Such results are not confidential under the Act. \nArdisana 342111. App. 3d at 747. Because section 8- 2101 of the MSA does not prohibit\ndisclosure of these results, this office concludes that the University has not sustained its burden\nof demonstrating that the letters are exempt from disclosure in their entireties pursuant to section\n70 )(a) of FOIA. That finding compels the conclusion that portions of the letter to the National\nInstitute of Mental Health detailing the corrective actions taken to protect human research\nsubjects are not exempt from disclosure pursuant to section 7( 1)(\ninter -agency communications that are privileged under the MSA.9\n\nf) because they do not constitute\n\nSections 7( 1)( j)(ii) and 7( 1)( j)(iv) \n\nThe University response to the request in 2018 PAC 53008 also cited section\n7( 1)(\nj)( ii), which exempts from disclosure \" information received by a primary or secondary\nschool, college, or university under its procedures for the evaluation of faculty members by their\nacademic peers.\" The University' s response to this office stated: \" deliberations, opinions and\nregarding the peer evaluations or that the University had received during the\nrecommendations\n\n8In her reply to this office, Ms. Cohen cited three court decisions that concluded medical studies\n\noverseen by IRBs are not encompassed by peer review statutes in other states. P.J. ex. rel. Jensen v. Utah, 247\nF. R. D. 664 ( D. Utah 2007); Esdale v. American Community Mutual Insurance Co., 1995 WL 263479 ( N. D. Ill., \n1995); Konardy v. Osterling, 149 F. R.D. 592 ( D. Minn. 1992). Those decisions did not analyze section 8- 2101 of\nthe MSA and therefore have no relevance to this matter in Tight of the Doe court' s decision that the Act covers IRBs. \n\n9Because that determination is dispositive, this office declines to address whether the independent\n\ninterests of the University and the Department excluded the letter\n\nfrom the scope of section 7(\n\n1)(\n\nf). \n\n\fs. Jodi S. Cohen\n\nMr. Thomas P. Hardy\nFebruary 1, 2019\nPage 8\n\ncourse of the peer review process were withheld or redacted from the responsive records. il° In\naddition, the University' s response to this office cited section 7( 1)(\n\niv) of FOIA, stating that\n\nj)(\n\ni] nformation contained in both the letters and the research protocols contains information that\nj)( iv) \n\nthe University generated during the peer review and research process. ill The section 7( 1)(\nexemption applies to \" course materials or research materials used by faculty members.\" \n\nThe University has not demonstrated that sections 7( 1)(\n\nj)(\n\nii) and 7( 1)(\n\nj)( iv) apply\n\nto the findings and corrective actions resulting from the IRB review process. As discussed\nabove, the IRB review process monitors research to protect\nsubjects; there is no indication that it is among the University' s procedures for evaluating faculty\nmembers even though monitoring the research may include the conduct of researchers. Further, \nbecause the results of the IRB review process were not generated by research or used to conduct\nresearch, they do not constitute \" research materials used by faculty members.\" Accordingly, this\noffice concludes that the results of the IRB review process are not exempt\n\nthe rights and welfare of research\n\nfrom disclosure\n\npursuant to section 7( 1)(\n\nj)( ii) or 7( 1)(\n\nj)( iv) of FOIA. \n\nIn accordance with the conclusions expressed above, this office requests that the\n\nUniversity disclose to Ms. Cohen portions of the letters reflecting the findings and corrective\nactions resulting from the IRB review process. The Public Access Counselor has determined\nthat resolution of this matter does not require the issuance of a binding opinion. If you have any\nquestions, please contact me at ( 312) 814- 6756. This file is closed. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n53007 53008 53009 f 71a proper improper 71f improper univ 71jii improper 71jiv improper univ\n\n10Letter\n\nfrom Thomas P. Hardy, Executive Director and Chief Records Officer, University of\n\nIllinois System, to Joshua Jones, Deputy Public Access Bureau Chief, Office of the Public Access Bureau, Office of\nthe Illinois Attorney General ( June 8, 2018), at 12. \n\nIlLetter from Thomas P. Hardy, Executive Director and Chief Records Officer, University of\n\nIllinois System, to Joshua Jones, Deputy Public Access Bureau Chief, Office of the Public Access Bureau, Office of\nthe Illinois Attorney General ( June 8, 2018), at 12. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An internal investigation into a professor's research and IRB process","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":914,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-10-19","case_number":null,"request_numbers":["53415"],"title":"Oswego School District 308 properly withheld surveillance video of minors under FOIA exemptions","filename":"53415, issued October 19, 2018.pdf","rel_path":null,"word_count":1185,"summary":"A requester sought surveillance video of incidents involving his son at a school gymnasium, which the school district denied citing student and minor privacy exemptions. The PAC determined the district properly withheld the records because they identified minors participating in park district programs.","plain_summary":"A parent requested school surveillance videos involving his child, but the school district refused to release them to protect the privacy of other students. The Attorney General's office reviewed the videos and agreed that the school district was allowed to withhold them because the footage identified other minors participating in after-school programs. This means the school district followed the law in denying the request.","holding":"The School District did not improperly withhold the requested video footage.","legal_question":"Whether surveillance video footage of minors participating in after-school programs is exempt from disclosure under FOIA sections 7(1)(c), 7(1)(ee), and 7(1)(ff).","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(ee)","7(1)(ff)"],"public_body":"Oswego Community Unit School District No. 308","requesting_party":"a parent","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"student records","subject_description":"Surveillance video footage of minors in a school gymnasium.","ocr_status":"ok","ocr_quality":95.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_ee/53415%2C%20issued%20October%2019%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["student privacy","surveillance video","minor identification","FOIA exemption"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nOctober 19, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMs. Maureen Anichini Lemon\nOttosen Britz Kelly Cooper Gilbert & DiNolfo, LTD. \n1804 North Naper Boulevard\n\n[street address redacted for site publication -- see original PDF]\nmlemonna ottosenbritz. com\n\nRE: FOIA Request for Review — 2018 PAC 53415\n\nDear\n\nand Ms. Lemon: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 1) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)). For the reasons set forth below, the\n\nPublic Access Bureau concludes that Oswego Community Unit School District No. 308 ( School\nDistrict) did not improperly withhold video footage depicting students in response to\n\nFOIA request. \n\nOn April 23, 2018, \n\nsubmitted a FOIA request\n\nto the School District\n\nseeking copies of surveillance video recordings with audio of incidents involving his son in the\nBoulder Hill Elementary School gymnasium. On April 26, 2018, the School District responded\nthat the recordings do not contain audio and denied the video footage pursuant\n\nto sections\n\n7( 1)( c), 7( 1)( ee), and 7( 1)(\n\nff) of FOIA ( 5 ILCS 140/ 7( 1)( c), (\n\n1)( ee), ( 1)( ff) (West 2017 Supp.)). \n\nasked this office to review that denial. \n\nOn July 5, 2018, this office sent a copy of the Request\n\nfor Review to the School\n\nDistrict and asked it to provide copies of the recordings for this office' s confidential review, and\n\na detailed explanation of the factual and legal bases for the applicability of the section 7( 1)( c), \n7( 1)( ee), and 7( 1)( ff) exemptions. On August 10, 2018, counsel for the School District provided\n\nthose materials and asserted in her written response that the recordings are also exempt from\n\ndisclosure pursuant\nAugust 15, 2018, this office sent a copy of that response to\n\nto section 7. 5( r) of FOIA ( 5 ILCS 140/ 7. 5( r) ( West 2017 Supp.)). On\nhe did not reply. \n\n500 South Second Street, Springfield, \n\nIllinois 62706 • (\n\n217) 782- 1090 • \n\nTTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois, 60601 • ( 312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMs. Maureen Anichini Lemon\n\nOctober 19, 2018\n\nPage 2\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of' proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1. 2 ( West 2016). \n\nSection 7. 5( r) of FOIA\n\nSection 7. 5( r) of FOIA exempts from inspection and copying \"[\nprohibited from being disclosed by the Illinois School Student Records Act [ ISSRA].\" Section\n6( a) of ISSRA ( 105 ILCS 10/ 6( a) ( West 2016)) further provides: \n\ni] nformation\n\nNo school student records or information contained therein\n\nmay be released, transferred, disclosed or otherwise disseminated, \nexcept as follows: \n\n1) To a parent or student or person specifically\n\ndesignated as a representative by a parent, as provided in\nparagraph ( a) of Section 5[.] ( Emphasis added.) \n\nSection 5( a) of ISSRA ( 105 ILCSA 10/ 5( a) ( West 2016), as amended by Public Act 100- 532, \nshall have the right to inspect all\neffective September 22, 2017) provides that \"[ a] parent * * * \nschool permanent and temporary records of that parent' s child.\" ( Emphasis added.) \n\nA \"school student record\" is broadly defined as \" any writing or other recorded\n\ninformation concerning a student and by which a student may be individually identified, \nmaintained by a school or at its direction or by an employee of a. school, regardless of how or\n105 ILCS 10/ 2( d) ( West 2016). An administrative rule\nwhere the information is stored.\" \nimplementing ISSRA generally excludes from that definition \"[ v] ideo or other electronic\n\nrecordings created and maintained * * * \n\nfor security or safety reasons or purposes, provided the\n\ninformation was created at\n\n23 111. Adm. Code § 375. 10 ( 2018), \n\nleast in part for law enforcement or security or safety reasons or\nlast amended at 42 Ill. Reg. 5899, effective\n\npurposes[.]\" \n\nMarch 15, 2018). However, \"[ t] he content of a video or other electronic recording may become\npart of a student' s school student record to the extent school officials use and maintain this\n\ncontent for a particular reason ( e. g., disciplinary action, compliance with a student' s\nIndividualized Education Program) regarding that specific student.\" \n2018), last amended at 42 Ill. Reg. 5899, effective March 15, 2018). \n\n23 Ill. Adm. Code § 375. 10\n\nThe School District' s response to this office confirmed that the videos in question\n\n\fMs. Maureen Anichini Lemon\n\nOctober 19, 2018\n\nPage 3\n\nwere created for security and safety purposes. The response further stated that \"[ b] ecause school\nofficials have not used or maintained the recordings for a particular reason regarding the\nrequester' s student, the videos have not become part of that child' s school educational\nThe School District did not assert that the recordings have become part of any other child' s\nschool student record, either. Thus, these recordings do not constitute \" school student records,\" \nand they are neither exempt from disclosure under section 7. 5( r) of FOIA nor required to be\nto section 5( a) of ISSRA. \ndisclosed to\n\npursuant\n\nrecord.\"' \n\nSection 7( 1)( ee) of FOIA\n\nSection 7( 1)( ee) exempts from disclosure: \" The names, addresses, or other\ninformation of persons who are minors and are also participants and registrants in\n\npersonal\nprograms of park districts, forest preserve districts, conservation districts, recreation agencies, \n\nand special recreation associations.\" The School District' s response to this office stated that the\nprograms depicted in the videos are Oswego Park District after- school programs for minors. \n\nBased on its plain language, the section 7( 1)( ee) exemption is intended to protect\n\ninformation that personally identifies minors who participate in park district programs. Although\nthe recordings appear to provide' only limited insight into any interactions between children\nbecause of the camera angles and lack of audio, they personally identify numerous minors\nparticipating in Oswego Park District after- school programs Accordingly, this office concludes\nthat the School District did not improperly withhold them pursuant to section 7( 1)( ee) of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312- 814- 6756. This file is closed. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n53415 f 71a improper 7lee proper sd\n\nLetter from Maureen Anichini Lemon, Ottosen Britz Kelly Cooper Gilbert & DiNolfo, LTD., to\nSteve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, State of Illinois ( August 10, \n2018), at 3. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Surveillance video of minors in a school gymnasium","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":915,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-01-08","case_number":null,"request_numbers":["53612"],"title":"City of Peru did not violate FOIA by charging copying fee for paper records","filename":"53612, issued January 8, 2019.pdf","rel_path":null,"word_count":3051,"summary":"The requester challenged the City of Peru's imposition of copying fees for records related to a property acquisition. The PAC determined the City did not violate FOIA by charging for copies, though it reminded the City of its obligation to provide the first 50 pages free of charge and to mail records without postage fees.","plain_summary":"A requester challenged the fees charged by the City of Peru for paper copies of public records. The Illinois Attorney General's Public Access Bureau concluded that the City did not violate FOIA by charging a copying fee for paper copies in response to the request. The Bureau found that the City's response was timely because the requester agreed to an extension, and that the City was not required to provide electronic copies of records maintained solely in paper format.","holding":"The City of Peru did not violate FOIA by charging a copying fee for paper copies in response to the request.","legal_question":"Whether the City of Peru violated FOIA by charging a copying fee for paper records requested by the complainant.","disposition":"no_violation","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Peru","requesting_party":"Ms. Julie L. Ajster","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The request concerned documents related to the City of Peru's property acquisition involving a Dollar General store.","ocr_status":"ok","ocr_quality":96.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_e/May-reach-written-agreement-for-longer-extension/53612%2C%20issued%20January%208%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","copying fees","postage","FOIA request"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJanuary 8, 2019\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMs. Julie L. Ajster\n\nAjster Law Office\n\nP. O. Box 255\n\n[street address redacted for site publication -- see original PDF]\najster@comcast. net\n\nVia electronic mail\n\nMs. Stephanie Piscia\n\nDeputy City Clerk\nFOIA/ OMA Compliance Officer\n\nCity of Peru\n1901 4th Street\n\nPeru, Illinois 61354\n\nspiscia@peru.\n\nil. us\n\nRE: FOIA Request for Review — 2018 PAC 53612\n\nDear Ms. Ajster and Ms. Piscia: \n\nThis determination letter is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the City of Peru ( City) did not violate FOIA by charging a\ncopying fee for paper copies in response to Ms. Julie L. Ajster' s March 28, 2018, FOIA request. \n\nOn that date, Ms. Ajster, on behalf of a client, submitted a FOIA request to the\n\nCity stating\n\nPursuant to the Freedom of Information Act, I am\n\nrequesting documents relating to the Dollar General Store located\non Peoria Street in the City of Peru. I am requesting any and all\ndocuments relating to Dollar General and the acquisition of the\nproperty located at the corner of 6th and Peoria Streets from the\nCity of Peru. I am also requesting copies of any and all emails, \nmemos or other correspondence between Peru' s Economic\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • \n\nFax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 6181 529- 6416\n\n\fMs. Julie L. Ajster\n\nMs. Stephanie Piscia\n\nJanuary 8, 2019\nPage 2\n\nDevelopment Director Bob Vickrey and/ or anyone else from the\nCity of Peru and any and all representatives from Dollar General. \n\nPlease respond within 10 days. 111\n\nOn that same date, the City informed Ms. Ajster that \" there [ was] a substantial amount of\ninformation to copy,\" and asked whether she sought specific records or all records that the City\nhad on file.\n\nI need everything you have. If you need additional\n\nIn reply, Ms. Ajster stated: \"\n\n2\n\ntime, that is fine.\" On April 16, 2018, at 9: 20 a. m., the City' s FOIA Officer, Ms. Stephanie\nPiscia, notified Ms. Ajster: \" I will have your documents ready today. There is a lot of\ninformation. I will have a dollar amount for you shortly and let you know when they are\navailable. i4 At 9: 45 a.m. on that same date, Ms. Piscia notified Ms. Ajster: \" I have your request\n\nready for pickup. There is a total of 1554 documents. The total for the request is $ 225. 60. i5\n\nOn June 15, 2018, this office received Ms. Ajster' s Request for Review disputing\n\nthe copying charge. She asserted that she had previously sent dozens of FOIA requests to the\nCity and had received copies of the responsive records in an electronic format at no cost. She\ncontended that the City violated FOIA by: ( 1) \" charging [ her] for photocopies of documents\nwhich should have been produced free of charge in electronic\ncomplaining in public and in the newspaper about FOIA requests[;]\" (\nwith an estimate as to the cost of [her] FOIA request prior to preparing a FOIA response[;]\" (\ndemanding [ she] pick up the documents rather than mailing them to [ her][;]\" and ( 5) \" stating to\nthe News Tribune that the FOIA response was free when it is not and they are refusing to release\n\nform[;]\" ( 2) \" repeatedly\n\n3) \" not providing [ her] \n\n4) \n\nE- mail from Attomey Julie L. Ajster, Ajster Law Office, to Stephanie Piscia ( March 28, 2018). \n\nto [ Julie L. Ajster] ( March 28, 2018). \n\n2E - mail\n\nfrom Stephanie Piscia, Deputy City Clerk, FOIA/ OMA Compliance Officer, City of Peru, \n\n3E -mail from Julie L. Ajster, Ajster Law Office, to Stephanie Piscia ( March 28, 2018). \n\nto Julie [ L. Ajster] ( April 16, 2018). \n\n4E -mail from Stephanie Piscia, Deputy City Clerk, FOIA/ OMA Compliance Officer, City of Peru. \n\n5E -mail\nto [ Julie L. Ajster] ( April\n\nfrom Stephanie Piscia, Deputy City Clerk, FOIA/ OMA Compliance Officer, City of Peru, \n16, 2018). \n\n\fMs. Julie L. Ajster\n\nMs. Stephanie Piscia\n\nJanuary 8, 2019\nPage 3\n\nthe documents until [she] pay[ s] $ 225.60.\" 6 Ms. Ajster enclosed copies of news articles in which\nshe stated, \" the City of Peru was complaining about the number of FOIA requests.\" 7\n\nOn June 25, 2018, this office forwarded a copy of the Request for Review to the\nCity and asked it to address the allegations in Ms. Ajster's Request for Review. This office also\nasked the City to address the timeliness of its response to her request, and to clarify whether any\nof the requested records were maintained in an electronic format. On June 27, 2018, the City\nprovided a written response and copies of its correspondence with Ms. Ajster regarding the\nrequest. On July 3, 2018, this office forwarded a copy of the City's response to Ms. Ajster; she\ndid not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2014); see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 ( 2006). \n\nAs an initial matter, the Public Access Counselor' s authority to resolve disputes is\n\nlimited to alleged violations of FOIA and the Open Meetings Act ( 5 ILCS 120/ 1 et seq. ( West\n2016)). See 15 ILCS 205/ 7( c)( 3) ( West 2016). FOIA governs the disclosure of existing public\nrecords; it does not dictate the manner in which a public body may comment to media outlets or\nthe general public about FOIA requests it has received. Accordingly, this office is not authorized\nto review allegations concerning public statements that the City made regarding FOIA requests. \n\nTurning to whether the copying fee that the City assessed was permissible, section\n\n3( a) of FOIA ( 5 ILCS 140/ 3( a) ( West 2016)) provides that \"[ e] ach public body shall make\navailable to any person for inspection or copying all public records, except as otherwise provided\nin Sections 7 and 8. 5 of this Act.\" Section 3( d) of FOIA ( 5 ILCS 140/ 3( d) ( West 2016)) states\n\nthat a public body shall \" either comply with or deny a request\nbusiness days after its receipt of the request[.]\" Section 3( d) further states that \"[ a] public body\nthat fails to respond to a request within the requisite periods in this Section but thereafter\n\nfor public records within 5\n\nprovides the requester with copies of the requested public records may not impose a fee for such\ncopies.\" Section 3( e) of FOIA ( 5 ILCS 140/ 3( e) ( West 2016)) permits a public body to extend\nthe time to respond by 5 business days from the original due date for any of seven enumerated\n\nGeneral ( June 15, 2018), at 2. \n\nLetter from Julie L. Ajster. Ajster Law Office, to Public Access Counselor, Illinois Attorney\n\nGeneral ( Jane 15, 2018), at\n\n1. \n\nLetter from Julie L. Ajster. Ajster Law Office, to Public Access Counselor, Illinois Attorney\n\n\fMs. Julie L. Ajster\n\nMs. Stephanie Piscia\n\nJanuary 8, 2019\nPage 4\n\nreasons, and also provides that \"[ t] he person making a request and the public body may agree in\nwriting to extend the time for compliance for a period to be determined by the parties.\" \n\nWith regard to electronic copies, section 6( a) of FOIA (5 ILCS 140/ 6( a) ( West\n\n2016)) provides: \n\nWhen a person requests a copy of a record maintained in an\n\nelectronic format, the public body shall furnish it in the electronic\nformat specified by the requester, if feasible. If it is not feasible to\nfurnish the public records in the specified electronic format, then\nthe public body shall furnish it in the format in which it is\nmaintained by the public body, or in paper format at the option of\nthe requester. \n\nThe Public Access Bureau \" has previously determined that section 6( a) of FOIA does not require\na public body to furnish in electronic format records maintained solely in paper format, even if\nthe public body has resources to reproduce those records in PDF.\" \nLtr. 28697, issued April 18, 2014, at 2. In addition, section 6( b) of FOIA (5 ILCS 140/ 6( b) \n\nIll. Att' y Gen. PAC Req. Rev. \n\nWest 2016)), which concerns fees for paper copies, provides, in pertinent part: \n\nExcept when a fee is otherwise fixed by statute, each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \nby any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black\n\nand white, letter or legal sized copies requested by a requester. \nThe fee for black and white, letter or legal sized copies shall not\nexceed 15 cents per page. If a public body provides copies in color\nor in a size other than letter or legal, the public body may not\ncharge more than its actual cost for reproducing the records. \n\nIn its response to this office, the City addressed the timeliness of its response to\n\nthe\nMs. Ajster' s request by explaining that when it e- mailed Ms. Ajster on March 28, 2018, about\nsize of her request, Ms. Ajster expressed that she was fine with the City taking additional time to\nrespond. This office has reviewed a copy of the e- mail exchange between the City and Ms. \nAjster and confirmed that she granted the City extra time to respond. While the parties did not\ndiscuss or agree on a specific due date for the City' s response, Ms. Ajster did not express that she\nsought any limitations to the additional\ntime for response or otherwise indicate any objections to\nan extension. Consequently, \nextend the City' s time for compliance. See Garlick v. Bloomingdale\n\nthis office concludes that the correspondence was sufficient\n\nto\nTwp., 2018 IL App ( 2d) \n\n\fMs. Julie L. Ajster\n\nMs. Stephanie Piscia\n\nJanuary 8, 2019\nPage 5\n\n171013, ¶ 37, _ N. E. 3d _ ( 2018) ( concluding that a requester' s reply to a public body that an\nanswer by a particular date \" would be appreciated\" was sufficient to extend the time for\ncompliance to that date). Therefore, for purposes of assessing a copying fee. this office\nconcludes that the City' s April 16, 2018, response was timely. \n\nDiscussing its rationale for assessing Ms. Ajster a copying fee for paper copies\n\nrather than providing her with electronic copies free of charge, the City explained: \n\nWhen a request of this size is received and it is determined\n\nthat multiple departments and/ or individuals will be providing\ndocumentation, we ask that they gather from paper files or print\nout related electronic files so that all information can be compiled\n\nin a central location. Based on this method it is difficult to\n\ndetermine which documents were copied from a paper file or\n\nprinted from an electronic source. \ncommunication with those that provided documentation that as\n\nIt is my belief based on\n\nmuch as 50% of the documents were copied from an electronic\nformat. l81\n\nThe City questioned whether Ms. Ajster should be liable for half of the fee given its estimate that\nhalf of the records did not exist in an electronic format. \n\nBecause a public body is not required to provide electronic copies of records that\n\nare maintained solely in paper format, the City was not required to convert\nrecords maintained in paper format\ninto an electronic format. As to the remaining records, \nsection 6( a) of FOIA provides, in pertinent part, that \" the public body shall furnish it in the\nelectronic format specified by the requester, if feasible.\" ( Emphasis added.) As also quoted\nabove, the next sentence of section 6( a) again references \" the specified electronic format.\" \n\nthe responsive\n\nEmphasis added.) Accordingly, section 6( a) of FOIA signifies that when a request specifies that\nit\nit seeks electronic copies, the public body must provide electronic copies of records that\nmaintains in an electronic format, free of charge. Even if a requester specifies an electronic\n\nformat and the public body does not maintain the electronic records in that format, the public\nbody must either convert the electronic records to that format, if feasible, or provide the\nrequester with electronic copies of the records in the electronic format in which they are\nmaintained or paper copies at the option of the requester. Here, Ms. Ajster' s request did not\n\nspecify that she sought electronic copies. Although Ms. Ajster contended that the City had\npreviously provided her with copies of records electronically, the City did not, by that course of\n\nGeneral ( June 27, 2018). \n\nBLetter from Stephanie Piscia, City of Peru FOIA Officer, to Teresa Lim, Assistant Attorney\n\n\fMs. Julie L. Ajster\n\nMs. Stephanie Piscia\n\nJanuary 8, 2019\nPage 6\n\naction, bind itself to providing all future responsive records electronically regardless of the\nformat in which they are maintained. \n\nThe current copying fee dispute potentially could have been avoided in part if the\nCity had provided Ms. Ajster with a fee estimate prior to beginning to make copies of the records\nmaintained only in paper format. Nonetheless, although FOIA requires that a public body\nprovide fee estimates for voluminous requests, 9 it does not set forth a similar requirement for\nnon -voluminous requests. Here, the City did not assert that the request was a voluminous\nrequest and, therefore, the City was not required to provide an estimate of the fees to be charged. \nSee I11. Att' y Gen. PAC Req. Rev. Ltr. 41192, issued September 8, 2017, at 4 ( concluding that a\npublic body was not required to provide an estimate of fees to be charged or provide an\nopportunity to narrow a request where the public body did not assert that the request was a\nvoluminous request). Further, although Ms. Ajster alleged that the City had claimed to the News\nTribune that FOIA responses are free, sections 6( a) and 6( b) of FOIA expressly permit a public\nIn this case, the total cost of\nbody to charge for certain costs involved in reproducing records. \n\n225. 60 reflects a charge of 15 cents per page for the 1554 pages of documents after 50 free\n\npages. Thus, the City' s fee is permissible under section 6(b) of FOIA. Under these\ncircumstances, this office concludes that the copying fee the City assessed did not violate FOIA. \nStill, because it appears that Ms. Ajster would have had the right to obtain copies of\napproximately half of the records free of charge if she had specified that she sought electronic\ncopies, and because she may have reasonably believed that it was not necessary to specify that\nshe sought electronic copies in order to receive electronic copies of the records maintained\n\nelectronically in light of her previous FOIA correspondence with the City, the City' s idea about\nhalving the copying fee sounds reasonable. \n\nLastly, with regard to Ms. Ajster's claim that the City required her to pick up the\npaper copies rather than mailing them to her, it appears that the City contemplated an in- person\n\n9Section 3. 6( c) of FOIA ( 5 ILCS 140/ 3. 6( c) ( West 2016)) provides: \n\nIf a request continues to be a voluminous request following the\nrequesters response under subsection ( b) of this Section or the requester fails to\nrespond, the public body shall respond within the earlier of 5 business days after\nit receives the response from the requester or 5 business days after the final day\nfor the requester to respond to the public body' s notification under this\nsubsection. The response shall: ( i) provide an estimate of thefees to be\ncharged, which the public body may require the person to pay in full before\ncopying the requested documents; ( ii) deny the request pursuant to one or more\nof the exemptions set out in this Act; (iii) notify the requester that the request is\nunduly burdensome and extend an opportunity to the requester to attempt to\nreduce the request to manageable proportions; or ( iv) provide the records\n\nrequested. ( Emphasis added.) \n\n\fs. Julie L. Ajster\n\nMs. Stephanie Piscia\n\nJanuary 8, 2019\nPage 7\n\nfor the copies. Although a public body may require receipt of the\n\nexchange of payment\nauthorized copying fee prior to providing a requester with copies of responsive records, this\noffice has previously determined that \" FOIA requires a public body to mail copies of records\nwhen the requester has provided the public body with a mailing address; the public body may not\nimpose a fee for the cost of the regular postage.\" See Ill. Att'y Gen. PAC Req. Rev. Ltr. 41192, \nissued September 8, 2017, at 4. Here, the City did not dispute Ms. Ajster' s claim or otherwise\nindicate that it would mail\nthis office\nreminds the City to offer requesters the opportunity to receive paper copies by regular mail once\nthey have paid any requisite copying fees. Further, if it has not already done so, this office\nrequests that the City mail copies of the first 50 pages of responsive documents at no cost to Ms. \nAjster. \n\nthe responsive records at no additional cost. Consequently, \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n53612 f 6a fee proper 6b fee proper improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Documents about a city's property acquisition for a Dollar General store","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":916,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-02-07","case_number":null,"request_numbers":["53659"],"title":"Glen Ellyn School District did not violate FOIA withholding correspondence under exemption 7(1)(f)","filename":"53659, issued February 7, 2019.pdf","rel_path":null,"word_count":2465,"summary":"The requester sought correspondence between school board members and district employees containing specific keywords, but the School District withheld several records citing various FOIA exemptions. The PAC determined that the District failed to demonstrate that the withheld records met the criteria for the claimed exemptions.","plain_summary":"A requester sought emails from a school district concerning classroom observations and integration. The PAC found that emails withheld under section 7(1)(f) were properly protected as predecisional, deliberative communications, but that the district did not establish that other emails concerning potential collective bargaining were exempt under section 7(1)(p). The district was asked to provide those records, subject to any permissible redactions.","holding":"The Glen Ellyn School District No. 41 did not improperly withhold the requested records under section 7(1)(f) of FOIA; the Public Access Bureau declined to address the applicability of section 7(1)(m) because those records were already exempt under section 7(1)(f).","legal_question":"Whether the School District properly applied FOIA exemptions 7(1)(f), 7(1)(m), and 7(1)(p) to withhold correspondence regarding school observations and integration.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)","7(1)(m)","7(1)(p)"],"public_body":"Glen Ellyn School District No. 41","requesting_party":"Mr. [Name redacted in source]","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(p)","subject_description":"The request involved correspondence between school board members and employees concerning classroom observations and integration.","ocr_status":"ok","ocr_quality":92.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_p/53659%2C%20issued%20February%207%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["school district","email records","FOIA exemptions","collective bargaining","public records"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nFebruary 7, 2019\n\nKwame Raoul\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Brian P. Crowley\nAttorney for Glen Ellyn School District No. 41\nFranczek Radelet P. C. \n\n300 South Wacker Drive, Suite 3400\n\nChicago, Illinois 60606\n\nbpc@franczek. com\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 53659\n\nDear\n\nand Mr. Crowley: \n\nThis determination letter is issued pursuant to section 9. 5( 1) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)). For the reasons that follow, the\n\nPublic Access Bureau concludes that Glen Ellyn School District No. 41 ( School District) \n\nimproperly withheld a certain set of records responsive to\n\ns May 16, 2018, FOIA\n\nrequest. \n\nto the School District seeking\ncopies of all correspondence \" to, and from, District 41 school board members Kurt Buchholz\n\nsubmitted a FOIA request\n\nOn that date, \n\nand/ or Stephanie Clark to, and from, any District 41 employee * * * and to, and from, \nSuperintendent Paul Gordon containing any of the following words: observe ( observation), visit\nvisitation), integration ( integrate) from January 1, 2018, until\n2018, the School District extended the time to respond pursuant\n\nto section 3( e) of FOIA ( 5 ILCS\n\nI On May 23, \n\ntoday' s date[.]\"\n\n140/ 3( e) ( West 2016)). On May 31, 2018, the School District provided\ncertain responsive records, but withheld others pursuant to sections 7( 1)(\nof FOIA ( 5 ILCS 140/ 7( 1)(\n\nf), ( 1)( m), ( 1)( p) ( West 2017 Supp.)). \n\nwith copies of\nf), 7( 1)( m), and 7( 1)( p) \n\nE- mail from\n\nto Nancy [ Mogk] ( May 16, 2018). \n\n500 South Second Street, Springfield, \n\nIllinois 62701 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Brian P. Crowley\nFebruary 7, 2019\nPage 2\n\nOn June 18, 2018, this office received\n\nRequest for Review disputing\n\nthe partial denial of her request. \n\nOn June 26, 2018, this office forwarded a copy of the Request\nSchool District and asked it to provide copies of the records that it withheld for this office' s\nconfidential review, together with a detailed explanation of the legal and factual basis for the\n\nfor Review to the\n\nasserted exemptions. On July 11, 2018, this office received the requested materials: On July 15, \n2018, this office forwarded a copy of the School District' s response to\nthis office on August 17, 2018, maintaining that the School District improperly denied her\nrequest for certain records as pre -decisional: \" The district continues to deny FOIA requests on\nthe basis that the items requested are ' pre -decisional' but has never cited an actual decision to\nwhich the documents pertain.\" 2\n\nshe e- mailed\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department of Public Health, 218 Ill. 2d 390, 41. 5 ( 2006). A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/ 1. 2 ( West 2016). The exemptions from disclosure are to be\n\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University. 176 Ill. 2d 401, \n407 ( 1997). \n\nSection 7( 1)( 0 of FOIA\n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nSection 7( 1)(\n\nf) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nactions are formulated, except\n\nthat a specific record or relevant portion of a record shall not be\n\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7( 1)( f) exemption applies to \" inter- and intra -agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 I11. App. 3d 242, 247 ( 1st Dist. 2003). The exemption\nis \" intended to protect the communications process and encourage frank and open discussion\n\nf) does not exempt from disclosure purely factual material. See Ill. Att' y Gen. Pub. \n\namong agency employees before a final decision is made.\" Harwood, 344 I11. App. 3d at 248. \nSection 7( 1)(\nAcc. Op. No. 13- 015, issued September 24, 2013, at 7. Rather, \"[ o] nly those portions of a\npredecisional document that reflect the give and take of the deliberative process may be\nwithheld.\" Kalven v. City of Chicago, 2014 IL App ( 1st) 121846, ¶ 24, 7 N.E. 3d 741, 748 ( 2014) \nquoting Public Citizen, Inc. v. Office of Management & Budget, 598 F. 3d 865, 876 ( D. C. Cir. \n\n2E -mail from\n\nto [ Public Access Bureau] ( August 17, 2018). \n\n\fMr. Brian P. Crowley\nFebruary 7, 2019\nPage 3\n\n2010)). \"[ T] he critical question is whether ' disclosure of the materials would expose an agency' s\ndecision- making process in such a way as to discourage candid discussion within the agency and\nthereby undermine the agency' s ability to perform its functions.'\" Chemical Weapons Working\nGroup v. US. E.P.A., 185 F. R. D. 1, 3 ( D. D. C. 1999) ( quoting Dudman Communications v. \nDepartment of the Air Force, 815 F. 2d 1565, 1568 ( D.C. Cir. 1987)). \n\nIn its response to this office, the School District stated that it had withheld internal\n\ncommunications \" among, in some cases, Board members, in one instance, the Superintendent\nwith Board members, and in other cases, the School District' s attorney with Board members. i3\nThe School District\nfurther asserted, in pertinent part: \" The records include opinions regarding\nspecific School District matters and some records include draft documents for review by the\nvarious participants in the email discussions. The intended purpose of the various\n\ncommunications was for the District to share opinions and formulate actions regarding specific\nSchool District matters.\nAdditionally, the School District asserted that some of those e- mails\n5\n\n4\n\nalso fall within the scope of the section 7( 1)( m) exemption.\n\nSpecifically, the School District\n\nasserted that those records \" were either prepared by or sent to the School District' s attorney\nwhere his client, the School District, is either seeking or receiving his confidential\nregarding specific School District matters.\" 6\n\nlegal advice\n\nThis office' s review of the e- mails withheld under only section 7( 1)(\n\nf) confirmed\nthat they consist of internal communications that were exchanged in the process of formulating\nactions. The e- mails reveal the individuals involved in the exchanges sharing opinions on\nspecific School District\nalso withheld pursuant\ncommunications. \nattorney as it formulated action and sought\n\nissues and discussing certain draft documents. The e- mails that were\nto section 7( 1)( m) similarly reflect predecisional, deliberative\n\nlegal advice. Although the School District did not\n\nthe School District consulting with its\n\nIn particular, those e- mails reflect\n\nJuly 11, 2018), at 2. \n\nLetter from Brian P. Crowley to Teresa Lim, Assistant Attorney General, Public Access Bureau, \n\n4Letter from Brian P. Crowley to Teresa Lim, Assistant Attorney General, Public Access Bureau, \n\nJuly 11, 2018), at 2. \n\nSection 7( 1)( m) of FOIA ( 5 ILCS 140/ 7( I)( m) ( West 2017 Supp.)) exempts from disclosure: \n\nCommunications between a public body and an attorney * * * \nrepresenting the public body that would not be subject to discovery in litigation, \nand materials prepared or compiled by or for a public body in anticipation of a\ncriminal, civil or administrative proceeding upon the request of an attorney\nadvising the public body[.] \n\nJuly I\n\nI, 2018), at2. \n\n6Letter from Brian P. Crowley to Teresa Lim, Assistant Attorney General, Public Access Bureau, \n\n\fMr. Brian P. Crowley\nFebruary 7, 2019\nPage 4\n\nclaim that an actual decision ultimately stemmed from the e- mails, that fact does not undermine\nthe School District' s assertion that the records constitute predecisional and deliberative material\nunder section 7( 1)(\ndecisions and ideas that were explored on a preliminary basis but never adopted. Further, while\nthe communications contain some factual\nintertwined in the predecisional deliberations. There is no indication that the e- mails were\n\nf), as the exemption generally protects both the thought processes behind final\n\ninformation, that information is inextricably\n\npublicly cited or identified by the head of the School District. Because the communications are\ndeliberative and pre -decisional\n\nin nature, this office concludes that the School District did not\n\nimproperly withhold them pursuant to section 7( 1)( f) of FOIA. \n\nSection 7( 1)( p) of FOIA\n\nSection 7( 1)( p) of FOIA exempts from disclosure \"[ r] ecords relating to collective\n\nthat\n\nnegotiating matters between public bodies and their employees or representatives, except\nany final contract or agreement shall be subject to inspection and copying.\" Because FOIA\nexemptions must be construed narrowly ( Lieber, 176 I11. 2d at 407), the term \" relating to\" in a\nFOIA exemption does not signify an expansive scope. See Kalven v. City of Chicago, 2014 IL\nApp ( 1st) 121846, ¶ 19, 7 N. E. 3d 741, 746- 47 ( 2014) ( rejecting the contention that the section\n7( 1)( n) exemption ( 5 ILCS 140/ 7( 1)( n) ( West 2010)) for records \" relating to a public body' s\nadjudication of employee grievances or disciplinary cases\" encompasses investigatory records\nthat precede disciplinary adjudications because such an \" expansive interpretation\" would \" render\na broad category of public documents immune [ citation] to public scrutiny. That is contrary to\nthe intent of FOIA.\"); see also Ill. Att' y Gen. PAC Req. Rev. Ltr. 32159, issued April 20, 2015, \nat 3 ( concluding that because almost every record in possession of the Illinois Department of\nCorrections arguably relates to security in some manner, section 7( 1)( e) of FOIA, 8 which\nconcerns \"[ r]ecords that relate to or affect the security of correctional\nfacilities[,]\" \" applies to records that could jeopardize the security of a correctional\ndisclosed, rather than any records merely pertaining to security in any manner whatsoever.\"). \n\ninstitutions and detention\ninstitution if\n\nThe Attorney General has issued a binding opinion addressing the applicability of\n\nsection 7( 1)( p) to invoices for legal services containing information related to collective\nbargaining matters. \nbinding opinion, the Attorney General examined the exception for collective negotiating matters\nin the Open Meetings Act ( 5 ILCS 120/ 2( c)( 2) ( West 2012)) and noted: \" Section 7( 1)( p) of\nFOIA serves the corollary purpose of exempting from disclosure records pertaining to such\n\nIll. Att' y Gen. Pub. Acc. Op. No. 14- 002, issued April 15, 2014. \n\nIn that\n\nBecause this determination concludes that the records that were withheld pursuant\n\nto section\n\n7( I)( m) of FOIA are exempt\n1)( m). \nsection 7(\n\nfrom disclosure pursuant\n\nto section 7(\n\n1)(\n\nf), we decline to address the applicability of\n\n85 ILCS 140/ 7( I)( e) ( West 2013 Supp.), as amended by Public Act 98- 695, effective July 3, 2014. \n\n\fMr. Brian P. Crowley\nFebruary 7, 2019\nPage 5\n\naspects of the collective bargaining process as the negotiating of wages and salaries, terms and\nconditions of employment, working conditions, and similar matters which are subject to\ncollective bargaining.\" III. Atey Gen. Pub. Acc. Op. No. 14- 002, at 6. The Attorney General\nconcluded that only the portions of the invoices that contained specific information pertaining to\nthe collective bargaining process could be redacted pursuant to section 7( 1)( p). \nPub. Acc. Op. No. 14- 002, at 9. Thus, records must reveal aspects of a collective bargaining\nprocess to fall within the scope of the exemption. \n\n111. Att'y Gen. \n\nIn its response to this office, the School District contended that certain responsive\n\nrecords pertained to collective negotiating matters. The School District asserted: \n\nThe discussions contained in the emails concern working\nconditions and are between a representative of the employer ( the\n\nBoard President) and a representative of the Glen Ellyn Education\nAssociation ( the exclusive bargaining unit for the School District's\nteachers). Specifically, the discussions regard observations of\nteacher classrooms, which is contemplated in the School District' s\ncollective bargaining agreement with the teachers. The issues\nidentified in the emails, if not resolved, may result in a demand to\nbargain, a grievance under the collective bargaining agreement, or\nthe filing of an unfair labor practice under the Illinois Educational\nLabor Relations Act. ( Emphasis added.) t91\n\nThis office has reviewed the communications at issue and the determined that\nthey do not reflect involvement in an active collective bargaining process between the School\nDistrict and Glen Ellyn Education Association, Illinois Education Association -NEA\nAssociation). Although the records reveal discussions between the School District and\n\nin a demand to bargain, a grievance under the\n\nAssociation related to working conditions, the School District' s response appears to acknowledge\nthat no formal negotiation process had actually begun. Instead, the School District stated that the\nissues discussed in the records may result\ncollective bargaining agreement, or the filing of an unfair labor practice claim. \nIn the absence of\nan active collective bargaining process or a demand for collective bargaining that indicates such\na process is imminent, the narrowly construed section 7( 1)( p) exemption does not encompass\nrecords related to working conditions simply because they could lead to collective bargaining if\nunresolved. \nnegotiations do not yet relate to actual \" collective negotiating matters between public bodies and\ntheir employees or representatives[.\n\nIn other words, records that merely reflect the possibility of future collective\n\nj\" Because the records do not concern matters discussed as\n\n9Letter from Brian P. Crowley to Teresa Lim, Assistant Attorney General, Public Access Bureau, \n\nJuly 1 I, 2018), at 3. \n\n\fMr. Brian P. Crowley\nFebruary 7, 2019\nPage 6\n\npart of a collective bargaining process, this office concludes that the School District has not\ndemonstrated by clear and convincing evidence that the records are exempt from disclosure\npursuant to section 7( 1)( p) of FOIA. This office requests that the School District provide copies\nof all the records contained in \" Exhibit C' of the School District' s response to\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. if you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n53659 f 71f proper 71p improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Correspondence about classroom observations and integration","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":"violation_found","plain_summary_pre_audit_fix":"A citizen requested emails from a school district containing specific terms related to classroom observations and integration. The school district withheld some emails, citing exemptions for predecisional deliberations and attorney-client communications. The Illinois Attorney General's Public Access Bureau reviewed the request and concluded that the district properly withheld the records under the predecisional deliberative process exemption, and did not address the other claimed exemptions.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":917,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-07-03","case_number":null,"request_numbers":["53735"],"title":"Peoria County Coroner's Office properly charged statutory fees for autopsy and toxicology reports","filename":"53735, issued July 3, 2018.pdf","rel_path":null,"word_count":626,"summary":"The requester challenged the fees charged by the Peoria County Coroner's Office for autopsy and toxicology reports, arguing they violated FOIA fee limitations. The PAC determined that because the fees are specifically fixed by the Counties Code, they supersede FOIA's general fee provisions.","plain_summary":"A reporter requested autopsy and toxicology reports and was charged specific fees by the Coroner's Office. She argued these fees were too high under FOIA rules. The Attorney General's office explained that because a separate state law specifically sets the prices for these coroner reports, those prices apply instead of the general FOIA fee limits.","holding":"The Peoria County Coroner's Office properly charged fees for autopsy and toxicology reports as those fees are fixed by statute under the Counties Code.","legal_question":"Whether the fee limitations in FOIA (5 ILCS 140/6) apply to records for which fees are specifically fixed by the Counties Code (55 ILCS 5/4-7001).","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Peoria County Coroner's Office","requesting_party":"Ms. Clare Howard","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought copies of autopsy and toxicology reports and disputed the associated costs charged by the Coroner's Office.","ocr_status":"ok","ocr_quality":94.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_b/Fee-fixed-by-statute/53735%2C%20issued%20July%203%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","coroner report","autopsy report","statutory fees"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 3, 2018\n\nVia electronic mail\n\nMs. Clare Howard\n\nCommunity Word\n400 North East Jefferson Avenue, # 400\n\n[street address redacted for site publication -- see original PDF]\nRE: FOIA Request\n\nfor Review — 2018 PAC 53735\n\nDear Ms. Howard: \n\nThis determination letter is issued pursuant to section 9. 5( c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)). For the reasons set forth below, the\n\nPublic Access Bureau concludes that no further action in this matter is warranted. \n\nOn June 21, 2018, you submitted a FOIA request\n\nto the Peoria County Coroner' s\nOffice ( Coroner' s Office), seeking a copy of the coroner's report for a deceased individual. On\nJune 22, 2018, the Coroner's Office responded that it would furnish responsive records upon\n\nreceipt of the following applicable fees: $ 50. 00 for the autopsy report, $ 25. 00 for the toxicology\nreport, and $ 1. 00 for certification of the documents. In your Request for Review, you contend\n\nthat these fees are not proper under FOIA: \n\nSection6( b) of FOIA (5 ILCS 140/ 6( 6) ( West 2016)) provides, in pertinent part: \n\nExcept when afee is otherwise fixed by statute, each\npublic body may charge fees reasonably calculated to reimburse its\nactual cost for reproducing and certifying public records and for\nthe use, by any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black and\nwhite, letter or legal sized copies requested by a requester. The fee\nfor black and white, letter or legal sized copies shall not exceed 15\n\ncents per page. * * * \n\nThe cost for certifying a record shall not\n\nexceed $ 1. ( Emphasis added.) \n\n500 South Second Street, Springfield, \n\nIllinois 62706 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • \n\nFax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fs. Clare Howard\n\nJuly 3, 2018\nPage 2\n\nThe plain language of section 6( b) of FOIA permits a public body, such as the\n\nCoroner's Office, to charge fees fixed by a statute other than FOIA. Section 4- 7001 of the\nCounties Code ( 55 ILCS 5/ 4- 7001 ( West 2016)) provides, in pertinent part: \" Coroner' s fees. The\nfees of the coroner' s office shall be as follows: * * * 2. For a copy of an autopsy report ( if not\nincluded in transcript): $ 50. 00. * * * \n\n4. For a copy of a toxicology report: $ 25. 00.\" \n\nBecause the specific fees for autopsy reports and toxicology reports are fixed by\nsection 4- 7001 of the Counties Code, those fees rather than the fee provisions of FOIA apply to\nthe records. Further, if you desire certified copies of the records, the Coroner's Office may\ncharge you $ 1. 00 for certification pursuant\ndetermined that no further action is warranted in this matter. \n\nto section 6( b) of FOIA. Accordingly, this office has\n\nThis filed is closed. If you have any questions, please contact me at 312- 814- \n\n5201 or at the Chicago address listed on the bottom of the first page of this letter. \n\nVery\n\nly yours, \n\nDIE STEI\n\nI BERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n53735 f no fi war co\n\ncc: \n\nVia electronic mail\n\nMr. Jamie Harwood, Coroner\n\nPeoria County Coroner' s Office\n506 East Seneca Place\n\nPeoria, Illinois 61603\n\njharwood@peoriacounty. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Autopsy and toxicology report fees","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":918,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-09-13","case_number":null,"request_numbers":["53887"],"title":"City of Quincy Police Department improperly withheld use of force reports","filename":"53887, issued September 13, 2018.pdf","rel_path":null,"word_count":4044,"summary":"The requester sought 2017 police use of force reports, which the City of Quincy withheld in their entirety; the PAC determined the City failed to meet its burden of proof for a blanket exemption and ordered the release of the records with limited redactions.","plain_summary":"A reporter requested use of force reports from the Quincy Police Department, which initially provided a summary and then denied the full request citing privacy exemptions. The Attorney General's office determined that the Department improperly withheld the reports, except for certain discrete information. The Department may redact home addresses and signatures as private information under FOIA, and may also redact identifying details of non-arrested subjects to avoid an unwarranted invasion of privacy, but names in general are not exempt and must be disclosed.","holding":"The City of Quincy Police Department improperly withheld the requested use of force reports, with the exception of certain discrete information that may be redacted.","legal_question":"Whether the City of Quincy Police Department properly withheld all 2017 use of force reports under FOIA exemption 7(1)(v) and other privacy-related exemptions.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(f)","7(1)(v)"],"public_body":"City of Quincy Police Department","requesting_party":"Mr. Matthew Hopf (The Herald-Whig)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request concerned all use of force reports completed by police officers during the 2017 calendar year.","ocr_status":"ok","ocr_quality":94.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_c/Compelling-public-interest-in-disclosure/53887%2C%20issued%20September%2013%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","use of force","FOIA request","redaction"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nSeptember 13, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMr. Matthew Hopf\n\nStaff Writer\n\nThe Herald - Whig\n130 South Fifth Street\n\nP. O. Box 909\n\n[street address redacted for site publication -- see original PDF]\nmhopf@whig. com\n\nVia electronic mail\n\nMs. Michele Flaiz\n\nFOIA Officer\n\nCity of Quincy\n730 Maine Street\n\nQuincy, Illinois 62301\nfoia@quincyil. gov\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 53887\n\nDear Mr. Hopf and Ms. Flaiz: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)). For the reasons that follow, the\n\nPublic Access Bureau concludes that City of Quincy ( City) Police Department ( Department) \nimproperly withheld use of force reports, with the exception of certain discrete information, in\nresponse to Mr. Matthew Hopfs FOIA request. \n\nOn June 4, 2018, Mr. Hopf, of The Herald -Whig, submitted a FOIA request to the\n\nDepartment seeking copies of \"all use of force reports completed by Quincy Police officers in\n2017.\" I On June 6, 2018, the Department provided him with a copy of Deputy Chief Doug\nVandermaiden' s \" 2017 Annual Review of 'Level of Resistance' Reports\"; \n\nthe Department did not\n\nPolice Department ( June 4, 2018). \n\nLetter from Matthew T. Hopf, Staff Writer, Quincy Herald -Whig, to Susan Vahlkamp, Quincy\n\n500 South Second Street, Springfield, Illinois 62701 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, Illinois 62901 • (\n\n618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fMr. Matthew Hopf\n\nMs. Michele Flaiz\n\nSeptember\n\n13, 2018\n\nPage 2\n\nstate that it had withheld any responsive records. On June 12, 2018, Mr. Hopf replied by e- mail, \nstating \"[ t]his helps, but it doesn't really give us details about the incidents involved and when\nthey took place. If we could get the actual reports, that would be beneficial.\" 2 On June 14, 2018, \nthe Department responded by denying the original request in its entirety pursuant to sections\ns), and 7( 1)( v) of FOIA ( 5 ILCS 140/ 7( 1)( b), ( 1)( c), \n7( 1)( b), 7( 1)( c), 7( 1)( d)( v), 7( 1)(\n1)( v) ( West 2017 Supp.)). On July 5, 2018, this office received Mr. \nf), (1)(\n\n1)( d)( v), ( 1)(\n\nf), 7( 1)(\n\ns), (\n\nHopfs Request for Review contesting the Department' s denial. Specifically, he argued that the\nprivacy exemptions do not apply because the individuals involved are public employees, and that\nthe section 7( 1)(\nthat private information such as Social Security numbers can be redacted. \n\nf) exemption does not apply because the records are factual; he acknowledged\n\nto the Department and asked it to provide unredacted copies of the responsive records for our\n\nOn July 12, 2018, this office forwarded a copy of Mr. Hopfs Request\n\nfor Review\n\nconfidential review, together with a detailed explanation of the legal and factual bases for the\nasserted exemptions.3 On July 24, 2018, this office received those materials from counsel for the\nDepartment, who noted that the type of requested record is called a \" Levels of Resistance\n\nReport\" by the Department, but that it would refer to the type of record as a \" Use of Force\nreport\" for the purposes of its response. The Department maintained that it responded properly\nto the request. On July 25, 2018, this office forwarded a copy of the Department' s response to\nMr. Hopf; he did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1. 2 ( West 2016). \n\nSection 7( 1)( b) of FOIA\n\nSection 7( 1)( b) of FOIA exempts from disclosure \"[ p] rivate information, unless\nlaw or a court order.\" \n\ndisclosure is required by another provision of this Act, a State or federal\nSection 2( c- 5) of FOIA ( 5 ILCS 140/ 2( c- 5) ( West 2016)) defines \" private information\" as: \n\n2E -mail from Matt Hopf, Reporter, Herald -Whig, to Susan Vahlkamp ( June 12, 2018). \n\n3This office inadvertently did not include section 7( I)( v) of FOIA in its July 12. 2018, letter to the\nDepartment. Nevertheless, the Department did provide an analysis of that exemption in its response to this office. \n\n\fMr. Matthew Hopf\n\nMs. Michele Flaiz\n\nSeptember 13, 2018\n\nPage 3\n\nU] nique identifiers, including a person' s social security number, \ndriver' s license number, employee identification number, biometric\n\nidentifiers, personal\n\nfinancial\n\ninformation, passwords or other\n\naccess codes, medical\n\nrecords, home or personal\n\ntelephone\n\nnumbers, and personal email addresses. Private information also\n\nincludes home address and personal\n\nlicense plates, except as\n\notherwise provided by law or when compiled without possibility of\nattribution to any person. \n\nIn its response to this office, the Department stated that the use of force reports\n\ncontain various private information, not of the police officers, as Mr. Hopis [ letter] cites, but of\n\nthe subject that is part of each report. i4 The Department argued that, at a minimum, \" any\npersonal identifying information, such as the name, date of birth and other information in the\nshould be redacted, if production of the reports is ordered. i5\nreport deemed to be private * * * \n\nConspicuously absent\n\nfrom the above definition of \"private information\" \n\nis any\n\nreference to a person' s name. Although names are unquestionably \" personal information\" in the\nsense that they are specific to particular persons ( see Lieber v. Board of Trustees ofSouthern\nIllinois University, 176 Ill. 2d 401, 411 ( 1997)), they are neither confidential nor unique. \nInstead, names are \" basic identification,\" and as the Supreme Court concluded in Lieber, \n\nw] here the legislature intended to exempt a person' s identity from disclosure, it [ has done] so\n\nexplicitly.\" Lieber, 176 I11. 2d at 412. Therefore, by excluding names from the definition of\nprivate information,\" the General Assembly clearly did not intend for names to be exempt from\ndisclosure under section 7( 1)( b) of FOIA\n\nAlthough names as well as dates of birth are not within the scope of section\n\n7( 1)( b), as they are not \" unique identifiers,\" the Department may properly redact information that\nmeets the plain language of the definition of \"private information\" in FOIA. Based on this\n\noffice's confidential review of the use of force reports, the primary information that meets this\ndefinition is home addresses and signatures. \n\nHollister, Assistant Attorney General, Public Access Bureau ( July 24, 2018), at 3. \n\nLetter from David. G. Penn, Schmiedeskamp, Robertson, Neu & Mitchell, LLP, to Marie\n\nHollister, Assistant Attorney General, Public Access Bureau ( July 24, 2018), at 3- 4. \n\n5Letter from David. G. Penn, Schmiedeskamp, Robertson, Neu & Mitchell, LLP, to Marie\n\n\fMr. Matthew Hopf\n\nMs. Michele Flaiz\n\nSeptember\n\n13, 2018\n\nPage 4\n\nSection 7( 1)( c) of FOIA\n\nSection 7( 1)( c) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7( 1)( c) defines \" unwarranted invasion of personal privacy\" \n\nas: \n\nT] he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject's\n\nright to privacy outweighs any legitimate public interest\nobtaining the information. The disclosure of information that bears\non the public duties of public employees and officials shall not be\n\nin\n\nconsidered an invasion of personal privacy. \n\nA public body' s assertion that the release of information would constitute a clearly unwarranted\ninvasion of personal privacy is evaluated on a case- by- case basis. Chicago Journeymen\nPlumbers' Local Union 130 v. Department of Public Health, 327 I11. App. 3d 192, 196 ( 1st Dist. \n2001). The phrase \" clearly unwarranted invasion of personal privacy\" evinces a strict standard to\nclaim the exemption, and the burden is on the public body having charge of the record to prove\nthat standard has been met. Schessler v. Department of Conservation, 256 Ill. App. 3d 198, 202\n4th Dist. 1994). Illinois courts consider the following factors in determining whether disclosure\nof information would constitute an unwarranted\n\ninvasion of personal privacy: \"( 1) \n\nthe plaintiffs\n\ninterest in disclosure, (2) the public interest in disclosure, ( 3) the degree of invasion of personal\n\nprivacy, and ( 4) the availability of alternative means of obtaining the requested information.\" \nNational Ass' n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, \n13 ( 1st Dist. 2010). \n\nIn its response to this office, the Department argued: \n\nT] here is specificity and detail about the nature of the use of force\nthat could be an unwarranted invasion of privacy of the subject of\nthe report. Given that these Use of Force reports are strictly\ninternal, are not used in the criminal investigation or prosecution, \n\nor, in any way, shared with third parties, there is no compelling or\nlegitimate reason to violate the privacy of the subjects in these\nreports. 161\n\nHollister, Assistant Attorney General, Public Access Bureau ( July 24, 2018), at 3. \n\nLetter from David. G. Penn, Schmiedeskamp, Robertson, Neu & Mitchell, LLP, to Marie\n\n\fMr. Matthew Hopf\n\nMs. Michele Flaiz\n\nSeptember 13, 2018\n\nPage 5\n\nThus, the Department claimed that \" the balance weighs in favor of not producing the underlying\nUse of Force reports, where the summary of reports has already been produced.\"' \n\nUnder the first and second factors of the balancing test, Mr. Hopfs interest in\nin information regarding the\n\ndisclosure as a reporter is aligned with the strong public interest\nmanner in which law enforcement officials perform their public duties, particularly with respect\nto the use of force. See, for example, Wiggins v. Burge, 173 F. R.D. 226, 229 ( N. D. 111. 1997) \n\nordering disclosure of documents pertaining to allegations of police torture in part because\np] erformance of public duties and investigations of their performance is a matter of great\n\npublic importance.\"). \n\nRegarding the third factor, the degree of invasion of personal privacy, some of the\n\ninformation that would constitute a clearly\n\nuse of force reports contain certain highly personal\nunwarranted invasion of the subjects' personal privacy if their identifying information were to be\ndisclosed. Further, information identifying a suspect or subject of a use of force report who was\nnot arrested or charged is highly personal. Citizens for Responsibility and Ethics in Washington\nv. United States Dep' t ofJustice, 846 F. Supp. 2d 63, 71 ( D. D. C. 2012) ( quoting American Civil\nLiberties Union v. United States Dep' t of Justice, 655 F. 3d 1, 7 ( D. C. Cir. 2011)) ( the right to\nprivacy \"' is strongest where the individuals in question ' have been investigated but never publicly\ncharged.\" 8 However, redaction of the names of the subjects ( other than the arrestees), 9 and any\nother discrete identifying details, would significantly diminish the degree of invasion of personal\nprivacy that would result from disclosure. \n\nFinally, there do not appear to be any other means of obtaining the requested use\n\nof force reports short of a lawsuit. Although the Department argued that the summary of the\nreports disclosed to Mr. Hopf serves the purpose of providing insight\ninto the Department' s use\nof force, the summary does not provide the same detailed information as the reports themselves. \n\n7Letter from David. G. Penn, Schmiedeskamp. Robertson, Neu & Mitchell, LLP, to Marie\n\nHollister, Assistant Attorney General, Public Access Bureau ( July 24, 2018), at 3. \n\nBSee also 111. Att' y Gen. Pub. Acc. Op. No. 16- 009, issued November 7, 2016, at 16 ( disclosure of\n\ninformation identifying suspect of a crime who had not been arrested or charged would constitute an unwarranted\ninvasion of personal privacy). \n\n9The Attorney General has issued a binding opinion concluding that \" arrestees are considered\nessentially public personages' with a ' limited' and ' qualified' right to privacy, ' and the basic facts which identify\nthem and describe generally the investigations and their arrests become matters of legitimate public interest' that are\nsubject to disclosure.\" 111. Att'y Gen. Pub. Acc. Op. No. 12- 006, issued March 16, 2012, at 7 ( citing Tennessean\nNewspaper, \n\nInc. v. Levi, 403 F. Supp. 1318, 1321 ( D. C. Tenn. 1975)). \n\n\fMr. Matthew Hopf\n\nMs. Michele Flaiz\n\nSeptember 13, 2018\n\nPage 6\n\nAccordingly, this office concludes that the public interest weighs in favor of\n\ndisclosure of the reports, subject to the redaction of the names of the members of the public who\n\nwere not arrested and other discrete details that would identify them, together with dates of\nbirth. 10\n\nSection 7( 1)(\n\nt) of FOIA\n\ndrafts, notes, recommendations, memoranda and other records in which opinions are expressed, \n\nSection 7( 1)(\n\nf) of FOIA exempts from inspection and copying \"[ pireliminary\n\nor policies or actions are formulated, except that a specific record or relevant portion of a record\n\nshall not be exempt when the record is publicly cited and identified by the head of the public\nbody.\" \n\nThe section 7( 1)(\n\nf) exemption applies to \" inter- and intra -agency predecisional\n\nand deliberative material.\" Harwood v. McDonough, 344 I11. App. 3d 242, 247 ( 1st Dist. 2003). \nIt is \" intended to protect the communications process and encourage frank and open discussion\n\namong agency employees before a final decision is made.\" Harwood, 344 III. App. 3d at 248; \nsee also Kalven v City of Chicago, 2014 IL App ( 1st) 121846, ¶ 24, 7 N.E. 3d 741, 748 ( 2014) \n\nOnly those portions of a predecisional document\n\nthat reflect the give and take of the\n\ndeliberative process may be withheld.\" ( quoting Public Citizen, Inc. v. Office of Management & \nBudget, 598 F. 3d 865, 876 ( D. C. Cir. 2010))). The Illinois Appellate Court also has stated that\n\npurely factual material\" \ninextricably intertwined' with predecisional discussions. Watkins v. McCarthy, 2012 IL App\n1st) 100632, ¶ 36, 980 N.E. 2d 733, 743 ( 2012) ( quoting Enviro Tech International, Inc. v. \nUnited States Environmental Protection Agency, 371 F. 3d 370, 374- 75 ( 7th Cir. 2004)). \n\nfrom disclosure under section 7( 1)(\n\nis not exempt\n\nf) unless it is\n\nIn its response to this office, the Department contended that the section 7( 1)( f) \n\nexemption applies because the withheld use of force reports \" are simply documentation, which\ninclude opinions on the results of the use of force utilized in a given situation, that is used by the\npolice department\n\nto analyze the trends in the use of force, anr training and equipment needs, \n\nand if any techniques and/ or policy revisions are necessary.\"' \n\nThe Department also stated that\n\n10See III. Att' y Gen. Pub. Acc. Op. No 16- 009, issued November 7, 2016, at 12 (\" An individual' s\n\nbirth date is highly personal by its very nature and the subject' s right to privacy outweighs any legitimate public\ninterest in disclosing this information.\"). \n\nHollister, Assistant Attorney General, Public Access Bureau ( July 24, 2018), at 5. \n\nLetter from David. G. Penn, Schmiedeskamp, Robertson, Neu & Mitchell, LLP, to Marie\n\n\fMr. Matthew Hopf\n\nMs. Michele Flaiz\n\nSeptember 13, 2018\n\nPage 7\n\nthe reports \" are not formal policy, but, are utilized in the predecisional consideration that leads to\nfinal policy[]\"\n\n12\n\nBased on this office' s confidential review, the use of reports consist almost\n\ninformation rather than opinions, with the discrete exception of notations\nexclusively of factual\nas to whether the use of force was effective or not. Although the use of force reports are written\n\nby police officers and reflect\nto police incident reports that recite what happened in a matter- of-fact manner. Such fact -based\n\ntheir impressions of what transpired in these incidents, they are akin\n\nthe give- and- take of any Department deliberations or policymaking. See\n\naccounts do not reveal\nIll. Att' y Gen. PAC Req. Rev. Ltr. 38173, issued February 13, 2018 ( use of force report not\nexempt under section 7( 1)(\nf) because it \" neither provide[ d] opinions on the narratives and other\ninformation presented in the report, nor insight into how the police department formulated any\naction.\"). Because disclosure of the use of force reports would not reveal any predecisional\ndeliberative material, with the exception of notations as to whether the use of force was effective\n\nor not, the Department\nFOIA. \n\nimproperly withheld the use of force reports pursuant\n\nto section 7( 1)(\n\nf) of\n\nSection 7( 1)( d)( v) of FOIA\n\nSection 7( 1)( d)( v) of FOIA exempts from disclosure: \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nthat disclosure would: \nbut only to the extent\n\nv) disclose unique or specialized investigative\n\ntechniques other than those generally used and known or\ndisclose internal documents of correctional agencies related\n\nto detection, observation or investigation of incidents of\n\ncrime or misconduct, and disclosure would result\n\nin\n\ndemonstrable harm to the agency or public body that is the\nrecipient of the request[.] \n\n12Letter from David. G. Penn, Schmiedeskamp, Robertson, Neu & Mitchell, LLP, to Marie\n\nHollister, Assistant Attorney General, Public Access Bureau ( July 24, 2018), at 5. \n\n\fMr. Matthew Hopf\n\nMs. Michele Flaiz\n\nSeptember 13, 2018\n\nPage 8\n\nIn support of its assertion of section 7( 1)( d)( v), the Department argued that \" based\n\non both the department policy and procedure, these forms are created for law enforcement\npurposes only involving unique or specialized investigation and techniques[,]\" and that\ndisclosure of the records \" could compromise the ability of the police department to properly\nconduct\n\nits job. i13\n\nNeither the Department' s response to Mr. Hopfs request nor the Department' s\n\nresponse to this office demonstrated that the responsive records depict any \" unique or specialized\ninvestigative techniques other than those generally used and known\" as required under the plain\nlanguage of section 7( 1)( d)( v). The responsive records describe the use of force to subdue a\nsubject rather than investigative techniques. Therefore, this office has determined that the\nDepartment\n\nimproperly withheld the use of force reports under section 7( 1)( d)( v) of FOIA. \n\nSection 7( 1)(\n\ns) of FOIA\n\nSection 7( 1)(\n\ns) of FOIA exempts from inspection and copying: \n\nAny and all proprietary information and records related to\n\nthe operation of an intergovernmental risk management association\nor self-insurance pool or jointly self-administered health and\naccident cooperative or pool. Insurance or self insurance\nincluding any intergovernmental\nself insurance pool) claims, loss or risk management\n\nrisk management association or\ninformation, \n\nrecords, data, advice or communications. ( Emphasis added.) \n\nThe Department' s response to this office contended that the records are exempt\n\nfrom disclosure under section 7( 1)(\ns) because they \" are used to assess, develop and modify use\nof force techniques, formulate policy and procedures, and develop training for police officers in\nthe use of force as part of risk management.\" 14 Further, the Department argued that \"[ w) ithout\nthe data and opinions contained in the Use of Force reports, the City's ability to manage and\nassess risk is compromised. i15\n\nHollister, Assistant Attorney General, Public Access Bureau ( July 24, 2018), at 4. \n\nLetter from David. G. Penn, Schmiedeskamp, Robertson, Neu & Mitchell, LLP, to Marie\n\nHollister, Assistant Attorney General, Public Access Bureau ( July 24, 2018), at 5. \n\n14 Letter from David. G. Penn, Schmiedeskamp, Robertson, Neu & Mitchell, LLP, to Marie\n\nHollister, Assistant Attorney General, Public Access Bureau ( July 24, 2018), at 5. \n\n15Letter from David. G. Penn, Schmiedeskamp, Robertson, Neu & Mitchell, LLP, to Marie\n\n\fMr. Matthew Hopf\n\nMs. Michele Flaiz\n\nSeptember 13, 2018\n\nPage 9\n\nThe Attorney General has issued a binding opinion which concluded that\n\nmanagement\" is the operative word in section 7( 1)(\n\ns), and that the exemption is limited to\n\ninformation regarding the policies, procedures, and practices that an intergovernmental\nmanagement association or self- insurance pool adopts to manage its claims, loss, and risk\n\nrisk\n\nexposure.\" \nDepartments response to this office states that it uses the use of force reports to formulate risk\n\nIll. Att' y Gen. Pub. Acc. Op. No. 11- 004, issued April 15, 2011, at 5- 6. Although the\n\nmanagement policies and procedures, the reports themselves do not reveal any policies, \nprocedures, or practices that the Department has adopted to manage claims, loss, and risk\n\nexposure. Accordingly, the Department did not sustain its burden of demonstrating that the\nrecords are exempt\n\nfrom disclosure pursuant\n\nto section 7( 1)(\n\ns) of FOIA. \n\nSection 7( 1)( v) of FOIA\n\nSection 7( 1)( v) of FOIA exempts from disclosure: \n\nVulnerability assessments, security measures, and\n\nresponse policies or plans that are designed to identify, prevent, \nor respond to potential attacks upon a community' s population or\nsystems, facilities, or installations, the destruction or contamination\n\nof which would constitute a clear and present danger to the health\n\nor safety of the community, but only to the extent\ncould reasonably be expected to jeopardize the effectiveness of the\nthem or the\nmeasures or the safety of the personnel who implement\npublic. Information exempt under this item may include such\nthings as details pertaining to the mobilization or deployment of\npersonnel or equipment, to the operation of communication\n\nthat disclosure\n\nsystems or protocols, or to tactical operations. ( Emphasis added.) \n\nIn its response to this office, the Department argued that the reports \" include\n\ninformation relating to response policies or plans\" that \" could impact the safety of police officers\nand other bystanders. The concern is that this information could be disseminated, and people\nwould understand how the police respond and essentially react against that.\" 16\n\nBy its plain language, the section 7( 1)( v) exemption applies to \"[ v] ulnerability\n\nassessments, security measures, and response policies or plans\" themselves. \nDepartment argued that the use of force reports are exempt because they relate to response\npolicies or plans. The exemption concerns homeland security and emergency preparations rather\n\nIn contrast, the\n\nHollister, Assistant Attorney General, Public Access Bureau ( July 24, 2018), at 6. \n\n1' Letter from David. G. Penn, Schmiedeskamp, Robertson, Neu & Mitchell, LLP, to Marie\n\n\fr. Matthew Hopf\n\nMs. Michele Flaiz\n\nSeptember 13, 2018\n\nPage 10\n\nthan routine duties carried out by a police department. See I11. Att'y Gen. PAC Req. Rev. Ltr. \n48212, issued November 2, 2017, at 7. This office' s review of the withheld reports determined\n\nthat they are not vulnerability assessments, security measures, or response policies or plans\nwithin the scope of section 7( 1)( v); they recount circumstances that have already transpired\nwhich are unrelated to homeland security or emergency preparations. Accordingly, this office\nconcludes that the Department improperly denied the use of force reports pursuant to section\n7( 1)( v). \n\nBecause the Department did not sustain its burden of demonstrating by clear and\nfrom disclosure in their entireties, \n\nconvincing evidence that the use of force reports are exempt\nthis office asks that the Department provide Mr. Hopf with copies of the use of force reports, \n\nsubject only to the redaction of the discrete information identified above as exempt\ndisclosure under sections 7( 1)( b), 7( 1)( c), and 7( 1)( f) of FOIA. \n\nfrom\n\nThe Public Access Bureau has determined that resolution of this matter does not\n\nrequire the issuance of a binding opinion. This letter serves to close this matter. If you have any\nquestions, please contact me at the Chicago address on the first page of this letter. \n\nVery truly yours, \n\nMARIE HOLLISTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n53887 f 71b proper improper 71c proper improper 71 dv improper 71f proper improper 71s\n\nimproper 71v improper pd\n\ncc: \n\nVia electronic mail\n\nMr. David G. Penn\n\nSchmiedeskamp, Robertson, Neu & Mitchell, LLP\n525 Jersey Street\nQuincy, Illinois 62301\ndpenn@smm. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police use-of-force reports for 2017","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":919,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-06-04","case_number":null,"request_numbers":["53943"],"title":"City Colleges of Chicago failed to provide incident reports and conduct adequate search","filename":"53943, issued June 4, 2019.pdf","rel_path":null,"word_count":3158,"summary":"The requester sought various records from City Colleges of Chicago regarding campus crime, security logs, and specific meetings; the PAC determined the college failed to adequately respond to certain items.","plain_summary":"A requester asked City Colleges of Chicago for campus crime reports and records about specific meetings. The Attorney General's office found that the college did not properly provide the requested security logs and failed to show it had thoroughly searched for the meeting records. The college was ordered to provide the missing reports and perform a new, documented search for the meeting materials.","holding":"The City Colleges of Chicago improperly responded to the FOIA request by failing to provide certain incident reports and failing to conduct an adequate search for meeting records.","legal_question":"Did the public body violate FOIA by failing to provide responsive incident reports and failing to conduct an adequate search for records pertaining to a specific meeting?","disposition":"partial_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"City Colleges of Chicago","requesting_party":null,"pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request involved campus safety and security incident reports, daily crime logs, and records related to a chancellor's focus group meeting.","ocr_status":"ok","ocr_quality":96.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_f/53943%2C%20issued%20June%204%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["campus security","incident reports","search adequacy","FOIA request"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJune 4, 2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Karla Gowen\n\nGeneral Counsel\n\nCity Colleges of Chicago\n226 West Jackson Boulevard\n\nChicago, Illinois 60606\n\nkgowen@ccc. edu\n\nRE: FOIA Request for Review — 2018 PAC 53943\n\nDear\n\nand Ms. Gowen: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)). For the reasons that follow, the. \nPublic Access Bureau concludes that the City Colleges of Chicago ( City Colleges) improperly\nresponded to certain parts of\n\nMay 6, 2018, FOIA request. \n\nOn that date, \n\nsubmitted an eight -item FOIA request to the City\n\nColleges seeking copies of various records pertaining to Wilbur Wright College. In particular, \nthe request sought: \n\n1. \"\n\nRecords detailing the four ( 4) on -campus stalking crimes\nreported * * * between 2014-2016\"; \n\n2. \" Records detailing all ' Safety and Security Incident Reports' \n\nand ' Daily Crime Log( s)' * * * \n2018 semesters\"; \n\nduring the Fall 2017 and Spring\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601 South University Ave., Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Karla Gowen\n\nJune 4, 2019\n\nPage 2\n\n3. \" Records detailing\" three \" meetings conducted at Wilbur\n\nWright College[,]\" \n\nincluding the \"' Chancellor's Focus Group' \n\nheld * * * \n\non Thursday, November 30` h, 2017\"; \n\n4. \" Records detailing the ' Materials and Supplies', ' Other\n\nExpenditures ( i. e. student government...)', \n\nand ' Travel and\n\nConference' spending categories * * * \nSpring 2018 semesters\"; \n\nin the Fall 2017 and\n\n5. \"[\n\nT] he credentials, experience, training, and/ or certification\n\nincluding but not limited to documentation of individual\nexpertise in [ eight specified areas] for those who make\n\ndecisions in disciplinary processes and/ or sit on hearing\ncommittees,\" \nColleges employees; \n\nincluding the credentials of four named City\n\n6. \" A list of positions of employment belonging to the Student\n\nServices department[,]\" \n\nincluding the responsibilities for each\n\nposition; \n\n7. \" Records starting in 2014 detailing assessments about\n\nthe\n\neffectiveness of documented cases of disciplinary sanctions\nimposed on students and employees,\" and; \n\n8. \" Records detailing the organizational structure of City Colleges\nof Chicago and related entities such as the City Colleges of\nChicago Foundation, Student Government Association, or\nWellness Center[.]\" 11I\n\nHaving received no response, \n\nsubmitted another copy of his request\n\nto City Colleges on May 14, 2018. On May 18, 2018, the City Colleges purported to extend its\ntime to respond by five business days pursuant\nto section 3( e) of FOIA ( 5 ILCS 140/ 3( e) ( West\n2016)), even though such an extension notification must be sent within five business days after\n\nreceipt of a request under the plain language of section 3( d) of FOIA ( 5 ILCS 140/ 3( d) ( West\n2016)). 2 On June 8, 2018, the City Colleges provided\nresponsive records, links to records posted on its website, and a written answer to one item of the\n\nwith copies of certain\n\nrequest. As to the remaining items, the City Colleges either asserted that it was unable to locate\nresponsive records or asked\n\nto be more specific or narrow the request. \n\nMay 6, 2018). \n\nE- mail from\n\nto FOIA Officer, General Counsel, City Colleges of Chicago\n\n20n May 29, 2018, \n\nsubmitted a Request for Review ( 2018 PAC 53332) to this\n\noffice alleging that\nColleges responded on June 8, 2018. \n\nthe City Colleges had yet to respond to his request. That matter was closed when the City\n\n\fMs. Karla Gowen\n\nJune 4, 2019\n\nPage 3\n\nOn July 9, 2018, this office received\n\nRequest for Review\n\ndisputing the completeness of the City Colleges' response to his request. He alleged, in pertinent\npart, that the response was inadequate in the following ways: \n\nThe response to # 1 does not include daily campus crime\nlogs before Sunday March 26, 2018\"; \nThe response [ to] # 2 [ does] not include all ' Safety and\nSecurity Incident Reports' kept or created for Wilbur\nWright College during the fall 2017 and spring 2018\n\nsemesters\"; \n\nThe response to # 3 does not include any records of the\nChancellor' s Focus Group' on Thursday, November 30, \n2017\"; \n\nThe response to # 4 does not include a list of vendors\n\nauthorized to conduct business with [ City Colleges]. \nProcurement Services staff enters approved firms into the\n\nCity Colleges] vendor database\"; \nThe response to #5 does not include credentials, training, \nand or certification for four specified [ City Colleges] \n\nemployees\"; and\n\nThe response to #7 does not list the Dean of Student\n\nServices position, and does not provide a detailed list ofjob\n\nresponsibilities for the positions of employment belonging\nto the Student Services department[.]\"\n\n131\n\nWith regard to item three of his request, \nemail sent to members of the student government about this meeting.\" 4 Addressing item five, he\nclarified that he sought \" all records from complete and official personnel files for these four\n\nprovided this office with a copy of \"an\n\nindividuals, \n\nspecific pages from that report\n\nrelated to training referenced in the 2017 Annual Security Report[,]\" and identified\nthat pertain to safety and security training. 5\n\nGeneral ( July 9, 2018). \n\n3E -mail from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney\n\nGeneral ( July 9, 2018). \n\n4E -mail\n\nfrom\n\nto Sarah Pratt, Public Access Counselor. Office of the Attorney\n\nGeneral ( July 9, 2018). \n\nE- mail from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney\n\n\fMs. Karla Gowen\n\nJune 4, 2019\n\nPage 4\n\nOn July 17, 2018, this office forwarded a copy of the Request for Review to the\nallegations. This office also\n\nCity Colleges and asked it to respond in writing to\nasked the City Colleges to provide a detailed description of its search for responsive records, \nincluding the recordkeeping systems that were searched and personnel who were consulted. On\nJuly 25, 2018, this office received the City Colleges' written response and additional records\nresponsive to the request\nof the City Colleges' response to\nsought clarification as to whether the additional\n\nhe replied on August 2, 2018. \nresponsive records could be provided to him and\n\nfor this office' s review. On July 30, 2018, this office forwarded a copy\n\nquestioned whether the City Colleges could treat his request as unduly burdensome based on the\ntimeliness of its response. On March 6, 2019, the City Colleges provided\ncopies of the additional records with certain redactions; those records consist of a list of vendors\n\nwith\n\nauthorized to conduct business with the City Colleges and copies of job descriptions for positions\nwithin the student services department. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 111. 2d 390, 415 ( 2006). When presented with a FOIA\nrequest, a public body -is required to conduct a \" reasonable search tailored to the nature of [that] \nparticular request.\" Campbell v. US. Department ofJustice, 164 F. 3d 20, 28 ( D. C. Cir. 1998). \nA public body is not required to \" search every record system[,]\" but it \" cannot\nonly one record system if there are others that are likely to turn up the requested information.\" \nOglesby v. US. Department of the Army, 920 F. 2d 57, 68 ( D.C. Cir. 1990); but see Yeager v. \nDrug Enforcement Admin., 678 F. 2d 315, 321 ( D. C. Cir. 1982) (\" A requester\nis entitled only to\nrecords that an agency has in fact chosen to create and retain.\"). Further, a public body \" has a\nduty to construe a FOIA request\nliberally.\" Nation Magazine v. U.S. Customs Service, 71 F. 3d\n885, 890 ( D. C. Cir. 1995). \n\nits search to\n\nlimit\n\nIn its response to this office, the City Colleges asserted that it had provided\nwith copies of records responsive to items one and two of the request. Specifically, the\n\nCity Colleges stated that it had furnished copies of reports pertaining to the four on -campus\ncrimes specified in item one and the daily crime logs requested in item two. With regard to the\nlatter item, the City Colleges asserted that the logs \" have been captured by month on a one- page\ndocument with date of reported crimes clearly delineated[,]\" and list \"over 100 safety and\nsecurity incident\nprovide a set of over 100 individual safety and security reports would be unduly burdensome[,]\" \n\nreports.\" 6 The City Colleges argued, however, that \" No review, redact and\n\nJune 25, 2018). \n\n6Letter from James M. Reilly, Associate General Counsel, City Colleges of Chicago. to AAG Lim\n\n\fMs. Karla Gowen\n\nJune 4, 2019\n\nPage 5\n\nsought particular incident reports, \" Rhe City Colleges] will\n\nand stated that if\naccommodate his request.\" 7 This office construed the City Colleges as invoking section 3( g) of\nFOIA ( 5 ILCS 140/ 3( g) ( West 2016)) to deny the request as unduly burdensome. Addressing\nitem three, the City Colleges asserted that it had not\nlocated minutes of the chancellor' s focus\ngroup meeting held on November 30, 2017, and attributed that answer to the Director of Student\nActivities at Wilbur Wright College, Ms. Kathleen Ordinario. Similarly, addressing item five, \nthe City Colleges asserted that \"[ a] search of the personnel\nfiles for the four individuals cited in\nthe revised request found no records responsive to\" the item; the City Colleges stated that its\nthen -Associate General Counsel, Mr. James M. Reilly, had conducted the search of those\npersonnel\nfiles. As noted above, the City Colleges also provided\nrecords responsive to the remaining disputed items, four and six. \n\nwith copies of\n\nThis office has reviewed the records provided to\n\nThe City\n\nColleges furnished him with a set of crime logs, including daily logs from March 25, 2018. to\nMay 24, 2018, and monthly logs listing the dates and times of reported crimes within those\nmonths for August 2017 to April 2018. The daily logs and monthly logs have the same format; \nthey do not appear to be different types of records, but simply differ as to whether they list\nreported crimes from either one date or one month per page. The City Colleges also provided\nlists aggregating the number of incidents that occurred on campus by type for the fall semester of\n2017 and spring semester of 2018. Thus, although\nCity Colleges did not provide him with copies of daily campus crime logs from before Sunday, \nMarch 26, 2018, in the sense that it did not provide him with a separate log for each day, the City\nColleges appears to have provided him with complete daily crime log information covering the\ntime frame of August 2017 through March 25, 2018. This office has not received information\n\ncorrectly contended that the\n\nindicating that the City Colleges possessed separate daily crime logs for each day during that\ntime period. Accordingly, based on the available information, this office concludes that the\nportion of the City Colleges' response concerning the crime logs did not violate FOIA. \n\nOn the other hand, the records\n\nreasonably described in the second\n\nitem of his request included not just crime logs, but incident reports as well. The language\n\nr] ecords detailing all ' Safety and Security Incident Reports' and ' Daily Crime Log( s)' * * * \n\nduring the Fall 2017 and Spring 2018 semesters\" indicated that he sought both types of records. s\nAlthough the City Colleges argued to this office that providing\nit waived\nresponsive incident reports for the specified time period would be unduly burdensome. \nits ability to rely on that provision to deny his request by failing to respond in a timely manner. 5\n\nwith copies of\n\nJune 25, 2018) \n\nMay 6, 2018). \n\nLetter from James M. Reilly, Associate General Counsel, City Colleges of Chicago, to AAG Lim\n\n8E -mail from\n\nto FOIA Officer, General Counsel, City Colleges of Chicago\n\n\fMs. Karla Gowen\n\nJune 4, 2019\n\nPage 6\n\nILCS 140/ 3( d) ( West 2016) (\" A public body that fails to respond to a request within the requisite\nperiods in this Section but thereafter provides the requester with copies of the requested public\n\nfourteen business days later on June 8, 2018. Even assuming that the City\n\nrecords may not impose a fee for such copies. A public body that fails to respond to a request\nreceived may not treat the request as unduly burdensome\"). As discussed above. \nsubmitted his FOIA request to the City Colleges on May 6, 2018, and forwarded another copy of\nhis request\nto the City Colleges on May 14, 2018. On May 18, 2018, the City Colleges purported\nto extend the time to respond by five business days. The City Colleges subsequently responded\nto the request\nColleges did not receive\nrespond to the request within the time periods permitted under sections 3( d) and 3( e) of FOIA. 9\nThis office has not received information indicating that the City Colleges and\nagreed in writing to extend the time for compliance beyond the five business days allowed under\nsection 3( e). 10 Therefore, the City Colleges waived the ability to claim that compliance with the\nportion of the request seeking incident reports would be unduly burdensome. See 111. Att' y Gen. \nPub. Acc. Op. No. 12- 014, issued December\nassert\n\nthat compliance would be unduly burdensome because its response to request was late). \n\nrequest until May 14, 2018, the City Colleges did not\n\n11, 2012, at 11 ( school district waived ability to\n\nWith regard to item three, this office has reviewed the copy of the e- mail\nincluded in his Request for Review. The e- mail is from Ms. Ordinario to a group of\n\nthat\n\nstudents regarding their participation in a focus group meeting. The e- mail\nstudents represented various interest groups and constituencies, and that the meeting was\nintended to gather feedback about\nCity Colleges appropriately consulted with Ms. Ordinario with regard to item three, as she sent\nthe e- mail\nrelating to the meeting at issue. The City Colleges did not, however, explain the search that she\nperformed, such as the specific recordkeeping systems that she searched. While the City\nColleges asserted that Ms. Ordinario was unable to locate records of minutes for the November\n\nin question and thus would be reasonably expected to have knowledge of records\n\nthe concerns of the college community. \n\nindicates that the\n\nIn this matter, the\n\n30, 2017, meeting, item three of the request was not limited to minutes. Instead, the item sought\nrecords detailing the meetings\" and asked the City Colleges to \" include minutes for\" the\nmeeting.) The City Colleges did not address whether Ms. Ordinario had performed a search for\n\nrequest\n\nfor public records within 5 business days after\n\nits receipt of the request, unless the time for response is\n\nSection 3( d) of FOIA provides \"[ e] ach public body shall, promptly, either comply with or deny a\n\nproperly extended under subsection ( e) of this Section.\" Section 3( e) of FOIA provides that \"[ t] he time for response\nunder this Section may be extended by the public body for not more than 5 business days from the original due date\nfor any of the following reasons[,]\" \n\nand then enumerates those reasons. \n\nagree in writing to extend the time for compliance for a period to be determined by the parties.\" \n\n10Section 3( e) of FOIA provides that \"[ t] he person making a request and the public body may\n\nMay 6, 2018). \n\nE- mail from\n\nto FOIA Officer, General Counsel, City Colleges of Chicago\n\n\fMs. Karla G< wen\n\nJune 4, 2019\n\nPage 7\n\nany other records pertaining to the meeting. Consequently, based on the available information, \nthis office concludes that the City has not demonstrated that it conducted a reasonable search for\nrecords responsive to item three of the request pertaining to the November 30, 2017, chancellor' s\nfocus group meeting. \n\nAs to the remaining items, the City Colleges indicated that\n\nit performed\n\nsupplemental searches for responsive records based on the clarifications provided by\n\nin his Request\n\nfor Review. With regard to item five, the City Colleges confirmed that\n\nit searched the personnel files of the four individuals named in the request and was unable to\n\na list of vendors authorized to conduct business with the City Colleges and\n\nlocate records related to the training that was discussed in the 2017 Annual Security Report. \nBecause the City' s search of the specified personnel files appears to have been reasonably • \ncalculated to locate any responsive records, this office concludes that the City Colleges' response\nto that item did not violate FOIA. With regard to items four and six, the City Colleges released\nto\ncopies of job descriptions for the positions within the student services department. \ndid not raise any concerns to this office about\nwith copies. Because the City Colleges has now provided\nto items four and six, his allegation that the City Colleges' initial response to those items was\nincomplete has been resolved. See Duncan Publishing, Inc. v. City of Chicago, 304 111. App. 3d\n778, 782 ( 5th Dist. 1999) (\" Once an agency produces all records related to a plaintiffs request, \nthe merits of a plaintiffs claim for relief, in the form of production of information, becomes\n\nthose records after the City Colleges provided him\nwith records responsive\n\nmoot.\"). \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the City Colleges provide\nresponsive to item two of his request, subject\n5 ILCS 140/ 7 ( West 2017 Supp.), as amended by Public Act 100- 732, effective August 3, \n2018). This office also requests that the City Colleges perform a supplemental search for any\nrecords pertaining to the November 30, 2017, chancellor' s focus group meeting. If the City\nColleges does not locate any responsive records, the City Colleges should provide\n\nwith copies of the incident reports\nto permissible redactions under section 7 of FOIA\n\nwith a supplemental\n\nresponse describing in detail\n\nits efforts to search for responsive records. \n\n\fMs. Karla Gowen\n\nJune 4, 2019\n\nPage 8\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n53943 f 3d response complete incomplete univ\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Campus safety incident reports and crime logs","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":920,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-03-01","case_number":null,"request_numbers":["55302"],"title":"Secretary of State FOIA fee for paper copies upheld when requester did not specify electronic format","filename":"55302, issued March 1, 2019.pdf","rel_path":null,"word_count":1354,"summary":"The requester sought records regarding corporate franchise tax refunds and correspondence related to administrative rule amendments, and the PAC determined the Secretary of State's Office violated FOIA by improperly assessing fees for electronic records.","plain_summary":"The requester's FOIA request to the agency sought correspondence, and the agency provided some records for a fee, charging for paper copies of the remainder. When the requester later argued that any electronically maintained records should have been provided electronically at no charge, the PAC determined that a requester must specify a preferred electronic format at the time of the request, and because this requester did not, the agency's fee for paper copies was consistent with FOIA. (Note: the letter's opening paragraph states the response \"violated FOIA,\" which conflicts with this reasoned conclusion and appears to be a drafting error in the original letter.)","holding":"The Illinois Secretary of State's Office's fee for copies of the records did not violate FOIA.","legal_question":"Whether a public body may charge fees for paper copies of records when the requester has specified a preference for electronic records.","disposition":"violation_found","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Illinois Secretary of State","requesting_party":null,"pac_outcome":"Violation found regarding fee assessment","pac_law_type":null,"subject_category":"fees","subject_description":"The request involved corporate franchise tax refund records and correspondence regarding administrative rule amendments.","ocr_status":"ok","ocr_quality":96.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_a/55302%2C%20issued%20March%201%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","electronic records","copying costs","FOIA request"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMarch 1, 2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Donna Leonard\n\nExecutive Counsel\n\nIllinois Secretary of State\n17 North State Street, Suite 1179\n\nChicago, Illinois 60602\n\ndleonard@ilsos. net\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 55302\n\nDear\n\nand Ms. Leonard: \n\nThis determination is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the Illinois Secretary of State ( Secretary of\nState's Office) to\n\nAugust 14, 2018, FOIA request violated FOIA. \n\nIn a FOIA request on that date, \n\nsought: \n\nRefunds of \"excess fees\" & \" overpayment of fees\" from\n\nSecretary of State Corporate Franchise Tax Refund Fund\n\npursuant\n\nto 42 Illinois Register 811, 816, & 2078; \n\ncorrespondence\n\nsubmitted from & received by Secretary of\n\nState Jesse White, Chief of Staff Thomas Benigno, Executive\nCounsel Donna Leonard, General Counsel Irene Lyons, \n\nAssistant General Counsel Terrence McConville, & Business\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Donna Leonard\n\nMarch 1, 2019\n\nPage 2\n\nServices Director Ray Cachares regarding Public Act 100- 0571\nproposed amendments to 14 Illinois Administrative Code\n\n150. 315 & 178. 60; \n\ncorrespondence submitted from & received by Secretary of\nState & Joint Committee on Administrative Rules regarding\nPublic Act 100- 0571 & proposed amendments\nto 14 Illinois\nAdministrative Code 150. 315 & 178. 60. 1'\n\n1\n\nOn August 16, 2018, the Secretary of State' s Office responded that it had located 99 pages of\nrecords responsive to\n\nrequest and that 50 pages would be provided at no cost, and\n\nthe copy fee for the remaining 49 pages was $ 7. 35. In a subsequent e- mail later that day, the\nSecretary of State' s Office explained that it chose to redact certain information from the records, \nbut that it could only perform redactions to paper copies, and therefore it was charging\n\nfor the cost of printing the records. On October 15, 2018, this office received\nRequest for Review in which he challenged the fees charged by the Secretary of State' s\n\nOffice. He stated that if the Secretary of State' s Office\n\ncurrently maintains any of the responsive documents in an\nelectronic format\", I respectfully request that the Public Access\nCounselor direct the Secretary of State to disclose those responsive\ndocuments * * * without fee [ and to] direct the Secretary of State\nto identify those responsive documents not currently \" maintained\nin an electronic format\" for which disclosure in an \" electronic\nformat\" is technologically impossible. 121\n\nOn October 17, 2018, this office sent a copy of the Request for Review to the\n\nSecretary of State' s Office and asked it to provide a detailed description of its handling of\n\nFOIA request. This office asked the Secretary of State's Office to clarify the format in\n\nare maintained. On December 14, 2018, this office\nwhich the records sought by\nreceived the Secretary of State' s Office' s response. The same day, this office forwarded that\nresponse to\n\non December 23, 2018, he replied. \n\nE- mail from\n\nto Donna Leonard ( August 14, 2018). \n\n2E - mail\n\nfrom\n\nto [ Sarah] Pratt ( October 14, 2018). \n\n\fMs. Donna Leonard\n\nMarch 1, 2019\n\nPage 3\n\nDETERMINATION\n\nSection 3( b) of FOIA ( 5 ILCS 140/ 3( b) ( West 2016)) provides: \n\nSubject to the fee provisions of Section 6 of this Act, each\n\npublic body shall promptly provide, to any person who submits a\nrequest, a copy of any public record required to be disclosed by\nsubsection ( a) of this Section and shall certify such copy if so\n\nrequested. \n\nSections 6( a) and 6( b) of FOIA (5 ILCS 140/ 6( a), ( b) ( West 2016)) address the applicable fees\nfor copies of electronic and paper records. Section 6( a) of FOIA provides: \n\nWhen a person requests a copy of a record maintained in an\n\nelectronic format, the public body shall furnish it in the\nelectronic format specified by the requester, if feasible. If it is\nnot feasible to furnish the public records in the specified electronic\n\nformat, then the public body shall furnish it in the format in which\nit is maintained by the public body, or in paper format at the option\nof the requester. A public body may charge the requester\nactual cost of purchasing the recording medium, whether disc, \ndiskette, tape, or other medium. * * * \n\nExcept to the extent that the\n\nfor the\n\nGeneral Assembly expressly provides, statutory fees applicable to\ncopies of public records when furnished in a paper format shall not\n\nbe applicable to those records when furnished in an electronic\n\nformat. ( Emphasis added.) \n\nSection 6( b) of FOIA ( 5 ILCS 140/ 6( b) ( West 2016)) provides, in pertinent part: \n\nExcept when a fee is otherwise fixed by statute, each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \nby any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black and\n\nwhite, letter or legal sized copies requested by a requester. The fee\nfor black and white, letter or legal sized copies shall not exceed 15\n\ncents per page. \n\n\fMs. Donna Leonard\nMarch 1, 2019\n\nPage 4\n\nin which he preferred to\nIt was only after being\n\nFOIA request did not specify the format\nreceive records responsive to his request for certain correspondence. \ninformed of the cost of obtaining hard copy versions of the responsive records that\nasserted that he would prefer any records that are maintained electronically to be provided in an\nelectronic format. The plain language of section 6( a) of FOIA indicates that a requester must\nspecify his or her preferred format for electronic records at the time that the request is made. If a\nrequester does not specify that he or she wishes to obtain records in electronic format, a public\nbody may properly furnish copies of the records in paper format and assess any applicable fee. \nHere, the Secretary of State' s Office disclosed the first 50 pages of responsive records at no cost\nand the remaining 49 pages at a cost of $0. 15 per page, which is consistent with section 6( b) of\nFOIA. Accordingly, this office concludes that the Secretary of State' s Office' s fee for copies of\nthe records responsive to\n\nrequest did not violate FOIA.3\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at the Springfield address on the first page of this letter, ( 217) \n524- 7958, or LHarter@atg. state. il. us. \n\nVery truly yours, \n\nLAURA S. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n55302. f 6b fees proper sa\n\n3This office notes that if\n\nhad requested records in an electronic format, section 6( a) of\n\nFOIA permits the Secretary of State' s Office to charge only the \" actual cost of purchasing the recording medium, \nwhether disc, diskette, tape, or other medium\" used to record and provide the responsive records. The Public Access\nBureau has previously determined that when a requester specifies that he or she is seeking electronic copies of\nrecords that a public body maintains in electronic format, the public body may not assess fees for paper copies\nbecause it must print out the records in order to redact them. III. Att'y Gen. PAC Req. Rev. Ltr. 54494, issued\nJanuary 23, 2019, at 4. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A requester asked the Illinois Secretary of State's office for records about refunds of 'excess fees' and 'overpayment of fees' from the Corporate Franchise Tax Refund Fund, and for correspondence regarding Public Act 100-0571 and proposed amendments to administrative rules. The office found 99 pages and provided 50 at no cost, charging $7.35 for the remaining 49. The requester later challenged the fee, asking that if any records were kept electronically, they be provided in that format without charge. The Public Access Bureau ruled that the fee did not violate FOIA because the requester did not request an electronic format when making the original request, so the office's charge was allowed under FOIA's fee rules.","card_headline":"Corporate franchise tax refund records and rule-amendment correspondence","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":921,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-12-23","case_number":null,"request_numbers":["55627"],"title":"Algonquin Township failed to conduct reasonable search for meeting recordings","filename":"55627, issued December 23, 2021.pdf","rel_path":null,"word_count":1371,"summary":"The requester sought audio and video recordings of a Township board meeting, but the PAC determined the Township failed to demonstrate it conducted a reasonable search for all responsive records.","plain_summary":"A citizen requested recordings of a Township meeting, but the Township only provided a link to a website and failed to confirm if other recordings existed. The Attorney General's office found the Township's search was inadequate and ordered them to conduct a proper search and provide a detailed explanation of their efforts. This means the Township must now prove they looked everywhere, including the Supervisor's personal files, for the requested recordings.","holding":"The Township failed to perform a reasonable search for responsive records because it did not address whether the Supervisor possessed additional recordings.","legal_question":"Did the public body conduct a reasonable search for records responsive to a FOIA request as required by section 3 of FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Algonquin Township","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"reasonable search","subject_description":"The requester sought audio and video recordings of a special meeting of the Township Board of Trustees.","ocr_status":"ok","ocr_quality":91.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/8.5/8.5_a/55627%2C%20issued%20December%2023%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["reasonable search","meeting recordings","FOIA request","Township records"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 23, 2021\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Randy Funk\nAlgonquin Township Supervisor\nAlgonquin Township\n3702 U.S. Highway 14\nCrystal Lake, Illinois 60014\nrfunk@algonquintownship.com\n\nRE: FOIA Request for Review – 2018 PAC 55627\n\nDear\n\nand Mr. Funk: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that Algonquin Township (Township) responded improperly to\na portion of\n\ns October 20, 2018, FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the Township seeking, in\n\nrelevant part, copies of audio and video recordings from the October 19, 2018, special meeting of\nthe Township Board of Trustees ( Board). On October 31, 2018, the Township informed\n\nthat he could download the meeting recording on its website, but that it did not possess\n\naudio or video recordings from after the closed session. On November 1, 2018, this office\nreceived\nRequest for Review claiming that the recording of the meeting is not\navailable on the Township's website because the link on the website goes to YouTube. \n\nalso questioned whether the Township possesses a full recording of the meeting that was\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fThe Honorable Randy Funk\nDecember 23, 2021\nPage 2\n\nmade by the Township Supervisor, as he alleged that the Township Supervisor had previously\nmade his own recordings of Board meetings in addition to the Township Clerk' s recordings. \n\nOn November 13, 2018, this office sent a copy of the Request for Review to the\n\nTownship and asked it to provide a detailed description of its search for responsive records, \nincluding the specific recordkeeping systems searched, how they were searched, and the specific\nindividuals who were consulted. This office specifically asked the Township to respond to\nallegation that the Township possesses a recording of the October 19, 2018, special\n\nmeeting that was made by the Township Supervisor. \n\nOn November 19, 2018, the Township provided this office with its written\n\nresponse. On November 21, 2018, this office forwarded a copy of the Township' s response to\n\nhe replied later that afternoon. In his reply, \n\nargued that Township failed to\n\naddress any \" search for the recording typically made by the Supervisor[.]\" 1\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2020). \n\nSection 8.5 of FOIA\n\nSection 8.5(a) of FOIA (5 ILCS 140/8.5(a) ( West 2020)) provides that \"a public\nbody is not required to copy a public record that is published on the public body' s website. The\npublic body shall notify the requester that the public record is available online and direct the\nrequester to the website where the record can be reasonably accessed.\" Section 8.5(b) of FOIA\n5 ILCS 140/8.5(b) (West 2020)) further provides: \n\nIf the person requesting the public record is unable to\nreasonably access the record online after being directed to the\nwebsite pursuant to subsection ( a) of this Section, the requester\nmay resubmit his or her request for the record stating his or her\ninability to reasonably access the record online, and the public\nbody shall make the requested record available for inspection and\ncopying as provided in Section 3 of this Act. \n\n1E- mail from\n\nto [Jodi Carnes] ( November 21, 2018). \n\n\fThe Honorable Randy Funk\nDecember 23, 2021\nPage 3\n\nIn its response to this office, the Township described the process of how to access\nthe recording of its October 19, 2018, special meeting from the Township' s website: a link on the\nwebsite led directly to a recording of the meeting on YouTube.2 Although\nargued that\nYouTube is not the Township' s website, he did not claim that he was unable to reasonably access\nthe recording from the link on the Township's website. It would be unreasonable to construe\nFOIA as requiring a public body to embed a video on its website in order to rely on section\n8.5(a), rather than allowing a website link directly to a video hosting service such as YouTube. \nIt is always presumed that the legislature did not intend to cause absurd, inconvenient, or unjust\nresults.\" People v. Garcia, 241 Ill. 2d 416, 421 (2011). Accordingly, this office concludes that\nthe Township properly directed Mr. Allen to the link on its website pursuant\nto section 8.5(a) of\nFOIA. \n\nSearch for Records\n\nThe requirements of FOIA apply to records \"having been prepared by or for, or\n\nhaving been or being used by, received by, in the possession of, or under the control of any\npublic body.\" 5 ILCS 140/2(c) (West 2020). A public body must conduct a reasonable search\nfor records responsive to a FOIA request. Better Government Ass' n v. City of Chicago, 2020 IL\nApp (1st) 190038, ¶31, __ N.E.3d __ (2020). \"Although a public body is not required to perform\nan exhaustive search of every possible location, the body must construe FOIA requests liberally\nand search those places that are ' reasonably likely to contain responsive records.'\" Better\nGovernment Ass'n, 2020 IL App (1st) 190038, ¶31, __ N.E.3d __ (2020) (quoting Judicial\nWatch, Inc. v. U.S. Dep' t of Justice, 373 F. Supp. 3d 120, 126 ( D.D.C. 2019)). \" At all times the\nburden is on the [public body] to establish the adequacy of its search.\" Rugiero v. U.S. Dep't of\nJustice, 257 F.3d 534, 547 ( 6th Cir. 2001). However, \"[ a] requester is entitled only to records\nthat an agency has in fact chosen to create and retain.\" Yeager v. Drug Enforcement\nAdministration, 678 F.2d 315, 321 ( D.C. Cir. 1982). \n\nIn the Township' s response to this office, the Township' s attorney addressed only\n\nthe video recording on the Township's website, explaining that \"[ t]he video ended after [the] \nBoard went into closed session. The internet connection was lost and there was no video for the\nremainder of the meeting.\" 3\n\nDespite this office's unambiguous request for a written explanation of how the\n\nTownship searched for responsive recordings, the Township provided this office with no\n\n2018), https://www.youtube.com/watch?v=1JNskmFiPc0. \n\n2Algtownship Clerk, Algonquin Township Special Board Meeting 10/19/2018, YouTube (Oct. 19, \n\nGeneral, Public Access Bureau (November 19, 2018). \n\n3Letter from James P. Kelly, Matuszewich & Kelly, LLP, to Leo Draws, Assistant Attorney\n\n\fThe Honorable Randy Funk\nDecember 23, 2021\nPage 4\n\ninformation in that regard. In particular, the Township did not address whether it consulted with\nallegation that the\nthe Supervisor, despite this office' s request that it respond to\nSupervisor may have made an additional recording of the special meeting based on his past\npractice. Because the Township did not provide this office with any explanation of how it\nsearched for recordings responsive to\nconclude that the Township performed a reasonable search. This office asks the Township to\nconduct a search that includes any recordings made by the Supervisor and issue a supplemental\nresponse to\nno records are located, the Township should provide\nmeasures that were taken to search for records. \n\nthat fully complies with section 9 of FOIA ( 5 ILCS 140/ 9 (West 2020)). If\nwith a detailed description of the\n\nrequest, the Public Access Bureau is unable to\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this file. Please contact\nme at c.lucentemccullough@ilag. gov or the Chicago address on the first page of this letter if you\nhave any questions. \n\nVery truly yours, \n\nCHRISTINA M. LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n55627 f 3a search improper 85 online proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Audio and video recordings of a special board meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":922,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-12-03","case_number":null,"request_numbers":["55719","55720"],"title":"Will County Sheriff's Office did not violate FOIA by denying fee waiver to indigent requester","filename":"55719 55720, issued December 3, 2018.pdf","rel_path":null,"word_count":570,"summary":"The requester challenged the Will County Sheriff's Office's refusal to waive copying fees for medical and classification records, claiming indigency. The PAC determined that under FOIA, fee waivers are discretionary and the per-page fee charged was statutorily authorized.","plain_summary":"A requester asked for copies of their own medical and classification records from the Will County Sheriff's Office and requested that the copying fees be waived due to financial hardship. The Attorney General's office found that while FOIA allows for free copies of the first 50 pages, public bodies have the legal choice to decide whether to waive fees for additional pages. Because the Sheriff's Office followed the law regarding standard fees and was not required to grant a waiver, the PAC closed the case.","holding":"The Sheriff's Office did not violate FOIA by denying a fee waiver, as the statute grants public bodies the discretion to waive or reduce fees.","legal_question":"Does a public body have a mandatory duty under FOIA to waive copying fees for an indigent requester?","disposition":"no_violation","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Will County Sheriff's Office","requesting_party":"Ms. [Name Redacted]","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought a waiver of copying fees for medical and classification records based on a claim of indigency.","ocr_status":"ok","ocr_quality":98.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_c/55719%2055720%2C%20issued%20December%203%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","fee waiver","indigency","copying costs"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember 3, 2018\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 55719 and 55720\n\nDear Ms. \n\nThis determination letter is issued pursuant to section 9. 5( c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that no further action is warranted on these matters. \n\nOn October 27, 2018, you submitted a FOIA request to the Will County Adult\n\nDetention Facility ( Detention Facility), which is part of the Will County Sheriffs Office\nSheriffs Office), seeking copies of medical records and certain other information. On October\n30, 2018, the Sheriffs Office responded by providing free copies of fifty pages of records and\nstating that the fee for the remaining 103 pages is $ 15. 45, or fifteen cents per page. Your\nfor Review ( 2018 PAC 55719) asserted that you are indigent and entitled to a fee\nRequest\n\nwaiver. \n\nOn November 2, 2018, you submitted another FOIA request to the Detention\n\nFacility seeking your classification record. On November 7, 2018, the Sheriffs Office provided\nfree copies of fifty pages of records and stated that the fee for the remaining 121 pages is $ 18. 15, \nor fifteen cents per page. You Request\nare entitled to a fee waiver. \n\nfor Review ( 2018 PAC 55720) again asserted that you\n\nSection 6( b) of FOIA ( 5 ILCS 140/ 6( b) ( West 2016)) provides: \" No fees shall be\n\ncharged for the first 50 pages of black and white, letter or legal sized copies requested by a\nrequester. The fee for black and white, letter or legal sized copies shall not exceed 15 cents per\n\npage.\" Section 6( c) of FOIA ( 5 ILCS 140/ 6( c) ( West 2016)) further provides that \"[ d] ocuments\nshall be furnished without charge or at a reduced charge, as determined by the public body, if the\nperson requesting the documents states the specific purpose for the request and indicates that a\nwaiver or reduction of the fee is in the public interest.\" ( Emphasis added). Thus, under the plain\n\n500 South Second Street, Springfield, \n\nIllinois 62706 • (\n\n217) 782- 1090 • TTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fDecember 3, 2018\n\nPage 2\n\nlanguage of section 6( c) of FOIA, a public body has the discretion to decide whether to waive or\nreduce copying fees. Because FOIA does not require the Sheriffs Office to grant the fee waivers\nyou requested and because its fee of. 15 cents per page is authorized by section 6( b) of FOIA, this\noffice concludes that no further action is warranted as to these matters. \n\nChicago address listed on the bottom of the first page. \n\nThese files are closed. If you have any questions, you may contact me at the\n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n55719 55720 f no fi war county\n\ncc: \n\nMs. Christine Miller\n\nFOIA Officer\nWill County Sheriffs Office\n95 South Chicago Street\n\nJoliet, Illinois 60436\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A fee waiver request for medical and classification records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":923,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-02-28","case_number":null,"request_numbers":["56109"],"title":"IDOT improperly withheld harassment letter under FOIA 7(1)(d) enforcement proceeding exemptions","filename":"56109, issued February 28, 2022.pdf","rel_path":null,"word_count":1252,"summary":"The requester sought a letter sent by the IDOT Director to a transit district board regarding workplace harassment allegations, which IDOT denied under FOIA exemptions for administrative enforcement proceedings. The PAC determined that the letter was not part of an administrative enforcement proceeding and ordered its disclosure.","plain_summary":"A citizen requested a letter from the Illinois Department of Transportation (IDOT) regarding workplace harassment allegations. IDOT refused to release the letter, claiming it was part of an ongoing legal or enforcement process. The Attorney General's office reviewed the request and decided that the letter was not part of an enforcement proceeding, meaning IDOT must release it to the requester.","holding":"The Illinois Department of Transportation improperly withheld the requested letter because it did not qualify for the exemptions related to administrative enforcement proceedings.","legal_question":"Whether a letter concerning workplace harassment allegations sent by an agency director to a transit board is exempt from disclosure under FOIA sections 7(1)(d)(ii), (iii), or (iv) as part of an administrative enforcement proceeding.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)(ii)","7(1)(d)(iii)","7(1)(d)(iv)"],"public_body":"Illinois Department of Transportation","requesting_party":"Mr. [Name Redacted]","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought a letter from the IDOT Director to a transit district board concerning allegations of workplace harassment or discrimination.","ocr_status":"ok","ocr_quality":93.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_ii/56109%2C%20issued%20February%2028%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["workplace harassment","IDOT","enforcement proceedings","FOIA exemption"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nFebruary 28, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Barb Smith\nFOIA Officer\nIllinois Department of Transportation\nOffice of the Chief Counsel, Room 317\n2300 South Dirksen Parkway\nSpringfield, Illinois 62765\nbarbara.j.smith2@illinois.gov\n\nRE: FOIA Request for Review – 2018 PAC 56109; IDOT FOIA No.: 18-0818\n\nDear\n\nand Ms. Smith: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). \n\nOn December 14, 2018, the Public Access Bureau received a Request for Review\nchallenging the response by the Illinois Department of Transportation\n\nfrom\nIDOT) to his October 25, 2018, FOIA request. \nrecords provided to IDOT's then-Director, Beth McCluskey, concerning alleged workplace\nharassment or discrimination within the South Central Illinois Mass Transit District ( Transit\nDistrict). In his FOIA request, \nMcCluskey to send a letter, dated October 12, 2018, to members of the Transit District' s Board\nof Trustees (Board). \nIDOT denied the request pursuant to sections 7(1)(d)(iii) and 7(1)(d)(iv) of FOIA (5 ILCS\n140/ 7(1)( d)( iii), (1)( d)( iv) (West 2018)), stating the requested information \" consists of a\n\nstated that the harassment allegation prompted Ms. \n\nwas a member of the Board at the time. On October 30, 2018, \n\nrequest sought copies of certain\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Barb Smith\nFebruary 28, 2022\nPage 2\n\ncomplaint related to a public body that is in the process of investigation.\" 1 On December 18, \n2018, this office requested that IDOT provide un- redacted copies of the withheld records for this\noffice's confidential review, together with a detailed legal and factual explanation of its basis for\nasserting the above- referenced exemptions. On December 28, 2018, IDOT provided those\nmaterials. In its written answer, IDOT asserted the withheld record was also exempt under\nsection 7(1)( d)( ii) of FOIA 5 ILCS 140/ 7(1)( d)( ii) (West 2018)). On January 6, 2019, \n\nreplied, maintaining that IDOT improperly denied his request and that no investigation\n\nwas being conducted. \n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/1.2 (West 2018); see also Southern\nIllinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 ( 2006). Any public body\nthat denies a record \"has the burden of proving by clear and convincing evidence\" that the record\nis exempt from disclosure. 5 ILCS 140/ 1.2 (West 2018). The exemptions from disclosure are to\nbe narrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d\nthe public body must provide a detailed justification\n401, 407 ( 1997). \" To meet its burden * * *, \nfor its claim of exemption, addressing the requested records specifically and in a manner\nallowing for adequate adversarial\nMorrissey, 398 Ill. App. 3d 145, 150 (2nd Dist. 2010). Bare assertions without a detailed\nrationale do not satisfy a public body's burden of explaining how exemptions are applicable. See\nRockford Police Benevolent & Protective Ass' n, 398 Ill. App. 3d at 151 ( citing Illinois Education\nAss'n v. Illinois State Board of Education, 204 Ill. 2d 456, 464 (2003)). \n\ntesting.\" Rockford Police Benevolent & Protective Ass' n v. \n\nSections 7(1)(d)(ii), 7(1)(d)(iii), and 7(1)(d)(iv) of FOIA exempt from disclosure: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any\nlaw enforcement or correctional agency for law enforcement\npurposes, but only to the extent that disclosure would: \n\nii) interfere with active administrative enforcement\n\nproceedings conducted by the public body that is the\nrecipient of the request\n\niii) create a substantial likelihood that a person will\n\nbe deprived of a fair trial or impartial hearing; [ or] \n\n1E- mail from Barb Smith, FOIA Officer, Illinois Department of Transportation, to\n\nOctober 30, 2018). \n\n\fMs. Barb Smith\nFebruary 28, 2022\nPage 3\n\niv) unavoidably disclose the identity of a\n\nconfidential source, confidential\nby the confidential source, or persons who file complaints\nwith or provide information to administrative, investigative, \nlaw enforcement, or penal agencies[.] ( Emphasis added.) \n\ninformation furnished only\n\nIn construing a statute, the primary objective is to ascertain and give effect to the\nintent of the General Assembly. Southern Illinoisan v. Illinois Department of Public Health, 218\nIll. 2d 390, 415 (2006). \"[ T]he surest and most reliable indicator of\" legislative intent \"is the\nstatutory language itself, given its plain and ordinary meaning.\" Board of Education of\nSpringfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343, ¶24, 77\nN.E.3d 625, 630 ( 2017). \n\nIDOT' s response to this office stated that it was conducting an ongoing\n\ninvestigation into the allegations in the letter that\nreceived media inquiries related to the underlying workplace allegations, and that IDOT' s\nattorney advised it to withhold the responsive record \"due to the sensitive nature of the requests\" \nand asserted that the release of the letter could \" potentially cause detrimental outcomes to the\naccuser and/or the accused.\" 2\n\nsought. IDOT also stated it had\n\nThe plain language of section 7(1)( d) provides that records fall within the scope\n\nof this provision, under certain circumstances, when the public body maintaining the records is a\nlaw enforcement agency or, for other types of public bodies, when the records were created\nduring the course of an administrative enforcement proceeding. \n\nWith respect to the first prerequisite, IDOT is not a \" law enforcement\" agency\n\nwithin the context of section 7(1)( d) of FOIA. Instead, IDOT is tasked with, among other things, \nthe responsibility for the planning, funding, construction, operation, and maintenance of Illinois' \ntransportation network. See 20 ILCS 2705/ 2705- 10 ( West 2020). Therefore, IDOT has not\nestablished that the responsive record is possessed by a law enforcement agency for law\nenforcement purposes. \n\nFurther, based on this office' s confidential\n\nreview, the record in question was not\n\ncreated in the course of an administrative enforcement proceeding. Even assuming IDOT's\nassertion that conducting an investigation into the underlying workplace allegations could be\nconstrued as an administrative enforcement proceeding, the scope of section 7(1)(d) is limited to\nrecords generated during the proceedings; it does not encompass records such as the underlying\n\nBarnaby (December 28, 2018). \n\n2E- mail from Barb Smith, FOIA Officer, Illinois Department of Transportation, to [Shannon] \n\n\fMs. Barb Smith\nFebruary 28, 2022\nPage 4\n\nrequest sought records that may have initiated IDOT' s investigation, \n\ncomplaints that were created before the commencement of administrative enforcement\nproceedings. \nnot any records that may have been generated during that investigation. Therefore, this office\nconcludes that IDOT has not sustained its burden of demonstrating that the responsive letter is\nexempt from disclosure pursuant to sections 7(1)(d)(ii), 7(1)(d)(iii), or 7(1)(d)(iv) of FOIA. \nAccordingly, this office requests that IDOT provide\nwith a copy of the responsive\nletter. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, my\ne-mail address is Shannon.Barnaby@ilag.gov. \n\nVery truly yours, \n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n\n56109 71dii improper 71diii improper 71div improper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A letter about workplace harassment allegations","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":924,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-04-08","case_number":null,"request_numbers":["56112"],"title":"Village of Waterman properly charged copying fees and proposed redactions permissible under 7(1)(m)","filename":"56112, issued April 8, 2019.pdf","rel_path":null,"word_count":3822,"summary":"The requester challenged the Village of Waterman's copying fees and redactions of legal bills; the PAC found the fees were proper but that the Village improperly redacted certain names from legal bills under the attorney-client privilege exemption.","plain_summary":"A resident requested records from the Village of Waterman and was charged a copying fee, which he disputed. The Illinois Attorney General's Public Access Bureau concluded that the Village did not improperly charge the fee and did not improperly redact records. The Village also proposed furnishing redacted copies of previously withheld records, and the Bureau found those proposed redactions permissible.","holding":"The Village of Waterman properly charged copying fees and did not improperly redact records; the Village's proposed redactions are permissible.","legal_question":"Whether the Village of Waterman properly applied FOIA exemptions to redact legal bills and whether the assessed copying fees complied with 5 ILCS 140/6.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(m)"],"public_body":"Village of Waterman","requesting_party":null,"pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought various municipal records and challenged the associated copying costs and redactions made to legal invoices.","ocr_status":"ok","ocr_quality":94,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_b/56112%2C%20issued%20April%208%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["copying fees","legal bills","attorney-client privilege","redactions"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nApril 8, 2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Heather Neveu\n\nCounsel\n\nfor Village of Waterman\n\nChilton Yambert Porter LLP\n\n303 West Madison Street, Suite 2300\n\nChicago, Illinois 60606\n\nhneveu@cyp- law. com\n\nRE: FOIA Request for Review — 2018 PAC 56112\n\nDear\n\nand Ms. Neveu: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the Village of Waterman ( Village) did not improperly\ncharge a copying fee for the copies of records it furnished\nexceptions, did not\nimproperly redact\nrequest. The Village has also proposed furnishing\npreviously withheld; the Village' s proposed redactions are permissible. \n\ninformation responsive to\n\nand with limited\n\nFOIA\n\nwith redacted copies of records it\n\nOn October 10, 2018, \n\nsubmitted a 16 -part FOIA request to the\n\nVillage. On October 16, 2018, the Village notified\n\nthat records responsive to his\n\nrequest would be available the next day, that there were 428 pages of responsive records, and\nthat the cost of the copies was $ 56. 70 ( for the 378 pages exceeding the 50 pages that\n\nis entitled to receive without charge). \n\nretrieved the copies on October 17, \n\n2018, paying the stated copy fee. The Village' s response letter notifies\n1) denied certain parts of the request in their entireties; ( 2) redacted some portions of the records\n\nthat it had\n\nthat it did provide; and ( 3) it did not possess records response to certain other parts of the\n\n500 South Second Street, Springfield, Illinois 62701 • ( 2I7) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601 South University Ave., Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Heather Neveu\n\nApril 8, 2019\n\nPage 2\n\nrequest. On December 14, 2018, this office received\n\nRequest for Review\n\ncontesting the Village' s response to parts six, eight, nine, and fifteen of his request. \n\nIn part six of the FOIA request, \n\nsought copies of \"[r] ecords related to\n\nthe Legal Expenses of Kendall County Case 17 L 72 and Dekalb County Case 2018 CH 139\nwhich includes but is not limited to billable hours and description of legal services rendered.\"' \n\nThe Village furnished\nthe descriptions of the legal services rendered. In his Request for Review, \n\ntwenty- two pages of billing invoices with some redactions to\ncontests\n\nthe redactions. \n\nIn part eight of the FOIA request, \n\nsought copies of \"[ a] ny written\ncommunication that includes but is not limited to Emails and Letters between any Village of\nWaterman Public Official and Village Attorney David William Porter and his Law firm of\nChilton Yambert Porter LLP from 6- 15- 2019 until the present day. i2 Part nine of the request\nsought similar correspondence between any Village employee and the Village' s outside counsel. \nThe Village denied these parts of the request\nfell] under attorney client privilege. i3\n\nin their entireties, asserting that the \" information\n\ncontests the denial of those records. \n\nFinally, in part fifteen of the FOIA request, \n\nrequested \"[ a] ny records\n\nthat the Village of Waterman has on Kendall County Case 17 L 72 and Dekalb County Case\n2018 CH 139. i4 The Village furnished\n\nrecords responsive to this part of the\n\nrequest. \nasserts that the records provided by the Village\ninclude the court records in the case files of both lawsuits, and that because he is the plaintiff in\n\nIn his Request\n\nfor Review, \n\nthose lawsuits, the Village' s attorney knew that he already had copies of the court records in\nthose cases, and therefore, he is entitled to a refund of his copying fees he paid for those pages. \n\nOn December 26, 2018, the Public Access Bureau forwarded a copy of the\n\nRequest for Review to the Village and asked it to provide the Public Access Bureau with un - \n\nredacted copies of records responsive to parts six, eight, and nine of the request, together with a\n\ndetailed explanation of the factual and legal bases for the applicability of a FOIA exemption to\nthe information that was withheld and redacted. On January 3, 2019, this office received a\nresponse from the Village' s outside counsel, asserting that the legal\n\ninvoices responsive to part\n\nFOIA Request\n\nfrom\n\nto Village of Waterman, at\n\n1 ( undated). \n\n2FOIA Request from\n\nto Village of Waterman, at 1- 2 ( undated). \n\n2018). \n\n3Letter from Abigail Pool, Village Clerk, Village of Waterman, \n\nto\n\nOctober 17, \n\n4FOIA Request\n\nfrom\n\nto Village of Waterman, at 2.( undated). \n\n\fMs. Heather Neveu\n\nApril 8, 2019\n\nPage 3\n\nsix of the request, and the correspondence responsive to parts eight and nine of the request, were\n\nredacted and withheld pursuant\n\nto section 7( 1)( m) of FOIA ( 5 ILCS 140/ 7( 1)( m) ( West 2017\n\nSupp.), as amended by Public Act 100- 732, effective August 3, 2018). The Village furnished for\nour confidential\nIn a telephone conversation\nwith an Assistant Attorney General ( AAG) in the Public Access Bureau, the Village' s outside\ncounsel explained that its preliminary review indicated that there were more than 500 pieces of\nresponsive to parts eight and nine of the request, because the law firm identified\ncorrespondence\n\nreview copies of the unredacted billing invoices. \n\nin the FOIA request represents the Village in nearly all\nthe AAG spoke with\n\nits legal matters. On January 15, 2019, \nwho agreed to narrow parts eight and nine of his request to\n\ncorrespondence relating to the two lawsuits he brought against\nfurnished this\npart six of his FOIA request. On January 25, 2019, the Village' s outside counsel\noffice with unredacted copies of records responsive to the narrowed parts eight and nine of the\n\nthe Village that were identified in\n\nrequest, along with redacted copies of that same correspondence. The Village also provided an\nadditional written response asserting that the records were exempt from disclosure pursuant\nsection 7( 1)( m) of FOIA. In a telephone conversation with the AAG, the Village' s outside\n\nto\n\ncounsel confirmed that it was willing to furnish\ncorrespondence, but sought this office's review of its proposed redactions. \n\nredacted copies of the responsive\n\nOn February 27, 2019, this office forwarded the Village' s written responses to\n\nhe replied on March 6, 2019. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1. 2 ( West 2016). Section 3( a) of FOIA ( 5 ILCS 140/ 3( a) ( West 2016)) further provides: \n\nEach public body shall make available to any person for inspection or copying all public\n\nrecords, except as otherwise provided in Sections 7 and 8. 5 of this Act.\" The exemptions from\ndisclosure contained in section 7 of FOIA ( 5 ILCS 140/ 7. (West 2017 Supp.), as amended by\nPublic Act 100- 732, effective August 3, 2018) are to be narrowly construed. See Lieber v. Board\nof Trustees ofSouthern Illinois University, 176 I11. 2d 401, 407 ( 1997). \n\nCopy Fee\n\nargues that he is entitled to a refund of the $ 56. 70 fee he paid for\n\npaper copies of the records responsive to his request, because those copies included court records\nin the two lawsuits he had filed against the Village, and he already possesses copies of those\nrecords. Prior to submitting his Request for Review to the Public Access Bureau, \nsent e- mails to the Village on October 17, 2018, and October 22, 2018, asking for a refund of his\n\n\fMs. Heather Neveu\n\nApril 8, 2019\n\nPage 4\n\ncopy fee on that basis that he did not want copies of the court records. \ne- mail to the Village, \nalready have those records at home and if I wanted to make copies I could make copies of the\nrecords that I have at home. i5\n\nasserted that \"[ i] t should have been common sense that I\n\nIn his October 22, 2018, \n\nPart fifteen of the FOIA request seeks \"[ a] ny records that the Village of\n\nWaterman has on Kendall County Case 17 L 72 and Dekalb County Case 2018 CH 139.\" 6\nEmphasis added.) The Village' s copies of the court filings in those two cases are responsive to\nto exclude court\nthat part of the request. \nfilings, or copies of filings that the Village or its counsel had served upon him in the context of\nthe litigation. The FOIA request contained no such limitation, and the Village has no obligation\nthe possibility that a requester already possesses copies of records that are\nto assume or consider\nunambiguously responsive to the request as written, and unilaterally modify his request without\nany prior indication from the requester that his request should be interpreted that way. 7\n\ncould have limited this part of his request\n\nThe Village' s e- mail\n\nto\n\nstates that it would provide him 50 pages of\n\npaper copies without charge, and assess a copy charge of $0. 15 for each of the remaining 378\npages of records responsive to the request. The stated copy fee does not exceed the fee\nauthorized by section 6( b) of FOIA ( 5 ILCS 140/ 6( b) ( West 2016)). 8 Accordingly, the Village' s\nimposition of a $ 56. 70 copy fee for the records\n\nreceived does not violate FOIA. \n\nSection 7( 1)( m) of FOIA\n\nSection 7( 1)( m) of FOIA exempts from disclosure: \n\nCommunications between a public body and an attorney\nto\nrepresenting the public body that would not be subject\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\n\nWaterman President Darryl Beach ( October 22, 2018). \n\n5E -mail from\n\nto Abigail Pool, [ Village Clerk, Village of Waterman], and Village of\n\n6FOIA Request\n\nfrom\n\nto Village of Waterman, at 2 ( undated). \n\nMoreover, the Village' s October 16, 2018, e- mail\n\nto\n\nnotifying him that his records\n\nwould be available the next day states that the Village Clerk attempted to call him at the telephone number\nhis FOIA request, but did not reach him and was unable to leave a voicemail message. \n\nlisted on\n\nexceed 15 cents per, page.\" \n\nSection 6( b) of FOIA provides: \" The fee for black and white, letter or legal sized copies shall not\n\n\fMs. Heather Neveu\n\nApril 8, 2019\n\nPage 5\n\nadministrative proceeding upon the request of an attorney advising\nthe public body[.] \n\nCommunications protected by the attorney- client privilege are within the scope of section\n7( 1)( m). See People ex rel. Ulrich v. Stukel, 294I11. App. 3d 193, 201 ( 1st Dist. 1997). A party\nasserting that a confidential communication is protected by the attorney- client privilege must\n1) a statement originated in confidence that it would not be disclosed; ( 2) it was\nshow that: \"(\n\nmade to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices; and ( 3) it remained confidential.\" Cangelosi v. Capasso, 366 I11. App. 3d 225, 228 ( 2d\nDist. 2006); see also In re General Instrument Corp. Securities Litigation, 190 F. R. D. 527, 531\nN. D. I11. 2000), quoting United States v. Evans, 113 F. 3d 1457, 1461 ( 7th Cir. 1997) (\" To be\nprivileged, the documents must not only exhibit attorney involvement, but must involve a ' legal\nadviser acting in his capacity as such.\"'); Illinois Education Association v. Illinois State Board of\nEducation, 204 Ill. 2d 456, 470 ( 2003) ( A public body that withholds records under section\n7( 1)( m) must provide a supporting factual basis for the application of the exemption, including\nsome objective indicia that the exemption is applicable under the circumstances.\"). (\nEmphasis\n\nin original.) Moreover, \"[ t] he privilege applies not only to the communications of a client\nattorney, but also to the advice of an attorney to his client.\" \nApp. 3d 363, 374 ( 5th Dist. 1990); see also People v. Radojcic, 2013 IL 114197, ¶ 40, 998\nN. E. 2d 1212, 1221- 22 ( 2013) (\"[ T] he modern view is that the privilege is a two-way street, \nprotecting both the client' s communications to the attorney and the attorney' s advice to the\n\nto his\nIn re Marriage of Granger, 197 Ill. \n\nclient.\"). \n\nAdditionally, the Public Access Bureau has previously determined that the section\n\n7( 1)( m) exemption encompasses records excluded from discovery under the Illinois work\nproduct doctrine. See, e. g., I11. Att' y Gen. PAC Req. Rev. Ltr. 32087, issued June 9, 2015, at 2. \nThe parameters of \"work product\" are set out in Illinois Supreme Court Rule 201( b)( 2) ( effective\nJuly 30, 2014), which provides that material prepared \" by or for a party in preparation for trial\nis\nsubject to discovery only if it does not contain or disclose the theories, mental impressions, or\nlitigation plans of the party' s attorney.\" Attorney work product is limited to records that \" reveal\nthe shaping process by which the attorney has arranged the available evidence\" \nfor trial. Monier\nv. Chamberlain, 35 111. 2d 351, 359- 60 ( 1966); Waste Management, Inc., v. International Surplus\nLines Ins. Co., 144 I11. 2d 178, 196 ( 1991) ( contrasting \" ordinary work product, which is any\nrelevant material generated in preparation for trial which does not disclose ' conceptual data' is\nfreely discoverable,\" \nlitigation \" which reveal\n\nfrom \" core\" work product, which are materials generated in preparation for\n\nimpressions, opinions, or trial strategy of an attorney\"). \n\nthe mental\n\n\fMs. Heather Neveu\n\nApril 8, 2019\n\nPage 6\n\nCorrespondence between the Village and Outside Counsel\n\nThe Village withheld all records responsive to parts eight and nine of the request, \n\nwhich sought copies of all correspondence between Village officials and employees, and the\nVillage' s outside counsel. After receiving this office' s letter of inquiry, and after\nagreed to narrow those parts of his request to correspondence relating to the lawsuits he has filed\nagainst the Village, the Village conducted a supplemental review of the responsive\ncorrespondence. The Village argued that its original denial of this part of the request was proper. \n\nN] ot all communications between attorney and client are exempt\nfrom disclosure in response to a FOIA request. \nrequest, however, is unique as he is seeking communications\nrelated to active litigation to which he is party. \n\nIn any other litigation matter, it is inconceivable to me to imagine\nthat an attorney' s correspondence file could be discoverable and\nturned over to the opposing party. For this reason, the Village\nmaintains that the documents were properly withheld from\n\n9\n\nNevertheless, the Village stated that it was willing to make a supplemental\n\nresponse to\nThe Village furnished for this office' s review a copy of its proposed redactions, along with\nunredacted copies of the same records. \n\nproviding copies of the responsive correspondence with redactions. \n\nThis office has reviewed the unredacted correspondence, and disagrees with the\n\nVillage that its initial decision to withhold all the responsive correspondence between the Village\nand its outside counsel was proper. The responsive records include some correspondence\nbetween the Village and its outside counsel\nconfidential\nof the party' s attorney. \n\nlegal advice, and did not disclose the theories, mental\n\nthat do not contain requests for or the provision of\n\nimpressions, or litigation plans\n\nThe Village' s proposed redactions are more limited, and with one exception, \n\ncover only communications \" made to an attorney acting in his legal capacity for the purpose of\nsecuring legal advice,\" Cangelosi, 366 I11. App. 3d at 228, or communications in which the\nattorney provided legal advice to Village officials or employee. These communications are\n\nGeneral, Public Access Bureau, Office of the Illinois Attorney General, at\n\n1 ( January 25, 2019). \n\nLetter from Health M. Neveu, Chilton Yambert Porter LLP, to Leah Bartelt, Assistant Attorney\n\n\fMs. Heather Neveu\n\nApril 8, 2019\n\nPage 7\n\nprotected by the attorney- client privilege, and there is no indication that the Village has shared\nthe records with outside parties or otherwise waived the attorney- client privilege. \n\nOur review of the proposed redactions indicates that the Village also proposed\n\ntelephone number exempt\nredacting a cellular telephone number, which appears to be a personal\nfrom disclosure pursuant\nto section 7( 1)( b) of FOIA ( 5 ILCS 140/ 7( 1)( b) ( West 2017 Supp.), as\namended by Public Act 100- 732, effective August 3, 2018). Accordingly, this office concludes\nthat the Village has sustained its burden of demonstrating that information it proposes redacting\nfrom its supplemental response to\n\nis exempt from disclosure pursuant to sections\n\n7( 1)( m) and 7( 1)( b) of FOIA. This office requests that the Village provide to\n\ncopies of the redacted correspondence that it furnished for this office' s review. \n\nInvoices from Outside Counsel\n\nIn its response to\n\nthe Village relied on section 7( 1)( m) of FOIA to\n\nredact from legal invoices certain descriptions and parts of descriptions of attorney work\nperformed. In Stukel, 294 Ill. App. 3d at 203- 04, the Illinois Supreme Court held that\ninformation regarding a client' s fees generally is not a ' confidential communication' between an\nattorney and client, and thus is not protected by the attorney client privilege. [ Citations.] The\npayment of fees is merely incidental to the attorney- client relationship and typically does not\ninvolve the disclosure of confidential communications arising from the relationship.\" The Court, \nhowever, acknowledged that \"[ c] ertain types of billing records may contain explanations for\nlegal fees and may indicate the type of work done or matters discussed between the attorney and\nclient. As such, they could reveal the substance of confidential attorney- client discussions, and\nbe subject to valid claims of attorney- client privilege or exemption under [ FOIA].\" ( Emphasis\nadded.) Stukel, 294 I11. App. 3d at 201. Because the records at issue \" made no reference to the\npending litigation other than to name the payee law firm, and designate the amount and the date\nof each payment[,]\" ( Stukel, 294111. App. 3d at 201), the Court did not further elaborate on the\ntype of information that could be properly redacted from legal billing invoices based on the\nattorney- client privilege. \n\nIn analyzing whether\n\nlegal billing invoices were subject\n\nto disclosure pursuant\n\nto\n\nan administrative subpoena, a Federal appeals court distinguished privileged material\n\nfrom\n\ngeneral\n\ninformation concerning legal services: \n\nNot all communications between attorney and client are\n\nprivileged. Our decisions have recognized that the identity of the\nclient, the amount of the fee, the identification ofpayment by\ncase file name, and the general purpose of the work performed\nare usually not protected from disclosure by the attorney- client\n\n\fMs. Heather Neveu\n\nApril 8, 2019\n\nPage 8\n\nprivilege. [ Citations.] However, correspondence, bills, ledgers, \n\nstatements, and time records which also reveal\n\nthe motive of the\n\nclient in seeking representation, litigation strategy, or the specific\nnature of the services provided, such as researching particular\nareas of law, fall within the privilege. ( Emphasis added.) Clarke\nv. American Commerce National Bank, 974 F. 2d 127, 130 ( 9th Cir. \n1992). \n\nSee also Hampton Police Association v. Town of Hampton, 162 N. H. 7, 15, 20 A. 3d 994, 1001\nN. H. 2011) (\" Courts generally agree that billing statements that provide only general\ndescriptions of the nature of the services performed and do not reveal\n\nthe subject of confidential\n\ncommunications with any specificity are not privileged.\" ( Emphasis in original.)); U.S. v. \nNaegele, 468 F. Supp. 2d 165, 171 ( D. D. C. 2007) ( billing statements that are \" general and do not\nreveal any litigation strategy or other specifics of the representation or any confidential client\ncommunications[] * * * \n\nare not protected by the attorney- client privilege.\"). To be privileged, \n\nbilling invoices must \" include detailed entries which advise, analyze or discuss privileged\ncommunications.\" ( Emphasis in original.) Tipton v. Barton, 747 S. W.2d 325, 332 ( Mo. Ct. App. \n1988); see also Chaudhry v. Gallerizzo, 174 F. 3d 394, 403 ( 4th Cir. 1999) ( billing invoices that\nidentified the specific federal statutes that an attorney researched were privileged because\ndisclosure \" would divulge confidential\n\ninformation regarding legal advice\"). \n\nThis office has reviewed the unredacted invoices and concludes that nearly all the\n\ninformation redacted from the descriptions of work performed by attorneys are protected by the\nattorney- client privilege. Because the disclosure of this information would reveal\n\nlitigation\n\nstrategy, specifics of the representation, or confidential client communications, it falls within the\nscope of section 7( 1)( m) of FOIA, and was not improperly redacted prior to the disclosure of the\nbills to\n\nHowever, the Village also redacted some information that would not reveal legal\n\nstrategy or confidential attorney- client communications. In particular, the Village's redactions\nincluded an individual' s name or title from some descriptions of work performed. \nIn some cases, \nthe name is the only redaction made; in others, the name is redacted along with some information\ndescribing attorney work performed. As stated in Clarke, the identity of a client generally is not\nprivileged. See Clarke, 974 F. 2d at 130 (\" The identity of the client [\nprotected from disclosure by the attorney- client privilege.\") \nThe Village has not described how\nthe disclosure of the identity of these individuals would reveal the substance of litigation strategy\nor confidential communications, and this office cannot discern how these details are protected by\nthe attomey- client privilege. Accordingly, this office finds that the Village improperly relied on\nsection 7( 1)( m) of FOIA to redact names from descriptions dated 10/ 31/ 17, 11/ 1/ 17, 11/ 14/ 17, \n11/ 17/ 17, 1/ 2/ 18, 1/ 30/ 18, and 4/ 20/ 18. This office requests that the Village furnish\n\nusually not\n\nis] * * * \n\n\fMs. Heather Neveu\n\nApril 8, 2019\n\nPage 9\n\nwith copies of these pages of the redacted legal bills with the names ( or titles) of the individuals\nin these entries displayed. To the extent the entries on these dates also contain redactions of\n\ninformation that is not names or titles, the Village may maintain those redactions. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact meat ( 312) 814- 6437 or lbartelt@atg. state. il. us. \n\nVery truly yours, \n\nLEAH BARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n\n56112 f 6b fee proper 71m proper improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village's legal invoice redactions and copying fees","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":925,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-07-01","case_number":null,"request_numbers":["56184"],"title":"Village of Arlington Heights Police Department improperly withheld all police reports mentioning requester","filename":"56184, issued July 1, 2021.pdf","rel_path":null,"word_count":1760,"summary":"The requester sought police reports related to his own name, which the Village of Arlington Heights Police Department denied in their entirety; the PAC determined the Department improperly withheld the records.","plain_summary":"A citizen requested police reports mentioning his name, but the police department denied the request, claiming various privacy and law enforcement exemptions. The Attorney General's office reviewed the records and concluded that the department was wrong to withhold the documents entirely, as they should have provided the records with appropriate redactions instead of a blanket denial.","holding":"The Village of Arlington Heights Police Department improperly withheld the requested police reports in their entireties.","legal_question":"Whether the Police Department properly invoked FOIA exemptions 7(1)(b), 7(1)(c), and 7(1)(d)(vi) to withhold all police reports mentioning the requester.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(d)(vi)"],"public_body":"Village of Arlington Heights Police Department","requesting_party":"Individual requester","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought access to police reports in which he was named, which the department denied citing privacy and law enforcement exemptions.","ocr_status":"ok","ocr_quality":93.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_vi/56184%2C%20issued%20July%201%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","FOIA denial","redaction","privacy exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 1, 2021\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Lisa A. Farrington\n\nStaff Attorney/FOIA Officer\nVillage of Arlington Heights\n\n[street address redacted for site publication -- see original PDF]\nlfarrington@vah.com\n\nRE: FOIA Request for Review — 2018 PAC 56184\nDear MB and Ms. Farrington:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons explained below, the\nPublic Access Bureau concludes that the Village of Arlington Heights Police Department (Police\nDepartment) improperly withheld records responsive to Es November 29, 2018,\nFOIA request in their entireties.\n\nOn that date, bubmitted a FOIA request to the Police Department\nseeking copies of all police reports related to his name. On December 13, 2018, the Police\nDepartment denied the request in its entirety pursuant to sections 7(1)(b), 7(1)(c), and 7(1)(d)(vi)\nof FOIA (5 ILCS 140/7(1)(b), (1)(c), (1)(d)(vi) (West 2018)). J Request for Review\ndisputed the denial of his request.\n\nOn December 27, 2018, this office sent a copy of the Request for Review to the\nPolice Department and asked it to provide copies of the records responsive to EEE request,\nfor our confidential review, along with a detailed explanation of the factual and legal bases for its\n\n500 South Second Street, Springfield, Illinois 62701 + (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416\n\nMs. Lisa A. Farrington\nJuly 1, 2021\nPage 2\n\nresponse. On January 18, 2019, the Police Department provided the requested materials and\nboth a confidential and redacted written answer. On January 22, 2019, this office forwarded a\ncopy of the Police Department's redacted answer to SE he did not reply.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2018). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2018)) further provides:\n\"Each public body shall make available to any person for inspection or copying all public\nrecords, except as otherwise provided in Sections 7 and 8.5 of this Act.\" The exemptions from\ndisclosure contained in section 7 of FOIA (5 ILCS 140/7 (West 2018)) are to be narrowly\nconstrued. See Lieber v. Board of Trustees of Southern Ilinois University, 176 Ill. 2d 401, 407\n(1997).\n\nSection 7(1)(d)(vi) of FOIA exempts from disclosure:\n\n(d) Records in the possession of any public body created in the\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes,\nbut only to the extent that disclosure would:\n\noh OR ok\n\n(vi) endanger the life or physical safety of law enforcement\npersonnel or any other person\n\nUnder FOIA, \"[t]o meet its burden\" for withholding responsive records, \"the\npublic body must provide a detailed justification for its claim of exemption, addressing the\nrequested records specifically and in a manner allowing for adequate adversarial testing.\"\nRockford Police Benevolent and Protective Ass'n v. Morrissey, 398 Ill. App. 3d 145, 150 (2d\nDist. 2010). Conclusory statements are insufficient to demonstrate that law enforcement records\nare exempt from disclosure under FOIA. See Day v. City of Chicago, 388 Ill. App. 3d 70, 74-77\n(1st Dist. 2009). Rather, a public body must demonstrate how disclosure of records would\nendanger the life or physical safety of law enforcement personnel pursuant to section 7(1)(d)(vi)\nof FOIA. See, for example, Ill. Att'y Gen. PAC Reg. Rev. Ltr. 39298 39299, issued December 6,\n2017 (conclusory explanation as to why disclosure of information concerning technology\npurchased by police department would endanger the life or physical safety of officers fell short\nof FOIA's \"clear and convincing evidence\" standard).\n\nMs. Lisa A. Farrington\nJuly 1, 2021\nPage 3\n\nTo demonstrate that records are exempt under the provision of Federal FOIA that\ncorresponds to section 7(1)(d)(vi),! \"[a]n agency must identify and explain the reasonable threat\nof harm imposed on the individuals identified in the records the agency is seeking to exempt.\"\nKing v. United States Department of Justice, 245 F. Supp. 3d 153, 162 (D.D.C. 2017);” see also\nCenter for National Security Studies v. United States Department of Justice, 331 F.3d 918, 948\n(D.C. Cir. 2003) (records not exempt because agency did identify reasons that disclosure of\ninformation would pose a threat). This office has previously determined that section 7(1)(d)(vi)\ncould be applied to highly specific information, the disclosure of which would provide the public\nwith information that could be exploited to cause identifiable harm to certain individuals. See Ill.\nAtt'y Gen. PAC Rev. Ltr. 49142, issued November 21, 2017, at 4 (concluding that disclosure of\nthe specific duty times and locations of correctional officers \"could endanger the life or physical\nsafety of the correctional officers monitoring the jail by identifying their locations and potential\nvulnerable spots where officers are less supported.\"); Ill. Att'y Gen. PAC Rev. Ltr. 39298, 39299,\nissued December 6, 2017, at 4-5 (noting that this office has consistently determined that\ninformation that could be used to identify undercover officers is exempt from disclosure). By\ncontrast, this office has found that public bodies failed to meet their burden under section\n7(1)(d)(vi) when their assertions were conclusory and they did not explain, nor was it apparent,\nhow disclosure would endanger any individual. See Ill. Att'y Gen. PAC Rev. Ltr. 38173, issued\nFebruary 13, 2018, at 3 (determining that city had failed to demonstrate how disclosure of a use\nof force report would endanger any individual's safety); Ill. Att'y Gen. PAC Rev. Ltr. 25887,\nissued January 11, 2019, at 3 (concluding that police department failed to identify specific\ncircumstances from which this office could conclude that disclosure of individual police officers'\nphotographs would endanger officers’ lives or physical safety).\n\nThe Police Department's answer to this office indicated that it withheld the\nrecords responsive to HE equest pursuant to section 7(1)(d)(vi) of FOIA. In its\nconfidential answer to this office, the Police Department provided additional information\nexplaining its reliance on this provision. Because the Police Department provided its explanation\nconfidentially, this office is prohibited from further disclosing that information.*> However, this\noffice has determined that the Police Department's answer failed to meet its burden of\nestablishing that the responsive police reports would endanger the life or physical safety of law\n\n‘Exemption 7(F) of Federal FOIA (5 U.S.C. § 552(b)(7)(F) (2012)) exempts from disclosure\nrecords that \"could reasonably be expected to endanger the life or physical safety of any individual.\"\n\nBecause Illinois’ FOIA statute is based on the federal FOIA statute, decisions construing the\nlatter, while not controlling, may provide helpful and relevant precedents in construing the state Act. Margolis v.\nDirector, Ill. Department of Revenue, 180 Ill. App. 3d 1084, 1087 (1st Dist. 1989).\n\n35 ILCS 140/9.5(d) (West 2018).\n\nMs. Lisa A. Farrington\nJuly 1, 2021\nPage 4\n\nenforcement personnel, or any other person. Accordingly, this office concludes that the Police\nDepartment improperly withheld the reports in their entirety under section 7(1)(d)(vi).\n\nThis office requests that the Police Department furnish HE with copies of\nthe records responsive to his request. The Police Department may permissibly redact from those\nrecords \"private information\" under section 7(1)(b) of FOIA* The Police Department may also\nredact, pursuant to 7(1)(c) of FOIA,* highly personal information that would constitute an\nunwarranted invasion of personal privacy if disclosed. Examples of such information includes\nindividuals' birthdates, races, and the names of third parties who were mentioned incidentally in\nthe reports. In addition, the Police Department may redact the name, date of birth, and other\nidentifying information of any juvenile pursuant to section 7(1)(c) of FOIA. Further, section\n7(1)(d)(iv) of FOTA (5 ILCS 140/7(1)(d)(iv) (West 2018)) exempts from disclosure information\nthat would \"unavoidably disclose the identity of a confidential source, confidential information\nfurnished only by the confidential source, or persons who file complaints with or provide\ninformation to administrative, investigative, law enforcement, or penal agencies.\" The\n7(1)(d)(iv) exemption allows police departments to protect the anonymity of persons who\nprovide them with information. Chicago Alliance for Neighborhood Safety v. Town of Chicago,\n348 Ill. App. 3d 188, 200-01 (1st Dist. 2004) (names and addresses of beat meeting participants\nproperly redacted because they provided information to police department). Therefore, the\nPolice Department may withhold complainants' names and other personally-identifying\n\n4Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2018)) defines \"private information\" as:\n\nunique identifiers, including a person's social security number,\ndriver's license number, employee identification number,\nbiometric identifiers, personal financial information,\npasswords or other access codes, medical records, home or\npersonal telephone numbers, and personal email addresses.\nPrivate information also includes home address and personal\nlicense plates, except as otherwise provided by law or when\ncompiled without possibility of attribution to any person.\n\nSection 7(1)(c) defines \"unwarranted invasion of personal privacy\" as:\n\nthe disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject's\nright to privacy outweighs any legitimate public interest in\nobtaining the information. The disclosure of information that\nbears on the public duties of public employees and officials\nshall not be considered an invasion of personal privacy.\n\nMs. Lisa A. Farrington\nJuly 1, 2021\nPage 5\n\ninformation pursuant to section 7(1)(d)(iv).° To the extent that the contents of the complainants'\nstatements would unavoidably disclose those individuals’ identities, the Police Department may\nalso withhold those statements. Copley Press, Inc. v. City of Springfield, 266 Ill. App. 3d 421,\n426 (4th Dist. 1994) (Witness statements may be withheld in their entireties only if disclosure of\nthe contents \"would necessarily result in the disclosure of the identity of that source\" of the\ninformation and, therefore, \"redaction of the [records] cannot be meaningfully accomplished.\").\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter closes this matter. If you have\nquestions, you may contact me Shannon.Barnaby@lllinois.gov.\n\nVery truly yours,\n\nAssistant Attorney General\nPublic Access Bureau\n\n56184 f 71dvi improper pd\n\n®This office, however, has previously determined that sections 7(1)(c) and 7(1)(d)(iv) generally do\nnot encompass information identifying public employees, such as school personnel, who provided the police with\ninformation that they obtained while performing public duties. See, for example, lll. Att'y Gen. PAC Req. Rev. Ltr.\n39699, issued July 10, 2018, at 4-7.\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports naming the requester","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":926,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-07-19","case_number":null,"request_numbers":["56194"],"title":"Village of Lincolnwood improperly withheld settlement agreements held by private contractor","filename":"56194, issued July 19, 2021.pdf","rel_path":null,"word_count":1865,"summary":"The requester sought settlement agreements held by a third-party contractor providing fire and paramedic services to the Village of Lincolnwood, which the Village initially denied. The PAC determined that because the records relate to the performance of a governmental function, they are public records subject to disclosure.","plain_summary":"A journalist requested settlement agreements involving a company hired by the Village of Lincolnwood to provide emergency services. The Village claimed it didn't have to provide them because the contractor held the documents, but the Attorney General's office ruled that because the records concern the contractor's performance of public duties, the Village must obtain and release them. This reinforces that public bodies cannot hide records simply by having a private contractor hold them.","holding":"The Village of Lincolnwood improperly withheld settlement agreements held by its contracted service provider that relate to the performance of a governmental function.","legal_question":"Whether settlement agreements held by a private contractor performing a governmental function for a public body constitute public records under FOIA section 7(2).","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Lincolnwood","requesting_party":"Mr. Jonah Meadows (Patch Media)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"public records","subject_description":"The request sought settlement agreements related to an employment dispute involving a third-party paramedic services contractor.","ocr_status":"ok","ocr_quality":93.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_2/56194%2C%20issued%20July%2019%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["settlement agreement","contractor records","public records definition","government function"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 19, 2021\n\nVia electronic mail\n\nMr. Jonah Meadows\n\nNorth Shore Editor\n\nPatch Media\njonah.meadows@patch.com\n\nVia electronic mail\n\nMs. Carrie Dick\n\nExecutive Secretary/FOIA Officer\nVillage of Lincolnwood\n\n[street address redacted for site publication -- see original PDF]\ncdick@Iwd.org\n\nRE: FOIA Request for Review — 2018 PAC 56194\nDear Mr. Meadows and Ms. Dick:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons explained below, the\nPublic Access Bureau concludes that the Village of Lincolnwood (Village) is obligated under\nFOIA to disclose settlement agreements responsive to Mr. Jonah Meadows' December 18, 2018,\nFOIA request that are in the possession or custody of its contracted fire protection and paramedic\nservices.\n\nOn December 18, 2018, Mr. Meadows, on behalf of Patch Media, submitted a\nFOIA request to the Village seeking copies of: \"[a]ny settlement agreement or agreements\nbetween Paramedic Services of Illinois or any of its agents and [name] with regard to 1:17-CV-\n6301\"! On December 20, 2018, the Village responded that \"[t]he Specified Records are neither\n\n'R-mail from Jonah Meadows, North Shore Editor, Patch, to Lincolnwood FOIA Officer\n(December 18, 2018).\n\n500 South Second Street, Springfield, Illinois 62701 + (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416\n\nMr. Jonah Meadows\nMs. Carrie Dick\nJuly 19, 2021\n\nPage 2\n\nprepared by or for the Village, nor have the Specified Records been or are being used by, or\nreceived by, the Village.\"” Mr. Meadows' Request for Review disputed the Village's response.\nSpecifically, Mr. Meadows contended that the responsive records in the possession of Paramedic\nServices of Illinois (PSI) are the Village's public records pursuant to section 7(2) of FOIA (5\nILCS 140/7(2) (West 2018)) because although PSI is a private company, it was contracted by the\nVillage to provide fire department services.\n\nOn January 2, 2019, this office sent a copy of the Request for Review to the\nVillage and asked it to provide a written response to Mr. Meadows' allegations and to address the\napplicability of section 7(2) of FOIA to the requested records in the physical custody of PSI On\nJanuary 11, 2019, counsel for the Village submitted both confidential and non-confidential\nresponses. On January 14, 2019, this office forwarded the Village's non-confidential response to\nMr. Meadows. He replied on January 25, 2019, maintaining that the denial was improper.\n\nDETERMINATION\nSection 7(2) of FOIA provides:\n\nA public record that is not in the possession of a public\nbody but is in the possession of a party with whom the agency has\ncontracted to perform a governmental function on behalf of the\npublic body, and that directly relates to the governmental function\nand is not otherwise exempt under this Act, shall be considered a\npublic record of the public body, for purposes of this Act.\n\nThis provision was created to \"respond to the growing concern related to the privatization of\ngovernment responsibilities and its impact on the right of public information access and\ntransparency.\" Better Government Ass'n v. Illinois High School Ass'n, 2017 IL 121124, 962, 89\nN.E.3d 376, 390 (2017).\n\nIn its answer to this office, the Village asserted that for a record to be subject to\ndisclosure under section 7(2), it first must be a \"public record\" as defined by section 2(c) of\n\n*Letter from Carrie Dick, Freedom of Information Officer, Village of Lincolnwood to Jonah\nMeadows, Patch (December 20, 2018).\n\nMr. Jonah Meadows\nMs. Carrie Dick\nJuly 19, 2021\n\nPage 2\n\nFOIA (5 ILCS 140/2(c) (West 2018)).? According to the background information provided by\nthe Village, the responsive settlement agreement concerns a federal complaint filed by a former\nemployee of PSI concerning PSI's termination of his employment. The Village contended that\nthe settlement agreement in question does not qualify as a \"public record\" because it was not\nprepared by, used by, or within the physical possession of the Village at the time of Mr.\nMeadows' request. The Illinois Supreme Court, however, has concluded that records in the\npossession of a private entity that has entered into a contract with a public body fall within the\nscope of 7(2) if: (1) the private entity possesses the records and (2) has contracted with the\npublic body to perform a \"governmental function\" on the public body's behalf, and, (3) the\nrequested records are \"directly related\" to that governmental function. Rushton v. Department of\nCorrections, 2019 IL 124552, §41, 63, 160 N.E.3d 929, 942-43 (2019). The Illinois Supreme\nCourt has construed the term \"governmental function\" for purposes of section 7(2) in accordance\nwith the Black's Law Dictionary definition of that term: \"a government agency's conduct that is\nexpressly or impliedly mandated or authorized by constitution, statute, or other law and that is\ncarried out for the benefit of the general public.\" ///inois High School Ass'n, 2017 IL 121124,\n63, 89 N.E.3d at 390 (quoting Black's Law Dictionary 812 (10th ed. 2014)).\n\nIn this instance, the Village contracted with PSI to provide fire protection and\nemergency medical services on behalf of the Village, including an agreement that PSI would\nfurnish the \"personnel, leadership and professionalism necessary to provide said services.\"*\nUnder section 11-5-7 of the Illinois Municipal Code (65 ILCS 5/11-5-7 (West 2018)), \"[t]he\ncorporate authorities of each municipality may license and regulate and establish standards for\nthe operation of ambulances. The corporate authorities of each municipality may either contract\nfor the operation of or operate ambulances as a municipal service.\" Section 11-6-1 of the Illinois\nMunicipal Code (65 ILCS 5/11-6-1 (West 2018)), provides, in pertinent part, \"[t]he corporate\nauthorities of each municipality may provide and operate fire stations, and all material and\nequipment that is needed for the prevention and extinguishment of fires.\" The administration of\n\nSection 2(c) of FOIA defines \"public records\" as:\n\nall records, reports, forms, writings, letters, memoranda,\nbooks, papers, maps, photographs, microfilms, cards, tapes,\nrecordings, electronic data processing records, electronic\ncommunications, recorded information and all other\ndocumentary materials pertaining to the transaction of public\nbusiness, regardless of physical form or characteristics, having\nbeen prepared by or for, or having been or being used by,\nreceived by, in the possession of, or under the control of any\npublic body.\n\n‘Agreement for Fire Protection and Emergency Medical Services, Village of Lincolnwood,\nIllinois, Paramedic Services of Illinois, Inc., §2, April 19, 2016.\n\nMr. Jonah Meadows\nMs. Carrie Dick\nJuly 19, 2021\n\nPage 2\n\nfire protection and paramedic services is authorized by statute and carried out for the benefit of\nthe general public; therefore, they are governmental functions of the Village.\n\nThe Village's response to this office, however, argued that the settlement\nagreement:\n\ndoes not directly relate to a government function; rather the\nsettlement agreement involves employment claims made by a\ncontractor's employee against the contractor. Even [if] it could be\nargued that PSI's employment dispute somehow relates to a\ngovernment function performed by PSI on the theory that PSI\nassists the Village in providing a government function, and PSI's\nformer employee was the contractor's agent in providing such\nservices, the settlement agreement regarding the PSI's former\nemployee's employment claims certainly does not directly relate\nthe to the government function.°\n\nFOIA does not define the term \"directly relates.\" The Illinois Appellate Court has\nrecognized that this modifier limits the scope of section 7(2) of FOIA: \"This requirement makes\nclear the legislature's intention that the general public may not access all of a third party's records\nmerely because it has contracted with a public body to perform a governmental function. FOIA\nis not concerned with private affairs.\" Chicago Tribune v. College of DuPage, 2017 IL App (2d)\n160274, 953, 79 N.E.3d 694, 609 (2017). Courts have held that contracts and records that reflect\nthe governmental function an entity has been hired to perform and that shed light on its\nperformance directly relate to a governmental function and therefore are subject to disclosure\nunder section 7(2) of FOIA. College of DuPage, 2017 IL App (2d) 160274, 55, 79 N.E.3d at\n709 (affirming trial court decision that federal grand jury subpoena directly related to\ngovernmental function because college never asserted the subpoena concerned matters other than\nprivate development duties that a foundation had been contracted to perform for the college).\n\nIn Rushton, the Illinois Supreme Court found that a settlement agreement between\nWexford and the estate of an inmate who died while receiving medical care from Wexford\nduring his confinement at an Illinois Department of Corrections (IDOC) prison was a public\nrecord of IDOC for the purpose of FOIA. Wexford had argued that the settlement agreement did\nnot \"directly relate\" to its contracted governmental function of providing medical care to IDOC\ninmates, but instead, was merely \"a business decision to settle a legal dispute between private\nparties.\" Rushton, 2019 IL 124552, 46, 160 N.E.3d at 932. The court rejected this argument,\n\nSLetter from Benjamin L. Schuster, Holland & Knight LLP, to Shannon Barnaby, Assistant\nAttorney General, Public Access Bureau (January 11, 2019), at 4 (Emphasis in original).\n\nMr. Jonah Meadows\nMs. Carrie Dick\nJuly 19, 2021\n\nPage 2\n\nstating, \"[t]he settlement agreement directly relates to performance of that governmental\nfunction. It is the settlement of a claim that Wexford's inadequate medical care—its alleged\ninadequate performance of its governmental function—led to the death of an inmate. The\nconnection is neither indirect nor tangential. It is direct and obvious.\" (Emphasis in original.)\nRushton, 2019 IL 124552, 931, 160 N.E.3d at 939-40.\n\nAlthough not strictly analogous to the Rushton case, the settlement agreement\nsought by Mr. Meadows is directly related to the governmental function that the Village\ncontracted with PSI to perform. In the underlying lawsuit, PSI's former employee alleged PSI's\nadministration of the Village's fire department involved widespread sexual harassment of a\nfemale employee, retaliation against a whistleblower, and \"ongoing abuse of prescription drugs\nby a superior officer while on duty that put the health and safety of patients, coworkers and the\npublic at risk.\"° Regardless of whether those allegations have any merit, the settlement of the\nemployment dispute directly relates to PSI's working environment for the governmental function\nof providing fire protection and emergency medical services for the Village. If the work\nenvironment was hostile and unsafe, as alleged, such circumstances could clearly affect the\nquality of the services PSI was providing to the Village. Accordingly, this office concludes that\nthe requested settlement agreement is considered to be the Village's record under section 7(2) of\nFOIA and is subject to disclosure under FOIA. This office requests that the Village issue a\nsupplemental response to Mr. Meadow's request and disclose copies of the responsive settlement\nagreement.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This matter is closed. If you have questions, you\nmay contact me Shannon.Barnaby@lllinois.gov or (312) 550-4480.\n\nVery truly yours,\n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n\n56194 f 72 improper mun\n\n°Weller v. Paramedic Services of Illinois, INC., No. 1:17-cv-06301 (N.D. Ill. filed 11/27/17), at 1.\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Settlement agreements with a paramedic services contractor","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":927,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-12-09","case_number":null,"request_numbers":["56208"],"title":"Community High School District No. 99 Lawfully Withheld Sexual Harassment Training Under 7(1)(g)","filename":"56208, issued December 9, 2022.pdf","rel_path":null,"word_count":1305,"summary":"The requester challenged Community High School District No. 99's denial of a PowerPoint presentation regarding sexual harassment training, claiming it was exempt under FOIA section 7(1)(g). The PAC determined the District properly withheld the record as it constituted trade secrets or commercial information.","plain_summary":"A requester asked for a school district's sexual harassment training presentation, but the district refused to release it, arguing it contained confidential trade secrets. The Attorney General's office reviewed the document and agreed that the district was legally allowed to keep the information private. As a result, the case is closed and the records will not be released.","holding":"The District properly withheld the requested PowerPoint presentation under section 7(1)(g) of FOIA.","legal_question":"Whether a PowerPoint presentation used for staff training constitutes 'trade secrets and commercial or financial information' exempt from disclosure under 5 ILCS 140/7(1)(g).","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(g)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(g)"],"public_body":"Community High School District No. 99","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(g)","subject_description":"The requested record was a PowerPoint presentation used during a sexual harassment training session for school district staff.","ocr_status":"ok","ocr_quality":93.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_g/56208%2C%20issued%20December%209%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["trade secrets","sexual harassment training","school district","exemption 7(1)(g)"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 9, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Brian Crowley\nFranczek\n300 South Wacker Drive, Suite 3400\nChicago, Illinois 60606\nbpc@franczek.com\n\nRE: FOIA Request for Review – 2018 PAC 56208\n\nDear\n\nand Mr. Crowley: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). \n\nOn December 21, 2018, \n\nsubmitted a Request\n\nfor Review to\n\nthe Public Access Bureau alleging that Community High School District No. 99 (District) \nimproperly withheld a copy of a PowerPoint presentation that an attorney presented during a\nin the workplace . 1 On\nDistrict staff in-service training session regarding sexual harassment\nJanuary 3, 2019, this office forwarded a copy of the Request for Review to the District and asked\nfor a copy of the withheld presentation along with an explanation for its claim that the record\nwas exempt under section 7(1)(g) of FOIA. 2 On February 1, 2019, counsel\n\nfor the District\n\n1\n\nsubmitted a six-part FOIA request to District, however, his Request for Review did not\n\ndispute the response to the other five portions of his FOIA request. T herefore, the scope of this determination is\nlimited to the District' s response to the above- mentioned part of his request. \n\n25 ILCS 140/ 7(1)(g) ( West 2020). \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: (877) 844 -5461 • Fax: ( 217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814 -3806\n601 South University Ave., Carbondale, Illinois 62901 • (618) 529 -6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. Brian Crowley\nDecember 9, 2022\nPage 2\n\nprovided those materials. The District's written answer was forwarded to\nreply. \n\nhe did not\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2020). Exemptions to disclosure are to be narrowly construed. Lieber v. Board of\nTrustees of Southern Illinois Univ ersity, 176 Ill. 2d 401, 408 ( 1997). \n\nfrom\n\nSection 7(1)(g) of FOIA exempts from disclosure: \n\ninformation are furnished under a claim\n\nTrade secrets and commercial or financial\n\ninformation\nobtained from a person or business where the trade secrets or\ncommercial or financial\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness, and only insofar as the claim directly applies to the\nrecords requested. \n\nIn order to be exempt from disclosure under section 7(1)(g): \n\ninformation, ( 2) that was obtained from a person or\n\nT]he document must contain ( 1) a trade secret, commercial, or\nfinancial\nbusiness where the trade secrets or commercial or financial\ninformation are furnished under a claim that they are either ( a) \nproprietary, ( b) privileged, or (c) confidential, and ( 3) that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness. Chicago v. Janssen Pharmaceuticals, \n1st) 150870 ¶27, 78 N.E.3d at 455 (2017). \n\nInc., 2017 IL App\n\nDemonstrating competitive harm requires a showing \"' by specific factual or evidentiary material\nthat: ( 1) the person or entity from which information was obtained actually faces competition; \nand ( 2) substantial harm to a competitive position would likely result from disclosure of the\ninformation in the agency' s records.'\" Cooper v. Department of the Lottery, 266 Ill. App. 3d\n1007, 1013 (1st Dist. 1994) (quoting Calhoun v. Lyng, 864 F.2d 34, 36 (5th Cir. 1988)). \n\nsubmitted, \nDistrict's written answer to this office, and the responsive PowerPoint presentation. In its\n\nThe Public Access Bureau has reviewed the materials\n\nthe\n\n\fMr. Brian Crowley\nDecember 9, 2022\nPage 3\n\nfrom disclosure pursuant\n\nresponse to this office, the District asserted the withheld PowerPoint presentation constituted\nto section 7(1)(g) of FOIA. The District\ntrade secret material exempt\nexplained that it retained an attorney from the Franczek law firm to provide sexual harassment\nprevention training to all District staff. The District\npartners and associates regularly provide such trainings for a fee for client school districts \" 3 and\nasserted that the presentation was furnished under a claim that the information was proprietary, \nprivileged, and confidential. As such, the District contended that the records were confidential\nproprietary records of Franczek, \ncompetitive harm, stating: \n\nthe release of which would cause Franczek substantial\n\nindicated that this attorney \" and her law\n\nHere, the materials Franczek prepared and provided to the District\nwould, if made public, provide a free roadmap to Franczek's\ncompetitors about how to comply with sexual harassment\nregulations\ncompetitors would have no need to undertake time consuming\nresearch, analysis, and preparation of the PowerPoint\nthe same document\nto FOIA the record.[4 ] \n\nto other school districts. They would just have\n\nthat govern the educational\n\nindustry. Franczek' s\n\nto provide\n\nlaws and\n\nlaws governing sexual harassment, as well as the District's polices. \n\nBased on this office's confidential review, it appears that the disclosure of the\nrequested PowerPoint presentation would cause competitive harm to Franczek. The training\npresentation contains detailed information concerning sexual harassment\nas the Illinois and federal\nThe document also reflects the substance of Franczek' s research, analysis, and opinions\nconcerning how the District' s staff can help prevent sexual harassment at work and steps that\nDistrict should take to fulfill\nits compliance obligations under those laws and its policy. The\ndisclosure of this training material, via FOIA, could easily be exploited by competitors by\nallowing competing law firms or consultants\nto slightly adapt the training for other school\ndistricts without sustaining the considerable effort that Franczek has incurred. See generally\n100Reporters LLC v. United States Depart ment of Justice, 248 F. Supp. 3d 115, 140 ( D.D.C. \n2017) (determining compliance and training materials exempt from disclosure under federal\n\nin the workp lace, such\n\nthe\n\nAccess Bureau, Illinois Attorney General ( February 1, 2019), at 2. \n\n3Letter from Jaqueline Wernz, Franczek, \n\nto Shannon Barnab y, Assistant Attorney General, Public\n\n4Letter from Jaqueline Wernz, Franczek, \n\nto Shannon Barnaby, Assistant Attorney General, Public\n\nAccess Bureau, Illinois Attorney General ( February 1, 2019), at 3. \n\n\fMr. Brian Crowley\nDecember 9, 2022\nPage 4\n\nFOIA5 because disclosure could cause competitive harm by providing competitors with the\nunique details necessary to comply with the regulatory laws that govern the industry without\nincurring the same costs); Public Citizen v. United States HHS , 66 F. Supp. 3d 196, 210 (D.D.C. \n2014) (finding disclosure of FDA compliance information could pose a competitive risk because\nthe materials were, \" in a sense, a free roadmap as to what works in pharmaceutical marketing\nwithout violating the legal framework of regulatory enforcement and laws that govern the\nindustry.\"). Therefore, this office concludes that the District has met its burden of establishing\nthat\n\nto section 7(1)(g) of FOIA. \n\nfrom disclosure pursuant\n\nthe document\n\nis exempt\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, my\ne-mail address is Shannon.Barnaby@ilag.gov\n\nVery truly yours, \n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n\n56208 f 71g proper sd\n\n5Exemption 4 permits the withholding of \" trade secrets and commercial or financial\n\ninformatio n\n\nobtained from a person and privileged or confidential[.]\" Federal courts' interpretations of the exemption\nsecrets in the federal FOIA are instructive in construing section 7(1)(g). See Roulette v. Department of Central\nManagement Services, 141 Ill. App. 3d 394, 400 ( 1st Dist. 1986). \n\nfor trade\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Training presentation on sexual harassment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":928,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-06-01","case_number":null,"request_numbers":["56359"],"title":"Frankfort School District improperly withheld non-disciplinary personnel complaints","filename":"56359, issued June 1, 2023.pdf","rel_path":null,"word_count":1119,"summary":"The requester sought complaints and disciplinary records regarding high school staff, which the District withheld citing the Personnel Record Review Act. The PAC determined that the District improperly withheld certain records that did not constitute formal disciplinary actions under the PRRA.","plain_summary":"A requester asked a school district for complaints and disciplinary records involving staff members. The district refused to provide them, claiming they were protected by law. The Attorney General's office reviewed the records and found that some of the documents were not actually disciplinary records, so the district must release them.","holding":"The Frankfort Community Unit School District No. 168 improperly withheld certain records that did not qualify as disciplinary actions under the Personnel Record Review Act.","legal_question":"Whether records of complaints against staff members that do not constitute formal disciplinary action are exempt from disclosure under FOIA section 7.5(q) and the Personnel Record Review Act.","disposition":"violation_found","primary_statute":["5 ILCS 140/7.5(q)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(q)"],"public_body":"Frankfort Community Unit School District No. 168","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought complaints and disciplinary records regarding high school staff members.","ocr_status":"ok","ocr_quality":93.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_q/56359%2C%20issued%20June%201%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","school district","disciplinary records","FOIA exemption"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 1, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Brandon K. Wright\nMiller, Tracy, Braun, Funk & Miller, Ltd. \n316 South Charter\nP.O. Box 80\nMonticello, Illinois 61856\nbwright@millertracy. com\n\nRE: FOIA Request for Review – 2019 PAC 56359\n\nDear\n\nand Mr. Wright: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that Frankfort Community Unit School District No. 168\nDistrict) improperly withheld certain records responsive to\n2018, FOIA request. \n\nDecember 14, \n\nOn that date, \n\nsubmitted a FOIA request to the District seeking, in\n\nrelevant part, \" any complaints lodged against [ ] staff member[ s] at the high school[ ] [ a] s well as\nemploye[ e] discipline records[.]\" 1 On January 3, 2019, the District denied this portion of\n\nrequest pursuant to section 7.5(q) of FOIA ( 5 ILCS 140/ 7.5(q) (West 2018)). In its\n\ndenial letter, the District referenced the Personnel Record Review Act (PRRA) ( 820 ILCS 40/8\nWest 2018)) as its basis for asserting the section 7.5(q) exemption. On January 8, 2019, this\noffice received\n\ncompleted Request for Review contesting the District' s response. \n\n1E- mail from\n\nto [Matt] Donkin ( December 14, 2018). \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. Brendan Wright\nJune 1, 2023\nPage 2\n\nOn January 15, 2019, this office sent a copy of the Request for Review to the\n\nDistrict and asked it to provide un-redacted copies of the withheld records for this office's\nconfidential review and a detailed explanation of the legal and factual bases for its assertion of\nsection 7.5(q) of FOIA . On January 25, 2019, the District provided the requested information. \nhe replied the\nOn January 28, 2019, this office forwarded the District' s answer to\nsame day. \n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2018); see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 ( 2006). Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\" that the record is\nexempt from disclosure. 5 ILCS 140/ 1.2 (West 2018). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 ( 1997). \n\nSection 8 of the PRRA provides: \" An employer shall review a personnel record\n\nbefore releasing information to a third party and, except when the release is ordered to a party in\na legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of\ndisciplinary action which are more than 4 years old.\" Section 7.5(q) of FOIA exempts from\ndisclosure \"[ i]nformation prohibited from being disclosed by the Personnel Records [ sic] Review\nAct.\" The unambiguous language of section 8 of the PRRA precludes public bodies from using\nit as a basis to withhold records other than those that document a disciplinary action. As the\nPublic Access Bureau has previously determined, to be considered a record of disciplinary action\nunder the PRRA, a record must document the imposition of discipline. See, for example, Ill. \nAtt'y Gen. PAC Req. Rev. Ltr. 39260, issued February 11, 2016, at 3 (determining that\ninvestigatory records relating to citizen complaints did not reflect \" disciplinary action\"); Ill. Att'y\nGen. PAC Req. Rev. Ltr. 18779, issued June 29, 2012, at 6. A record that is merely related to\npotential discipline does not qualify as a record of \"disciplinary action.\" Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 56806, issued March 18, 2019, at 3-4. \n\nIn Johnson v. Joliet Police Department, 2018 IL App (3d) 170726, ¶ 10, 107\n\nN.E.3d 964, 966 ( 2018), the Illinois Appellate Court, Third District, reviewed a police\ndepartment' s denial of \"'disciplinary reports, letters of reprimand, or other records of disciplinary\naction\"' that were more than four years old at the time of the request. The court held that section\n8 of the PRRA prohibits disclosure of such disciplinary records that are more than four years old. \nJohnson, 2018 IL App (3d) 170726, ¶ 15, 107 N.E.3d at 967. Consistent with the court' s decision\nin Johnson, this office has previously determined that records documenting the imposition of\ndiscipline that are more than four years old at the time they are requested are exempt from\n\n\fMr. Brendan Wright\nJune 1, 2023\nPage 3\n\ndisclosure under section 7.5(q) of FOIA. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. \n53704, issued March 13, 2019, at 5 (concluding that public body did not improperly withhold\nrecords of disciplinary action that were more than four years old under the PRRA, but that it\nimproperly withheld investigatory records that did not reflect disciplinary action). \n\nIn its response to this office, the District asserted that the records it withheld were\n\ndisciplinary records that were more than four years old. This office has reviewed the withheld\nrecords and confirmed that some of the documents reflect disciplinary action that occurred more\nrequest. 2 The District did not violate FOIA by withholding\nthan four years before\nthose records pursuant to section 7.5(q). Certain other withheld records are not responsive to\n\nrequest for \"discipline records\" and complaints. \n\nOther withheld records, while more than 4 years old, do not reflect disciplinary\n\naction, but rather complaints against staff members. Because these records are not \" disciplinary\nreports, letters of reprimand, or other records of disciplinary action\" contemplated by section 8 of\nthe PRRA, they are not exempt pursuant to section 7.5(q) of FOIA. Accordingly, this office\nrequests that the District disclose pages 14-15 and 32-40 of the withheld records to\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at laura.harter@ilag. gov\n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n56359 f 75q proper improper sd\n\nprecludes this office from further identifying the nature of the records. 5 ILCS 140/ 9.5(c) (West 2018). \n\n2Because the District provided the records to this office confidentially, section 9.5(c) of FOIA\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Complaints and disciplinary records of school staff","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":929,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-06-30","case_number":null,"request_numbers":["56600"],"title":"City of Chicago Mayor's Office properly withheld investment bank pitchbooks under 7(1)(g)","filename":"56600, issued June 30, 2020.pdf","rel_path":null,"word_count":2639,"summary":"A reporter requested pitchbooks and marketing materials from investment banking firms provided to the Chicago Mayor's Office regarding bond sales for pension plans. The PAC determined that the Mayor's Office properly withheld the records under the exemption for trade secrets and commercial information.","plain_summary":"The requester sought investment-bank marketing materials (pitchbooks) submitted to the mayor's office about potential municipal bond sales, which the office withheld as confidential commercial information. The PAC determined that the pitchbooks contained commercial information furnished under a claim of confidentiality and that disclosure would cause competitive harm to the firms that submitted them by revealing their unique marketing approaches and methods. The office's withholding did not violate FOIA.","holding":"The Mayor's Office did not improperly withhold the requested records because they were exempt from disclosure under section 7(1)(g) of FOIA.","legal_question":"Whether the Mayor's Office properly withheld investment banking pitchbooks and marketing materials pursuant to the FOIA exemption for trade secrets and commercial or financial information.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(g)"],"public_body":"City of Chicago Office of the Mayor","requesting_party":"Cezary Podkul (The Wall Street Journal)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(g)","subject_description":"The request sought investment banking pitchbooks and marketing materials regarding potential bond sales to fund city pension plans.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_g/56600%2C%20issued%20June%2030%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["trade secrets","financial information","investment banking","bond sales","commercial information"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nJune 30, 2020\n\nVia electronic mail\n\nMr. Cezary Podkul\nReporter\n\nThe jWall Street Journal\n\n1211 Avenue of the Americas\n5th Floor\n\nNew York, New York 10036\n\nCezary: podkul@wsj. com\n\nVia 'electronic mail\n\nMs. ;Anjali Julka\n\nFreedom of Information Officer\n\nCity. of Chicago Office of the Mayor\n121 North LaSalle Street, Suite 500\n\n[street address redacted for site publication -- see original PDF]\nmofoia@cityofchicago.\n\norg\n\nRE: FOIA Request\n\nfor Review — 2019 PAC 56600\n\nDear Mr. P,odkul and Ms. Julka: \n\nThis determinationletter\n\nis issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2018)). For the reasons that follow, the\nPublic Access Bureau concludes that the Office of the Mayor ( Mayor' s Office) of the City of\nChicago ( City) did not improperly withhold records responsive to Mr. Cezary Podkul' s January\n3, 2019, FOIA request. \n\nOn that date, Mr. Podkul submitted a FOIA request to the Mayor' s Office seeking\n\ncopies of \"any pitchbooks, presentations and marketing materials provided by investment. \nbanking firms to the office of the Mayor between Jan. 1, 2018 and today Jan. 3, 2019, regarding\npotential sales of bonds to fund the city' s pension plans[.]\"' On January 17, 2019, the Mayor' s\n\n2019). \n\nIE -mail from Cezary Podkul, The Wall Street Journal, to MOfoia@cityofchicago. org ( January 3, \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: (800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Cezary Podkul\nMs. Anjali Julka\n\nJune 30, 2020\n\nPage 2\n\nOffice denied the request in its entirety pursuant\nWest 2018). \n\nIn his Request for Review Mr. Podkul contested the Mayor' s Office' s denial. \n\nto section 7( 1)( g) of FOIA ( 5 ILCS 140/ 7( 1)( g) \n\nOn February 6, 2019, the Public Access Bureau sent a copy of the Request for\nReview to the Mayor' s Office and asked it to provide copies of a representative\nsample of each\ntype of record withheld, e.g., pitchbooks, presentations, or other types of marketing materials, \nalong with a detailed explanation of the factual and legal basis for the applicability of the section\n7( 1)( g) exemption to those records. On February 26, 2019, the Mayor' s Office_provided six of\nthe eighteen responsive pitchbooks as a representative sample of the records it maintains and a\nwritten response detailing its rationale for denying the records under 7( 1)( g). On March 15, \n2019, Mr. Podkul submitted a reply. On September 9, 2019, after repeated attempts to discuss\nthis matter with the FOIA Officer for the Mayor' s Office and with lawyers in the City' s Law\ndepartment, this office sent an e- mail to the Mayor' s Office asking it to provide the additional\ntwelve pitchbooks for our confidential review. 2 On September 27, 2019, the Mayor' s Office\n\nprovided eight pitchbooks, \nthree of which were copies of pitchbooks previously provided on\nFebruary 26, 2019; on September 30, 2019, the Mayor' s Office provided a cover page for an\n\nadditional pitchbook. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that\nit is exempt.\" \n5 ILCS\n140/ 1. 2 ( West 2018). Exemptions to disclosure are to be narrowly construed. Lieber v. Board of\nTrustees of Southern Illinois Univ., 176 Ill. 2d 401, 408 ( 1997). \n\nSection 7( 1)( g) of FOIA exempts from disclosure: \n\nTrade secrets and commercial or financial\n\ninformation\n\nobtained from a person or business where the trade secrets or\n\ncommercial or financial\n\ninformation are furnished under a claim\n\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\n\ninformation would cause competitive harm to the person or\n\n2E -mail from Edie Steinberg, Assistant Attorney General, Public Access Bureau to [ Anjalail Julka\n\nFreedom of Information Officer, City of Chicago, Office of the Mayorl( September\n\n9, 2019). \n\n\fMr. Cezary Podkul\nMs. Anjali Julka\n\nJune 30, 2020\n\nPage 3\n\nbusiness, and only insofar as the claim directly applies to the\nrecords requested. \n\nIn order to be exempt from disclosure under section .7( 1)( g): \n\nT] he document must contain ( 1) a trade secret, commercial, or\n\nfinancial\n\ninformation, ( 2) that was obtained from a person or\n\nbusiness where the trade secrets or commercial or financial\n\ninformation are furnished under a claim that they are either ( a) \nproprietary, ( b) privileged, or ( c) confidential, and ( 3) that\ndisclosure of the trade secrets or commercial or financial\n\ninformation would cause competitive harm to the person or\n\nbusiness. Chicago v. Janssen Pharmaceuticals, Inc., 2017 IL App\n1st) 150870, ¶ 27, 78 N. E. 3d 446, 455 ( 2017). \n\nTrade Secret, Commercial, or Financial Information\n\nIn his Request\n\nfor Review, Mr. Podkul asserted that the withheld pitchbooks are\n\nnot exempt because pitchbooks do not contain trade secrets. To fall within the scope of section\n7( 1)( g), records must contain trade secrets, or commercial, or financial information. FOIA does\nnot define these terms. Accordingly, the terms are defined by their ordinary and commonly\nunderstood meaning. Lake County Bd. ofReview v. Prop. Tax Appeal Bd. of State ofIll., 119 Ill. \n2d 419, 423 ( 1988). A \" trade secret\" is defined as \"[ a] formula, process, device, or other\nbusiness information that is kept confidential to maintain an advantage over competitors[.]\" \n\nBlack' s Law Dictionary ( 1 lth ed. 2019), available at Westlaw BLACKS. \" Commercial\" means\npertaining or relating to or dealing with commerce.\" New Hampshire Right to Life v. U.S. \nDepartment of Health & Human Services, 778 F. 3d 43, 49 ( 1st Cir. 2015). 3\n\nA pitchbook is a marketing tool used by banks and investment\nservices and persuade potential clients to use its services for certain transactions. 4 Here, the\npitchbooks in question were provided by various investment banking firms to the Mayor' s Office\nto market services to underwrite the potential sale of bonds to fund the City' s pension plans. A\n\nfirms to sell\n\nits\n\n3See also the definition of \" Commercial\" \nrelating to, or involving the ability of a product or business\n\nin Black' s Law Dictionary ( 11th ed. 2019) (\"\nto make a profit.\"), available\n\nat Westlaw BLACKS. \n\n5. Of, \n\nare used as a tool\nInv. Mgr., CIV. 03- 4383 ( DWF/ SR, 2005 WL 1475336, at * 5 ( D. Minn. June 22, 2005)) (\" Pitch books are\n\n4See Lapin v. Goldman Sachs Group, Inc., 506 F. Supp. 2d 221, 230 ( S. D. N. Y. 2006) ( pitchbooks\nto attract and recruit potential new investment banking clients); Minnesota Life Ins. Co. v. AXA\n\nadvertising materials containing information about a particular business entity sent to prospective customers by the\nbusiness entity to solicit business.\"); \n\n\fMr. Cezary Podkul\nMs. Anjali Julka\n\nJune 30, 2020\n\nPage 4\n\nreview of a representative sample of the pitchbooks establishes that the pitchbooks show each\nfirm' s unique approach to selling its services. As such, the pitchbooks pertain to commerce ' and\nfall within the scope of the first prong of section 7( 1)( g). \n\nFurnished Under a Claim it is Proprietary, Privileged, or Confidential\n\nAs part of its burden of establishing that records are exempt under section 7( 1)( g), \n\na public body must demonstrate that the records were furnished under a claim that they are\nproprietary, privileged, or confidential. See I11. Att'y Gen. Pub. Acc. Op. No. 18- 004, issued\nMarch 6, 2018, at 5. . \n\nIn its response to this office, the Mayor' s Office explained that it discussed the\n\nwithheld records with its Chief Financial Officer ( CFO), Deputy Controller, Chief of Staff to the\nCFO, and the City' s Independent Registered Municipal Advisor who is in charge of maintaining\nallpitchbooks and materials received from investment banks. The Mayor' s Office explained that • \n\nt] he longstanding relationship between the City and financial\n\ninstitutions proposing their\n\nservices is based on the understanding that these records are proprietary. In addition, they have\nbeen marked confidential by the investment banking firms that created them.\nAccordingly, the\nMayor's Office contended that the records were confidential, proprietary records of the financial\ninstitutions. \n\ni5\n\nThe Mayor' s Office provided to this office for our confidential review copies of\n\ntwelve pitchbooks, eight of which are labeled or otherwise denoted as confidential. The plain\nto it to be \" furnished under a\nlanguage of section 7( 1)( g) requires records withheld pursuant\nclaim that they are proprietary, privileged or confidential.\" See Food Marketing Institute v. \nArgus Leader Media, \n\n139 S. Ct. 2356, 2363, 2366 ( 2019) ( under\n\nfederal FOIA, \n\nU. S. ,\n\nwhere commercial or financial information is both customarily and actually treated as private by\nits owner and provided to the government under an assurance of privacy, the information is\n\nconfidential'[.]\")\n\n6; Ill. Att'y Gen. Pub. Acc. Op. No. 18- 004, at 6- 7 ( records not exempt under\n\nfurnished to the public body with a claim that that the records were\n\n7( 1)( g) where they werenot\nproprietary, privileged, or confidential). \nlongstanding understanding between the City and financial institutions that the pitchbooks are\nproprietary, combined with the fact that a majority of the pitchbooks provided are expressly\nmarked or otherwise noted as being confidential, establish that the pitchbooks were furnished\n\nThe Mayor' s Office' s confirmation that there is a\n\nMayor ( February 26, 2019), at 2. \n\n5Letter from Shannon I Leonard, Freedom of Information Officer, City of Chicago, Office of the\n\n6The trade secret exemption in the Federal FOIA applies to \" trade secrets and commercial or\n\nfinancial\n\ninformation obtained from a person and privileged or confidential[.]\" \n\n5 U. S. C. § 552( b)( 4) ( 2018). \n\n\fMr. Cezary Podkul\nMs. 'Anjali Julka\nJune 30, 2020\n\nPage` 5\n\nunder_ a claim that\n\nthey are proprietary and confidential. Accordingly, this office concludes that\nthe Mayor' s Office has demonstrated that the pitchbooks were furnished under a claim that they\nare proprietary or privileged. \n\nCompetitive Harm to a Person or Business\n\nTo establish that records are exempt under section 7( 1)( g), a publicbody must\n\nalso' demonstrate that disclosing the records would cause competitive harm. Janssen, Inc., 2017\nIL App ( 1st) 150870, ¶ 29, 78 N.E.3d at 456. To cause competitive harm, a public body must\n\nshow by specific factual or evidentiary material that: (\n\n1) \n\nthe person or entity from which\n\ninformation was obtained actually faces competition; and ( 2) substantial harm to a competitive\nfrom disclosureof the information in the agency' s records.'\" Cooper\nposition would likely result\nv. Dep' t of the Lottery, 266 Ill. App. 3d 1007, 1013 ( 1st Dist. 1994) ( quoting Calhoun v. Lyng, \n864 F. 2d 34,: 36 ( 5th Cir. 1988)). \n\nIn this matter, numerous companies were competing to\n\nunderwrite bonds to fund the City' s pension plans and provided pitchbooks to the Mayor' s Office\nin an attempt to acquire that business. Accordingly, it is apparent that the financial institutions\nfurnishing the pitchbooks actually faced competition. \n\nIn addition to demonstrating actual competition, a public body opposing\n\ndisclosure must show that substantial harm to a competitive position would likely result from\ndisclosure of the information. However a public body need not demonstrate actual competitive\nharm; instead, it needs to show a likelihood of substantial competitive injury. New Hampshire\nRight to Life, 778 F. 3d at 50- 51 ( where potential\ninstitutional knowledge contained in a manual and letter describing the manual, manual and letter\n\nfuture competitor could take advantage of\n\nwere exempt commercial\n\ninformation); Ill. Att' y Gena Pub. Acc. Op. No. 19- 007, issued\n\nSeptember 23, 2019, at 11 ( assertions regarding competitive harm that are largely conclusory fail\nto provide specific factual evidence demonstrating how substantial harm would occur). \n\nThe Mayor' s Office asserted that the release of the pitchbooks would cause\n\ncompetitive harm, explaining: \n\nT] he requested records reflect\nthese banks proprietary work\nregarding their ideas on the best ways to handle a particular\nfinancial situation. Should a competitor bank obtain these banks' \n\nwork, they could easily undercut the proposal, or plagiarize their\nconcepts, which would clearly cause competitive harm. The release\nof these proprietary pitchbooks would provide insight for\n\n\fMr. Cezary Podkul\nMs. Anjali Julka\n\nJune . 30, 2020\n\nPage, 6\n\ncompetitors to structure financial proposals, both to the City and\nother governmental clients. l71\n\nIn Mr. Podkul' s reply he contends that the release of the records would be beneficial\nvarious firms, explaining: \n\nto the\n\nI] nvestment banks typically include in their pitchbooks\ninformation on previously - announced deals and engagements for\nwhich they were hired. * * * By disclosing these pitchbooks to\nThe Wall Street Journal, the top business and financial newspaper\nin the U. S., the city will help burnish these firms' business\ncredentials and obtain them publicity that would, if anything, be\nhelpful to their business interests -- not harmful, as the city\nclaims. l81\n\nAlthough pitchbooks include this type of self -promotion, it is unclear how a sales pitch by an\ninvestmentfirm, which might have been unsuccessful, would be advantageous\nto that firm' s\nreputation. Further, review of the pitchbooks reveal that disclosure of the pitchbooks would\nenable competing financial firms to copy the way a firm presents information, and would allow\ncompetitors to utilize unique marketing methods, ideas, design, and analysis. Therefore the\nMayors Office has sustained its burden of establishing that release of the pitchbooks would\ncause substantial harm to a competitive position. \n\nMr. Podkul asserts that because the Illinois Governor' s Office of Management and\n\nBudget ( Illinois Budget Office) provided him with copies of certain pitchbooks, \nthat the pitchbooks withheld by the Mayor' s Office are not exempt under section 7( 1)( g) of\nFOIA. However, under section 7( 1) of FOIA ( 5 ILCS 140/ 7( 1) ( West 2018)), a public body may\nelect to: redact or withhold exempt\nReed, 177 111. 2d 389, 393 ( 1997) (\npermissive or directory reading, rather than a mandatory one); Crumpton v. Stone, 59 F. 3d 1400, \n1404 ( D. C. Cir. 1995) ( FOIA allows an agency to withhold certain information but it does not\nlimit an. agency' s discretion to disclose information). A state agency' s choice to disclose certain\nrecords does not preclude the Mayor' s Office from asserting an available exemption to withhold\n\ninformation; FOIA does not require it do so. See People v. \nlegislature' s use of the word \" may\" generally indicates a\n\nit establishes\n\nMayor ( February 26, 2019), at 2. \n\nLetter from Shannon I Leonard, Freedom of Information Officer, City of Chicago, Office of the\n\nAccess Bureau] ( March 15, 2019). \n\n8E -mail from Cezary Podkul to Public Access; Steinberg, Edie [ Assistant Attorney General, Public\n\n\fMr: Cezary Podkul\nMs: Anjali Julka\n\nJune 30, 2020\nPage 7\n\nsimilar\n\nrecords. \n\nAccordingly, based on the available information, this office concludes that the\n\nMayor' s Office sustained its burden of demonstrating by clear and convincing evidence that the\nto section 7( 1)( g) of FOIA. The Public\nwithheld pitchbooks are exempt\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\n\nfrom disclosure pursuant\n\nbinding opinion. This file is closed. Please contact me at ( 312) 814- 5201 or at the Chicago\naddress on the first page of this letter if you have questions. \n\nVery truly yours, \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A Wall Street Journal reporter asked the Chicago Mayor's Office for documents provided by investment banks about potential city bond sales. The Mayor's Office refused to release the documents, claiming they contained confidential business information. The Attorney General's office agreed with the city, ruling that the records were protected from public disclosure.","card_headline":"Investment banking pitchbooks for pension bond sales","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":930,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-12-19","case_number":null,"request_numbers":["56759"],"title":"Illinois Department of Healthcare and Family Services improperly withheld MCO cost reports under 7(1)(g)","filename":"56759, issued December 19, 2019.pdf","rel_path":null,"word_count":2821,"summary":"The requester sought quarterly cost reports of managed care organizations from the Illinois Department of Healthcare and Family Services, which the Department denied under FOIA Section 7(1)(g). The PAC determined that the Department failed to demonstrate that the records were exempt from disclosure.","plain_summary":"A consultant requested financial cost reports from the state's Medicaid managed care organizations, but the Department of Healthcare and Family Services refused to release them, claiming they were trade secrets. The Attorney General's Public Access Counselor reviewed the request and found that the Department did not provide a valid legal reason to keep the documents secret. Consequently, the Department was instructed to release the records to the requester.","holding":"The Illinois Department of Healthcare and Family Services improperly withheld the requested managed care organization cost reports.","legal_question":"Whether the Illinois Department of Healthcare and Family Services properly invoked FOIA Section 7(1)(g) to withhold managed care organization cost reports.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7(1)(g)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(g)","7(1)(u)"],"public_body":"Illinois Department of Healthcare and Family Services","requesting_party":"Mr. Matthew Werner","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"trade secrets","subject_description":"The request concerned quarterly cost reports for managed care organizations contracted under the Illinois Medicaid program.","ocr_status":"ok","ocr_quality":96.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_g/56759%2C%20issued%20December%2019%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["Medicaid","managed care","trade secrets","cost reports","FOIA denial"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nDecember 19, 2019\n\nMr. Matthew Werner\n\nWerner Consulting\n601 West Monroe Street\n\n[street address redacted for site publication -- see original PDF]\nmatt@mwernerconsulting.\n\ncom\n\nMs. Kiran Mehta\n\nFreedom of Information Officer\n\nIllinois Department of Health and Family Services\n201 South Grand Avenue East\n\nSpringfield, Illinois 62763- 0002\n\nhfs.webmaster@illinois.gov\n\nRE: FOIA Request for Review — 2018 PAC 56759\n\nDear Mr. Werner and Ms. Mehta: \n\nThis determination is issued pursuant to section 9. 5( 1) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2018)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the Illinois Department of Health and Family Services\nDepartment) improperly withheld records responsive to Mr. Mathew Werner' s January 8, 2019, \nFOIA request. \n\nOn that date, Mr. Werner submitted a FOIA request to the Department seeking\n\nfour categories of records, including quarterly cost reports of managed care organizations\nMCOs) contracted to manage medical services under the Illinois Medicaid program. On\n\nFebruary 4, 2019, the Department denied that portion of the request pursuant to section 7( 1)( g) \nof FOIA ( 5 ILCS 140/ 7( 1)( g) ( West 2018)). On February 4, 2019, Mr. Werner submitted a\nRequest\n\nfor Review disputing the denial of the cost reports. \n\nOn February 13, 2019, the Public Access Bureau sent a copy of the Request for\n\nReview to the Department and asked it to provide unredacted copies of the cost reports along\nwith a detailed explanation of the factual and legal basis for the applicability of the section\n\n500 South Second Street, Springfield, \n\nIllinois 62701 • ( 217) 782- 1090• TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois 60601 • (\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806 • \n\n601 South University Ave., Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Matthew Werner\n\nMs. Kiran Mehta\n\nDecember 19, 2019\n\nPage 2\n\n7( 1)( g) exemption to those records. On February 25, 2019, the Department provided a blank\ntemplate of a cost report' showing the categories of information documented in cost reports and a\nwritten response detailing its rationale for denying the reports under 7( 1)( g); seven MCOs also\nsubmitted supporting letters or e- mails. On March 8, 2019, Mr. Werner submitted a reply. \n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" \n5 ILCS\n140/ 1. 2 ( West 2018). Exemptions to disclosure are to be narrowly construed. Lieber v. Board of\nTrustees of Southern Illinois Univ:, 176 Ill. 2d 401, 408 ( 1997). \n\nSection 7( 1)( g) of FOIA\n\nSection 7( 1)( g) of FOIA exempts from disclosure: \n\nTrade secrets and commercial or financial\n\ninformation\n\nobtained from a person or business where the trade secrets or\n\ncommercial or financial information are furnished under a claim\n\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\n\ninformation would cause competitive harm to the person or\n\nbusiness, and only insofar as the claim directly applies to the\nrecords requested. \n\nIn order to be exempt\n\nfrom disclosure under section 7( 1)( g): \n\nT] he document must contain ( 1) a trade secret, commercial, or\n\nfinancial\nbusiness where the trade secrets or commercial or financial\n\ninformation, ( 2) that was obtained from a person or\n\ninformation are furnished under a claim that they are either ( a) \nproprietary, ( b) privileged, or ( c) confidential, and ( 3) that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\n\nbusiness. City of Chicago v. Janssen Pharmaceuticals, Inc., 2017\nIL App ( 1st) 150870, ¶ 27, 78 N. E. 3d at 455 ( 2017). \n\nPublic Access Bureau, who agreed the template would suffice for this office' s review. \n\nThe Department' s FOIA officer discussed the response with an Assistant Attorney General\n\nin the\n\n\fMr. Matthew Werner\n\nMs. Kiran Mehta\n\nDecember\n\n19, 2019\n\nPage 3\n\nAs a threshold matter, the Department's response to the FOIA request and to this\n\noffice asserted that the cost reports were exempt under section 7( 1)( g) because their disclosure\nwould discourage vendors and similar organizations from bidding on contracts with the State. \nThe Department cited BlueStar Energy Services, Inc. v. Illinois Commerce Commission, 374 Ill. \nApp. 3d 990, 995 ( 1st Dist. 2007), superseded by statute, Freedom of Information Act ( 5 ILCS\n140/ 7( 1)( g) ( West 2014)), as recognized in Janssen, 2017 IL App ( 1st) 150870, ¶ 28, 78 N.E. 3d\nat 456, for the proposition that \" trade secret in the context of the FOIA has been interpreted to\n\ninclude information that ( 1) would either inflict substantial competitive harm or ( 2) make it more\n\ndifficult\n\nfor the agency to induce people to submit similar information in the future.\" ( Emphasis\n\nin original.) \n\nBefore 2010, section 7( 1)( g) of FOIA exempted from disclosure \"[\n\nt] rade secrets\n\ninformation obtained from a person or business where the trade\n\nand commercial or financial\nsecrets or information are proprietary, privileged or confidential, or where disclosure of the trade\nsecrets or information may cause competitive harm.\" ( Emphasis added.) 5 ILCS 140/ 7( 1)( g) \nWest 2008). \ndisclosure of such records \" would cause competitive\n\nIn contrast, the current version of section 7( 1)( g) specifically requires that\n\nharm.\" ( Emphasis added.) Because the\n\nGeneral Assembly' s addition of these requirements indicates its intention to restrict\nthe scope of\nthe 7( 1)( g) exemption to only those records that, if disclosed, would result in competitive harm\nto a person or business, the prospective chilling effect described by the Department no longer\nprovides a valid basis to withhold records under section 70)( g) of FOIA. See Janssen, 2017 IL\nApp ( 1st) 150870, ¶ 28, 78 N.E. 3d at 456; see also III. Att'y Gen. Pub. Acc. Op. No. 18- 004, \nissued March 6, 2018, at 9 (\" although the City has raised the concern that requiring disclosure of\nthe Budget would have a chilling effect on its ability to contractually require developers to\nsubmit sensitive financial\ncause competitive harm.\"). \n\ninformation, it has not demonstrated how disclosing the budget would\n\nAs part of its burden of establishing that records are exempt from disclosure under\n\nsection 7( 1)( g), a public body must first demonstrate that the records were furnished under a\nclaim that they are proprietary, privileged, or confidential. See I11. Att'y Gen. Pub. Acc. Op. No. \n18- 004, at 5. Although the materials provided to this office state that the cost reports contain\nproprietary information, neither the Department' s response to this office nor the letters submitted\nby the MCOs asserted that the costs reports were submitted to the Department under a claim that\nthey are proprietary or privileged. During a conference call with an Assistant Attorney General\nAAG) in the Public Access Bureau, a Department official stated that the costs are furnished with\n\nthe understanding that they are to be maintained confidentially; another Department official\nstated that the cost reports are submitted through encrypted, password - protected e- mail, but\n\nacknowledged\n\nthat they are not marked as confidential. The Department' s contracts with the\n\n\fMr. Matthew Werner\n\nMs. Kiran Mehta\n\nDecember 19, 2019\n\nPage 4\n\nDepartment' s contracts with the MCOs, 2 however, provide that MCOs' information is subject\npublic disclosure unless expressly marked as confidential: \n\nto\n\nConfidential Information. It is understood that each Party to\nthis Contract, including its agents and Subcontractors, may have or\ngain access to Confidential Information or data owned or\n\nmaintained by the other Party in the course of carrying out its\nresponsibilities under this Contract. Contractor shall presume that\n\nall\n\ninformation received from the State or to which it gains access\n\npursuant\n\nto this Contract\n\nis confidential. Contractor' s\n\ninformation ( excluding information regarding rates paid by\nto its Providers and Subcontractors), unless clearly\nContractor\nmarked as confidential and exempt from disclosure under the\n\nIllinois Freedom of Information Act, shall be considered\n\npublic. No confidential data collected, maintained, or used in the\n\ncourse of performance of the Contract shall be disseminated except\nas authorized by law and with the written consent of the disclosing\nParty, either during the term of the Contract or thereafter, or as\notherwise set forth in this Contract. ( Emphasis added). 3\n\nBecause the information provided to this office indicates that the cost reports are not clearly\nmarked confidential, they were not furnished under a claim of confidentiality and are subject to\npublic disclosure under the Department' s contracts with the MCOs. \n\nEven if the costs reports had been submitted under a claim that they were\n\nproprietary, privileged, or confidential, the Department and the MCOs have not demonstrated\nthat disclosure of the reports would cause competitive harm. Doing so requires a showing \"' by\nspecific factual or evidentiary material\nI) the person or entity from which information\nwas obtained actually faces competition; and ( 2) substantial harm to a competitive position\nwould likely result\nEmphasis\nadded.) Cooper v. Dep' t of the Lottery, 266 I11. App. 3d 1007, 1013 ( 1st Dist. 1994) ( quoting\nCalhoun v. Lyng, 864 F. 2d 34, 36 ( 5th Cir. 1988)). \n\nfrom disclosure of the information in the agency' s records.\"' (\n\nthat: (\n\n20n June 27, 2019, the Departments FOIA officer confirmed that each of the MCOs signed\n\ncontracts containing the terms in the model contract posted on the Department' s website. \n\nState of Illinois Contract between the Department of Healthcare and Family Services and [ Model\n\nContract] for Furnishing Health Services by a Managed Care Organization, § 9. 1. 6 ( undated), available at\nhttps:// www. illinois. gov/ hfs/ SiteCollectionDocuments/ 2018MODELCONTRACTadministrationcopy.\nvisited September 4, 2019). \n\npdf (last\n\n\fMr. Matthew Werner\n\nMs. Kiran Mehta\n\nDecember 19, 2019\n\nPage 5\n\nThe Department' s response to this office included several\n\nletters or e- mails in\n\nwhich MCOs contended, among other things, that the MCOs' cost reports contain detailed\ninformation that would provide insight\nThey contended that competitors could exploit that information to steer away their healthcare\nproviders and underbid MCOs for future contracts, and asserted that health care providers could\n\ninto the MCOs' strategies for coordinating medical care. \n\nuse it to demand higher reimbursements in negotiations. One MCO contended that \" release of\n\nthe redacted information would allow a [ MCO] competitor to calculate [\n\nthe MCO' s] MLRs\n\nloss ratios] by cohorts by combining the redacted information with other blinded\n\nmedical\ninformation that is currently publicly available, which could be used to gain insight\nMCO' s] financial\n\nterms, rates, and arrangements.\"\n\n4 The Department' s response and several of\n\ninto [ the\n\nthe MCOs relied on specific contractual\nMCOs are required to submit concerning \" MCO eligibility, revenue, medical expenses, medical\nexpense adjustments, estimated unpaid claim liability, quality improvement expenses, operating\nexpenses, and MCO assessments and taxes. i5 In his reply, Mr. Werner asserted that the MCOs' \ncompetitive harm arguments were based on speculation rather than facts, and contended that the\n\nlanguage describing the expansive information that\n\ncost\n\nreports are not\n\nThere is no plausible way I could use this information to tell\nwhat each plan pays a specific hospital or other provider type. None. The MCOs do not offer\n\nrates. * * * \n\nany broad or detailed explanation [ of] how this could occur. i6\n\nBased on this office' s confidential review, the information contained in the cost\n\nreports is much more limited than the information described in MCOs' contracts. Although it is\n\nundisputed that the MCOs face competition in the healthcare services industry, the cost reports\nthemselves do not reveal any strategic information concerning the delivery of care. They do not\nreflect the payment or denial of specific claims, or rates for specific treatments. Instead, the cost\n\nreports contain aggregate data concerning broad categories of medical services. The conclusory\nassertion that information in the cost reports could be combined with other publicly -available\ninformation to gain insight\nby specific factual and evidentiary material. The Department and the MCOs have not\ndemonstrated how disclosure of the costs reports could be exploited by competitors to cause the\ntype of harm that section 7( 1)( g) is designed to prevent. \n\nterms, rates, and arrangements is unsupported\n\ninto a MCO' s financial\n\nLetter from Jennifer Pipersburgh, Associate General Counsel, Legal Division, Blue Cross and\n\nBlue Shield of Illinois, to Sherri K. Sadala, Compliance Manager, Illinois Department of Healthcare and Family\nServices, Bureau of Managed Care ( January 31, 2019), at 2. \n\nState of Illinois Contract between the Department of Healthcare and Family Services and [ Model\n\nContract] for Furnishing Health Services by a Managed Care Organization, § 7. 11.\nhttps:// www.illinois.gov/hfs/ SiteCollectionDocuments/ 2018MODELCONTRACTadministrationcopy.pdf (last\nvisited September 4, 2019). \n\n1 ( undated), available at\n\nAccess Bureau, Office of the Attorney General ( March 8, 2019), at 3. \n\nLetter from Matthew Werner, Werner Consulting, to Steve Silverman, Bureau Chief, Public\n\n\fMr. Matthew Werner\n\nMs. Kiran Mehta\n\nDecember 19, 2019\n\nPage 6\n\nFurther, Article VIII, section 1( c) of the Illinois Constitution of 1970 provides that\ndeports and records of the obligation, receipt and use of public funds of the State, units of local\n\ngovernment and school districts are public records available for inspection by the public\naccording to law.\" Section 2. 5 of FOIA ( 5 ILCS 140/ 2. 5 ( West 2018)) correspondingly provides\nthat \"[ a] ll records relating to the obligation, receipt, and use of public funds of the State, units of\nlocal government, and school districts are public records subject to inspection and copying by the\npublic.\" During the conference call with the AAG, Department officials explained that the\nreports are used to assess whether MCOs have provided sufficient data for the Department's\n\nmonitoring of claims and assessments of MCO performance; MCOs that fail to provide sufficient\ndata can face a fine of $100, 000 or even the suspension of beneficiaries being assigned to their\nhealth plans. The data also is considered \" in the development of actuarially sound capitation\nrates ( encounter data may also be used).\" 7 \" Capitation\" is \"[ a] method of paying a healthcare\nprovider based on the number of members in a health -benefit plan that the provider contracts to\n\ntreat. • The health plan' s sponsor agrees to pay a fixed amount per person each period, regardless\nof what services are provided.\" Black' s Law Dictionary ( 11th ed. 2019), available at Westlaw\nBLACKS. Thus, the cost reports are considered in determining how much MCOs are paid under\ntheir contracts, and cost reports with insufficient data provide a basis for levying hefty fines\nagainst MCOs. Because such records directly and unequivocally relate to the receipt and use of\npublic funds, they are subject\n\nto disclosure under section 2. 5 of FOIA. \n\nTwo of the MCOs' letters contained brief references to sections 7( 1)(\n\nt) and 7( 1)( u) \n\nof FOIA ( 5 ILCS 140/ 7( 1)(\n\nt), ( I)( u) ( West 2018)), but did not explain how those exemptions\n\nt) exempts from disclosure \"[ i] nformation contained in or\napply to the cost reports. Section 7( 1)(\nrelated to examination, operating, or condition reports prepared by, on behalf of, or for the use of\na public body responsible Tor the regulation or supervision of financial institutions or insurance\ncompanies, unless disclosure is otherwise required by State law.\" Even if the cost reports could\nbe construed as falling within the scope of the first clause of this exemption, the second clause\nrenders the exemption inapplicable because disclosure of the cost reports is required by section\n2. 5 of FOIA. Section 7( 1)( u) exempts from disclosure \"[] i] nformation that would disclose or\n\nmight lead to the disclosure of secret or confidential\n\ninformation, codes, algorithms, programs, or\n\nprivate keys intended to be used to create electronic or digital signatures under the Electronic\n\nCommerce Security Act.\" There is no indication that the cost reports have any connection to the\ncreation of electronic or digital signatures. \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the Department provide Mr. Werner with copies of the cost reports. The Public\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\n\nE- mail\n\nfrom Kiran [ Mehta] to [ Steven] Silverman ( June 27, 2019). \n\n\fMr. Matthew Werner\n\nMs. Kiran Mehta\n\nDecember 19, 2019\n\nPage 7\n\nbinding opinion. This file is closed. If you have any questions, please contact me at ( 312) 814- \n6756. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n56759 f 71g improper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Quarterly cost reports for Medicaid managed care organizations","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":931,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-12-11","case_number":null,"request_numbers":["56946"],"title":"Chicago Legislative Reference Bureau violated FOIA by omitting denier's name and title","filename":"56946, issued December 11, 2023.pdf","rel_path":null,"word_count":1669,"summary":"The requester challenged the City of Chicago Legislative Reference Bureau's denial of a FOIA request on procedural grounds, specifically alleging the Bureau failed to identify the individual responsible for the denial as required by section 9(a). The PAC determined that the Bureau's failure to provide a name and title violated section 9(a) but closed the file without issuing a binding opinion.","plain_summary":"A requester asked for records from the City of Chicago's Legislative Reference Bureau, but the Bureau denied the request without listing the name and title of the person who made the decision. The Attorney General's office agreed that this violated the law, which requires public bodies to identify the specific person responsible for a denial. The case was closed because the PAC determined a formal binding opinion was not necessary.","holding":"The Legislative Reference Bureau violated section 9(a) of FOIA by failing to include the name and title of the person responsible for the denial in its response letter.","legal_question":"Does a public body's failure to include the name and title of the person responsible for a FOIA denial in its response letter violate the procedural requirements of section 9(a) of FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/9"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"City of Chicago Legislative Reference Bureau","requesting_party":null,"pac_outcome":"Violation found regarding procedural requirements","pac_law_type":null,"subject_category":"FOIA procedure","subject_description":"The requester sought records processed by a former employee and challenged the procedural adequacy of the Bureau's denial letter.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_a/56946%2C%20issued%20December%2011%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["FOIA denial","procedural requirements","section 9(a)","public body response"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 11, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nLegislative Reference Bureau\n121 North LaSalle Street, Room 200\nChicago, Illinois 60602\nlegislativereference@cityofchicago.\n\norg\n\nRE: FOIA Request for Review – 2019 PAC 56946\n\nDear\n\nand Legislative Reference Bureau: \n\nThis determination is issued pursuant\n\nto section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2022)). \n\nOn January 29, 2019, \n\nsubmitted a FOIA request to the Legislative\nReference Bureau ( Bureau) of the City Council ( Council) for the City of Chicago ( City) seeking\ncopies of \"all FOIA documents and FOIA records that [name] reviewed, processed, and\ncompleted when she worked at the Legislative Reference Bureau from March 1, 2016 through\nFebruary 25, 2018.\" 1 On February 5, 2019, the Bureau denied the request in its entirety pursuant\nto section 7(1)( f) of FOIA ( 5 ILCS 140/ 7(1)( f) (West 2018)). \n\nRequest for Review. He\ndid not challenge the substance of the Board's denial, but alleged only that the Bureau's denial\n\nOn February 21, 2019, this office received\n\n1E- mail from\n\nto Legislative Reference Bureau FOIA Officer (January 29, 2019). \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fLegislative Reference Bureau\nDecember 11, 2023\nPage 2\n\nletter did not comply with the procedural requirements of section 9(a) of FOIA.2 Specifically, he\nasked this office to \" review whether the Legislative Reference Bureau was wrong to not include\nthe name(s) and job title(s) in the Bureau's response when the Bureau denied my FOIA request.\" 3\n\nIn response to this office's letter asking the Bureau to respond to\n\nallegation, the Bureau asserted that it responded to\ndoes not consider itself to be a public body subject to the requirements of FOIA. \n\nFOIA request as a courtesy, but it\n\nSection 3(a) of FOIA4 requires each \" public body\" to \"make available to any\n\nperson for inspection or copying all public records, except as provided in Section 7\" of FOIA. \nSection 2(a) of FOIA defines a \" public body\" as: \n\nA]ll legislative, executive, administrative, or advisory bodies of\nthe State, state universities and colleges, counties, townships, \ncities, villages, incorporated towns, school districts and all other\nmunicipal corporations, boards, bureaus, committees, or\ncommissions of this State, any subsidiary bodies of any of the\nforegoing including but not limited to committees and\nsubcommittees thereof. \n\nThe plain language of that definition encompasses legislative bodies of cites, such as the City\nCouncil, as well as their subsidiary bodies. \n\nIn support of its contention that it is not a public body, the Bureau stated: \n\nThe Legislative Reference Bureau ( LRB) performs a wide range of\nfunctions for members of the Chicago City Council, City Council\nCommittees, and Aldermanic Staff. The LRB reports to the\nPresident Pro Tempore of the City Council. While called a\nBureau, the LRB functions as an extension of the staff of the\nmembers of the City Council. The LRB does not provide services\nto the public, nor is it responsible for supplying services to the City\n\n25 ILCS 140/9(a) ( West 2018). This provision states, in pertinent part: \" Each public body denying\n\na request for public records shall notify the requester in writing of the decision to deny the request, the reasons for\nthe denial, including a detailed factual basis for the application of any exemption claimed, and the names and titles\nor positions of each person responsible for the denial.\" (Emphasis added.) \n\n3E- mail from\n\nto Public Access Counselor (February 21, 2019). \n\n45 ILCS 140/3(a) ( West 2018). \n\n\fLegislative Reference Bureau\nDecember 11, 2023\nPage 3\n\nitself. Accordingly, like members of the City Council in the\nperformance of their duties, the LRB is not subject to the\nprovisions of the Freedom of Information Act.[5] \n\nThe Bureau's reference to Council members acting in the performance of their\nindividual duties appears to suggest that it is analogizing itself to an individual alderman. The\nIllinois Appellate Court has concluded that individual public officers do not fall within the\ndefinition of a \" public body\" under FOIA. Quinn v. Stone, 211 Ill. App. 3d 809, 812 ( 1st Dist. \n1991). In that case, the court upheld the dismissal of a complaint for injunctive relief against a\nCity of Chicago alderman because the alderman was \" not the proper recipient\" of a FOIA request\nto which he did not respond. Quinn, 211 Ill. App. 3d at 812. Based on that precedent, the Public\nAccess Bureau has consistently determined that public officials are not required to respond to\nFOIA requests submitted to them individually. See, for example, Ill. Att'y Gen. PAC Req. Rev. \nLtr. 65842, issued December 15, 2020, at 2 (\" Requests for public records concerning individual\nsenators are properly submitted to the public bodies to which they belong, not to the\nrepresentatives themselves.\"). \n\nSection 2-8-820 of the City' s Municipal Code ( Code) 6 governs the establishment\n\nof the Bureau stating, \"[ t]here is hereby created and established a legislative reference bureau\nlegislative reference bureau'. The said bureau shall be\nwhich shall be known as the ' city council\nunder the control, supervision and direction of the President Pro Tempore of the City Council.\" \nSection 2-8-850 of the Code7 sets forth the Bureau' s powers and duties, providing: \n\nIt shall be the duty of said bureau: \n\na) To prepare, upon the request of any member of the city\ncouncil, ordinances, resolutions and orders proposed to be\nintroduced in the city council by said members, including\namendments, substitutes and revisions of existing or proposed\nordinances, resolutions and orders; \n\nb) To collect, catalogue, classify, index, completely digest, \ntopically index, checklist and summarize all ordinances, \nresolutions and orders as well as amendments or revisions thereof, \n\nBarnaby, Assistant Attorney General, Illinois Attorney General's Office (March 18, 2019). \n\n5Letter from Legislative Reference Bureau, Office of Alderman Margaret Laurino to Shannon\n\n6Chicago Municipal Code § 2-8-820 (amended September 11, 2013). \n\n7Chicago Municipal Code § 2-8-850 (amended September 11, 2013). \n\n\fLegislative Reference Bureau\nDecember 11, 2023\nPage 4\n\nif any, introduced in the city council, as soon as practicable after\nthe same have been printed, and to furnish copies of the digest, \nindexed and topically indexed, to each member of the city council\nafter each meeting of the city council; \n\nc) To collect, assemble and catalogue in such manner as may\nmake the same readily accessible, the ordinances, resolutions, \norders and laws of other cities and municipal corporations, and\nsuch other printed or written material as may aid the members of\nin the performance of their duties; \nthe city council\n\nd) To coordinate and provide to the members of the City Council\nsuch trainings, briefings and seminars that the President Pro\nTempore deems useful and informative. \n\nIt is apparent from these provisions that the Bureau is a subsidiary body of the City Council. \nCourts consider three primary factors in determining whether an entity is a subsidiary body under\nFOIA and the Open Meetings Act: 8 \"( 1) whether the entity has a legal existence independent of\ngovernment resolution; (2) the nature of the functions performed by the entity; and (3) the degree\nof governmental control exerted over the entity.\" Hopf v. Topcorp, 256 Ill. App. 3d 887, 892 ( 1st\nDist. 1993). The Bureau was statutorily created by the City, and there is no indication that it has\ndeveloped an independent\nThe Bureau is under government control exercised by the Council's President Pro Tempore. \nMoreover, the Bureau' s duties include performing administrative and legislative functions for the\nCouncil. Unlike an individual alderman, or a committee that advises only an individual\nalderman, the above- quoted Code provisions indicate that the Bureau supports and advises the\nentire Council, which is undoubtedly a \"public body.\" Therefore, this office concludes that, as a\nsubsidiary body of the City Council, the Bureau falls under the definition of a \" public body\" in\nsection 2(a) of FOIA.9\n\nlegal existence as a separate entity such as a not- for-profit corporation. \n\n85 ILCS 120/1 et seq. ( West 2018). \n\n9Based on this office's review of the City's webpage, it appears that FOIA requests seeking Bureau\nrecords may be submitted to the City Clerk's Office, which handles FOIA requests for various City Council records. \nSee Office of the City Clerk Anna M. Valencia, City of Chicago, Freedom of Information Act, \nhttps:// www.chicityclerk.com/office-info/freedom-information-act (\" Our office is responsible for: City Council\nlegislation, ordinances, and journals; Data regarding dog registrations in the City; Data regarding Chicago City\nVehicle Stickers; Aldermanic staff personnel files; Information regarding House Share Restrictions and Cannabis\nRestrictions\"). \n\n\fLegislative Reference Bureau\nDecember 11, 2023\nPage 5\n\nBecause the Bureau submitted information to this office confidentially concerning\n\nallegation that the Bureau' s response violated section 9(a) of FOIA, this office is not\n\nat liberty to disclose that information.10 However, this office notes that the plain language of\nsection 9(a) expressly requires a public body to identify the person responsible for a denial by\ntheir names and titles or positions. \"Legislative Reference Bureau\" does not identify the name\nand title of any person; therefore, it does not satisfy the requirements of section 9(a). If the\nBureau responds directly to future FOIA requests, it should be mindful of its obligation to fully\ncomply with the requirements of section 9(a). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have questions, you may\ncontact me at the Springfield address at the bottom of the first page of this letter. \n\nVery truly yours, \n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n56946 f not a pb improper mun\n\n10See 5 ILCS 140/9.5(c) (West 2022). \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A legislative reference bureau's denial letter","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":932,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-06-05","case_number":null,"request_numbers":["57377"],"title":"Park Ridge Police Department improperly invoked federal exemptions for death investigation records","filename":"57377, issued June 5, 2023.pdf","rel_path":null,"word_count":2178,"summary":"The Chicago Sun-Times requested records regarding a death investigation and communications with federal agencies, which the Park Ridge Police Department denied citing FOIA exemptions. The PAC determined the Department improperly withheld the records and directed their disclosure, subject to specific redactions.","plain_summary":"A reporter requested police records about a death investigation from the Park Ridge Police Department, which refused to provide them, citing federal FOIA exemptions. The Illinois Attorney General's Public Access Bureau reviewed the case and determined that the department's response violated the Illinois Freedom of Information Act because the department, as a state public body, could not rely on federal FOIA exemptions. The determination does not specify any remedy or order to release the records.","holding":"The Park Ridge Police Department's response to the FOIA request violated FOIA by improperly relying on federal FOIA exemptions 7(A) and 8, and by failing to provide clear and convincing evidence for any applicable state exemption.","legal_question":"Whether the Park Ridge Police Department properly invoked FOIA exemptions 7(1)(a), 7(1)(d)(i), and 7(1)(t) to withhold records concerning a death investigation.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)","7(1)(d)(i)","7(1)(t)"],"public_body":"Park Ridge Police Department","requesting_party":"Mr. Tim Novak (Chicago Sun-Times)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought records related to a death investigation and communications between the police department and federal agencies.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_t/57377%2C%20issued%20June%205%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","death investigation","FOIA denial","records disclosure"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 5, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\nMr. Tim Novak\nChicago Sun- Times\n[street address redacted for site publication -- see original PDF]\ntnovak@suntimes. com\n\nVia electronic mail\nMr. Patrick Mozdzierz\nPolice Records Technician FOIA Officer\nPark Ridge Police Department\n200 South Vine Avenue\nPark Ridge, Illinois 60068\npmozdzierz@parkridgepolice. org\n\nRE: FOIA Request for Review – 2019 PAC 57377\n\nDear Mr. Novak and Mr. Mozdzierz: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the Park Ridge Police Department\nDepartment) to Mr. Tim Novak' s March 19, 2019, FOIA request violated FOIA. \n\nOn that date, Mr. Novak, on behalf of the Chicago Sun-Times, submitted a FOIA\n\nrequest to the Department seeking copies of all records regarding the death investigation of a\nnamed individual since the Department' s last disclosure of responsive records to him on February\n12, 2018. Among other things, Mr. Novak specifically requested records of communications\nbetween the Department and any federal agencies regarding the named individual' s death. On\nMarch 21, 2019, the Department\nrecords regarding the death investigation. Further, the Department denied the portion of Mr. \nNovak' s request seeking records of communications with federal agencies, citing section 7(1)( a) \nof FOIA ( 5 ILCS 140/ 7(1)(a) ( West 2018)). In its denial letter, the Department cited exemptions\n\ninformed Mr. Novak that it did not possess any additional\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. Tim Novak\nMr. Patrick Mozdzierz\nJune 5, 2023\nPage 2\n\n7(A) and 8 of the Federal FOIA ( 5 U.S.C. § 552(b)( 7)(A), (b)( 8) (West 2018)) as its basis for\nasserting the section 7(1)( a) exemption. On March 22, 2019, this office received Mr. Novak' s\nRequest for Review contesting the Department' s denial. \n\nOn March 28, 2019, this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide un-redacted copies of the responsive records and a detailed\nexplanation of the legal and factual bases for the applicability of section 7(1)( a) to the withheld\nrecords, including an explanation of how Federal FOIA exemptions 7(A) and 8 apply to the\nresponsive records. On April 8, 2019, the Department provided the requested materials; on April\n9, 2019, this office forwarded a copy of the Department' s answer to Mr. Novak. He did not\nreply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1.2 (West 2018). Section 3(a) of FOIA ( 5 ILCS 140/ 3(a) ( West 2018)) further provides: \nEach public body shall make available to any person for inspection or copying all public\nrecords, except as otherwise provided in Section 7 of this Act.\" The exemptions from disclosure\ncontained in section 7 of FOIA ( 5 ILCS 140/ 7 (West 2018)) are to be narrowly construed. See\nLieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 ( 1997). Bare\nconclusions without a detailed rationale do not satisfy a public body's burden of explaining how\nexemptions are applicable. See Rockford Police Benevolent and Protective Ass'n, Unit No. 6 v. \nMorrissey, 398 Ill. App. 3d 145, 151 ( 2d Dist. 2010) ( citing Illinois Education Ass'n v. Illinois\nState Board of Education, 204 Ill. 2d 456, 464 ( 2003)). \n\nSection 7(1)(a) of FOIA exempts from disclosure \"[ i]nformation specifically\n\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\" In connection with section 7(1)(a), the Department cited section 7(A) of the\nFederal FOIA, which exempts from disclosure, \" records or information compiled for law\nenforcement purposes, but only to the extent that the production of such law enforcement records\nor information ( A) could reasonably be expected to interfere with enforcement proceedings[.]\" \n\nThe Department offered no explanation for its assertion of Federal FOIA\n\nexemptions 7(A) and 8 other than \" there is a pending federal\nof our records, and our federal contact has requested that our agency not release any\n\ninvestigation relating to the subject\n\n\fMr. Tim Novak\nMr. Patrick Mozdzierz\nJune 5, 2023\nPage 3\n\ncommunications between our agency and any federal agency because release of these records\ncould interfere with enforcement proceedings relating to their investigation.\" 1\n\nThe Federal FOIA, however, is not applicable to Mr. Novak' s request because the\nis not a Federal \" agency\" subject to the requirements of Federal FOIA. See 5 U.S.C. \n\nDepartment\n551(1) (2018) ( defining \"' agency'\" as \" each authority of the Government of the United States, \nwhether or not it is within or subject to review by another agency,\" subject to certain exceptions) \nand 5 U.S.C. §552( f)(1) (2018) ( applying that definition to Federal FOIA). The Department\nis a\npublic body\" subject to the requirements of the Illinois FOIA. See 5 ILCS 140/ 2(a) ( West\n2020) ( defining \" public body\" to include \" all legislative, executive, administrative, or advisory\nbodies of the State, state universities and colleges, counties, townships, cities, villages, \nincorporated towns, school districts and all other municipal corporations, boards, bureaus, \ncommittees, or commissions of this State[ ]\") and 5 ILCS 140/ 1.2 (West 2020) (\" All records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"). \n\nTo the extent the Department\n\nintended to cite the corresponding law enforcement\n\nexemption in section 7(1)(d)(i) of FOIA, 2 that provision exempts from disclosure: \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\ni) interfere with pending or actually and reasonably\ncontemplated law enforcement proceedings conducted by any law\nenforcement or correctional agency that is the recipient of the\nrequest[.][ 3] \n\nThe classification of information as 'law enforcement' or 'investigatory' does not\n\nnecessarily foreclose access unless it can be shown, in a particular case, that disclosure would\ninterfere with law enforcement and would, therefore, not be in the public interest.\" Baudin v. \n\n1Letter from Julie Nistler, Police Records Supervisor/ FOIA Officer, City of Park Ridge Police\n\nDepartment, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office[] of the Attorney General\nApril 8, 2019). \n\n25 ILCS 140/ 7(1)(d)(i) (West 2018). \n\n3Because a literal reading of the phrase \" that is the recipient of the request\" would lead to\n\ninconvenient, unjust, or absurd results, a public body may assert a section 7(1)( d) exemption for records of other\npublic bodies involved in the same law enforcement proceeding or criminal\nKenilworth, 2019 IL App ( 1st) 170780, ¶ 33, 156 N.E.3d 480, 491- 92 ( 2019). \n\ninvestigation. Kelly v. Village of\n\n\fMr. Tim Novak\nMr. Patrick Mozdzierz\nJune 5, 2023\nPage 4\n\nCity of Crystal Lake, 192 Ill. App. 3d 530, 536 ( 2d Dist. 1989). Conclusory statements that the\ndisclosure of records would obstruct a law enforcement proceeding are insufficient to support the\nassertion of the pending law enforcement proceeding exemption. See Day v. City of Chicago, \n388 Ill. App. 3d 70, 74-77 (1st Dist. 2009). A public body must demonstrate how disclosure of\nrecords would interfere with or obstruct an investigation in order to properly withhold records\npursuant to section 7(1)(d)(i) of FOIA. The Attorney General has issued a binding opinion\nconcluding that the mere existence of a pending investigation does not demonstrate by clear and\nconvincing evidence that any records are exempt from disclosure. Ill. Att'y Gen. Pub. Acc. Op. \nNo. 17-001, issued March 14, 2017. See also Ill. Att'y Gen. PAC Req. Rev. Ltr. 33927, issued\nMay 6, 2015; Ill. Att'y Gen. PAC Req. Rev. Ltr. 30811, issued November 21, 2014; Ill. Att'y\nGen. PAC Req. Rev. Ltr. 26563, issued November 21, 2013. \n\nThe Department' s assertions that the responsive records are exempt in their\nentireties are generalized and conclusory; it did not provide clear and convincing evidence\ndemonstrating how disclosure of any or all of the specific records would interfere with any\npending investigation. Further, it is not apparent to this office how the withheld records would\ninterfere with any pending investigation. 4\n\ninstitutions[.]\" As noted above, the Federal FOIA does not apply to the\n\nThe Department also cited exemption 8 of the Federal FOIA, which exempts from\ndisclosure matters that are \" contained in or related to examination, operating, or condition reports\nprepared by, on behalf of, or for the use of an agency responsible for the regulation or\nsupervision of financial\nDepartment' s records. Exemption 8 of the Federal FOIA is substantially similar to section\n7(1)(t) of the Illinois FOIA, which exempts from disclosure \"[ i]nformation contained in or\nrelated to examination, operating, or condition reports prepared by, on behalf of, or for the use of\na public body responsible for the regulation or supervision of financial\ncompanies, or pharmacy benefit managers, unless disclosure is otherwise required by State\nlaw.\" 5\n\ninstitutions, insurance\n\nIn interpreting exemption 8 of the Federal FOIA, 6 the federal courts have\n\ndetermined that the exemption is intended to \"ensure the security of financial\nSpecifically, there was concern that disclosure of examination, operation, and condition reports\n\ninstitutions. \n\nprecludes this office from further identifying the nature of the records. 5 ILCS 140/ 9.5(c) (West 2020). \n\n4Because the Department provided the records to this office confidentially, section 9.5(c) of FOIA\n\n55 ILCS 140/ 7(1)(t) (West 2018). \n\n6Although interpretations of the Federal FOIA are not controlling, such precedents are considered\nby the courts in construing the Illinois FOIA because both statutes promote full disclosure of public records subject\ntot limited exceptions. See Margolis v. Director, Illinois Dep' t of Revenue, 180 Ill. App. 3d 1084, 1087 ( 1st Dist. \n1989). \n\n\fMr. Tim Novak\nMr. Patrick Mozdzierz\nJune 5, 2023\nPage 5\n\ncontaining frank evaluations of the investigated banks might undermine public confidence and\ncause unwarranted runs on banks.\" Consumers Union of U.S., Inc. v. Heimann, 589 F.2d 531, \n534 ( D.C. Cir 1978). The exemption is also intended \" to safeguard the relationship between the\nbanks and their supervising agencies. If details of the bank examinations were made freely\navailable to the public and to banking competitors, there was concern that banks would cooperate\nless than fully with federal authorities.\" Heimann, 589 F.2d at 534. In interpreting section\n7(1)(t) of the Illinois FOIA, this office has concluded that the exemption encompasses\ninformation submitted by financial\nGen. PAC Req. Rev. Ltr. 16976, issued March 26, 2012, at 4-5 (determining that internal\nmanuals, guides, and other training materials withheld by the Illinois Department of Financial\nand Professional Regulation were not exempt pursuant to section 7(1)(t), but that a database of\ninformation submitted by financial\nconnection with the licensing process could be withheld). \n\ninstitutions to regulators for examination purposes. Ill. Att'y\n\ninstitutions that was used by Department examiners in\n\nThe Department did not explain how the withheld records relate to any\n\nexamination, operating, or condition reports\" used by a financial regulator. Even if they do, it\ndoes not appear that disclosure of the records would reveal the details of any bank examination. \nTherefore, the Department did not meet its burden of establishing that the records are exempt in\ntheir entireties pursuant to section 7(1)(t) of FOIA. \n\nAccordingly, this office requests that the Department provide Mr. Novak with\n\ncopies of the withheld records; the Department may redact private information pursuant to\nsection 7(1)(b) of FOIA 7 and the identities of third parties pursuant to section 7(1)(c) of FOIA. 8\n\n75 ILCS 140/ 7(1)(b) (West 2021 Supp.), as amended by Public Acts 102- 752, effective January 1, \n\n2023; 102-753, effective January 1, 2023; 102- 776, effective January 1, 2023; 102- 791, effective May 13, 2022; \n102- 1055, effective June 10, 2022. \n\n85 ILCS 140/ 7(1)(c) (West 2021 Supp.), as amended by Public Acts 102-752, effective January 1, \n\n2023; 102- 753, effective January 1, 2023; 102- 776, effective January 1, 2023; 102- 791, effective May 13, 2022; \n102- 1055, effective June 10, 2022. \n\n\fr. Tim Novak\nMr. Patrick Mozdzierz\nJune 5, 2023\nPage 6\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 843- 0564 or laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n57377 f 71a improper 71di improper 71t improper pd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Death investigation records and police-federal communications","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":933,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-08-01","case_number":null,"request_numbers":["57517"],"title":"Chicago Police Department properly denied body camera recordings under FOIA and Body Camera Act","filename":"57517, issued August 1, 2019.pdf","rel_path":null,"word_count":2206,"summary":"The requester sought body camera recordings from the Chicago Police Department, which the Department denied citing state law prohibitions. The PAC determined that the Department properly withheld the records because the requester did not meet the statutory requirements for access under the Law Enforcement Officer-Worn Body Camera Act.","plain_summary":"An attorney sought body-camera recordings of a traffic accident on behalf of a client, which the police department withheld under the Body Camera Act. The PAC determined the client did not appear on the recordings and was therefore not the \"subject of the encounter\" entitled to obtain them, and the recordings were not otherwise flagged for release under the Act's disclosure triggers. The department's withholding did not violate FOIA.","holding":"The Chicago Police Department did not improperly withhold the requested body camera recordings.","legal_question":"Whether the Chicago Police Department properly denied a FOIA request for body camera recordings pursuant to section 7(1)(a) of FOIA and the Law Enforcement Officer-Worn Body Camera Act.","disposition":"no_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7(1)(a)","50 ILCS 706/10-20(b)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7.5(cc)"],"public_body":"Chicago Police Department","requesting_party":"Mr. Anthony L. Russo, Jr. (Russo & Russo, Ltd.)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request concerned officer-worn body camera recordings related to a specific traffic crash report.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_cc/Definition-of-bodily-harm/57517%2C%20issued%20August%201%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["body camera","police records","FOIA denial","traffic crash report"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nAugust\n\n1, 2019\n\nMr. Anthony L. Russo, Jr. \nRusso & Russo, Ltd. \n\n1761 South Naperville Road, Suite 101\n\n[street address redacted for site publication -- see original PDF]\nVia electronic mail\n\nMs. Dana O' Malley\nAssistant General Counsel\n\nChicago Police Department\n3510 South Michigan Avenue\n\nChicago, Illinois 60653- 1020\n\npacola@chicagopolice. org\n\nRE: FOIA Request for Review — 2019 PAC 57517\n\nDear Mr. Russo and Ms. O' Malley: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)). For the reasons explained below, the\nPublic Access Bureau concludes that the Chicago Police Department ( CPD) did not improperly\nwithhold officer -worn body camera recordings responsive to Mr. Anthony L. Russo' s FOIA\n\nrequest. \n\nOn March 6, 2019, Mr. Russo, on behalf of Russo & Russo, Ltd., and its client\n\nAmanda Schut, submitted a FOIA request to CPD seeking copies of body camera recordings\nreferred to in traffic report 2018 JB420531. On March 20, 2019, CPD denied the request\npursuant to section 7( 1)( a) of FOIA ( 5 ILCS 140/ 7( 1)( a) ( West 2017 Supp.), as amended by\nPublic Act 100- 732, effective August 3, 2018), which exempts from disclosure \"[\nspecifically prohibited from disclosure by federal or State law or rules or regulations\nimplementing federal or State law.\" In support of its denial of the disclosure of the requested\nrecordings under section 7( 1)( a), CPD cited section 10- 20( b) of the Law Enforcement Officer - \nWorn Body Camera Act ( Body Camera Act) ( 50 ILCS 706/ 10- 20( b) ( West 2016)). On April 10, \n2019, the Public Access Bureau received a completed Request for Review from Mr. Russo\n\niln£ormation\n\n500 South Second Street, Springfield, \nIllinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601 South University Ave., Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Anthony L. Russo, Jr. \nMs. Dana O' Malley\nAugust\n\n1, 2019\n\nPage 2\n\ncontesting CPD' s denial of the recordings. \nthat his client \" sustained personal\nSeptember 3, 2018.\"' \n\nIn particular, Mr. Russo' s Request\n\nfor Review stated\ninjuries in a motor vehicle accident in the City of Chicago on\n\nOn April 10, 2019, the Public Access Bureau sent a copy of the Request for\n\nReview to CPD and asked it to provide copies of the officer -worn body camera recordings it had\nwithheld together with a detailed explanation of the factual and legal bases for its assertion that\nthe recordings are exempt from disclosure under section 7( 1)( a) of FOIA. This office also asked\nCPD to clarify whether Ms. Schut was the subject of the encounter captured on the recordings. \nOn April 30, 2019, CPD provided this office with a written answer. On May 2, 2019, the Public\nAccess Bureau received the responsive body camera recordings from CPD. On May 2, 2019, \nthis office forwarded to Mr. Russo a copy of CPD' s written answer; he did not reply. On July 16, \n2019, CPD provided this office with a supplemental response. \n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. \nIllinois Department ofPublic Health, 218 111. 2d 390, 415 ( 2006). A public body \" has the burden\nof proving by clear and convincing evidence\" \n140/ 1. 2 ( West 2016). \n\nthat a record is exempt\n\nfrom disclosure. \n\n5 ILCS\n\nSection 7. 5( cc) of FOIA and Section 10- 20( b) of the Body Camera Act\n\nIn its response to the FOIA request, CPD cited section 7( 1)( a), the provision of\nFOIA that generally applies to records that are specifically prohibited from disclosure by State\nlaw. However, section 7. 5( cc) of FOIA ( 5 ILCS 140/ 7. 5( cc) ( West 2017 Supp.), as amended by\nPublic Acts 100- 646, effective July 27, 2018; 100- 863, effective August 14, 2018; 100- 887, \neffective August 14, 2018; 100- 690, effective January 1, 2019) expressly exempts from\ninspection and copying \"[ r] ecordings made under the Law Enforcement Officer -Worn Body\nCamera Act, except\n\nto the extent authorized under that Act.\" ( Emphasis added.) Section 10- \n\n20( b) of the Body Camera Act provides: \n\nb) Recordings made with the use of an officer -worn body\n\ncamera are not subject to disclosure under the Freedom of\nInformation Act, except that: \n\nthe Attorney General ( March 25, 2019), at 1. \n\nLetter from Anthony L. Russo, Jr., Russo & Russo, Ltd., to Public Access Counselor, Office of\n\n\fMr. Anthony L. Russo, Jr. \nMs. Dana O' Malley\nAugust\n\n1, 2019\n\nPage 3\n\n1) \n\nif the subject of the encounter has a reasonable\n\nexpectation of privacy, at the time of the recording, any\nrecording which is flagged, due to the filing of a complaint, \ndischarge of a firearm, use of force, arrest or detention, or\nresulting death or body harm, shall be disclosed in\naccordance with the Freedom of Information Act if: \n\nA) the subject of the encounter captured on • \n\nthe recording is a victim or witness; and\n\nB) the law enforcement agency obtains\nwritten permission of the subject or the subject' s\n\nlegal representative; \n\n2) except as provided in paragraph ( 1) of this\n\nsubsection ( b), any recording which is flagged due to the\nfiling of a complaint, discharge of a firearm, use of\nforce, arrest or detention, or resulting death or bodily\nharm shall be disclosed in accordance with the Freedom\nof Information Act; and\n\n3) upon request, the law enforcement agency shall\n\ndisclose, in accordance with the Freedom of\n\nInformation Act, the recording to the subject of the\nencounter captured on the recording or to the subject' s\nattorney, or the officer or his or her legal representative. \nEmphasis added.) \n\nSection 10- 20( a)( 7) of the Body Camera Act ( 50 ILCS 706/ 10- 20( a)( 7) ( West 2016)) provides\nthe grounds for retaining body camera recordings beyond 90 days: \n\n7) Recordings made on officer -worn cameras must be\n\nretained by the law enforcement agency or by the camera vendor\nused by the agency, on a recording medium for a period of 90\ndays. \n\nB) Following the 90 -day storage period, any and\n\nall recordings made with an officer - worn body camera must\n\n\fMr. Anthony L. Russo, Jr. \nMs. Dana O' Malley\nAugust\n\n1, 2019\n\nPage 4\n\nbe destroyed, unless any encounter captured on the\nrecording has been flagged. An encounter\nflagged when: \n\nis deemed to be\n\ni) a formal or informal complaint has been\n\nfiled; \n\nii) the officer discharged his or her firearm\n\nor used force during the encounter; \n\niii) death or great bodily harm occurred\n\nto any person in the recording; \n\niv) the encounter resulted in a detention or\n\nan arrest, excluding traffic stops which resulted in\nonly a minor traffic offense or business offense; \n\nv) the officer is the subject of an internal\ninvestigation or otherwise being investigated for\npossible misconduct; \n\nvi) the supervisor of the officer, prosecutor, \n\ndefendant, or court determines that the encounter\nhas evidentiary value in a criminal prosecution; or\n\nvii) the recording officer requests that the\n\nvideo be flagged for official purposes related to his\nor her official duties. ( Emphasis added.) \n\nThe Attorney General has held that under section 10- 20( b)( 3) of the Body Camera\n\nIll. Att' y Gen. Pub. Acc. Op. No 19- 001, issued January 9, 2019, at 10. \n\nAct \" a subject of the [ encounter captured on the] recording and the officer, and their legal\nrepresentatives may obtain the recording in accordance with FOIA, regardless of whether or why\nit has been flagged.\" \nThe Public Access Bureau has defined the \" subject of the encounter\" as the person who appeared\nin the recording and \" interacted with a law enforcement officer in the course of a law\nenforcement activity.\" Ill. Att' y Gen. PAC Req. Rev. Ltr. 48793, at 4 ( concluding that a police\nofficer who was not captured on the body camera recordings at issue, but whose conduct was\ndiscussed on the recordings, was not authorized to receive copies of the recordings under section\n10- 20( b)( 3) of the Body Camera Act because the officer \" d[ id] not appear on the recordings.\"). \n\n\fMr. Anthony L. Russo, Jr. \nMs. Dana O' Malley\nAugust\n\n1, 2019\n\nPage 5\n\nIn its supplemental\n\nresponse to this office, CPD stated that Ms. Schut was not\n\nindicated that Ms. Shut was not on the scene when\n\ncaptured on the recordings because she had been transported to the hospital before the recordings\nbegan. The narrative of the traffic report\nofficers arrived: \" Driver of Unit # 2 [ Amanda Shut] was transported to Community First Hospital\nby CFD and was subsequently treated and released by Dr. Akbarnia prior to R/ O' s arrival. * * * \nDriver information exchange card was mailed to Unit # 2 as parties left hospital/ scene prior to\nR/ O' s arrival.\" 2 Further, this office' s review of the withheld recordings confirmed that Ms. Shut\ndid not interact with any law enforcement officers at the scene because she had already been\ntransported to the hospital before the recordings commenced. Because the plain language of\nsection 10- 20( b)( 3) of the Body Camera Act permits a person who is the subject of the encounter\ncaptured on the recording or that person' s attorney to request a copy of the recording under FOIA\nand because Ms. Schut was not captured on the recording, Mr. Russo is not entitled to the\nrecording under section 10- 20( b)( 3). Accordingly, this office must consider whether the\nrecording is subject to disclosure under section 10- 20( b)( 2) of the Body Camera Act. \n\nSection 10- 20( b)( 2) states that flagged recordings which have been flagged\n\nbecause a complaint was filed, a firearm was discharged, force was used, an arrest or detention\noccurred, \" or resulting death or bodily harm\" are subject to disclosure under FOIA. The general\nconditions that cause a recording to be flagged in section 10- 20( a)( 7)( B) of the Body Camera Act\nare similar but not identical to the specific conditions that cause a flagged recording to be subject\nto disclosure under FOIA in section 10- 20( b)( 2). Where there is a general statutory provision\nand a specific statutory provision in the same act relating to the same subject, the specific\nprovision controls and should be applied. McFatridge v. Madigan, 2013 IL 113676, ¶ 22, 989\nN. E. 2d 165, 171 ( 2013). Thus, section 10- 20( b)( 2) limits rather than expands the types of\nflagged recordings that are subject\nrecording is not the subject of the encounter captured on the recording, the subject' s attorney, the\nofficer, or the officer's attorney. \n\nto disclosure under FOIA when the person seeking the\n\nAs noted above, the conditions for a recording being flagged are outlined in\n\nsection 10- 20( a)( 7)( B). Among the conditions is \" death or great bodily harm occurred to any\nperson in the recording\" in section 10- 20( a)( 7)( B)( iii) of the Body Camera Act. Although the\nBody Camera Act does not define the term \" great bodily harm,\" Ms. Schut does not appear in the\nrecordings. Thus, the recordings cannot be considered to be \" flagged\" based on section 10- \n20( a)( 7)( B)( iii) regardless of whether she sustained great bodily harm. Further, the available\ninformation and this office' s review of the recordings indicate that none of the other conditions\nfor recordings to be flagged occurred when the officers responded to the scene of the accident. \nBecause the recordings were not flagged due to death or great bodily harm occurring to a person\n\nJB420531. \n\n2Narrative, Illinois Traffic Crash Report, Chicago Police Department, R. D. Number 2018\n\n\fMr. Anthony L. Russo, Jr. \nMs. Dana O' Malley\nAugust\n\n1, 2019\n\nPage 6\n\nwho appeared in the recordings and because Mr. Russo is not among the persons who are\nauthorized to obtain copies of non -flagged recordings under section 10- 20( b)( 3) of the Body\nCamera Act, this office concludes that CPD did not improperly withhold copies of the body\ncamera recordings from Mr. Russo pursuant to section 7. 5( cc) of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This correspondence serves to close this matter. If\nyou have questions, you may contact me at ( 217) 782- 9054 or the Springfield address listed at\nthe bottom of the first page. \n\nVerytruly yours, \n\nT. HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n57517 f 75cc proper pd\n\ncc: \n\nVia electronic mail\n\nMr. Yevgeniy (\" Eugene\") Bolotnikov\nAssociate Staff Attorney\nChicago Police Department\nOffice of Legal Affairs\n\n3510 South Michigan Avenue, 5th Floor\n\nChicago, Illinois 60653\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A lawyer requested body camera footage from the Chicago Police Department on behalf of a client. The Department refused to release the footage, arguing that state law prohibited them from doing so. The Attorney General's office agreed with the Department, finding that the requester was not authorized to receive the specific recordings under the Law Enforcement Officer-Worn Body Camera Act.","card_headline":"Police body-camera recordings of a traffic crash","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":934,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-04-15","case_number":null,"request_numbers":["57623"],"title":"University of Illinois FOIA extension not ripe for PAC review because request not yet denied","filename":"57623, issued April 15, 2019.pdf","rel_path":null,"word_count":559,"summary":"The requester challenged the University of Illinois's decision to extend the FOIA response deadline, but the PAC determined it lacked jurisdiction because the request had not yet been denied.","plain_summary":"A requester complained to the Attorney General because the University of Illinois used a legal extension to delay answering their FOIA request. The Attorney General's office closed the case, explaining that they can only review complaints where a request has been formally denied, not just delayed.","holding":"The PAC determined that no further action was warranted because the requester filed a Request for Review before the public body had actually denied the FOIA request.","legal_question":"Does the Public Access Counselor have jurisdiction to review a FOIA request that has been extended by a public body but not yet denied?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/9.5"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"University of Illinois","requesting_party":null,"pac_outcome":"Closed due to lack of jurisdiction","pac_law_type":null,"subject_category":"fees","subject_description":"The requester challenged the University's invocation of a statutory five-day extension to respond to a FOIA request.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_e/Statutory-right-to-extend-time-for-response/57623%2C%20issued%20April%2015%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["FOIA response deadline","extension","jurisdiction","denial"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nApril 15, 2019\n\nKWAME RAOUL\n\nATTORNEY. GENERAL\n\nVia electronic marl\n\nRE: \n\nFOIA Request\n\nfor Review — 201.9 PAC 57623\n\nDear\n\nThis determination is issued pursuant\n\nto section 9. 5( c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)). For the reasons set forth below, the\nPublic Access Bureau has determined that no further action is warranted as to this matter. \n\nOn April\n\n1, 2019, you submitted a FOIA request to the University of Illinois\n\nUniversity) seeking all records concerning a particular employee. The University informed you\nthat because your FOIA request was submitted after business hours on April\n1, 2019, it was not\nreceived by the University until April 2, 2019. On April 9, 2019, the University extended the\ntime for its response to your FOIA request by five business days pursuant to sections 3( e)( i) and\n3( e)( vi) ofFOIA ( 5 ILCS 140/ 3( e)( i),( e)( vi) ( West 2016)) The University stated that it would\nrespond to your FOIA request by April 16, 2019. The same day, you filed this Request for\nReview contending that the University improperly extended the response period. \n\nSection 9. 5( a) of FOIA ( 5 ILCS 140/ 9. 5( a) ( West 2016)) provides that \"[ a] person\n\nwhose request to inspect or copy a public record is denied by a public body * * * may file a\nrequest for review with the. Public Access Counselor[.]\" .( Emphasis added.) Your Request\nfor\nReview does not allege that your request was denied, but rather that the University improperly\nclaimed the statutory extension. The Illinois Appellate Court has determined that, \" the plain\nlanguage of FOIA gives a public body in receipt of a records request\nthe unilateral ability to\nextend its own response deadline by five days.\" Sargent Shriver National Center on Poverty\nLaw, Inc. v, The Board of Education of the City of Chicago, 2018 IL App ( 1st) 171846, ¶ 25, \n\n2018). Based on the available information, the University timely exercised\nits statutory right to extend the time for response, and had not yet denied your FOIA request at\n\nN.E3d _ (\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 TTY: ( 800) 964- 3013 • Fax: ( 312) 81473806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fApril 15, 2019\nPage 2\n\nthe time you submitted your Request for Review. Accordingly, because this office' s lacks\njurisdiction to review this matter, we have determined that no further inquiry is warranted in this\n\nmatter. \n\nThis file is closed. If you have any questions, you may contact me at ( 217) 782- \n9054, mhartman@atg. state.il.us, or the Springfield address listed on the first page of this letter. \n\nVery truly yo rs, \n\nRTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n57623 f no fi war univ\n\ncc: \n\nVia electronic mail\nMr. Thomas P Hardy\nExecutive Director and Chief Records Officer\nUniversity of Illinois\n108 Henry Administration Building\n506 South Wright Street, MC -370\nUrbana, Illinois 61801\nfoia@uillinois. edu\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A university's five-day extension to respond to a FOIA request","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":935,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-04-29","case_number":null,"request_numbers":["57749"],"title":"Illinois State Police properly denied traffic stop data request under 7.5(k)","filename":"57749, issued April 29, 2019.pdf","rel_path":null,"word_count":985,"summary":"The requester sought traffic stop data from the Illinois State Police, including driver and officer identification information. The PAC determined that the requested information is exempt from disclosure under section 7.5(k) of FOIA and section 11-212(f) of the Illinois Vehicle Code.","plain_summary":"A requester asked the Illinois State Police for detailed records of traffic stops in Boone County, including information that could identify drivers and officers. The Attorney General's office found that state law specifically prohibits the release of this identifying information. Therefore, the police were correct to deny the request, and the case is closed.","holding":"The Illinois State Police properly denied the request because the requested data is prohibited from disclosure by state law.","legal_question":"Whether the Illinois State Police properly denied a FOIA request for traffic stop data containing driver and officer identification information pursuant to section 7.5(k) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7.5(k)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(k)"],"public_body":"Illinois State Police","requesting_party":"Ms. Holly M. Ryan","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought traffic stop data including driver and officer identification information compiled under the Illinois Vehicle Code.","ocr_status":"ok","ocr_quality":96.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_k/57749%2C%20issued%20April%2029%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["traffic stops","police records","driver identification","FOIA denial"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nApril 29, 2019\n\nVia electronic mail\n\nMs. Holly M. Ryan\nEisenberg Law Offices; S. C. \n308 East Washington Avenue\n\nP. O. Box 1069\n\n[street address redacted for site publication -- see original PDF]\nholly@eisenberglaw. org\n\nRE: \n\nFOIA Request for Review — 2019 PAC 57749\n\nDear Ms. Ryan: \n\nThis determination is issued pursuant to section 9. 5( c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)). For the reasons set forth below, the\nPublic Access Bureau has determined that no further action is warranted as to this matter. \n\nOn March 21, 2019, you submitted a FOIA request\n\nto the Illinois State Police\nISP) seeking data concerning all traffic stops in Boone County, Illinois between January 1, \n2013, and January 1, 2018, sorted by the race of the driver. In particular, your FOIA request\nsought the reason for the stop, whether a search was conducted, the reason for the search, \nwhether contraband was found in the search, the type of contraband. found, and the outcome of\nthe search, and information concerning the officer conducting the stop. On April 18, 2019, the\nISP responded by denying your request pursuant to section 7. 5( k) of FOIA ( 5 ILCS 140/ 7. 5( k) \nWest 2017 Supp.), as amended by Public Acts 100- 646, effective July 31, 2018; 100- 863, \neffective August 14, 2018; 100- 887, effective August 14, 2018). On April 18, 2019, the Public\nAccess Bureau received your Request for Review contesting the denial of your FOIA request. \n\nSection 7. 5( k) of FOIA exempts from inspection and copying \" law enforcement\n\nofficer identification information or driver identification information compiled by a law\nenforcement agency or the Department of Transportation under Section 11- 212 of the Illinois\nVehicle Code.\" Section 11- 212( a) of the Illinois Vehicle Code ( 625 ILCS 5/ 11- 212( a) ( West\n2016)) states: \n\n500 South Second Street, Springfield, \n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806 • \n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877). 675- 9339 • Fax: ( 618) 529- 6416\n\nIllinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n\fMs. Holly M. Ryan\nApril 29, 2019\n\nPage 2\n\nWhenever a State or local\n\nlaw enforcement officer issues a\n\nuniform traffic citation or warning citation for an alleged violation\nof the Illinois Vehicle Code, he or she shall record at least the\nfollowing: \n\n1) \n\nthe name, address, gender, and the officer' s subjective\ndetermination of the race of the person stopped; the person' s race\nshall be selected from the following list: American Indian or\nAlaska Native, Asian, Black or African American, Hispanic or\nLatino, Native Hawaiian or Other Pacific Islander, or White; \n\n2) the alleged traffic violation that led to the stop of the\n\nmotorist; \n\n3) the make and year of the vehicle stopped; \n4) the date and time of the stop, beginning when the\n\nvehicle was stopped and ending when the driver is free to leave or\ntaken into physical custody; \n\n5) the location of the traffic stop; \n5. 5) whether or not a consent search contemporaneous to\n\nthe stop was requested of the vehicle, driver, passenger, or\npassengers; and, if so, whether consent was given or denied; \n\n6) whether or not a search contemporaneous to the stop\nwas conducted of the vehicle, driver, passenger, or passengers; \nand, if so, whether it was with consent or by other means; \n\n6. 2) whether or not a police dog performed a sniff of the\n\nvehicle; and, if so, whether or not the dog alerted to the presence of\ncontraband; and, if so, whether or not an officer searched the\n\nvehicle; and, if so, whether or not contraband was discovered; and, \nif so, the type and amount of contraband; \n\n6. 5) whether or not contraband was found during a search; \n\nand, if so, the type and amount of contraband seized; and\n\n7) the name and badge number of the issuing officer. \n\nSection 11- 212( 0 of the Illinois Vehicle Code ( 625 ILCS 5/ 11- 212( 0 ( West 2016)) further\nprovides that: \n\nAny law enforcement officer identification information\n\nand driver or pedestrian identification information that is\ncompiled by any law enforcement agency or the Illinois\nDepartment of Transportation pursuant to this Act for the\n\npurposes of fulfilling the requirements of this Section shall be\n\nconfidential\n\nand exempt\n\nfrom public inspection and copying, as\n\n\fs. Holly M. Ryan\nApril 29, 2019\n\nPage 3\n\nprovided under Section 7 of the Freedom of Information Act, and\nthe information shall not be transmitted to anyone except as needed\n\nto comply with this Section. ( Emphasis added.) \n\nThe plain.language of section 11- 212( 0 of the Illinois Vehicle Code prohibits the disclosure of\ndriver and law enforcement officer identification information compiled by a law enforcement\nagency when complying with that. section. Your FOIA request sought the driver identification\ninformation data compiled by ISP for all traffic stops in Boone County over a five year period. \nSection 11- 212( 0 of the Illinois Vehicle Code and section 7. 5( k) of FOIA specifically prohibit\nthe disclosure of the data that youhave requested. Accordingly, this office has determined that\nno further inquiry is warranted in this matter. \n\nThis file is closed. If you have any questions, you may contact me at ( 217) 782- \n9054, mhartman@atg. state. il.us, or the Springfield address listed on the first page of this letter. \n\nVery truly yours, \n\nA\n\nI4A1( \n\nAssistant Attorney General\nPublic Access Bureau\n\n57749 f no fi war sa\n\ncc: \n\nVia electronic mail\n\nMs. Erin Davis\n\nFreedom of Information Officer\n\nIllinois State Police\n\n801 South Seventh Street, Suite 1000- S\n\nSpringfield, Illinois 62703\n\nerin_ davis@isp. state. il. us\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Traffic stop data with driver and officer identifications","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":936,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-02-01","case_number":null,"request_numbers":["58120"],"title":"Metropolitan Water Reclamation District mostly properly withheld investigatory records under 7(1)(d)(ii)","filename":"58120, issued February 1, 2022.pdf","rel_path":null,"word_count":1630,"summary":"The requester sought records regarding an AAA freight site in Merrionette Park, and the PAC determined that the Metropolitan Water Reclamation District of Greater Chicago properly withheld most records under FOIA exemptions but failed to provide certain non-exempt information.","plain_summary":"A requester asked for documents related to a specific freight site that had received violations. The District denied the request, claiming the records were part of an ongoing investigation. The Attorney General's office found that while the District was mostly correct to withhold the records, they should have released some non-sensitive information.","holding":"The District properly withheld most records under section 7(1)(d)(ii), but the PAC determined that the District should have disclosed certain non-exempt portions of the requested documents.","legal_question":"Whether the Metropolitan Water Reclamation District of Greater Chicago properly invoked section 7(1)(d)(ii) of FOIA to withhold records related to an ongoing investigation.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7(1)(d)(ii)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)(ii)","7(1)(c)"],"public_body":"Metropolitan Water Reclamation District of Greater Chicago","requesting_party":null,"pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"investigatory records","subject_description":"The request concerned documents, reports, and communications regarding an AAA freight site that had been issued environmental or zoning violations.","ocr_status":"ok","ocr_quality":90.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_ii/58120%2C%20issued%20February%201%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["investigatory records","FOIA denial","environmental violations","private information"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nFebruary 1, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. James B. Murray, Jr. \nHead Assistant Attorney and FOIA Officer\nMetropolitan Water Reclamation District of Greater Chicago\n100 East Erie Street\nChicago, Illinois 60611\nmurrayjl@mwrd. org\n\nRE: FOIA Request for Review – 2019 PAC 58120; District FOIA No. 19- 131\n\nDear\n\nand Mr. Murray: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the Metropolitan Water Reclamation District of Greater\nChicago (District) did not improperly withhold most of the records responsive to\n\nApril 28, 2019, FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the District\n\nseeking copies of \"all documents, notes, reports, videos, pictures, proposals, and communication\nregarding an AAA freight located in Merrion[ e] tte Park[,] Illinois[,]\" since January 15, 2019. 1\n\nstated that \"[ t]his is a site [for which] current violations have been issued.\" 2\nto\n\nOn May 6, 2019, the District extended the time for its response by five business days pursuant\nsection 3(e)( vi) of FOIA (5 ILCS 140/3(e)( vi) (West 2018)). On May 13, 2019, the District\ndenied\n\nrequest in its entirety pursuant to section 7(1)( d)( ii) of FOIA ( 5\n\n1FOIA request submitted by\n\nto FOIARequest@mwrd.org (April 28, 2019). \n\n2FOIA request submitted by\n\nto FOIARequest@mwrd.org (April 28, 2019). \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. James B. Murray, Jr. \nFebruary 1, 2022\nPage 2\n\nILCS 140/7(1)(d)(ii) (West 2018)). On May 15, 2019, \nRequest for Review contesting the District' s denial. \n\nsubmitted this\n\nOn May 21, 2019, this office forwarded a copy of the Request for Review to the\n\nreview, together with a detailed explanation of the factual and legal bases for the\n\nDistrict and asked it to provide this office with unredacted copies of the withheld records for our\nconfidential\napplicability of section 7(1)(d)(ii) of FOIA. On May 31, 2019, the District provided this office\nwith the requested materials, including both a complete version of its response for this office' s\nconfidential review and a redacted version for\n\nThe District also provided\n\nwith copies of certain responsive e- mails and photographs. On June 3, \n2019, this office forwarded a copy of the redacted version of the District's written response to\n\nshe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Dep' t of Public Health, 218 Ill. 2d 390, 415 ( 2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees of Southern Illinois Univ., 176 Ill. 2d 401, 408 ( 1997). \n\nSection 7(1)( d)( ii) of FOIA exempts from disclosure records \" created in the\n\ncourse of administrative enforcement proceedings,\" to the extent that their disclosure would\ninterfere with active administrative enforcement proceedings conducted by the public body that\nis the recipient of the request[.]\" In its non-confidential response in this matter, the District\nargued it properly withheld records created in an active administrative enforcement proceeding\nconcerning the development of the property at issue without the proper permits. The District\nexplained it opened an investigation into the specified site regarding violations of the District' s\nWatershed Management Ordinance (WMO), and issued a violation report advising the property\nowner of the alleged violation on July 25, 2018. The District described the initial phase of the\nadministrative enforcement process under the Ordinance as follows: \n\nThe WMO governs the issuance of permits to entities\nseeking to develop property within the jurisdiction of the District. \nThose permits regulate the construction of sewerage systems and\ndetention of water on developed property. * * * When violations of\nthe WMO are discovered, enforcement is initiated. Those\nenforcement actions involved a multi- step process with the goal of\nputting the violator on notice of the violation and working with the\n\n\fMr. James B. Murray, Jr. \nFebruary 1, 2022\nPage 3\n\nparty to bring about compliance. If compliance cannot be\nachieved, the District will bring a Show Cause Action before a\nHearing Officer[.][3] \n\nOnce this enforcement process started, the District explained, it exchanged internal and external\ne-mails constituting \" the investigatory and fact finding phase of the proceedings that will form\nthe basis for determining how best to proceed with the enforcement action.\" 4 The District argued\nthat disclosure of these e- mails could have jeopardized its enforcement proceeding \" by\nprematurely revealing the nature, scope, direction and focus of the District's investigation to an\nunknown third- party who could then use the information to negatively impact the District' s\nenforcement action.\" 5 The Department argued that this matter is similar to Stein v. U.S. \nSecurities & Exchange Comm' n, 266 F. Supp. 3d 326 ( D.D.C. 2017)), in which a Federal district\ncourt concluded that e-mails from Securities and Exchange Commission (SEC) investigations\nwere exempt under the Federal FOIA exemption for administrative enforcement proceedings. \n\nIt is uncontested that the District was conducting an active administrative\n\nenforcement proceeding at the time of the request; rather, the issue is whether disclosure of the\nresponsive records would have interfered with those proceedings. Based on its confidential\nreview of the e-mails provided by the District in Exhibit B, this office agrees that it was\nreasonable to conclude that disclosure of most of these records could have compromised the\nadministrative enforcement proceeding. Some of these e- mails contained in-depth discussions\nabout the District's actions going forward.6 These e-mails are similar to the internal SEC e-mails\nfound to be exempt in Stein. See Stein, 266 F. Supp. 3d at 347. If disclosed to an individual\noutside the District, these e-mails could have interfered with how the District proceeded with its\ninvestigation into the WMO violations. Therefore, this office concludes that most of the\nwithheld e-mails are exempt from disclosure under section 7(1)(d)(ii) of FOIA. \n\n3Letter from James B. Murray, Jr., Head Assistant Attorney/FOIA Officer, Metropolitan Water\n\nReclamation District of Greater Chicago, to Leo Draws, Assistant Attorney General, Public Access Bureau (May 31, \n2019), at 3. \n\n4Letter from James B. Murray, Jr., Head Assistant Attorney/FOIA Officer, Metropolitan Water\n\nReclamation District of Greater Chicago, to Leo Draws, Assistant Attorney General, Public Access Bureau (May 31, \n2019), at 4. \n\n5Letter from James B. Murray, Jr., Head Assistant Attorney/ FOIA Officer, Metropolitan Water\n\nReclamation District of Greater Chicago, to Leo Draws, Assistant Attorney General, Public Access Bureau ( May 31, \n2019), at 5. \n\n6E- mail from Gabrielle Giamarusti, [ Senior] Legal Assistant, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Leo Draws, Assistant Attorney General, Public Access Bureau (May 31, 2019). See\npages 39-44 of attachment titled Confidential Group Ex B.pdf. \n\n\fMr. James B. Murray, Jr. \nFebruary 1, 2022\nPage 4\n\nOn the other hand, the District did not demonstrate by clear and convincing\n\nevidence that the remaining e- mails, if disclosed, would have interfered with its enforcement\nproceeding. In particular, this office points to e-mails exchanged between District staff, the\nproperty owner, and his legal counsel. 7 Although related to its investigation, these e-mails\nsimply relay facts about the alleged WMO violations and do not describe the District's internal\nactions or opinions about this proceeding. The District' s speculation that a third party FOIA\nrequester could use the external e-mails to negatively impact the enforcement proceeding is\nvague and conclusory. Accordingly, this office concludes that the District did not sustain its\nburden of showing, by clear and convincing evidence, that all of the e-mails sought by\n\nare exempt from disclosure under section 7(1)( d)( ii) of FOIA. \n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat the District provide\nfootnote seven, subject to redaction of \" private information\" pursuant\n5 ILCS 140/7(1)(b) (West 2018)).8\n\nwith copies of the responsive e-mails identified in\nto section 7(1)( b) of FOIA\n\n7E- mail from Gabrielle Giamarusti, [ Senior] Legal Assistant, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Leo Draws, Assistant Attorney General, Public Access Bureau (May 31, 2019). See\npages 2-4, 10-15, 25-29, and 34-38 of attachment titled Confidential Group Ex B.pdf. \n\n8Section 7(1)(b) of FOIA exempts from disclosure \"[ p]rivate information, unless disclosure is\n\nrequired by another provision of this Act, a State or federal law or a court order.\" \" Private information\" is defined\nas: \n\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\nfinancial information, passwords or other access codes, medical records, home\nor personal telephone numbers, and personal email addresses. Private\ninformation also includes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of attribution to\nany person. 5 ILCS 140/2(c-5) (West 2020). \n\n\fMr. James B. Murray, Jr. \nFebruary 1, 2022\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\nc.lucentemccullough@ilag.gov or the Chicago address on the first page of this letter. This letter\nserves to close this matter. \n\nVery truly yours, \n\nCHRISTINA M. LUCENTE- MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n58120 f 71dii proper improper reg auth\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Records on environmental and zoning violations at a freight site","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":937,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-12-15","case_number":null,"request_numbers":["58473"],"title":"Wauconda School District 118 partially violated FOIA in redacting settlement agreement as student records","filename":"58473, issued December 15, 2023.pdf","rel_path":null,"word_count":2467,"summary":"The Daily Herald requested a settlement agreement between a school district and a student's family, which the District redacted citing student record privacy laws. The PAC determined that while some redactions were appropriate to protect student identity, others were improper and must be disclosed.","plain_summary":"A reporter asked a school district for a copy of a legal settlement agreement involving a student. The school district blacked out large portions, claiming they were protected student records under state and federal law. The Illinois Attorney General's office reviewed the document and found that the district did not prove by clear and convincing evidence that all of the redacted information was exempt from disclosure, noting that some limited information did not appear to be individually attributable to any particular student. The determination does not order the district to release any specific information.","holding":"","legal_question":"Whether a school district properly redacted a settlement agreement under FOIA exemptions 7(1)(a), 7(1)(b), and 7(1)(c) by claiming the information constituted protected student records.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)","7.5"],"public_body":"Wauconda Community Unit School District 118","requesting_party":"Mr. Russell Lissau, Daily Herald","pac_outcome":"Partial violation found; records ordered disclosed","pac_law_type":null,"subject_category":"student records","subject_description":"The request concerned a settlement agreement between a school district and a student's family.","ocr_status":"ok","ocr_quality":93.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2.20/58473%2C%20issued%20December%2015%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["settlement agreement","student records","ISSRA","FERPA","redaction"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nDecember 15, 2023\n\nVia electronic mail\nMr. Russell Lissau\nStaff Writer\nDaily Herald Media Group\n[street address redacted for site publication -- see original PDF]\nrlissau@dailyherald. com\n\nVia electronic mail\nDr. Julia Nadler\nAssistant Superintendent of Special Services\nand Freedom of Information Act Officer\n\nWauconda Community Unit School District 118\n555 North Main Street\nWauconda, Illinois 60084\njnadler@d118.org\n\nRE: FOIA Request for Review – 2019 PAC 58473\n\nDear Mr. Lissau and Dr. Nadler: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). \n\nMr. Russell Lissau, a staff writer for the Daily Herald, submitted an undated\n\nFOIA request to Wauconda Community Unit School District 118 (District) seeking, in relevant\npart, a copy of a settlement agreement between the District and a District student' s family. On\nJune 10, 2019, the District provided a copy of the requested settlement agreement with\nredactions pursuant\n1)(c) (2018)). Specifically, the District asserted that the redacted information constituted a\nschool student record\" under the Illinois School Student Records Act ( ISSRA) ( 105 ILCS 10/ 1\n\nto sections 7(1)( a), 7(1)( b), and 7(1)(c) of FOIA ( 5 ILCS 140/ 7(1)( a), ( 1)( b), \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Russell Lissau\nDr. Julia Nadler\nDecember 15, 2023\nPage 2\n\net seq. (West 2018))1 and \"education records\" under the federal Family Educational Rights and\nPrivacy Act ( FERPA) ( 20 U.S.C. § 1232g ( 2018)). Later that same day, Mr. Lissau submitted\nthis Request for Review contesting the extent of the District's redactions in the responsive\nsettlement agreement. \n\nThis office forwarded a copy of the Request for Review to the District and asked\n\nit to provide an unredacted copy of the requested settlement agreement for our confidential\nreview, together with a detailed explanation of the legal and factual bases for the applicability of\nthe asserted exemptions. On June 27, 2019, the District submitted its written response, together\nwith a confidential summary describing the content of the settlement agreement. On July 2, \n2019, Mr. Lissau replied, reiterating his contentions concerning the extent of the District's\nredactions and asserting that the public had a right to know more information surrounding the\nsettlement in question. \n\nOn August 23, 2019, the District provided this office with an unredacted copy of\n\nthe settlement agreement\nadditional explanation concerning the circumstances of the responsive settlement agreement and\nthe student involved. \n\nreview. The District also confidentially provided\n\nfor our confidential\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2018). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2018). \n\nAs an initial matter, section 2.20 of FOIA (5 ILCS 140/2.20 (West 2020)) \n\nprovides that \"[ a] ll settlement and severance agreements entered into by or on behalf of a public\nbody are public records subject to inspection and copying by the public, provided that\ninformation exempt from disclosure under Section 7 of this Act may be redacted.\" Accordingly, \nFOIA plainly evinces a strong interest in the disclosure of the type of the settlement agreement\nMr. Lissau is seeking but allows a public body to withhold any discrete portions that consist of\nexempt information. \n\nthe release of such information. \n\n1The District also asserted that section 7.5(r) of FOIA (5 ILCS 140/7.5(r) (West 2018)) prohibited\n\n\fMr. Russell Lissau\nDr. Julia Nadler\nDecember 15, 2023\nPage 3\n\nSection 7(1)(a) and Section 7.5(r) of FOIA\n\nSection 7(1)(a) of FOIA exempts from inspection and copying \"[ i]nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" (Emphasis added.) \"[ R]ecords are exempt from disclosure\nunder [ FOIA] in instances where the plain language contained in a State or federal statute reveals\nthat public access to the records was not intended.\" Kibort v. Westrom, 371 Ill. App. 3d 247, 256\n2007). Subject to certain exceptions, FERPA provides that \"[ n] o funds shall be made available\nunder any applicable program to any educational agency or institution which has a policy or\npractice of permitting the release of education records ( or personally identifiable information\ncontained therein other than directory information * * *) of students without the written consent\nof their parents[.]\" 20 U.S.C. § 1232g( b)( 1) ( 2018). Regulations implementing FERPA2 define\nPersonally Identifiable Information\" to include: \n\na) The student's name; \nb) The name of the student' s parent or other family\n\nmembers; \n\nc) The address of the student or student' s family; \nd) A personal identifier, such as the student’ s social\n\nsecurity number, student number, or biometric record; \n\ne) Other indirect identifiers, such as the student's date of\n\nbirth, place of birth, and mother' s maiden name; \n\nf) Other information that, alone or in combination, is\n\nlinked or linkable to a specific student that would allow a\nreasonable person in the school community, who does not have\npersonal knowledge of the relevant circumstances, to identify the\nstudent with reasonable certainty; or\n\ng) Information requested by a person who the educational\nagency or institution reasonably believes knows the identity of the\nstudent to whom the education record relates. \n\nCourts in other jurisdictions have reconciled the disclosure requirements of other versions of\nFOIA with FERPA's confidentiality provisions by permitting redaction of information that is or\npotentially could be linked to the identity of a student. C.G. v. Winslow Township Board of\nEducation, 443 N.J. Super. 415, 428, 128 A.3d 1173, 1181 (N.J Super. Ct. 2015) (approving\nredaction of initials and docket number in a settlement agreement which could potentially be\nlinked to the identity of a student); United States v. Miami University, 294 F.3d 797, 824 (6th\nCir. 2002) ( newspaper \" may still request student disciplinary records that do not contain\n\n234 C.F.R. § 99.3. \n\n\fMr. Russell Lissau\nDr. Julia Nadler\nDecember 15, 2023\nPage 4\n\npersonally identifiable information. Nothing in the FERPA would prevent the Universities from\nreleasing properly redacted records.\"). \n\nSimilarly, section 7.5(r) of FOIA exempts from inspection and copying\n\ninformation prohibited from being disclosed by the Illinois School Student Records Act\nISSRA). Section 6(a) of ISSRA (105 ILCS 10/6(a) ( West 2020)) provides that \"[ n]o school\nstudent records or information contained therein may be released, transferred, disclosed or\notherwise disseminated[.]\" Section 2(d) of ISSRA (105 ILCS 10/2(d) (West 2020)) defines\nschool student record\" as \" any writing or other recorded information concerning a student and\nby which a student may be individually identified, maintained by a school or at its direction or\nby an employee of a school, regardless of how or where the information is stored.\" ( Emphasis\nadded.) \" A masked record, which deletes individual identifying information, does not fall within\nthe definition of a school student record, and is not prohibited from disclosure under [ ISSRA].\" \nBowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373, 379 (1989). \n\nMr. Lissau has not contested the withholding of the student's name and other\n\nidentifying information but rather seeks information concerning the circumstances leading up to\nthe settlement agreement, together with information concerning the special training the District\nindicated it would subsequently implement for District staff. The non-confidential portion of the\nDistrict' s June 27, 2019, response to this office generally provided that \"[ t]he student information\nredacted included the name of the student and details related to the student and the student's\neducation at [ the] District[.]\" 3 However, in portions of its June 27, 2019, response and in an\nAugust 23, 2019, response, both of which were provided to this office on a confidential basis,4\nthe District described in greater detail the circumstances of the responsive settlement. This\noffice has reviewed an unredacted copy of the settlement agreement together with the District's\nexplanations and agrees that, due to the highly unique circumstances underlying this matter, \ndisclosure of most of the redacted information could identify or potentially be linked to the\nidentity of the individual student in question. However, as described further below, disclosure of\ncertain limited information would not appear to be individually attributable to any particular\nstudent. Accordingly, the District did not prove by clear and convincing evidence that all of the\nredacted information was exempt from disclosure under section 7.5(r) of FOIA. \n\nSupervising Attorney, Public Access Bureau, Office of the Attorney General (June 27, 2019), at 5. \n\n3Letter from Tamara B. Starks, Engler Callaway Baasten & Sraga, LLC, to Christopher R. Boggs, \n\nthe information provided to this office on a confidential basis. \n\n4Section 9.5(d) of FOIA (5 ILCS 140/9.5(d) (West 2020)) precludes this office from referencing\n\n\fMr. Russell Lissau\nDr. Julia Nadler\nDecember 15, 2023\nPage 5\n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)( c) defines \" unwarranted invasion of personal privacy\" \nas: \n\nT]he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject' s\nright to privacy outweighs any legitimate public interest in\nobtaining the information. The disclosure of information that bears\non the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy. \n\nA public body' s contention that the release of information would constitute an\n\nunwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers' Local Union 130, U.A. v. Department of Public Health, 327 Ill. App. 3d\n192, 196 (1st Dist. 2001). The phrase \" clearly unwarranted invasion of personal privacy\" \nevinces a strict standard to claim the exemption, and the burden is on the government agency\nhaving charge of the record to prove that standard has been met. Schessler v. Department of\nConservation, 256 Ill. App. 3d 198, 202 ( 4th Dist. 1994). The Illinois Supreme Court has held\nthat if a record can be redacted to prevent identification of the subjects of records containing\nhighly personal\ndisclosure pursuant to section 7(1)(c) of FOIA. Bowie, 128 Ill. at 381 (1989). Illinois courts\nconsider the following factors in determining whether disclosure of information would constitute\nan unwarranted invasion of personal privacy: \"(1) the plaintiff's interest in disclosure, (2) the\npublic interest in disclosure, ( 3) the degree of invasion of personal privacy, and ( 4) the\navailability of alternative means of obtaining the requested information.\" National Ass'n of\nCriminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 13 ( 1st Dist. 2010). \n\ninformation, the remaining portions of those records are not exempt from\n\nThe non- confidential portion of the District' s response to this office generally\n\nasserted that the requested settlement agreement included \"personal information\", the disclosure\nof which would constitute a clearly unwarranted invasion of personal privacy. Mr. Lissau has\nconsistently emphasized that he does not seek the name or other personal identifiers of the\nstudent in question. \n\nUnder the first and second factors of the balancing test, Mr. Lissau, as a member\nof the news media, has a general interest in disclosure of information that could potentially shed\nlight on the use of public funds by the District. Further, as noted above, there is a strong public\n\n\fMr. Russell Lissau\nDr. Julia Nadler\nDecember 15, 2023\nPage 6\n\ninterest in the disclosure of settlement agreements under section 2.20 of FOIA. Therefore, Mr. \nLissau' s interest in the information and the public' s interest are aligned. \n\nAs to the third factor–– the degree of invasion of personal privacy–– portions of the\n\nredacted information are of a highly personal nature. However, if that information is not\nattributable to a particular student, the information does not maintain its highly personal\ncharacter. Finally, with respect to the fourth factor, there do not appear to be any other means of\nobtaining the requested information. \n\nAfter carefully reviewing an unredacted copy of the settlement agreement, the\n\nDistrict's responses to this office, and the analysis set out in National Ass'n of Criminal Defense\nLawyers v. Chicago Police Department, this office concludes that, with the student' s identifying\ninformation remaining redacted, disclosure of certain information would not constitute an\nunwarranted invasion of the student' s personal privacy nor would it be sufficient\nto identify a\nparticular student. For example, a discrete portion of the agreement concerning District staff\npertains to specific categories of students and seems unlikely to be attributable to any individual\nstudent. If this type of information could identify or potentially identify any individual students, \nthe District has not explained how, and such a possibility is not apparent\nto this office. Similarly, \nparagraphs 9 and 10 describe one-time payments of District funds for services that are not\nattributable to the student or their parents provided names are redacted. Accordingly, this office\nconcludes that, on balance, the District has not sustained its burden of demonstrating that certain\ndiscrete information is exempt from disclosure pursuant\nto section 7(1)( c) of FOIA. Because this\noffice has determined that the same portions cannot potentially be linked to the identity of a\nstudent, they also are not prohibited from being disclosed by FERPA or ISSRA and therefore are\nnot exempt from disclosure pursuant to sections 7(1)(a) or 7.5 of FOIA. \n\nIn accordance with the conclusions expressed above, this office requests that the\n\nDistrict disclose to Mr. Lissau ( 1) the redacted portions of page 1 and the redacted portions of the\nthird paragraph of page 2, with the exception of names and ages; ( 2) portions of a redacted\nsentence, which begins on page 2 and ends on page 3, under clause 2(a); and, ( 3) the entireties of\nparagraphs 9 and 10 on page 5 of the settlement agreement, excluding any reference to the first\nor last name ( and corresponding pronouns) of the student or their parents. \n\n\fMr. Russell Lissau\nDr. Julia Nadler\nDecember 15, 2023\nPage 7\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. Please contact me at\nChristopher.Boggs@ilag.gov if you have any questions. \n\nVery truly yours, \n\nCHRISTOPHER R. BOGGS\nDeputy Public Access Bureau\nPublic Access Bureau\n\n58473 f 71a improper 71c proper improper 75r proper improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school district's settlement agreement with a student's family","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":938,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-10-02","case_number":null,"request_numbers":["58605"],"title":"Crest Hill Police Department ordered to disclose redacted crash records under FOIA","filename":"58605, issued October 2, 2023.pdf","rel_path":null,"word_count":1761,"summary":"A reporter requested police and investigation reports regarding a fatal car crash, which the Crest Hill Police Department denied citing an ongoing investigation. The PAC closed the matter without issuing a binding opinion.","plain_summary":"A reporter requested records about a fatal crash from a police department. The PAC found that witness statements and information identifying an unarrested suspect could be withheld under the ongoing-investigation exemption, but the department had not shown that the remaining information was exempt. It was asked to provide redacted copies, with only permissible private, birth-date, and witness-identifying information withheld.","holding":"The Police Department did not violate FOIA by withholding witness statements and suspect-identifying information under section 7(1)(d)(vii), but must disclose redacted copies of the requested records.","legal_question":"Whether the Crest Hill Police Department properly denied a FOIA request for records related to a fatal car crash under the exemption for ongoing investigations.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7(1)(d)(ii)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)(ii)","7(1)(b)","7(1)(c)"],"public_body":"Crest Hill Police Department","requesting_party":"Mr. Felix Sarver, Herald News","pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought police, traffic, crash, and internal investigation reports concerning a fatal motor vehicle accident.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_vii/58605%2C%20issued%20October%202%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","fatal crash","investigatory records","FOIA denial"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 2, 2023\n\nVia electronic mail\nMr. Felix Sarver\nNews Reporter, Herald News\n[street address redacted for site publication -- see original PDF]\nfsarver@shawmedia.com\n\nVia electronic mail\nMr. Timi Tucker\nFOIA Officer\nCrest Hill Police Department\n1610 Plainfield Road\nCrest Hill, Illinois 60403\nttucker@cityofcresthill.com\n\nRE: FOIA Request for Review – 2019 PAC 58605; 19-0741\n\nDear Mr. Sarver and Mr. Tucker: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)). \n\nOn June 3, 2019, Mr. Felix Sarver, a reporter with the Herald- News, submitted a\n\nFOIA request to the Crest Hill Police Department (Police Department) seeking copies of the\npolice, traffic, crash, and internal\n2019. On June 7, 2019, the Police Department denied Mr. Sarver's request pursuant to section\n7(1)( d)( ii) of FOIA, citing a current investigation into the incident. 1 On June 14, 2019, this\noffice received Mr. Sarver's Request for Review challenging the Police Department's denial. \n\ninvestigation reports pertaining to a fatal car crash on May 26, \n\n3, 2018. \n\n15 ILCS 140/7(1)(d)(ii) (West 2017 Supp.), as amended by Public Act 100-732, effective August\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Felix Sarver\nMr. Timi Tucker\nOctober 2, 2023\nPage 2\n\nOn June 20, 2019, this office sent a copy of Mr. Sarver's Request for Review to\nthe Police Department and asked it to provide this office with unredacted copies of the withheld\nrecords and a detailed explanation of the factual and legal bases for the applicability of section\n7(1)( d)( ii) of FOIA. 2 On June 25, 2019, the Police Department provided the responsive records\nfor this office's confidential review and a written answer; the Police Department provided\nanother copy of its response to this office on January 2, 2020. In its written answer, the Police\nDepartment clarified it withheld the responsive records pursuant to sections 7(1)(d)(iv) and\n7(1)( d)( vii) of FOIA. 3 On January 7, 2020, this office forwarded a copy of the Police\nDepartment's written answer to Mr. Sarver; he did not reply. \n\nDETERMINATION\n\nUnder FOIA, \"[a]ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2022); see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\" that the record is\nexempt from disclosure. 5 ILCS 140/1.2 (West 2022). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nSections 7(1)(d)(iv) and 7(1)(d)(vii) of FOIA\n\nSections 7(1)(d)(iv) and 7(1)(d)(vii) of FOIA exempt from disclosure: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\niv) unavoidably disclose the identity of a\n\nconfidential source, confidential\nby the confidential source, or persons who file complaints\nwith or provide information to administrative, investigative, \nlaw enforcement, or penal agencies; except that the\n\ninformation furnished only\n\n3, 2018. \n\n25 ILCS 140/7(1)(d)(ii) (West 2017 Supp.), as amended by Public Act 100-732, effective August\n\neffective August 3, 2018. \n\n35 ILCS 140/7(1)(d)(iv), (1)(d)(vii) (West 2017 Supp.), as amended by Public Act 100-732, \n\n\fMr. Felix Sarver\nMr. Timi Tucker\nOctober 2, 2023\nPage 3\n\nidentities of witnesses to traffic accidents, traffic accident\nreports, and rescue reports shall be provided by agencies of\nlocal government, except when disclosure would interfere\nwith an active criminal\nagency that is the recipient of the request; \n\ninvestigation conducted by the\n\nvii) obstruct an ongoing criminal investigation by\n\nthe agency that is the recipient of the request. \n\nConclusory statements that the disclosure of requested records would obstruct a law enforcement\nproceeding are insufficient to demonstrate that law enforcement records are exempt from\ndisclosure under FOIA. See Day v. City of Chicago, 388 Ill. App. 3d 70, 74- 77 ( 1st Dist. 2009). \nIn Day, the court explained: \" Simply saying there is an 'ongoing criminal investigation because\nthe case has not been cleared,' with little additional explanation, is not ' objective indicia' \nsufficient to show the ongoing investigation exemption applies.\" Day, 388 Ill. App. 3d at 76; see\nalso Ill. Att' y Gen. Pub. Acc. Op. No. 17- 011, issued August 14, 2017, at 7-8 (public body\nimproperly withheld record under section 7(1)(d)(vii) because it failed to demonstrate that\ndisclosure would interfere with law enforcement); Baudin v. City of Crystal Lake, 192 Ill. App. \n3d 530, 536 (2d Dist. 1989) (\" The classification of information as 'law enforcement' or\ninvestigatory' does not necessarily foreclose access unless it can be shown, in a particular case, \nthat disclosure would interfere with law enforcement and would, therefore, not be in the public\ninterest.\"). \n\nIn its response to this office, the Police Department maintained that it properly\n\nwithheld the requested records concerning the car crash because of a pending investigation. The\nPolice Department asserted: \n\nSpecifically, the incident is actively being investigated and\n\ninformation developed concerning the event; this includes taking\nwitness statements, which are exempt, and locating a person or\npersons who may have been involved in the incident. Releasing the\ninformation you have requested to the public at this time can\nobstruct these ongoing efforts to investigate what is a criminal\nmatter.[ 4] \n\n4Letter from Edward Clark, Chief of Police, and Timi Tucker, FOIA Officer, Crest Hill Police\n\nDepartment, to Betty A. Johnson, Administrative Secretary, Office of the Illinois Attorney General (June 25, 2019), \nat [2]. \n\n\fMr. Felix Sarver\nMr. Timi Tucker\nOctober 2, 2023\nPage 4\n\nHaving reviewed the records and the Police Department's response, this office has\n\ndetermined that at the time of the FOIA request, which was submitted only about a week after\nthe car crash, disclosure of witness statements and information identifying and directly linked to\na suspect who had not been arrested could have been reasonably expected to interfere with the\nPolice Department's ability to investigate the circumstances surrounding the incident. This office\nhas confirmed that the records describe the Police Department' s efforts to identify and interview\nall individuals who were involved in or had relevant information concerning the incident, and\nthat it had not located all potential suspects. The records indicate that a potential suspect might\nhave information critical to reconstructing the events leading up to the car crash. Because the\nPolice Department had not yet located all individuals who were involved in the incident, \ndisclosure of witness statements and information identifying and directly linked to the suspect\nposed a likelihood of interfering with Department' s ability to corroborate or discount statements\nand locate the suspect and additional relevant evidence. Accordingly, this office concludes that\nthe Police Department did not violate FOIA by withholding those portions of the records\nresponsive to Mr. Sarver's June 3, 2019, FOIA request pursuant to section 7(1)(d)(vii). The\nDepartment, however, provided a largely conclusory explanation that does not demonstrate by\nclear and convincing evidence that disclosure of the remaining information would have\nobstructed its ongoing criminal\narrested, and that section 2.15(a) of FOIA (5 ILCS 140/2.15(a) (West 2022)) requires disclosure\nof certain information concerning arrestees. 5 6\n\ninvestigation. This office also notes that an individual was\n\nIn accordance with the conclusions expressed above, this office requests that the\n\nPolice Department disclose to Mr. Sarver with redacted copies of the requested records. In\naddition to redacting witness statements and the identity of the suspect who had not been arrested\n\n5Section 2.15(a) of FOIA provides: \n\na) Arrest reports. The following chronologically maintained arrest and\n\ncriminal history information maintained by State or local criminal justice\nagencies shall be furnished as soon as practical, but in no event later than 72\nhours after the arrest, notwithstanding the time limits otherwise provided for in\nSection 3 of this Act: (i) information that identifies the individual, including the\nname, age, address, and photograph, when and if available; (ii) information\ndetailing any charges relating to the arrest; (iii) the time and location of the\narrest; ( iv) the name of the investigating or arresting law enforcement agency; \nv) (blank); and (vi) if the individual is incarcerated, the time and date that the\nindividual was received into, discharged from, or transferred from the arresting\nagency's custody. \n\n6Section 2.15(c) of FOIA (5 ILCS 140/2.15(c) (West 2022)) provides the information in items\n\n2.15(a)( iii) through (vi) may be withheld for three enumerated reasons; the Department has not demonstrated that\nany of those reasons apply. \n\n\fMr. Felix Sarver\nMr. Timi Tucker\nOctober 2, 2023\nPage 5\n\nat the time of the report, the Department may redact \"private information\" under section 7(1)(b)7\n5 ILCS 140/ 7(1)( b) ( West 2022)), birth dates pursuant\nWest 2022)), and the names and other identifying details of witnesses under 7(1)(d)(iv) of\nFOIA. Given the amount of time that has passed since the incident, the Department may wish to\nconsider whether additional substantive portions of the records may be released at this time. \n\nto section 7(1)( c) 8 ( 5 ILCS 140/ 7(1)( c) \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at the Springfield address on the first page of this letter. \n\nVery truly yours, \n\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n58605 f 71dvii proper improper pd\n\n7Section 7(1)(b) of FOIA exempts from disclosure \" private information,\" which FOIA defines as: \n\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\nfinancial information, passwords or other access codes, medical records, home\nor personal telephone numbers, and personal email addresses. Private\ninformation also includes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of attribution to\nany person. \n\ndisclosure pursuant to section 7(1)(c) of FOIA. Ill. Pub. Acc. Op. No. 12 -009, issued November 7, 2016, at 12. \n\n8The Attorney General has issued a binding opinion concluding that birth dates are exempt from\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports on a fatal motor vehicle accident","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":"closed_no_further_action","plain_summary_pre_audit_fix":"A reporter asked the Crest Hill Police Department for records related to a fatal car crash, but the department refused to release them, citing an ongoing investigation. The Illinois Attorney General's office reviewed the case and determined that the department did not violate FOIA by withholding witness statements and suspect-identifying information under section 7(1)(d)(vii), but it also ordered the department to disclose redacted copies of the records, allowing redactions for witness statements, suspect identity, private information, birth dates, and witness details.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":939,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-05-25","case_number":null,"request_numbers":["58607"],"title":"City of Joliet FOIA partial violation for redacting phone number and hospital name","filename":"58607, issued May 25, 2023.pdf","rel_path":null,"word_count":1959,"summary":"The requester challenged the City of Joliet's redaction of police reports under various FOIA exemptions; the PAC determined that some redactions were improper and ordered the release of additional information.","plain_summary":"A reporter requested police reports from the City of Joliet, but the City redacted portions of the records, citing several FOIA exemptions. The Illinois Attorney General's office reviewed the unredacted records and found that most redactions were proper, but two specific items—a business phone number and the name of a treating hospital—were not exempt. The office requested that the City provide the reporter with copies of the non-exempt portions of the narrative sections.","holding":"The City of Joliet improperly redacted a business phone number and the name of a treating hospital, but all other redactions were upheld.","legal_question":"Whether the City of Joliet properly applied FOIA exemptions 7(1)(b), 7(1)(b-5), 7(1)(c), 7(1)(d)(iii), and 7(1)(d)(iv) to redact narrative sections of police reports.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(b-5)","7(1)(c)","7(1)(d)(iii)","7(1)(d)(iv)"],"public_body":"City of Joliet","requesting_party":"Mr. Felix Sarver (The Herald-News)","pac_outcome":"Partial violation found; records ordered released","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought police reports and complaints regarding a specific individual over a multi-year period.","ocr_status":"ok","ocr_quality":94.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_b-5/58607%2C%20issued%20May%2025%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","redaction","FOIA exemptions","public records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nMay 25, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\nMr. Felix Sarver\nNews Reporter\nThe Herald- News\n[street address redacted for site publication -- see original PDF]\nfsarver@shawmedia. com\n\nVia electronic mail\nMs. Sabrina Spano\nCorporation Counsel\nCity of Joliet\nLegal Department\n150 West Jefferson Street\nJoliet, Illinois 60432\nsspano@jolietcity. org\n\nRE: FOIA Request for Review – 2019 PAC 58607; City FOIA No.: P008202\n\nDear Mr. Sarver and Ms. Spano: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). \n\nOn June 14, 2019, Mr. Felix Sarver, on behalf of The Herald-News, submitted a\n\nRequest for Review to the Public Access Bureau disputing the response by the Joliet Police\nDepartment ( Department) to his June 4, 2019, FOIA request. That request sought copies of\npolice reports and complaints related to a named person for the timeframe of January 1, 2017, \nthrough June 4, 2019. The Department provided a case report and supplemental report\nresponsive to his request, but redacted portions of the narrative sections of those records pursuant\nto sections 7(1)(b), 7(1)( b-5),7(1)(c),7(1)(d)( iii), and 7(1)(d)(iv) of FOIA. 1\n\n15 ILCS 140/ 7(1)(b), (1)( b-5), (1)(c), (1)(d)( iii), (1)(d)(iv) (West 2018). \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. Felix Sarver\nMs. Sabrina Spano\nMay 25, 2023\nPage 2\n\nOn July 3, 2019, this office requested that the Department provide un-redacted\ncopies of the records at issue for this office' s confidential review, together with a detailed legal\nand factual explanation of its basis for asserting the above- referenced exemptions. On July 22, \n2019, the Department provided the requested materials. This office forwarded the Department' s\nwritten answer to Mr. Sarver on July 23, 2019; he did not reply. \n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2018); see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 ( 2006). Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\" that the record is\nexempt from disclosure. 5 ILCS 140/ 1.2 (West 2018). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 ( 1997). \n\nThe Department' s answer to this office stated that it redacted from the narrative\nportions of the responsive reports the name and other identifying information, such as personal\ntelephone numbers and home addresses, of a victim, witness, and third-party individuals. 2 The\nDepartment also stated it redacted \" descriptions of specific injuries\" 3 as well as information\nregarding the \" physical or mental status of one or more individual subjects.\" 4\n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\" \nSection 2(c-5) of FOIA ( 5 ILCS 140/ 2(c-5) (West 2018)) defines \" private information\" as\nunique identifiers,\" including \" home or personal telephone numbers\" and \" home address.\" The\nhome addresses and personal telephone numbers that the Department redacted constitute \" private\ninformation\" under the plain language of section 2(c-5) of FOIA. However, the Department\nredacted two telephone numbers on page 6 which appear to belong to Help at Home, the\ncompany that provided staffing for the group home. The Public Access Bureau has consistently\ndetermined that phone numbers of businesses are not exempt from disclosure under section\n7(l)(b) because the definition of \"private information\" is limited to unique identifiers of persons. \nSee, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 48461, issued December 18, 2017, at 3-4. \n\nthis does not appear to be the case based on this office' s confidential review of the unredacted records. \n\n2Although the Department' s answer indicated it redacted the name a suspect who was not arrested, \n\nAssistant Attorney General, Office of the Attorney General, Public Access Bureau ( July 22, 2019). \n\n3Letter from Sabrina Spano, Assistant Corporation Counsel, City of Joliet, to Laura Harter, \n\nAssistant Attorney General, Office of the Attorney General, Public Access Bureau ( July 22, 2019). \n\n4Letter from Sabrina Spano, Assistant Corporation Counsel, City of Joliet, to Laura Harter, \n\n\fMr. Felix Sarver\nMs. Sabrina Spano\nMay 25, 2023\nPage 3\n\nAccordingly, if the phone numbers are associated with Help at Home, rather than a private\nindividual' s personal phone, they are not exempt from disclosure under section 7(1)(b). \n\nSection 7(1)(b-5) of FOIA exempts from disclosure \"[ f]iles, documents, and other\ndata or databases maintained by one or more law enforcement agencies and specifically designed\nto provide information to one or more law enforcement agencies regarding the physical or mental\nstatus of one or more individual subjects.\" By its plain language, section 7(1)(b-5) applies only\nto information specifically intended to inform law enforcement agencies about the physical or\nmental status of subjects. 5 Although some portions of the narrative sections of the police reports\ncontain information about an individual' s mental or physical health, there is no indication that\nthis information was included within the report in order to alert other law enforcement officers, \nor members of the public, about potential dangers resulting from those mental or physical\nconditions that they may encounter when interacting with this individual. Therefore, the\nDepartment has not sustained its burden of proof that this information is exempt from disclosure\nunder 7(1)(b-5) of FOIA. Nonetheless, this information is exempt from disclosure under section\n7(1)(c), as discussed below. \n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" 6 The Public Access Bureau has previously determined that\ninformation identifying an individual as having a physical or mental health issue is highly\ninvasion of the\npersonal and the disclosure of such information would cause a substantial\nindividual' s personal privacy. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 53479, issued\nJuly 25, 2018, at 4; Ill. Att'y Gen. PAC Req. Rev. Ltr. 53087, issued July 11, 2018, at 4. Here, \nthe subject has a strong right to privacy in the highly personal\ninformation regarding that person' s\nhealth and welfare documented in the reports. At the time the Department received Mr. Sarver' s\n\n5The legislative history of section 7(1)(b-5) confirms that it pertains to \" data for law enforcement\nregarding mental and physical disabilities that is maintained for the safety of responding officers and the individuals\nand the public.\" Remarks of Sen. Millner, May 15, 2009, Senate Debate on House Bill No. 47 ( which, as Public Act\n96-558, effective January 1, 2010, enacted section 7(1)( b-5) of FOIA), at 59. \n\n6Section 7(1)(c) defines \" unwarranted invasion of personal privacy\" as: \n\nT]he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject' s\nright to privacy outweighs any legitimate public interest in\nobtaining the information. The disclosure of information that\nbears on the public duties of public employees and officials\nshall not be considered an invasion of personal privacy. \n\n\fMr. Felix Sarver\nMs. Sabrina Spano\nMay 25, 2023\nPage 4\n\nrequest, the underlying incident did not result in any arrests or criminal charges. Accordingly, \nthis office concludes that the Department did not improperly redact those portions of the\nnarratives pursuant to section 7(1)(c). \n\nIt is not entirely clear to this office, which \" descriptions of specific injuries\" 7 the\n\nDepartment redacted pursuant to section 7(1)(c). However, based on this office's confidential\nreview, the portions of the narrative containing the name of the treating hospital or medical\nfacility do not constitute \" personal\nThis information, by itself, represents standard nondescript\nperson, and therefore, the disclosure would not cause an unwarranted invasion of personal\nprivacy. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 37628, issued April 25, 2016, at 4. \n\ninformation\" within the context of section 7(1)(c) of FOIA. \ninformation that could apply to any\n\nSection 7(1)(d)( iv) of FOIA permits a police department to withhold law\n\ninformation furnished only by the confidential source, or\n\nenforcement records to the extent that disclosure would \" unavoidably disclose the identity of a\nconfidential source, confidential\npersons who file complaints with or provide information to administrative, investigative, law\nenforcement, or penal agencies[.]\" This provision allows law enforcement agencies to protect the\nanonymity of persons who provide them with information. See, for example, Chicago Alliance\nfor Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 200-01 (1st Dist. 2004) ( names\nand addresses of beat meeting participants properly redacted because they provided information\nto police department). The names of individuals who file complaints with police departments are\ngenerally exempt from disclosure pursuant to section 7(1)(d)( iv). See, for example, Ill. Att'y\nGen. PAC Req. Rev. Ltr. 56481, issued January 25, 2019. Further, the contents of such\nstatements to the police may be withheld if disclosure \" would necessarily result in the disclosure\nof the identity of the source\" of information and, therefore, \" redaction * * * cannot be\nmeaningfully accomplished.\" Copley Press, Inc. v. City of Springfield, 266 Ill. App 3d 421, 426\n4th Dist. 1994). The Department' s response to this office stated it redacted the identity and\nother identifying information of the complainant, witnesses, and other third parties pursuant to\nthis exemption. \n\nSection 7(1)(d)( iv) of FOIA permitted the Department\n\nto redact the names, \n\naddresses, contact information, and other identifying information of the alleged victim and the\nother individuals who provided the Department with information related to the underlying\nincident. Additionally, based on this office's review of the un-redacted portion of the victim' s\nstatement, we have determined that the identity of this individual could be discerned from the\ncontent even after redaction of that individual' s name. Given the limited number of sources of\n\nAssistant Attorney General, Office of the Attorney General, Public Access Bureau ( July 22, 2019). \n\n7Letter from Sabrina Spano, Assistant Corporation Counsel, City of Joliet, to Laura Harter, \n\n\fr. Felix Sarver\nMs. Sabrina Spano\nMay 25, 2023\nPage 5\n\ninformation and press coverage 8 \" it is readily apparent from an examination of the material in the\nfile that the information provided by each individual\ndisclosure of the identity of that source.\" Copley Press, Inc., 266 Ill. App. 3d at 426. \n\ninterviewee would necessarily result in the\n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the Department provide Mr. Sarver with copies of the non-exempt portions of the\nnarrative sections in the responsive case report and supplemental report, including the name of\nthe treating hospital and any phone numbers associated with Help at Home. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, my\ne-mail address is Shannon. Barnaby@ilag. gov. \n\nVery truly yours, \n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n58607 f 71b proper improper 71b-5 improper 71c proper improper 71div proper pd\n\n8See, for example, Plainfield Masked Stabbing Suspect Faces New Aggravated Battery Charges, \n\nhttps:// www. shawlocal. com/ 2019/ 07/09/ plainfield- masked- stabbing- suspect- faces- new- aggravated- battery-\ncharge/ a3c54kt/ \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports and complaints about an individual","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":940,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-09-11","case_number":null,"request_numbers":["58746"],"title":"Geneva SD 304 violated FOIA by withholding school calendar communications","filename":"58746, issued September 11, 2023.pdf","rel_path":null,"word_count":3031,"summary":"The requester sought communications between school district officials and community members regarding school calendar adjustments, and the PAC determined the District violated FOIA by failing to properly redact private information and by improperly withholding records under exemptions.","plain_summary":"A requester asked for emails and records from community members about making up school days lost during a strike. The Illinois Attorney General's Public Access Bureau determined that the school district violated FOIA by improperly withholding the records under exemptions for collective bargaining matters. The decision found that the communications did not reveal aspects of the collective bargaining process and were not exempt from disclosure.","holding":"The Geneva Community Unit School District No. 304 violated FOIA by improperly denying the request under sections 7(1)(f) and 7(1)(p).","legal_question":"Whether the District properly applied FOIA exemptions and redaction requirements for private information when responding to a request for communications regarding school calendar adjustments.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"Geneva Community Unit School District No. 304","requesting_party":"Mr. Kevin Gannon (on behalf of the Geneva Education Association)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"school records","subject_description":"Communications between school district administrators/board members and community members regarding the scheduling of make-up school days.","ocr_status":"ok","ocr_quality":93.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_p/58746%2C%20issued%20September%2011%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["school district","email records","private information","FOIA redaction"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 11, 2023\n\nVia electronic mail\nMs. Rachel E. Clark\nAssociate General Counsel\nIllinois Education Association\n[street address redacted for site publication -- see original PDF]\nrachel. clark@ieanea. org\n\nVia electronic mail\nMs. Sandy Manisco\nCommunications Coordinator\nGeneva Community Unit School District No. 304\n227 North Fourth Street\nGeneva, Illinois 60134\ngenfoia@geneva304. org\n\nRE: FOIA Request for Review – 2019 PAC 58746\n\nDear Ms. Clark and Ms. Manisco: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by Geneva Community Unit School District\nNo. 304 ( District) to Mr. Kevin Gannon' s May 13, 2019, FOIA request violated the requirements\nof FOIA. \n\nOn that date, Mr. Gannon, on behalf of the Geneva Education Association, \n\nsubmitted a FOIA request to the District seeking: \n\ni]nformation, including but not limited to, e-mails, voice mail\nrecordings, and the contents of conversations between parents or\ncommunity members in Geneva School District 304 and district\nadministrators and/ or school board members related to making up\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMs. Rachel E. Clark\nMs. Sandy Manisco\nSeptember 11, 2023\nPage 2\n\nthe four school days during which the Geneva Education\nAssociation was on strike. Please supply any information received\nby the district, school board members, or administrators between\nNovember 15, 2018 and December 31, 2018.[ 1] \n\nOn May 20, 2019, the District denied Mr. Gannon' s request in its entirety pursuant to sections\n7(1)(f) and 7(1)( p) of FOIA ( 5 ILCS 140/ 7(1)( f), (1)(p) (West 2018)). On June 28, 2019, Ms. \nRachel Clark of the Illinois Education Association, on behalf of the Geneva Education\nAssociation, submitted this Request for Review challenging the District's denial. \n\nOn July 8, 2019, this office sent a copy of the Request for Review to the District\n\nand asked it to provide un-redacted copies of the records responsive to Mr. Gannon' s FOIA\nrequest, together with a detailed explanation of the legal and factual bases for its denial. On\nAugust 1, 2019, the District submitted the requested materials. On August 2, 2019, this office\nforwarded the District' s answer to Ms. Clark; she did not submit a substantive reply. \n\nIn its answer to this office, the District provided the following background\n\ninformation: \n\nThe School District and the GEA [ Geneva Education\nAssociation] were parties to a collective bargaining agreement that\nexpired on August 14, 2018. Toward the end of the 2017- 2018\nschool year, the two parties began negotiating a successor\nagreement to their 2015- 2018 collective bargaining agreement. \nNegotiations broke down and the GEA declared a strike in\nDecember 2018. The strike lasted a total of five school/ working\ndays between Tuesday, December 4, 2018 and Monday, December\n10, 2018. Teachers returned to the classroom on Tuesday, \nDecember 11, 2018. \n\nWith the School District' s teachers[ ] having gone on strike, \n\nthe issue of \"making up\" the five student attendance days lost\nbecause of the strike was bargained between the School District\nand the GEA. Ultimately the School District and GEA settled the\nstrike with an agreement\nwould be made up. At some point during negotiations over this\nissue, the School District' s bargaining representatives informed the\n\ntha[ t] only one of the five strike days\n\nNo. 304, to Laura Sprague ( May 13, 2019). \n\n1E- mail from Kevin Gannon, Science Department Chair, Geneva Community High School District\n\n\fMs. Rachel E. Clark\nMs. Sandy Manisco\nSeptember 11, 2023\nPage 3\n\nGEA that the School District’ s position to make up only one day\nwas rooted in part by feedback it had received from community\nmembers about the make- up day issue.[ 2] \n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2018); see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\" that the record is\nexempt from disclosure. 5 ILCS 140/ 1.2 (West 2018). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 ( 1997). \n\nSection 9.5(a) of FOIA\n\nAs a threshold matter, section 9.5(a) of FOIA 3 provides that a person whose\n\nFOIA request is denied may filed a Request for Review \" not later than 60 days after the date of\nthe final denial.\" The District' s response to this office asserted that Ms. Clark's Request for\nReview was untimely because on April 9, 2019, the District denied pursuant to section 7(1)(f) \nand 7(1)(p) an earlier request that included the same records and the Geneva Education\nAssociation \" slept on its rights[ ]\" 4 by failing to file a Request for Review within 60 days of that\ndenial. Consequently, the District contends that the Public Access Counselor lacks jurisdiction\nto review the denial of the second FOIA request and that it must be considered an unduly\nburdensome repeated request for records that previously were properly denied. 5 5 ILCS 140/ 3(g) \nWest 2018). \n\nThe District, however, did not deny the FOIA request at issue in this matter\n\npursuant to section 3(g) of FOIA. Even if it had, the District would have to prove by clear and\n\nBureau Chief, Public Access Bureau, Office of the Illinois Attorney General ( August 1, 2019), at 4. \n\n2Letter from James A. Petrungaro, Scariano, Himes and Petrarca, to Laura S. Harter, Deputy\n\n35 ILCS 140/ 9.5(a) ( West 2018). \n\n4Letter from James A. Petrungaro, Scariano, Himes and Petrarca, Chtd., to Laura S. Harter, \nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General ( August 1, 2019), at 2. \n\n5Section 3(g) of FOIA provides, in relevant part: \" Repeated requests from the same person for the\n\nsame records that are unchanged or identical to records previously provided or properly denied under this Act shall\nbe deemed unduly burdensome under this provision.\" \n\n\fMs. Rachel E. Clark\nMs. Sandy Manisco\nSeptember 11, 2023\nPage 4\n\nconvincing evidence that it properly denied the earlier request pursuant to sections 7(1)(f) and\n7(1)(p) in order to establish the subsequent request was properly denied as an unduly\nburdensome repeated request. The Attorney General has issued a binding opinion concluding\nthat \" no language in FOIA states that a person whose FOIA request was denied as an unduly\nburdensome repeated request may not submit a Request for Review to the Public Access\nCounselor unless he or she submitted a Request for Review of the denial of the previous request, \nnor does FOIA state that this office may not review whether such a denial was proper.\" Ill. Att'y\nGen. Pub. Acc. Op. No. 18-007, issued June 26, 2028, at 6. Because Ms. Clark submitted her\nRequest for Review within 60 days of the District' s May 20, 2019, denial of the Geneva\nEducation Association' s May 13, 2019, FOIA request, section 9.5(a) of FOIA authorizes the\nPublic Access Counselor to review that denial. \n\nSection 7(1)(p) of FOIA\n\nSection 7(1)(p) of FOIA exempts from disclosure \"[ r]ecords relating to collective\n\nnegotiating matters between public bodies and their employees or representatives, except that\nany final contract or agreement shall be subject to inspection and copying.\" The term \" relating\nto\" in a FOIA exemption does not signify an expansive scope. See Kalven v. City of Chicago, \n2014 IL App (1st) 121846, ¶ 19, 7 N.E.3d 741, 746- 47 (2014) ( rejecting the contention that the\nsection 7(1)(n) exemption ( 5 ILCS 140/ 7(1)( n) (West 2010)) for records \" relating to a public\nbody's adjudication of employee grievances or disciplinary cases\" encompasses investigatory\nrecords that precede disciplinary adjudications because such an \" expansive interpretation\" would\nrender a broad category of public documents immune [ citation] to public scrutiny. That is\ncontrary to the intent of FOIA.\"); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 32159, issued April\n20, 2015, at 3 (concluding that because almost every record in possession of the Illinois\nDepartment of Corrections arguably relates to security in some manner, section 7(1)(e) of FOIA 6\napplies to records that could jeopardize the security of a correctional\nrather than any records merely pertaining to security in any manner whatsoever.\"). \n\ninstitution if disclosed, \n\nThe Attorney General has issued a binding opinion addressing the applicability of\n\nsection 7(1)(p) to invoices for legal services containing information related to collective\nbargaining matters. Ill. Att'y Gen. Pub. Acc. Op. No. 14-002, issued April 15, 2014. The\nAttorney General examined the exception, to the general requirement\nthat public bodies conduct\npublic business openly, for collective negotiating matters in the Open Meetings Act 7 and noted: \nSection 7(1)( p) of FOIA serves the corollary purpose of exempting from disclosure records\n\nthat relate to or affect the security of correctional\n\ninstitutions and detention facilities.\" \n\n6Section 7(1)(e) of FOIA ( 5 ILCS 140/ 7(1)(e) ( West 2018)) exempts from disclosure \"[ r]ecords\n\n75 ILCS 120/ 2(c)(2) (West 2018). \n\n\fMs. Rachel E. Clark\nMs. Sandy Manisco\nSeptember 11, 2023\nPage 5\n\npertaining to such aspects of the collective bargaining process as the negotiating of wages and\nsalaries, terms and conditions of employment, working conditions, and similar matters which are\nsubject to collective bargaining.\" Ill. Att'y Gen. Pub. Acc. Op. No. 14-002, at 6. The Attorney\nGeneral concluded that only the portions of the invoices that contained specific information\npertaining to the collective bargaining process could be redacted pursuant to section 7(1)(p). Ill. \nAtt'y Gen. Pub. Acc. Op. No. 14-002, at 9. Thus, records must reveal aspects of a collective\nbargaining process to fall within the scope of the exemption. \n\nThe District withheld seven e-mails and one voicemail received from members of\nthe community expressing opinions concerning whether and how the District should make up the\ndays of school that were missed when the Geneva Education Association was on strike. In its\nanswer to this office, the District argued that the communications related to collective bargaining\nbecause they were mostly sent during the strike and were \" aimed at influencing the School\nDistrict negotiations team and school board concerning settling the strike and the issue of the\nmake- up days.\" 8 The District also asserted that \" the records were created and submitted to the\nSchool District entirely because of the collective bargaining going on between the School\nDistrict and the GEA. The records exist only because of the ongoing labor dispute and\nnegotiations.\" 9 The District argued that the communications were part of its \" negotiations team' s\nanalysis, motivation, bargaining strategy, and deliberative process related to the ongoing labor\nstrike and negotiations.\" 10\n\nAlthough the withheld communications reference a matter raised by the collective\n\nbargaining dispute, they do not reveal aspects of the collective bargaining process itself. The\ncommunications were not from individuals involved in the negotiations, but rather from third-\nparties who were not privy to the private strategizing or negotiating involved in the collective\nbargaining process. Stretching the section 7(1)(p) exemption to include unsolicited\ncommunications from members of the public who did not participate in the collective bargaining\nprocess would be contrary to the requirement\n176 Ill. 2d at 40. Accordingly, this office concludes that the communications are not exempt\npursuant to section 7(1)(p). \n\nto construe FOIA exemptions narrowly. Lieber, \n\nBureau Chief, Public Access Bureau, Office of the Illinois Attorney General ( August 1, 2019), at 4. \n\n8Letter from James A. Petrungaro, Scariano, Himes and Petrarca, to Laura S. Harter, Deputy\n\nBureau Chief, Public Access Bureau, Office of the Illinois Attorney General ( August 1, 2019), at 4. \n\n9Letter from James A. Petrungaro, Scariano, Himes and Petrarca, to Laura S. Harter, Deputy\n\nBureau Chief, Public Access Bureau, Office of the Illinois Attorney General ( August 1, 2019), at 4. \n\n10Letter from James A. Petrungaro, Scariano, Himes and Petrarca, to Laura S. Harter, Deputy\n\n\fMs. Rachel E. Clark\nMs. Sandy Manisco\nSeptember 11, 2023\nPage 6\n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) exempts from inspection and copying \"[ p] reliminary drafts, notes, \nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption applies to \"inter- and intra- agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 ( 1st Dist. 2003). A public body\nthat asserts the deliberative process exemption \" has the burden of establishing what deliberative\nprocess is involved, and the role played by the documents in issue in the course of that process.\" \nCoastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 868 ( D.C. Cir 1980).\" The\nsection 7(1)(f) exemption is \" intended to protect the communications process and encourage\nfrank and open discussion among agency employees before a final decision is made.\" Harwood, \n344 Ill. App. 3d at 248. \n\nThe scope of section 7(1)( f) does not encompass a public body's communications\nwith third parties unless they represent the public body or otherwise do not have any independent\ninterests in the subject of the communications. See, for example, Department of Interior v. \nKlamath Water Users Protective Ass'n, 532 U.S. 1, 13, 121 S. Ct. 1060, 1069 ( 2001) \ncommunications with third parties that have independent\nthe public body's final decision cannot be characterized as intra- agency communications under\nthe exemption for deliberative material in the federal FOIA); Ill. Att'y Gen. Pub. Acc. Op. No. \n21-004, issued May 24, 2021 ( correspondence shared with third party constituent who represents\nindependent\n\ninterests is not part of public body's deliberative process). \n\ninterests and that stand to benefit from\n\nIn its response to this office, the District argued that it relied on the withheld\ncommunications as part of its bargaining strategy. Acknowledging that the communications\nwere sent by third- parties, the District nevertheless asserted that \"[ u] nlike communications with a\nthird party representing ' independent\noutside the exemption [ citation], the subject records here are from the very taxpayer constituents\nand parents of students[ ] whose interests the School District' s administration and school board\nare charged with representing.\" 11\n\ninterests' of the public body that have been held to be\n\nThe withheld communications express a variety of opinions from members of the\npublic on how the District should handle the make- up days. The opinions in the records are the\ncommunity members', not the District' s. The submissions reflect the community members' own\ninterests, as they stood to benefit from the District' s decisions on the make- up days. Further, the\n\nBureau Chief, Public Access Bureau, Office of the Illinois Attorney General ( August 1, 2019), at 5. \n\n11Letter from James A. Petrungaro, Scariano, Himes and Petrarca, to Laura S. Harter, Deputy\n\n\fMs. Rachel E. Clark\nMs. Sandy Manisco\nSeptember 11, 2023\nPage 7\n\ncommunications were unsolicited and were not created at the request of the District as part of a\ndeliberative process. Although the District may have discussed the communications while\nstrategizing or during negotiations, the withheld records themselves do not reflect any intra-\nagency or inter- agency discussion of the make- up days. Because the communications do not\nconstitute inter- or intra- agency, pre-decisional deliberative materials, the District improperly\nwithheld those records pursuant to section 7(1)(f) of FOIA. \n\nIn accordance with this determination, this office requests that the District provide\n\nMr. Gannon with copies of the withheld responsive 12 communications, with appropriate\nredactions of private information pursuant to section 7(1)(b) of FOIA. 13 Any additional\ninformation such as names, job titles, and business contact information that could be used to\npersonally identify members of the public who sent the communications also may be redacted\npursuant to section 7(1)(c), which exempts from disclosure highly personal\nwould constitute a clearly unwarranted invasion of personal privacy if disclosed. State Journal\nRegister v. University of Illinois Springfield, 2013 IL App (4th) 120881, ¶¶ 65-66, 994 N.E.2d\n705, 720 ( 2013) ( recognizing that students and parents have \" a privacy interest in being able to\nprivately express * * * opinions and concerns to\" a university and holding that the university\nmay redact a student' s name from an e-mail pursuant to section 7(1)(c) but must disclose the\nremaining portions \" because nothing in the content of the e-mail, other than the student' s name, \nidentifies the student.\"). \n\ninformation that\n\nThe responsive records include the voice message and pages 8-14 of Exhibit A. \n\n12In its response to this office, the District provided a number of records that are non-responsive. \n\n135 ILCS 140/7(1)(b) (West 2022), as amended by Public Acts 103-154, effective June 30, 2023; \n103- 462, effective August 4, 2023; 103- 446, effective August 4, 2023. Section 2(c-5) of FOIA ( 5 ILCS 140/ 2(c-5) \nWest 2022)) defines \" private information\" as: \n\nunique identifiers, including a person' s social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\nfinancial information, passwords or other access codes, medical records, home\nor personal telephone numbers, and personal email addresses. Private\ninformation also includes home address and personal\notherwise provided by law or when compiled without possibility of attribution to\nany person. \n\nlicense plates, except as\n\n\fs. Rachel E. Clark\nMs. Sandy Manisco\nSeptember 11, 2023\nPage 8\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n58746 f 71p improper 71f improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Communications about scheduling make-up school days","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":941,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-01-16","case_number":null,"request_numbers":["59166"],"title":"Calumet Memorial Park District violated FOIA by failing to conduct reasonable search","filename":"59166, issued January 16, 2020.pdf","rel_path":null,"word_count":3366,"summary":"The requester sought records regarding communications between Park District officials, and the PAC determined that the Calumet Memorial Park District failed to conduct an adequate search for responsive records.","plain_summary":"Mr. Patton requested text messages from a commissioner's phone from the Calumet Memorial Park District. The Illinois Attorney General's Public Access Bureau determined that the District failed to conduct a reasonable search for records responsive to his FOIA request. The Bureau concluded that the District's arguments about the form of the request and the definition of public records were not valid, but the document does not state that the District was ordered to conduct a new search or provide a specific remedy.","holding":"The Calumet Memorial Park District violated FOIA by failing to conduct a reasonable search for records responsive to the requester's FOIA request.","legal_question":"Whether the Calumet Memorial Park District satisfied its obligation under FOIA to conduct an adequate search for records responsive to a request.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7"],"public_body":"Calumet Memorial Park District","requesting_party":"J. R. Patton","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"reasonable search","subject_description":"The requester sought communications and records held by Park District officials regarding District business.","ocr_status":"ok","ocr_quality":90.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c/59166%2C%20issued%20January%2016%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["reasonable search","FOIA request","public records","government transparency"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKwame Raoul\n\nATTORNEY GENERAL\n\nJanuary 16, 2020\n\nVia electronic mail\n\nThe Honorable J. R. Patton\n\nAlderman\n\nCity of Calumet City\n\nVia electronic mail\n\nMr. McStephen O. A. Solomon\n\nAttorney at Law\n17541 South Kedzie Avenue, Suite 888\n\n[street address redacted for site publication -- see original PDF]\nmaxlawilin@gmail. com\n\nRE: FOIA Request\n\nfor Review — 2019 PAC 59166\n\nDear Mr. Patton and Mr. Solomon: \n\nThis determination is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2018)). For the reasons that follow, the\nPublic Access Bureau concludes that the Calumet Memorial Park District ( District) failed to\n\nconduct a reasonable search for records responsive to a FOIA request submitted by Mr. J. R. \nPatton. \n\nOn July 22, 2019, Mr. Patton sent an e- mail to Mr. Charles L. Dockery, Executive\n\nDirector of the Calumet Memorial Park District, asking, \"[ W] ho at the park handles FOIA\nrequests? \nI' d like to submit a request but don' t know where to send it.\" I Later that day, Ms. \nDockery responded, \" You can send it to me. I am currently the FOIA Agent for the district.\" 2\nI would\nMr. Patton sent a return e- mail to Mr. Dockery that evening stating: \" Thanks Charles! \n\nDirector ( July 22, 2019). \n\nE- mail from J. R. Patton to Charles L. Dockery, Calumet Memorial Park District, Executive\n\n2E -mail from Charles L. Dockery, Calumet Memorial Park District, Executive Director to J. R. \n\nPatton ( July 22, 2019). \n\n500 South Second Street, Springfield, \n\nIllinois 62706 • (\n\n217) 782- 1090 • \n\nTTY: ( 217) 785 - 2771 • \n\nFax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n312) 814- 3000 • TTY: ( 312) 814- 3374 • Fax: ( 312) 814- 3806\n\n1001 East Main, Carbondale, \n\nIllinois 62901 • (\n\n618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416\n\n\fThe Honorable J. R. Patton\n\nMr. McStephen O. A. Solomon\n\nJanuary 16, 2020\nPage 2\n\nlike to submit an [ sic] FOIA for text messages from Yvette' s phone ( the new commissioner) \n\nduring the time of meetings for every meeting she' s attended so far. i3 The next day, Mr. \nDockery stated: \" J. R., I don't know how you would go about that, she is using her personal phone\nand not a park district issued phone. I' m not sure but I think you will have to FOIA her for her\nphone records and not the Park District. Make it a great day! i4 Mr. Patton responded by\nasserting: \" As a member of the board she is required to comply with any request sent through the\npark district. My understanding is that as the FOIA person at the park you can submit a copy of\nthe request to her and then she can comply or not comply from there — but I would check with\nthe parks attorney.\" 5\n\nIn the copy of this e- mail exchange that Mr. Patton provided this office, the next\ne- mail in the chain is a response from Mr. Dockery on July 31, 2019, stating, in pertinent part: \n\nIn My last email I asked you did your email serve as a\n\nFOIA request or was it just an email. You never replied. \n\nHowever, I spoke with Commissioner Williams about your\n\nFOIA Inquiry for her text message records for every meeting that\nshe has been a commissioner. She replied that she has no cell\nphone in her name and she can' t provide you those records. \n\nI have no problem providing you information, however, it\n\nneeds to be in the form of a formal FOIA request and not an\n\nemai061\n\nOn August\n\n1, 2019, Mr. Patton submitted a Request for Review to the Public\nAccess Bureau contesting the District' s response to his FOIA request, and asserting that the\nCommissioner identified in the FOIA request was in possession of and using a cell phone during\nat least one public meeting of the District's Board of Commissioners. \n\n3E -mail\nDirector (July 22, 2019). \n\nfrom\n\nJ. R. Patton to Charles L. Dockery, Calumet Memorial Park District, Executive\n\nE- mail from\n\nCharles L. Dockery, Calumet Memorial Park District, Executive Director to J. R. \n\nPatton ( July 23, 2019). \n\n5E -mail\nDirector ( July 23, 2019). \n\nfrom\n\nJ. R. Patton to Charles L. Dockery, Calumet Memorial Park District, Executive\n\nPatton ( July 31, 2019). \n\n6E - mail\n\nfrom\n\nCharles L. Dockery, Calumet Memorial Park District, Executive Director to J. R. \n\n\fThe Honorable J. R. Patton\n\nMr. McStephen O.A. Solomon\nJanuary 16, 2020\nPage 3\n\nOn August 6, 2019, this office forwarded the Request for Review to the District\n\nasked it to provide a detailed description of the measures take to locate records responsive to the\n\nto explain whether\n\nit asked the Commissioner\n\nrequest. Specifically, this office asked the District\nidentified in the FOIA request ( Ms. Yvette Pierce -Williams) to search for responsive text\nmessages concerning District business' on any personal communication devices that were in her\npossession at the time of District Board meetings, and to describe her response to that inquiry. \nOn August 19, 2019, the District' s outside counsel provided a response on the District's behalf, \narguing: ( 1) Mr. Patton had not submitted a proper FOIA request to the District; ( 2) Mr. Patton' s\ncorrespondence did not request copies of public records of the District because a Commissioner' s\ntexts are not records in the custody or possession of the District; and ( 3) the District\nwith the Commissioner about Mr. Patton's request and notified Mr. Patton of the Commissioner' s\nresponse. Mr. Patton replied on August 21, 2019. \n\ninquired\n\nDETERMINATION\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with [ FOIA].\" \n140/ 1 ( West 2018). Under section 1. 2 of FOIA ( 5 ILCS 140/ 1. 2 ( West 2018)), \"[ a] ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\" \nAs discussed above, the District provided several\nnot properly respond to his FOIA request. \n\nresponses to Mr: Patton' s allegation that it did\n\n5 ILCS\n\nForm of FOIA Request\n\nThe District first argues that Mr. Patton' s e- mail to Mr. Dockery \" did not meet a\nrequest for inspection or copying of public records under the FOIA Act. This is supported by\nthe fact that Mr. Patton' s email was not directed to the Calumet Memorial Park District — the\npublic body in this case.\"' ( Emphasis in original.) However, as described above, Mr. Patton\nsubmitted his FOIA request to the District by sending an e- mail to the District e- mail address of\nMr. Dockery, the District' s designated FOIA Officer, who had just told Mr. Patton that the\nprocess for submitting a FOIA request to the District was to \" send it to [ him.] i8 Mr. Patton' s e- \nmail expressly indicated that he wanted to submit a \" FOIA\" for text messages. It is unclear what\nother process Mr. Patton should have followed to submit a FOIA request to the District other\nthan following the FOIA Officer' s express direction to send it to him and invoking FOIA. \n\nGeneral, Public Access Bureau, at 2 ( undated). \n\nLetter from McStephen O. A. Solomon, Attorney at Law, to Leah Bartelt, Assistant Attorney\n\nPatton ( July 22, 2019). \n\nE- mail from Charles L. Dockery, Calumet Memorial Park District, Executive Director to J. R. \n\n\fThe Honorable J. R. Patton\n\nMr. McStephen O. A. Solomon\n\nJanuary 16, 2020\nPage 4\n\nThe District further characterizes Mr. Patton' s correspondence to Mr. Dockery as\na \" personal email. i9 Section 3( c) of FOIA ( 5 ILCS 140/ 3( c) ( West 2018), as amended by Public\nAct 101- 081, effective July 12, 2019) states that written requests for inspection of copies of\nrecords \" may be submitted to a public body via personal delivery, mail, telefax, or other means\navailable to the public body,\" and that \"[ a] public body may not require that a request be\nsubmitted on a standard form[.]\" Given that Mr. Patton had been corresponding by sending e- \nmails to the District's FOIA Officer at his Park District e- mail address, it was apparent that e- \n\nmail delivery of his FOIA request was a \" means available to the public body.\" \n\nFinally, the District alleges that Mr. Patton' s e- mail \" merely informs Mr. Dockery\n\nthat he ' would like to submit [ a] FOIA,'\" 10 rather than requesting inspection or copying of\nrecords. This statement mischaracterizes the e- mail. Mr. Patton' s e- mail both states that he\n\nwould like to submit a \" FOIA\" and specifically identifies the records he is seeking— text\nmessages from a particular commissioner' s phone sent or received during meetings. \nFurthermore, Mr. Patton sent this e- mail after he had already asked and received an answer to his\ngeneral question about\nto the District. The District\nfurther alleges that Mr. Dockery sought clarification from Mr. Patton as to whether his request\nfor a Commissioner' s text messages was a FOIA request, and that Mr. Patton did not respond to\n\nthe process for submitting a FOIA request\n\nthat request for clarification. Regardless, Mr. Patton' s e- mail was directed to the FOIA officer, \nspecifically invoked FOIA, and asked for a particular set of records. This e- mail\nleaves no room\nfor ambiguity as to whether Mr. Patton was seeking information under FOIA. The e- mail was a\nvalid FOIA request to which Mr. Patton is entitled to receive either responsive records or a\n\nproper denial. \n\nDefinition of Public Records\n\nAlternatively, the District argues that Mr. Patton' s request for any text messages\n\nCommissioner Pierce -Williams sent or received during a public meeting does not seek public\nrecords of the District. Section 3( a) of FOIA ( 5 ILCS 140/ 3( a) ( West 2018)) provides that\ne] ach public body shall make available to any person for inspection or copying all public\nrecords, except as otherwise provided in Sections 7 and 8. 5 of this Act.\" Section 2( c) of FOIA\ndefines \" public records\" as: \n\nGeneral, Public Access Bureau, at 2 ( undated). \n\n9Letter from McStephen O.A. Solomon, Attorney at Law, to Leah Bartelt, Assistant Attorney\n\nGeneral, Public Access Bureau, at 2 ( undated). \n\n1° Letter from McStephen O. A. Solomon, Attorney at Law, to Leah Bartelt, Assistant Attorney\n\n\fThe Honorable J. R. Patton\n\nMr. McStephen O. A. Solomon\n\nJanuary 16, 2020\nPage 5\n\nall records, reports, forms, writings, letters, memoranda, books, \n\npapers, maps, photographs, microfilms, cards, tapes, recordings, \n\nelectronic data processing records, electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction of public business, regardless of\nphysical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body. ( Emphasis added.) \n\nSpecifically, the District argues: \n\nT] he information/ records requested by Mr. Patton were not\n\nrecords in the custody or possession' of the Calumet Memorial\nPark District, which, under the FOIA Act, would have been 'open\nto inspection or copying.\" See 5 ILCS 140/ 1. 2. Nothing in the\nIllinois FOIA Act vests duty or responsibility upon a public body\nto investigate or seek information/ records that are not in its custody\nor possession for the purpose of responding to a FOIA request.\" tl\nCitation in original.) \n\nThe Illinois Appellate Court specifically rejected a similar argument seeking the\n\nsame type of records in City of Champaign v. Madigan, 2013 IL App ( 4th) 120662, ¶ 38, 992\nN. E. 2d 629, 638 ( 2013). There, the City argued that electronic communications sent or received\nby City Council members during a City Council meeting were not the City' s \" public records\" if\nthey were sent or received on the personal communication devices of the City Council members. \nCity of Champaign, 2013 IL App ( 4th) 120662, ¶ 19. In rejecting that argument, the appellate\n\ncourt explained: \n\nAlice the individual city council members have convened a city\nit can reasonably be said they are acting in\ncouncil meeting * * *, \ntheir collective capacity as the \" public body\" during the time the\nThus, if the communication, which\nmeeting is in session. * * * \npertains to the transaction of public business, was sent or received\nduring the time a city council meeting was in session, i. e., during\nthe time the individual city council members were functioning\ncollectively as the \" public body,\" then the communication is a\n\nGeneral, Public Access Bureau, at 2- 3 ( undated). \n\nLetter from McStephen O. A. Solomon, Attorney at Law, to Leah Bartelt, Assistant Attorney\n\n\fThe Honorable J. R. Patton\n\nMr. McStephen O. A. Solomon\n\nJanuary 16, 2020\nPage 6\n\npublic record\" and thus subject to FOIA. City of Champaign, \n2013 IL App ( 4th) 120662, ¶ 42. \n\nLikewise, Mr. Patton requested any text messages from the phone of a public\n\nbody member sent or received during meetings. His Request for Review makes clear that he is\ncontesting the District' s denial of his request only with respect\nrelating to the business of the board meeting[.]\"\nCommissioner Pierce -Williams sent or received text messages during a Board meeting that\nconcerned the public business of the District or Board, those messages are the District' s public\nrecords and are subject\n\nI2 Accordingly, to the extent that the • \n\nto \" any and all text message\n\nto FOIA. 13\n\nAdequacy of the Village' s Search for Responsive Records\n\nFinally, the District' s response to the Request\n\nfor Review asserts that Mr. Dockery\n\nin good faith, did speak with the identified Commissioner to inquire about the subject of Mr. \nPatton' s ' FOIA request.' Her response was relayed to Mr. Patton. Again, neither Mr. Dockery, \nnor the Calumet Memorial Park District, under the Illinois FOIA Act, is under any legal\nobligation or duty to conduct any investigation or inquiry into the response of the\nCommissioner. i14 Mr. Dockery had responded to Mr. Patton' s FOIA request by asserting that the\ncommissioner\n\nreported she has no cell phone in her name. \n\nstandard of reasonableness[.]\" \n\nThe adequacy of [a public body' s] search for requested documents is judged by a\nMiller v. US. Department of State, 779 F. 2d 1378, 1383 ( 8th Cir. \n\n1985). \" At all times the burden is on the [ public body] to establish the adequacy of its search.\" \nRugiero v. US. Dep' t of Justice, 257 F. 3d 534, 547 ( 6th Cir. 2001). \nIn Binding Opinion 16- 006\n\n2019). \n\n12E -mail from J. R. Patton, 6th Ward Alderman, City of Calumet City to Public Access ( August\n\n1, \n\nThe District also argues that the requested records were \" personal, and thus, may be subject to\nthe exemption provisions of the FOIA Act,\" citing \" section 7( b)\" of FOIA. The District' s argument on this point is\nnot well developed and its intent is unclear. Certainly, texts concerning personal matters that are unrelated to the\ntransaction of public business are not subject to the requirements of FOIA. 5 ILCS 140/ 2( c) ( West 2018) ( limiting\nthe definition of\" public records\" to \" all records, * * * pertaining to the transaction of public business[.]\"); City of\nChampaign, 2013 IL App ( 4th) 120662, ¶ 3 I, 992 N.E. 2d at 637 (\" to qualify as a public record a communication\nmust\nIndeed, FOIA is not concerned\nwith an individual' s private affairs.\"). However, to the extent that the District is arguing that communications that\npertain to public business but sent on. a personal device are exempt from disclosure, the District is incorrect, for the\n\nfirst pertain to ' business or community interests as opposed to private affairs.' \n\nreasons explained above. \n\n14Letter\nGeneral, Public Access Bureau, at 3 ( undated). \n\nfrom McStephen O. A. Solomon, Attorney at Law, to Leah Bartell, Assistant Attorney\n\n\fThe Honorable J. R. Patton\n\nMr. McStephen O. A. Solomon\n\nJanuary 16, 2020\nPage 7\n\nan automated search of the entirety of a personal e- mail account using a search\n\nIll. Att' y Gen. Pub. Acc. Op. No. 16- 006, issued August 9, 2016), this office analyzed whether\nthe Chicago Police Department ( CPD) violated FOIA by failing to attempt to ascertain whether\nits personnel possessed e- mails in their private e- mail accounts that were responsive to a request\nseeking e- mails about a police shooting from both public and private accounts. With respect to\nthe parameters of the search that CPD was obligated to perform under FOIA, the Attorney\nGeneral stated: \"\nterm is not necessarily required. Depending on the circumstances, ordering CPD officers to\nproduce any responsive records may satisfy the requirement that CPD conduct a reasonable\nsearch.\" \nBrophy v. U.S. Department of Defense, No. CIV.A. 05- 360 ( RMC), 2006 WL 571901, at * 8\nD. D. C. 2006) for the principle that \" absent evidence of a lack of good faith, a public employee' s\nsearch of his personal e- mail account and confirmation that he did not locate responsive records\nsatisfied the public body' s obligation to conduct a reasonable search of that account.\" Ill. Att'y\nGen. Pub. Acc. Op. No. 16- 006, at 11. \n\nIII. Att'y Gen. Pub. Acc. Op. No. 16- 006, at 10. The Attorney General also cited\n\nThe District did not demonstrate it conducted a reasonable search for the records\n\nMr. Patton requested. In one of his initial e- mails to Mr. Patton, Mr. Dockery stated that the\ncommissioner was \" using her personal phone and not a park district issued phone, i15 and then\ntold him she does not have a cell phone in her name. Mr. \nlater responded that the commissioner\nPatton asserted to this office that Commissioner Pierce -Williams was seen using a cell phone at a\nmeeting. Given these conflicting statements, this office requested that the District clarify\nwhether it had asked the commissioner to search for responsive text messages concerning public\nbusiness on any personal communication devices that were in her possession at the time of\nDistrict Board meetings. \nresponded to this office by referencing Mr. Dockery's imprecise statement to Mr. Patton and\narguing it had no duty to ask the commissioner any additional questions. For that reason, this\noffice is unable to conclude that the District performed a reasonable search for public records\nresponsive to Mr. Patton' s request. \n\nInstead of providing this simple clarification, the District\n\ninstead\n\nAccordingly, this office has determined that the District violated FOIA by failing\n\nto conduct a reasonable search for responsive records. This office requests that the District\ninquire with the commissioner identified in the FOIA request as to whether she possesses any\nresponsive text messages concerning public business on any personal communication devices\nthat were in her possession at the time of District Board meetings. Following that search, the\nDistrict should issue a supplemental response to Mr. Patton, providing him with copies of any\npublic records responsive to his request, subject only to permissible redactions under section 7 of\nFOIA ( 5 ILCS 140/ 7 ( West 2018)). If the District determines that there are no public records\n\nPatton ( July 23, 2019). \n\n15E - mail\n\nfrom Charles L. Dockery, Calumet Memorial Park District, Executive Director to J. R. \n\n\fhe Honorable J. R. Patton\n\nMr. McStephen O. A. Solomon\n\nJanuary 16, 2020\nPage 8\n\nresponsive to Mr. Patton' s request, its supplemental response should describe how it reached that\n\nconclusion in sufficient detail\n\nto allow for adversarial\n\ntesting. \n\nThe Public Access Counselor has determined that resolution of this issue does not\n\nrequire the issuance of a binding opinion. This letter shall serve to close the matter. If you have\nany questions, you may contact me at ( 312) 814- 6437 or lbartelt@atg. state. il. us\n\nVery truly yours, \n\nLEAH BAR rI ELT\n\nDeputy Public Access Counselor\nPublic Access Bureau\n\n59166 f 2c improper 3a search improper pkd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Park district officials' communications about district business","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":943,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-08-16","case_number":null,"request_numbers":["59194"],"title":"Village of Cambridge not required to scan paper records into electronic format","filename":"59194, issued August 16, 2019.pdf","rel_path":null,"word_count":1476,"summary":"The requester challenged the Village of Cambridge's refusal to provide electronic copies of paper records, arguing that the Village's possession of a scanner mandated such conversion. The PAC determined that FOIA does not require a public body to create electronic copies of records maintained solely in paper format.","plain_summary":"A requester asked the Village of Cambridge to scan paper documents and send them as electronic files. The Attorney General's office ruled that FOIA does not force public bodies to convert paper records into electronic files just because they own a scanner. The request was closed with no further action taken.","holding":"The Village of Cambridge was not required to scan paper records to provide them in an electronic format.","legal_question":"Does FOIA require a public body to create electronic copies of records that are maintained solely in paper format?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Cambridge","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"records format","subject_description":"The requester sought electronic copies of records that the public body only maintains in paper format.","ocr_status":"ok","ocr_quality":97.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_d/59194%2C%20issued%20August%2016%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["electronic records","paper records","scanning","copying"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nAugust 16, 2019\n\nRE: FOIA Request for Review — 2019 PAC 59194\n\nDear\n\nThis determination is issued pursuant to section 9. 5( c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2018)). For the reasons set forth below, the\n\nPublic Access Bureau concludes that no further action is warranted in this matter. \n\nOn June 10, 2019, you submitted a FOIA request to the Village of Cambridge\n\nformat ( PDF) copies of certain records that you\n\nVillage) seeking portable document\nacknowledged existed solely in paper format; you stated that this request was a repeat of one of\nyour previous requests to the Village. On June 20, 2019, the Village responded that your request\nwas an unduly burdensome repeated request under section 3( g) of FOIA ( 5 ILCS 140/ 3( g) ( West\n2018)), but that, in any event, it was not required to provide electronic copies of records that it\ndid not maintain electronically. On August 5, 2019, this office received your Request\nReview arguing that because the Village possesses a scanner, it is required to scan in records\nmaintained solely in paper format and provide you with electronic copies, free of charge. You\ncontend that this office' s previous determination that a public body is not required to provide\nelectronic copies of records that it maintains only in paper format\ndetermination did not account for the definition of \"copying\" in section 2( d) of FOIA ( 5' ILCS\n140/ 2( d) ( West 2018)). \n\nin incorrect,' arguing that the\n\nfor\n\nSection 3( g) of FOIA provides, \n\nin relevant part, \"[ r] epeated requests from the\n\nsame person for the same records that are unchanged or identical\nor properly denied under this Act shall be deemed unduly burdensome under this provision.\" \nEmphasis added.) You argue that the Village did not properly assert section 3( g) in its denial. \nHowever, as your Request for Review acknowledges, whether or not the denial was proper under\n\nto records previously provided\n\nsection 3( g), the underlying issue is the same: whether FOIA requires a public body to provide a\n\n1111. Att'y Gen. PAC Req. Rev. Ltr. 46913, issued May 2, 2017, at 3. \n\n500 South Second Street, Springfield, \niY: (877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • ' iTY: (800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, IL 62901 • ( 618) 529- 6400 •'\n1\" FY: ( 877) 675- 9339 • Fax ( 618) 529- 6416\n\n217) 782- 1090 •'\n\nIllinois 62701 • (\n\n1'\n\n\fAugust 16, 2019\n\nPage 2\n\nrequester with electronic copies of records that it maintains in paper format. Therefore, we need\n\nnot address the section 3( g) issues here. \n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" \nconstrued \" as a whole, so that no part is rendered meaningless or superfluous.\" People v. Jones, \n\n5 ILCS 140/ 1. 2 ( West 2018). Statutes must be\n\n223 Ill. 2d 569, 581 ( 2006). \n\nSection 2( d) of FOIA defines \" copying\" as: \"\n\nthe reproduction of any public\n\nrecord by means of any photographic, electronic, mechanical or other process, device or means\nnow known or hereafter developed and available to the public body.\" Additionally, sections 6( a) \nand 6( a- 5) of FOIA ( 5 ILCS 140/ 6( a), ( a- 5) ( West 2018)) provide, in pertinent part: \n\na) When a person requests a copy of a record maintained\n\nin an electronic format, the public body shall furnish it in the\nelectronic format specified by the requester, if feasible. If it is not\nfeasible to furnish the public records in the specified electronic\nformat, then the public body shall furnish it in the format in which\nit is maintained by the public body, or in paper format at the option\nof the requester. A public body may charge the requester for the\nactual cost of purchasing the recording medium, whether disc, \ndiskette, tape, or other medium. * * * \n\na- 5) If a voluminous request\n\nis for electronic records and\n\nthose records are not in a portable document format (PDF), the\n\npublic body may charge up to $ 20 for not more than 2 megabytes\nof data, up to $ 40 for more than 2 but not more than 4 megabytes\nof data, and up to $ 100 for more than 4 megabytes of data. If a\nvoluminous request is for electronic records and those records are\nin a portable document format, the public body may charge up to\n20 for not more than 80 megabytes of data, up to $ 40 for more\nthan 80 megabytes but not more than 160 megabytes of data, and\n\nup to $ 100 for more than 160 megabytes of data. If the responsive\nelectronic records are in both a portable document\nformat and not\nin a portable document format, the public body may separate the\nfees and charge the requester under both fee scales. \n\nFurther, section 6( b) of FOIA ( 5 ILCS 140/ 6( b) ( West 2018)) sets forth fees for paper copies\n\nbased on page count, unlike section 6( a), which authorizes a public body to charge at most the\ncost of the recording medium used to transmit electronic copies of electronic records. \n\n\fAugust 16, 2019\n\nPage 3\n\nConstruing FOIA as a whole, the statute does not require a public body to provide\n\nelectronic copies of paper records. Section 6( a) of FOIA specifically addresses providing\nelectronic copies of records \" maintained in an electronic format.\" The absence of similar\n\nlanguage stating that a public body shall provide electronic copies of records maintained in a\npaper format indicates that the General Assembly intended no such requirement. Further, section\n6( a) provides that a public body is only required to provide copies of records maintained\nelectronically in a specified electronic format if it is \" feasible\" to do so. If the definition of\ncopying\" in section 2( d) imposed a blanket obligation on public bodies to reproduce all records\nby any means \" available\" to a public body, as you appear to assert, then the provisions in section\n6( a) limiting the extent of the obligation to provide electronic records in a specified electronic\nformat to when it is \" feasible\" would be superfluous. \n\nSimilarly, section 6( a- 5) of FOIA provides fees only for electronic copies of\nelectronic records, in cases of voluminous requests. The notion that a public body would be\nrequired to scan in paper records responsive to a voluminous request would have an absurd\n\nresult: a public body would be able to charge up to $ 100 for electronic copies of electronic\nrecords, but no more than the cost of a recording medium for electronic copies of paper records, \ndespite the high probability that the effort and resources involved in making electronic copies of\npaper records would exceed the effort and resources involved in providing electronic copies of\nelectronic records. Such an absurd result must be rejected. See, for example, People v. Garcia, \n\n241 Ill. 2d 416, 421 ( 2011) (\"\n\nIt is always presumed that the legislature did not intend to cause\n\nabsurd, inconvenient, or unjust results.\"). \n\nConstruing FOIA as requiring public bodies to provide only paper copies of paper\n\nrecords does not conflict with section 2( d) of FOIA. To the contrary, this interpretation is\nharmonious with section 2( d) and the other provisions of FOIA in that section 2( d) merely\naccounts for various methods of reproduction depending on the circumstances. In other words, \nbecause the method of reproduction applicable to one type of record may not work for a different\ntype of record, the definition must be expansive enough to account for those differences. The\n\ndiscussion of copying in Hites v. Waubonsee Community College, 2016 IL App ( 2d) 150836, \n73, 56 N. E. 3d 1049, 1065 ( 2016) is irrelevant\n\nto the legal question here, as Hites did not\n\naddress whether a public body is required to make and provide electronic copies of records that it\nmaintains only in paper format.. Rather, the court discussed the unrelated notion that electronic\nsorting of a database could be considered\n\na form of copying. \n\n\fAugust 16, 2019\n\nPage 4\n\nFor all of these reasons, this office concludes that no further action is warranted in\n\nthis matter. This letter closes this file. \n\nVery truly yours, \n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n59194 f no fi war mun\n\ncc: \n\nVia electronic mail\n\nMr. Steven Brown\n\nFOIA Officer\n\nVillage of Cambridge\n\n24 West Exchange Street\n\nCambridge, Illinois 61238\n\nadmnvoc@gmail. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Paper-only records requested in electronic format","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":944,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-11-12","case_number":null,"request_numbers":["60222"],"title":"Chicago Public Schools' estimated response time for recurrent requester held reasonable","filename":"60222, issued November 12, 2019.pdf","rel_path":null,"word_count":813,"summary":"The requester challenged the Chicago Public Schools' (CPS) timeline for responding to a FOIA request for disciplinary records of security personnel. The PAC determined that the school district's estimated response time was not unreasonable given the volume of records requested.","plain_summary":"A requester asked Chicago Public Schools for five years of disciplinary records for ten different security guards. Because the requester was classified as a 'recurrent requester,' the school district took extra time to process the request, which the requester complained about to the Attorney General. The Attorney General's office reviewed the situation and decided the school district's timeline was acceptable, so they closed the case.","holding":"The PAC concluded that no further action was warranted because the public body's estimated response time was reasonable under the circumstances.","legal_question":"Whether a public body's estimated time for responding to a FOIA request from a recurrent requester is reasonable under section 3 of FOIA.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Public Schools","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"fees","subject_description":"The request sought disciplinary records and incident reports for ten school security personnel over a five-year period.","ocr_status":"ok","ocr_quality":93.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3.2/60222%2C%20issued%20November%2012%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["recurrent requester","response time","disciplinary records","school records"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nNovember 12, 2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request\n\nfor Review — 2019 PAC 60222; CPS # N007365- 091919\n\nDear\n\nThis determination letter is issued pursuant to section 9. 5( c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2018)). For the reasons set forth below, the\n\nPublic Access Bureau concludes that no further action in this matter is warranted. \n\nOn September 19, 2019, you submitted a FOIA request\n\nto the Chicago Public\n\nSchools ( CPS) seeking: \n\nThe documents relating to the disciplinary records and/ or incident\nreports for these Steinmetz High School security personnel: \na. Anselmo Chaparro b. Noah Washington c. Luis Jaime Lopez\n\nd. William Daugherty e. Leonard Guziec f. Marcelo Rosa I11\ng. Taniah Hall h. Yvonne Gonzalez I. Sophia Matarazzo j. Samuel\nPearson who was assigned to Steinmetz High School for the\nfollowing school years: 2015- 16 through 2019- 20. 1'\n\ni\n\nThat same day, CPS notified you that you are a recurrent\nFOIA ( 5 ILCS 140/ 2( g) ( West 2018)), and would, therefore, send you an initial response within\n21 days after receipt of your FOIA request. CPS also informed you that, among other things, its\ninitial response will \"[ n] otify you of an estimate of the time required to provide the requested\n\nrequester pursuant\n\nto section 2( g) of\n\n2019). \n\nFOIA request via the Chicago Public Schools FOIA Center from\n\nSeptember 19, \n\n500 South Second Street, Springfield- \nIllinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago. Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601 South University Ave.. Carbondale. \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fNovember\n\n12, 2019\n\nPage 2\n\nrecords\" and that \" the response time will be within a reasonable period considering the size and\ncomplexity of your request[.]\ndate for a response * * * \n\ni2 On October 18, 2019, CPS responded to you that \" the reasonable\n\nis December 20, 2019.\" 3 Later that day, you submitted a Request\n\nfor\n\nReview asking this office \" to persuade CPS to respond with the requested information to me in a\ntimelier manner.\" 4\n\nSection 3. 2( a) of FOIA ( 5 ILCS 140/ 3. 2( a) ( West 2018)) provides that: \n\nA] public body shall respond to a request from a recurrent\nrequester, as defined in subsection ( g) of Section 2, within 21\nbusiness days after receipt. The response shall ( i) provide to\n\nthe requester an estimate of the time required by the public\nbody to provide the records requested and an estimate of the\nfees to be charged, which the public body may require the person\nto pay in full before copying the requested documents, ( ii) deny the\nto one or more of the exemptions\nrequest pursuant\n\nset out\n\nin this\n\nAct, (iii) notify the requester that the request is unduly burdensome\nand extend an opportunity to the requester\nto reduce the\nrequest to manageable proportions, or ( iv) provide the records\n\nto attempt\n\nrequested. \n\nIn addition, section 3. 2( c) of FOIA (5 ILCS 140/ 3. 2( c) ( West 2018)) provides that \"[ u] nless the\nrecords are exempt from disclosure, a public body shall comply with a request within a\nreasonable period considering the size and complexity of the request.\" \n\nYour Request\n\nfor Review does not dispute that you qualify as a recurrent\n\nrequester under section 2( g) of FOIA. Your request broadly sought \" documents relating to the\ndisciplinary records and/ or incident reports\" of 10 individuals over a five- year period. We have\nnot been provided any information that indicates a response by December 20, 2019. is\nunreasonable under these circumstances. Accordingly, this office concludes that that no further\naction is warranted in this matter. \n\n2E -mail\nChicago Public Schools FOIA Center, to [\n\nSeptember 19, 2019). \n\nfrom Elyssa Shull, Freedom of Information Officer, Chicago Public Schools, via the\n\nChicago Public Schools FOIA Center, to [\n\n3E -mail from Elyssa Shull, Freedom of Information Officer, Chicago Public Schools. via the\nOctober\n\n18. 2019). \n\n4E -mail from\n\nto the Public Access Counselor ( October 18, 2019). \n\n\fNovember 12, 2019\n\nPage 3\n\nThis file is closed. If you have any questions, please contact me at 312- 814- 5201\n\nor at the Chicago address listed on the bottom of the first page of this letter. \n\nVery t\n\ny yours, \n\nE TEINBERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n60222 f no fi war sd\n\ncc: \n\nVia electronic mail\n\nMr. Andrew Mason\n\nFOIA Officer\n\nChicago Public Schools\n\nOne North Dearborn Street, 9th Floor\n\nChicago, Illinois 60602\n\namason19@cps.\n\nedu\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Disciplinary records for school security personnel","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":945,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-01-10","case_number":null,"request_numbers":["60599"],"title":"Chicago Police Department did not violate FOIA by withholding body camera footage under 7(1)(d)","filename":"60599, issued January 10, 2020.pdf","rel_path":null,"word_count":1739,"summary":"The requester sought body camera footage from a search warrant execution, and the PAC determined that the Chicago Police Department did not violate FOIA by denying the request based on law enforcement exemptions.","plain_summary":"A journalist requested police body camera footage from a search warrant execution at a private home. The Chicago Police Department denied the request, citing law enforcement exemptions. The Attorney General's office agreed that the police department did not violate the law, noting that the department is not required to release the footage even if the subjects of the video provide consent.","holding":"The Chicago Police Department did not violate FOIA by denying the request for body camera footage from private residences.","legal_question":"Whether the Chicago Police Department violated FOIA by withholding body camera footage from a search warrant execution under the law enforcement exemptions.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)(i)","7(1)(d)(ii)"],"public_body":"Chicago Police Department","requesting_party":"Ms. Samah Assad, WBBM-TV Chicago","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request involved body camera footage captured during the execution of a search warrant at a private residence.","ocr_status":"ok","ocr_quality":95.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_cc/Flagged-reasonable-expectation-of-privacy/60599%2C%20issued%20January%2010%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["body camera","police records","search warrant","law enforcement exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSIAM OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nJanuary 10, 2020\n\nVia electronic mail\n\nMs. Samah Assad\n\nWBBM- TV Chicago\n\nInvestigative Producer\n\nCBS 2 Broadcast Center\n\n22 West Washington Street\n\n[street address redacted for site publication -- see original PDF]\nsfassad@cbs.\n\ncom\n\nVia electronic mail\n\nMs. Dana O' Malley\nAssistant General Counsel\n\nChicago Police Department\n3510 South Michigan Avenue\nChicago, Illinois 60653- 1020\n\npacola@chicagopolice. org\n\nRE: FOIA Requests for Review — 2019 PAC 60575; CPD No. P516747\n2019 PAC 60599; CPD No. P514119\n\nDear Ms. Assad and Ms. O' Malley: \n\nThis determination is issued pursuant to section 9. 5( c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2018)) as to 2019 PAC 60599 and section\n9. 5( 0 of FOIA ( 5 ILCS 140/ 9. 5( 0 (West 2018)) as to 2019 PAC 60575. For the reasons set forth\nbelow, the Public Access Bureau concludes that the Chicago Police Department ( CPD) did not\nviolate FOIA by denying Ms. Samah Assad' s FOIA requests for body camera footage from\nprivate residences. \n\nOn August 12, 2019, Ms. Assad submitted a FOIA request to CPD seeking copies\n\nof \"any and all dash camera video and/ or body camera video captured during the execution of a\nsearch warrant at [ a specific residence] on Aug. 5, 2019.\" 1 On November 13, 2019, CPD denied\n\nAugust 12, 2019). \n\nE- mail\n\nfrom Samah Assad, WBBM- TV CHICAGO, Investigative Producer, to [ CPD FOIA] \n\n500 South Second Street, Springfield. \n\nIllinois 62701 • (\n\n217) 782- 1090 • ' FIN: (877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago. Illinois 60601 • ( 31 _2) 814- 3000 • TI(\n\n800) 064- 3013 • Fax: ( 312) 814- 3806 - \n\n601 South university Ave.. Carbondale. \n\nIL 62001 • (\n\n618) 520- 6400 • T (\n\n877) 675- 9539 • Fax ( 618) 529- 6416\n\n\fMs. Samah Assad\n\nMs. Dana O' Malley\nJanuary 10, 2020\nPage 2\n\nthe request\n140/ 7( 1)(\n\nin its entirety pursuant\n\nto sections 7( 1)( a), 7( 1)( c), and 7( 1)( d) of FOIA ( 5 ILCS\n\n1)( d) ( West 2018), as amended by Public Act 101- 455, effective August 23, \n2019). In connection with section 7( 1)( a), CPD cited section 10- 20( b) of the Law Enforcement\n\nc), (\n\na), (\n\n1)(\n\nOfficer -Worn Body Camera Act ( Body Camera Act) ( 50 ILCS 706/ 10- 20( b) ( West 2018)). The\nfollowing day, Ms. Samah submitted a Request for Review ( 2019 PAC 60599) contesting CPD' s\ndenial. She explained that her news station had been reporting on raids of the wrong homes and\n\nstated: \n\nIn this FOIA, I requested body camera footage from a\nwrong raid on an innocent\nfamily' s home where children were\npresent. The family alleges the officers pointed guns at them, \nincluding in the direction of a 3 - month- old baby. While there may\nhave been no arrests, it can be argued that police did in fact use\nforce by pointing guns. 121\n\nIn addition, on August 21, 2019, Ms. Assad submitted another FOIA request\n\nto\n\nCPD seeking body camera footage for a different\ndenied the request, again citing section 7( 1)( a) of FOIA in connection with the Body Camera\nfor Review ( 2019 PAC 60575) \nAct. On November\n\n18, 2019, Ms. Assad submitted a Request\n\nresidence. On November\n\n11, 2019, CPD\n\ncontesting that denial\n\ntoo. She stated: \n\nIn this FOIA, I requested body camera footage from a\nwrong raid on an innocent woman' s home who was naked and\nhandcuffed. She said officers pointed guns at her. While she may\nit can be argued that police did in fact use\nnot have been arrested, \n\nforce by pointing guns at her and handcuffing her— all events the\npolice department has not denied to have occurred. In addition, we\n\nare aware the subject of the video has filed a FOIA request as\nwell.[31\n\nOn November 21, 2019, this office forwarded a copy of Ms. Assad' s latter\n\nRequest\n\nfor Review to CPD and asked it to provide copies of the responsive records for this\n\noffice' s confidential\n\nreview, together with a detailed explanation for its denial. On November 22, \n\n2019, CPD provided those materials. On that same date, an Assistant Attorney General\nPublic Access Bureau e- mailed CPD asking whether\n\nin the\nit would be willing to provide Ms. Assad\n\nBureau] ( November 14, 2019). \n\nE- mail\n\nfrom Samah Assad, WBBM- TV Chicago, \n\nInvestigative Producer, \n\nto Public Access\n\nBureau] ( November\n\n12, 2019). \n\nE- mail from Samah Assad, WBBM- TV Chicago, Investigative Producer, to Public Access\n\n\fMs. Samah Assad\n\nMs. Dana O' Malley\nJanuary 10, 2020\nPage 3\n\nwith a copy of the body camera recording if the subject were to provide written consent. CPD\nresponded that it would still deny the request pursuant to sections 7( 1)( d)( i) and 7( 1)( d)( ii) of\nFOIA ( 5 ILCS 140/ 7( 1)( d)( i), (\n\n1)( d)( ii) (West 2018), as amended by Public Act 101- 455, \n\neffective August 23, 2019). CPD explained: \n\nA] fter conferring with the Civilian Office of Police Accountability\nCOPA\"), COPA confirmed that premature disclosure of the\n\nrecording to the requestor or any other party would interfere with\ntheir open and active administrative enforcement proceeding. \nRegarding the factual basis underlying their denial under the\naforementioned FOIA exemptions, COPA asserted that disclosing\nthe recording would interfere with their apprehension of pertinent\nwitnesses and COPA' s attempts to interview said witnesses\nregarding the recording.) 41\n\nLikewise, although Ms. Assad provided CPD with a release from the subject of the recording in\nher other Request for Review after CPD issued its response to this office' s inquiry letter, CPD\nstated that it would still deny a FOIA request containing such a release because of COPA' s active\ninvestigation. \n\nOn November 25, 2019, this office sent Ms. Assad a copy of CPD' s response in\n\n2019 PAC 60575. She did not submit a reply, but did furnish a copy of written consent from the\nsubject of the recording on January 6, 2020. \n\nDISCUSSION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt\ndisclosure has the burden of proving by clear and convincing evidence that\n140/ 1. 2 ( West 2018). \n\nfrom\nit is exempt.\" \n\n5 ILCS\n\nSection 7. 5( cc) of FOIA ( 5 ILCS 140/ 7. 5( cc) ( West 2018), as amended by Public\nActs 101- 013, effective June 12, 2019; 101- 027, effective June 25, 2019; 101- 081, effective July\n12, 2019; 101- 375, effective' August 16, 2019; 101- 377, effective August 16, 2019) exempts\nfrom disclosure \"[ r] ecordings made under the Law Enforcement Officer -Worn Body Camera\nAct, except\nto the extent authorized under that Act.\" Section I 0- 20( b)( 2) of the Body Camera\nAct provides, in relevant part: \n\nDepartment, Office of Legal Affairs, to Steve Silverman ( November 22, 2019). \n\nE- mail\n\nfrom Yevgeniy (\" Eugene\") Bolotnikov, Associate Staff Attorney, Chicago Police\n\n\fMs. Samah Assad\n\nMs. Dana O' Malley\nJanuary 10, 2020\nPage 4\n\nb) Recordings made with the use of an officer -worn body\n\ncamera are not subject to disclosure under the Freedom of\n\nInformation Act, except\n\nthat: \n\n1) if the subject of the encounter has a reasonable\n\nexpectation of privacy, at the time of the recording, any\nrecording which is flagged, due to the filing of a complaint, \ndischarge of a firearm, use of force, arrest or detention, or\n\nresulting death or bodily harm, shall be disclosed in\naccordance with the Freedom of Information Act if: \n\nA) the subject of. the encounter captured on\n\nthe recording is a victim or witness; and\n\nB) the law enforcement agency obtains\n\nwritten permission of the subject or the subject' s\n\nlegal representative; \n\nNothing in this subsection ( b) shall require the disclosure of\nany recording or portion of any recording which would be exempt\nfrom disclosure under the Freedom of Information Act. \n\nUnder the plain language of this provision, if the subject is a victim who has a reasonable\nexpectation of privacy ( i. e. because the body camera footage is of the inside of the subject' s\nhome), and the footage has been flagged for reasons such as detention, the footage is subject to\ndisclosure pursuant to FOIA only if the law enforcement agency has received the subject' s\nwritten permission. Even with the subject' s permission, however, the law enforcement agency\nmay still assert any applicable FOIA exemptions to withhold the footage. \n\nIn these matters, Ms. Assad sought body camera recordings in which the subjects\n\nhad a reasonable expectation of privacy because they were inside their own homes. CPD\nacknowledged that the body camera recording at issue in 2019 PAC 60575 was flagged because\nthe subject was detained, and that the body camera recording at issue in the other Request\nReview would be flagged for the same reason. Ms. Assad did not submit written releases from\n\nfor\n\nthe subjects when she submitted her FOIA requests to CPD. Therefore, section 10- 20( b)( 2) of\n\nthe Body Camera Act prohibited CPD from disclosing the body camera recordings in response to\nMs. Assad' s requests. Ms. Assad' s subsequent sending of signed releases from the subjects to\nCPD would allow CPD to grant her requests\nthat the\n\nif it wishes, but CPD has elected to assert\n\n\fs. Samah Assad\n\nMs. Dana O' Malley\nJanuary 10, 2020\nPage 5\n\nrecordings are exempt from disclosure under sections 7( 1)( d)( i) and 7( 1)( d)( ii) of FOIA. If Ms. \n\nAssad resubmits her FOIA requests to CPD with signed releases from the subjects and CPD\n\ndenies her requests pursuant\nReview or FOIA lawsuit will be whether CPD proves by clear and convincing evidence that the\ndisclosure of the recordings would interfere with pending or actually and reasonably\ncontemplated law enforcement proceedings or active administrative enforcement proceedings. \n\nthe question in any subsequent Request\n\nto those exemptions, \n\nfor\n\nThe Public Access Counselor has determined that resolution of these matters does\n\nnot require the issuance of a binding opinion. This letter closes the files. If you have any\nquestions, please contact me at ( 312) 814- 6756. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n60575 f 75cc proper pd\n\n60599 f unf pd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police body-camera footage of a search warrant execution","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":946,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-03-03","case_number":null,"request_numbers":["61017"],"title":"Illinois Department of Public Health failed to conduct reasonable search for vaping death records","filename":"61017, issued March 3, 2020.pdf","rel_path":null,"word_count":1940,"summary":"The requester sought records regarding vaping-related deaths from the Illinois Department of Public Health, which the Department initially claimed were exempt or non-existent. The PAC determined the Department failed to conduct a reasonable search for responsive records.","plain_summary":"A journalist requested records from the Illinois Department of Public Health about specific vaping-related deaths. The PAC found that the Department did not do enough to look for these records and ordered them to conduct a proper search or explain why they could not find the documents. This ensures that public agencies cannot simply claim records don't exist without making a good-faith effort to locate them.","holding":"The Illinois Department of Public Health failed to conduct a reasonable search for records responsive to the FOIA request.","legal_question":"Whether the Illinois Department of Public Health conducted a reasonable search for records responsive to a FOIA request as required by section 3(a) of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)"],"public_body":"Illinois Department of Public Health","requesting_party":"Mr. Jon Styf (Northwest Herald)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"reasonable search","subject_description":"The requester sought documents related to four vaping-related deaths referenced in a Department press release.","ocr_status":"ok","ocr_quality":91.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_d/Completeness-of-Search/61017%2C%20issued%20March%203%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["reasonable search","public health","vaping","FOIA request"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nA\" I\"\n\nI' ORNEY GENERAL\n\nMarch 3, 2020\n\nVia electronic mail\n\nMr. Jon Styf\n\nEditor\n\nNorthwest Herald\n\njstyf@shawmedia.com\n\nVia electronic mail\n\nMs. Lisa Reynolds\n\nActive Freedom of Information Officer\n\nIllinois Department of Public Health\n\n535 West Jefferson, 5th Floor\n\n[street address redacted for site publication -- see original PDF]\nLisa. Reynolds@illinois. gov\n\nRE: FOIA Request\n\nfor Review — 2019 PAC 61017\n\nDear Mr. Styf and Ms. Reynolds: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2018)). For the reasons discussed below, the\nPublic Access Bureau concludes that the Illinois Department of Public Health (Department) \n\nfailed to conduct a reasonable search for records responsive to Mr. Jon Styfs FOIA request. \n\nBACKGROUND\n\nOn November 18, 2019, Mr. Styf, on behalf of the Northwest Herald, submitted a\n\nFOIA request to the Department following up on his prior FOIA request regarding vaping- \nrelated deaths, which the Department had deemed vague. This time, he specified that he was\n\nseeking copies of any documents related to the four deaths referenced in a Department press\n\n500 South Second Street, Springfield, \n\nIllinois 62701 • (\n\n217) 782- 1090 • ' FI' Y: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 Nest Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • '\nI\" I' Y: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, IL 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax'( 618) 529- 6416\n\n\fMr. Jon Styf\n\nMs. Lisa Reynolds\n\nMarch 3, 2020\n\nPage 2\n\nrelease: \" Fourth Illinois Resident Dies After Vaping Related Lung Injury.\"' On December 4, \n2019, the Department responded that it was unable to identify any responsive records. On\nDecember\nresponse. He argued that the Department clearly possessed location information pertaining to the\nvaping- related lung injury deaths. \n\n18, 2019, Mr. Styf submitted the above - captioned Request\n\nfor Review contesting that\n\nOn December 19, 2019, the Public Access Bureau sent a copy of the Request for\n\nIn particular, this office asked the Department to explain the\n\nReview to the Department, together with a letter requesting a detailed written explanation of how\nit searched for responsive records. \nsource materials it used in announcing four vaping-related lung injury deaths, and to provide\ncopies of any such records for this office' s confidential\nDepartment submitted a written response and copies of certain records that it said it did not\nconsider responsive when responding to Mr. Styfs FOIA request. The Department asserted that\nthese records, from its Office of Health Protection, are medical records that are exempt from\ndisclosure under sections 7( 1)( a), 7( 1)( b), and 7( 1)( c) of FOIA ( 5 ILCS 140/ 7( 1)( a), ( 1)( b), ( 1)( c) \nWest 2018), as amended by Public Act 101- 455, effective August 23, 2019). The Department\nalso stated that it did not have its Information Technology ( IT) Section perform an e- mail search\nbecause Mr. Styf had not identified search terms or a timeframe. On January 17, 2020, Mr. Styf\nsubmitted a reply to the Department' s response, maintaining his objections. \n\nreview. On January 14, 2020, the\n\nANALYSIS\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2018). A public body\nthat receives a FOIA request is required to conduct a \" reasonable search tailored to the nature of\nthat] particular request.\" Campbell v. U.S. Department offustice, 164. F. 3d 20, 28 ( D. C. Cir. \n1998). A public body is not required to \" search every record system[,]\" but it \" cannot limit its\nsearch to only one record system if there are others that are likely to turn up the requested\ninformation.\" Oglesby v. U.S. Department of the Army, 920 F. 2d 57, 68 ( D. C. Cir. 1990). \n\nT] he adequacy of a FOIA search is generally determined not by the fruits of the search, but by\n\nthe appropriateness of the methods used to carry out the search.\" \nCurrency, 315 F. 3d 311, 315 ( D. C. Cir. 2003). \nterms that are reasonably calculated to locate all responsive records. Hall v. C.I.A., 668 F. Supp. \n2d 172, 183- 84 ( D. D. C. 2009). Although \"[ a] requester is entitled only to records that an agency\nhas in fact chosen to create and retain[ ]\" ( Yeager v. Drug Enforcement Administration, 678 F. 2d\n315, 321 ( D: C. Cir. 1982)), \"[ a] t all times the burden is on the [ public body] to establish the\n\nIn particular, a public body must use search\n\nIturralde v. Comptroller of\n\nIllinois Department of Public Health, Fourth Illinois Resident Dies After Vaping Related Lung\nInjury ( Nov. 14, 2019), http:// www. dph. illinois. gov/ news/ fourth- illinois- resident- dies- after- vaping- related- lung- \ninjury ( last visited March 2, 2020). \n\n\fMr. Jon Styf\n\nMs. Lisa Reynolds\n\nMarch 3, 2020\n\nPage 3\n\nadequacy of its search.\" Rugiero v. U.S. Department ofJustice, 257 F. 3d 534, 547 ( 6th Cir. \n2001). \n\nIn its response to this office, the Department asserted that in order for its IT\n\nSection to perform a search for responsive e- mails, \" requestors are required to be [ sic] identify\nsearch terms, as well as a time frame for the search.\" 2 The Department confirmed that it did not\n\nsearch for responsive e- mails because Mr. Styf only reiterated his request when the Department\nasked him to specify search terms and a timeframe. As to the Department' s Office of Health\nProtection, the Department stated that it located potentially responsive medical records but\nprovided no information as to how it searched that office or any of its other divisions. Moreover, \nthe Department did not answer this office' s question concerning the source materials for the press\nrelease. Mr. Styf replied: \n\nIn creating its press release on vaping related deaths in the\n\nstate, the department most certainly had access to relevant data\ninvolving those deaths, including documents which state where the\ndeaths occurred. \n\nIt is not up to me to locate the date or time frame of which\nthose emails or communications would have been sent, those were\n\nclearly accessible to the team that was using public records to\ncreate a new public record. t31\n\nAs to the clarity of Mr. Styfs FOIA request, \"[ a] request to inspect or copy must\n\nreasonably identify a public record and not general data, information, or statistics.\" Chicago\nTribune Co. v. Department of Financial & Professional Regulation, 2014 IL App ( 4th) 130427, \n33, 8 N. E. 3d 11, 19 ( 2014). However, a requester needs only to identify the records being\nrequested by describing their contents. See Bocock v. Will County Sheriff, 2018 IL App ( 3d) \n170330, ¶ 50, 100 N. E. 3d 649, 658 ( 2018) (\" Plaintiff identified the documents sought based upon\na description of their contents. To require a citizen seeking public records to identify those\nrecords with any greater specificity would be in complete contravention of the public policy\nunderlying FOIA.\"). Requests for e- mails about particular matters frequently require public\nbodies to make judgment calls about the appropriate personnel to consult and queries to run. A\nrequester generally is not required to specify search terms or a timeframe to reasonably describe\ne- mails concerning a particular subject matter. Rather, the public body is generally obligated to\n\nMetter from Lisa Reynolds, Acting Freedom of Information Act Officer, Illinois Department of\n\nPublic Health, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General\nJanuary 14, 2020), at 1. \n\n3E -mail\n\nfrom Jon Styf, Editor, Northwest Herald, to Public Access [ Bureau] ( January 17, 2020). \n\n\fMr. Jon Styf\n\nMs. Lisa Reynolds\n\nMarch 3, 2020\n\nPage 4\n\nidentify the employees whose e- mail accounts are reasonably likely to contain responsive\nrecords, and take measures reasonably calculated to locate such records ( i. e. devising appropriate\nsearch parameters). See Oglesby, 920 F. 2d at 68. \n\nIn this instance, the subject of Mr. Styfs request was specific: a particular press\n\nrelease referencing the recent deaths of four particular individuals. The Department' s first press\nrelease about a vaping- related death was issued on August 23, 2019; the second was issued\nOctober 24, 2019, the third on October 31, 2019, and the fourth on November 14, 2019. 4\nTherefore, the Department had knowledge of the general three -to -four- month timeframe\n\nsurrounding the deaths. Furthermore, the Department, not Mr. Styf, was in the position to know\nwhich of its employees were likely to have sent or received correspondence regarding vaping- \nrelated deaths and what keywords any such e- mails were likely to contain. Mr. Styfs choice not\nto specify search terms or a timeframe did not relieve the Department of its obligation to perform\na search that was reasonably calculated to locate responsive e- mails. Additionally, the\nDepartment did not set forth information from which this office could conclude that it performed\na reasonable search for any other types of responsive records. Although the Department\nacknowledged that it located certain potentially responsive records, which, this office has\nverified, are medical records that are expressly exempt from disclosure under section 7( 1)( b) of\nFOIA, 5 the Department did not explain how it searched the records of its Office of Health\nProtection. For instance, the Department did not explain which personnel\ndespite this office' s specific request for such information. The Department also gave no\n\nit consulted and why, \n\nindication as to why the Office of Health Protection was its only division that was reasonably\nlikely to maintain responsive records, and provided no information concerning the source\nmaterials for the press release. For these reasons, the Public Access Bureau concludes that the\nDepartment violated FOIA by failing to conduct a reasonable search for responsive records. \n\nconduct a new search tailored to the full scope of the request. The Department should then issue\n\nIn order to remedy its improper search, this office requests that the Department\n\nresponse to the requester containing copies of the records it locates, subject only\n\na supplemental\nto permissible redactions under section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2018), as amended by\nPublic Act 101- 455, effective August 23, 2019). If the Department does not locate any further\n\nMarch 2, 2020). \n\nIllinois Department of Public Health, http:// www. dph. illinois. gov/ search/ site/ vaping ( last visited\n\nSection 7( 1)( b) of FOIA exempts from disclosure \"[ p] rivate information, unless disclosure is\n\nrequired by another provision of this Act, a State or federal\n140/ 2( c- 5) ( West 2018)) defines \" private information\" as \" unique identifiers,\" including \" medical records.\" The\nrecords the Department provided to this office are plainly medical records, as they document a patients diagnosis\nand treatment. \n\nlaw or a court order.\" Section 2( c- 5) of FOIA ( 5 ILCS\n\n\fMr. Jon Styf\n\nMs. Lisa Reynolds\n\nMarch 3, 2020\n\nPage 5\n\nrecords responsive to the request, it should provide the requester with a detailed explanation of\n\nhow it searched. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at ( 312) 814- 8413 or jjones@atg. state. il.us. \n\nVery truly yours, \n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n61017 f 71b proper 3a search improper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Documents on four vaping-related deaths","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":947,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-03-11","case_number":null,"request_numbers":["61099"],"title":"City of Waukegan improperly withheld incident report under active investigation exemptions","filename":"61099, issued March 11, 2020.pdf","rel_path":null,"word_count":2071,"summary":"The requester sought an incident report from the City of Waukegan, which the City denied citing an active investigation; the PAC determined the City improperly withheld portions of the record.","plain_summary":"A law firm requested a police incident report from the City of Waukegan, but the City refused to provide it, claiming it was part of an active investigation. The Attorney General's office reviewed the request and found that the City was wrong to withhold the entire document. The City was ordered to release the non-exempt portions of the report.","holding":"The City of Waukegan improperly withheld portions of the requested incident report that did not qualify for the claimed exemptions.","legal_question":"Whether the City of Waukegan properly denied a FOIA request for an incident report under the exemption for records related to active investigations.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(d)(i)","7(1)(d)(iv)"],"public_body":"City of Waukegan","requesting_party":"Ms. Gabriela Velazquez (Consumer Law Group, LLC)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought a complete police incident report regarding case number 2019-48357.","ocr_status":"ok","ocr_quality":95.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2.15/61099%2C%20issued%20March%2011%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","active investigation","FOIA denial","incident report"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nMarch 11, 2020\n\nVia electronic mail. \n\nMs. Gabriela Velazquez\n\nParalegal\n\nConsumer Law Group, LLC\n6232 North Pulaski Road, Suite 200\n\n[street address redacted for site publication -- see original PDF]\ngvelazquez@consumerlaw.\n\ncom\n\nVia electronic mail\n\nThe Honorable Janet L. Kilkelly\nCity of Waukegan\nCity Clerk and FOIA Officer\n100 North Martin Luther King Jr., Avenue\nWaukegan, Illinois 60085\n\nJanet. Kilkelly@waukeganil. gov\n\nRE: FOIA Request for Review — 2019 PAC 61099; 2019- 48357\n\nDear Ms. Velazquez and Ms. Kilkelly: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2018)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the City of Waukegan ( City) improperly\nwithheld certain portion of records responsive to Ms. Gabriela Velazquez' s December 5, 2019, \n\nFOIA request. \n\nOn December 5, 2019, Ms. Velazquez, on behalf of the Consumer Law Group, \n\nsubmitted a FOIA request to the City seeking the complete incident report for case number 2019- \n48357. On December 13, 2019, counsel for the City denied the request in its entirety pursuant\nto section 7( 1)( d)( i) of FOIA ( 5 ILCS 140/ 7( 1)( d)( i) ( West 2018), as amended by Public Act\n101- 455, effective August 23, 2019). Specifically, the City asserted that this incident report\nshould not be disclosed because of an active investigation. On December 16, 2019, Ms. \n\nVelazquez submitted the above - referenced Request\n\nfor Review disputing the redaction of the\n\n500 South Second Street, Springfield, \n\nIllinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois 60601 • (\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601 South University Ave.. Carbondale. \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Gabriela Velazquez\n\nThe Honorable Janet L. Kilkelly\nMarch 11, 2020\n\nPage 2\n\ninformation concerning the incident and the victim, who she identified as her client, that\nwouldn' t compromise pending proceedings. \n\nOn January 21, 2020, this office sent a copy of the Request for Review to the City\n\nand asked it to provide unredacted copies of the responsive records for this office's confidential\n\nIn particular, this office asked the City to explain how and the extent\n\nreview, together with a detailed explanation of the legal and factual bases for the applicability of\nsection 7( 1)( d)( i). \nto which\ndisclosure of the incident report would interfere with the City Police Department' s active\ninvestigation. On February 24, 2020, counsel for the City provided this office with copies of the\ncomplete incident' report and its written answer. Later that day, this office forwarded a copy of\nthe City' s response letter to Ms. Velazquez; she did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" \n5 ILCS 140/ 1. 2 ( West 2018); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 I11. 2d 390, 415 ( 2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 ( West 2016). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees of Southern Illinois Univ., 176 111. 2d 401, 408 ( 1997). \n\nSection 2. 15 of FOIA\n\nAs a threshold matter, the records in question document the arrests of two\n\nindividuals. Section 2. 15( a) of FOIA (5 ILCS 140/ 2. 15 ( West 2018), as. amended by Public Act\n101- 433, effective August 20, 2019) generally requires the release of the following arrest\n\nrecords: \n\ni) information that identifies the individual, including the\n\nname, age, address, and photograph, when and if available; ( ii) \n\ninformation detailing any charges relating to the arrest; ( iii) the\ntime and location of the arrest; ( iv) the name of the investigating or\narresting law enforcement agency; ( v) if the individual\nincarcerated, the amount of any bail or bond; and ( vi) if the\nindividual\n\nis incarcerated, the time and date that the individual was\n\nis\n\nreceived into, discharged from, or transferred from the arresting\n\nagency' s custody. \n\nInformation referenced in subsections ( iii) through ( vi) of section 2. 15( a) may be withheld, but\nonly if its \" disclosure would: ( i) interfere with pending or actually and reasonably contemplated\n\n\fMs. Gabriela Velazquez\n\nThe Honorable Janet L. Kilkelly\nMarch 11, 2020\n\nPage 3\n\nlaw enforcement proceedings conducted by any law enforcement agency; ( ii) endanger the life or\nphysical safety of law enforcement or correctional personnel or any other person; or ( iii) \ncompromise the security of any correctional\namended by Public Act 101- 433, effective August 20, 2019. \n\nfacility.\" 5 ILCS 140/ 2. 15( c) ( West 2018), as\n\nThus, disclosure of the information in subsections ( i) and ( ii) of section 2. 15( a) is\n\nmandatory. \nIn this matter, some of the documentation contained in the requested incident report, \nparticularly arrest cards and complaint citations identifying arrestees and charges, are not among\nthe four types of arrest report\ndisclosure would interfere with a pending law enforcement proceeding. Accordingly, this office\nconcludes that, at a minimum, the City improperly withheld the information listed in section\n2. 15( a)( i) and ( ii) of FOIA. \n\ninformation that may be withheld under section 2. 15( c) if\n\nSection 7( 1)( d)( i) of FOIA\n\nfrom disclosure: \n\nWith respect to the remaining information, section 7( 1)( d)( i) of FOIA exempts\n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\ni) interfere with pending or actually and reasonably\n\ncontemplated law enforcement proceedings conducted by any law\nenforcement or correctional agency that is the recipient of the\n\nrequest[.] \n\nThe classification of information as ' law enforcement' or ' investigatory' does not\n\nnecessarily foreclose access unless it can be shown, in a particular case, that disclosure would\ninterfere with law enforcement and would, therefore, not be in the public interest.\" Baudin v. \n\nCity of Crystal Lake, 192I11. App. 3d 530, 536 ( 2d Dist. 1989). Conclusory statements that the\nto support\ndisclosure of records would obstruct a law enforcement proceeding are insufficient\nassertion of the pending law enforcement proceeding exemption. Day v. City of Chicago, 388\nI11. App. 3d 70, 74- 77 ( 1st Dist. 2009). Rather, a public body must demonstrate how disclosure\nof records would interfere with or obstruct a criminal prosecution or investigation in order to\nproperly withhold records pursuant to section 7( 1)( d)( i) of FOIA. The Attorney General has\nissued a binding opinion concluding that the mere commencement of an investigation or\nprosecution does not constitute clear and convincing evidence that any records are exempt\ndisclosure. I11. Att' y Gen. Pub. Acc. Op. No. 17- 001, issued March 14, 2017. \n\nfrom\n\nthe\n\n\fMs. Gabriela Velazquez\n\nThe Honorable Janet L. Kilkelly\nMarch 11, 2020\n\nPage 4\n\nIn her Request for Review, Ms. Velazquez explained that she no longer requires\n\nthe complete incident report but rather requests a redacted copy of this report from the City. She\nmodified her request to include a report \" where any and all\ninterfere with law enforcement proceedings is REDACTED and where enough information about\n\ninformation that is suspected to\n\nthe incident and victim/ complainant is included without compromising any pending\n\nproceedings.\"' \n\nIn its response to this office, counsel\n\nfor the City argued that disclosure of the\n\nincident report, even redacted, would interfere with Waukegan Police Department' s active\n\ninvestigation. The City stated that: \n\nThe suspects involved in the case are currently still\nincarcerated\nand are suspected to have committed other crimes. The suspects\n\nhave pending court dates on[,] \nand April 13th. The report includes references to other cell phone\n\ntoday, February 24th, March 26th[,] \n\nrobberies and suspects that may have been involved. The names of\nthose persons and the method used to commit other crimes is also\nin the report. J21\n\nThis office has reviewed the City's response as well as an unredacted copy of the\n\nrecords at issue. Although its response was somewhat generalized, the City did provide clear\nfacts and details about the status of the City' s Police Department' s investigation and described\nhow disclosure of some portions of the report would interfere with that investigation. \n\nSpecifically, counsel for the City explained how release of information concerning any other\nsuspects and robberies that have yet to result in arrests could thwart the investigation into those\n\nsuspects and robberies. However, the City has not demonstrated how the remaining information\nthat directly concerns the arrestees and the incidents for which they were arrested would interfere\nwith pending law enforcement proceedings conducted by the City' s Police Department. \nAccordingly, this office concludes that the City has not sustained its burden of demonstrating by\nclear and convincing evidence that those portions of the records are exempt\nunder section 7( 1)( d)( i) of FOIA. \n\nfrom disclosure\n\nTherefore, this office requests that the City provide Ms. Velazquez with\n\ndocumentation responsive to her request that does not contain specific information regarding any\nother suspects who have not been arrested and any other incidents that not have resulted involved\nin this incident: The City also may redact \" unique identifiers\" that constitute \" private\ninformation\" under section 7( 1)( b) of FOIA ( 5 ILCS 140/ 7( 1)( b) ( West 2018), as amended by\n\nCounselor, Office of the Attorney General ( December 16, 2019). \n\nLetter from Gabriela Velazquez, Paralegal, Consumer Law Group, LLC, to Public Access\n\nE- mail\nPublic Access Bureau ( February 24, 2020). \n\nfrom Witherspoon Legal\n\nto Christina Lucente- McCullough, Assistant Attorney General, \n\n\fs. Gabriela Velazquez\n\nThe Honorable Janet L. Kilkelly\nMarch 11, 2020\n\nPage 5\n\nPublic Act 101- 455, effective August 23, 2019); 3 photos or identifying information of any\nindividuals in line- up photos who were not arrested pursuant to section 7( 1)( c) 4 ( 5 ILCS\n140/ 7( 1)( c) ( West 2018), as amended by Public Act 101- 455, effective August 23, 2019); and\ninformation identifying any witnesses who provided information to police but were not arrested\nto section 7( 1)( d)( iv) of FOIA ( 5 ILCS 140/ 7( I)( d)( iv) ( West 2018), as amended by\npursuant\nPublic Act 101- 455, effective August 23, 2019) 5 If any such information is redacted, the City\nmust provide a written notice of denial that includes \" a detailed factual basis for the application\n\nof any exemption claimed[.]\" \n\n5 ILCS 140/ 9( a) ( West 2018). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at ( 312) 814- 5383, clucentemccullough@atg. state. il. us, or\nthe Chicago address listed on the first page of this letter. \n\nVery trujy your\n\nCPI-KISTINA M. LUCENTE- MCCULLOUGH\n\nAssistant Attorney General\nPublic Access Bureau\n\n61099 f 215 improper 71 di proper improper mun\n\n3FOIA defines \" private information\" as: \n\nunique identifiers, including a person' s social security number, driver' s license\nnumber, employee identification\n\nnumber, biometric identifiers, personal\n\nfinancial\n\ninformation, passwords or other access codes, medical\n\nrecords, home\n\nor personal\n\ntelephone numbers, and personal email addresses. Private\n\ninformation also includes home address and personal\notherwise provided by law or when compiled without possibility of attribution to\nany person. 5 ILCS 140/ 2( c- 5) ( West 2018). \n\nlicense plates, except as\n\ninvasion of personal privacy if disclosed. \n\nSection 7( I)(\n\nc) exempts from disclosure information that would constitute an unwarranted\n\nSection 7(\n\nI)( d)( iv) of FOIA exempts from disclosure information that would unavoidably\n\ndisclose the identity of a confidential source, confidential\npersons who file complaints with or provide information to administrative, \n\ninformation furnished only by the confidential source, or\nlaw enforcement, or penal\n\ninvestigative, \n\nagencies[.]\" \n\n\fMs. Gabriela Velazquez\n\nThe Honorable Janet L. Kilkelly\nMarch 11, 2020\n\nPage 6\n\ncc: \n\nVia electronic mail\n\nMs. Jennifer Witherspoon, Esq. \nJ. Witherspoon Legal & Mediation Services\n\n32 North West Street, Suite 100\n\nWaukegan, Illinois 60085\n\nwitherspoonlegal@gmail.\n\ncom\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police incident report for case 2019-48357","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":948,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-01-03","case_number":null,"request_numbers":["61177"],"title":"Plainfield CCSD 202 properly withheld teacher notes under student records exemption","filename":"61177, issued January 3, 2020.pdf","rel_path":null,"word_count":1125,"summary":"The requester sought anecdotal notes regarding student behavior from the Plainfield Community Consolidated School District No. 202, which the District denied citing undue burden and student privacy concerns. The PAC determined that the records were exempt from disclosure under the Illinois School Student Records Act (ISSRA) and closed the file.","plain_summary":"A requester asked a school district for teachers' notes about student behavior. The school district refused, arguing that the request was too broad and that the records contained private student information. The Attorney General's office agreed that the records are protected by student privacy laws and closed the case.","holding":"The District did not improperly deny the request because the records are protected from disclosure under the Illinois School Student Records Act.","legal_question":"Whether the school district properly withheld teacher anecdotal notes regarding students under FOIA and the Illinois School Student Records Act (ISSRA).","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3","5 ILCS 140/7.5"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(r)"],"public_body":"Plainfield Community Consolidated School District No. 202","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"student records","subject_description":"The request sought teacher anecdotal notes documenting specific observations of individual student behaviors, skills, and attitudes.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_r/Own-children-individual-student-incidents/61177%2C%20issued%20January%203%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["student records","school district","privacy","ISSRA"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJanuary 3, 2020\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review — 2019 PAC 61177\n\nDear\n\nThis determination is issued pursuant to section 9. 5( c) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2018)). For the reasons set forth below, the\nPublic Access Bureau has determined that no further action is warranted as to this matter. \n\nOn November 18, 2019, you submitted a FOIA request to the Plainfield\n\nCommunity Consolidated School District No. 202 ( District) seeking \"[ a] ny existing records of\nteachers anecdotal notes prepared byi1 five named District employees from January 1, 2018, to\nthe date of the FOIA request. You noted that \"' teacher anecdotal notes' shall be defined, in\n\npertinent part, as: records used to document specific observations of individual student\nbehaviors, skills and attitudes as they relate to the outcome of learning objectives. i2 You stated\nthat \" this request\nemployees] and does not include e- mail correspondence or routine academic performance\n\nis limited to formal written reports or notes prepared by the [ named District\n\nrecords compiled on all students. i3 On November 20, 2019, the District informed you that your\nrequest was vague and unduly burdensome, explaining that \"[\nformal reports on students every day. To review all these records would be unduly burdensome\nunder [ s] ection 3( g) of the FOIA [ 5 ILCS 140/ 3( g) ( West 2018), as amended by Public Act 101.- \n081, effective July 12, 2019].\" Rather than invite you to narrow your request to more\n\nt] eachers take notes and provide\n\nPlainfield Community Consolidated School District 202 ( November 18, 2019). \n\nLetter from\n\nto Thomas A. Hernandez, Freedom of Information Act Officer, \n\n2Letter from\n\nto Thomas A. Hernandez, Freedom of Information Act Officer, \n\nPlainfield Community Consolidated School District 202 ( November\n\n18, 2019). \n\nPlainfield Community Consolidated School District 202 ( November 18, 2019). \n\nLetter\n\nfrom\n\nto Thomas A. Hernandez, Freedom of Information Act Officer, \n\n1\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fJanuary 3, 2.020\nPage 2\n\nmanageable proportions, the District asserted that all of the records responsive to your request\n\nfrom disclosure pursuant\n\nare student records that are exempt\nto the Illinois School Student\nRecords Act ( ISSRA) ( 105 ILCS 10/ 6( a) ( West 2018)) and section 7. 5( r) of FOIA ( 5 ILCS\n140/ 7. 5( r) ;(West 2018), as amended by Public Acts 101- 013, effective June 12, 2019; 101- 027, \neffective June 25, 2019; 101- 081, effective July 12, 2019; 101- 375, effective August 16, 2019; \n101- 377, effective August 16, 2019; 101- 600, effective December 6, 2019; 101- 620, effective\nDecember' 20, 2019). Your Request for Review challenged the District's assertion of 3( g) and\nargued that the students' identities could be redacted from the responsive records. \n\nSection 7. 5( r) of FOIA exempts from disclosure \"[\n\ni] nformation prohibited from\n\nbeing disclosed by the [ ISSRA].\" Section 6( a) of ISSRA provides that \"[ n] o school student\nrecords or 'information contained therein may be released, transferred, disclosed or otherwise\ndisseminated, except\" to certain authorized parties who are irrelevant here. Section 2( d) of\nISSRA ( 105 ILCS 10/ 2( d) ( West 2018)) defines \" school student record\" as \" any writing or other\nrecorded information concerning a student and by which a student may be individually\nidentified; maintained by a school or at its direction or by an employee of a school, regardless of\nhow or where the information is stored.\" ( Emphasis added.) \n\nIn Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. \n\nidentifying information, does not fall within the definition of a school student\n\n2d 373, 375 ( 1989) parents of students requested student test scores and the race of each student\ntested for a five- year period. The Illinois Supreme Court held that a \" masked record, which\ndeletes individual\nrecord, and is not prohibited from disclosure under the Act.\" Bowie, 128 Ill. 2d at 379. In Board\nofEducation of City of Chicago v. Illinois Education Labor Relations Board, 2013 IL App ( 1st) \n122447, ¶ 19, 3 N.E. 3d 343, 350 ( 2013), the Illinois Appellate Court distinguished student\ndisciplinary, records from masked test scores, stating that \"[ a] ' masked' record is one where any\ninformation, identifying a student has been deleted and the record is released for the purpose of\nreporting, or planning.\" The court held that ISSRA prohibited disclosure of\n\nresearch, statistical\n\ntwo students' disciplinary records because \" the mere redaction of the students' surnames or\nreference to the students by their initials does not render\nLabor Relations Board, 2013 IL App ( 1st) 122447, ¶ 21, 3 N. E. 3d at 350. \n\nthe records ' masked.\" Illinois Education\n\nYour FOIA request sought\n\nrecords documenting certain teachers' \" specific\n\nobservations of individual student behaviors, skills and attitudesi4 for nearly two years. Unlike\nthe test score data of a large group of students at issue in Bowie, which could be readily masked\nby redacting the students' names and scrambling the scores, your request sought highly specific\ninformation pertaining to individual students which was compiled by certain teachers for a\ndiscrete timeframe. Redacting the names alone would not suffice to prevent the students from\n\nLetter from\n\nto Thomas A. Hernandez, Freedom of Information Act Officer, \n\nPlainfield Community Consolidated School District 202 ( November\n\n18, 2019). \n\n\fJanuary 3, 2020\nPage 3\n\nbeing identified— parents, students, or other members of the public familiar with the teachers' \nclassrooms could ascertain the identities of students based on the specific circumstances\ndescribed in the notes or reports. Because ISSRA specifically prohibits disclosure of records\nfrom which individual students could be identified, the District did not improperly deny your\nrequest pursuant to section 7. 5( r) of FOIA. Therefore, no further action is necessary in this\n\nmatter. \n\nThis file is closed. If you have any questions, please contact me at 217- 524- 7958\n\nor at the Springfield address listed on the bottom of the first page of this letter. \n\nVery truly yours, \n\nLAURA S. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n61177fnofiwar\n\nsd\n\ncc: \n\nVia electronic mail\n\nMr. Tom Hernandez\n\nDirector of Community Relations\nFOIA Officer\n\nPlainfield Community Consolidated School District No. 202\n15732 Howard Street\n\nPlainfield, Illinois 60544\n\ntahernan@psd202.\n\norg\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Teacher anecdotal notes on student behaviors","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":949,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-02-26","case_number":null,"request_numbers":["61358"],"title":"Town of Cicero did not violate FOIA by withholding police records under court order","filename":"61358, issued February 26, 2020.pdf","rel_path":null,"word_count":917,"summary":"The Invisible Institute requested records regarding police misconduct complaints, and the Town of Cicero withheld certain files citing a federal court confidentiality order. The PAC determined that the Town properly withheld the records because they were subject to a court-ordered prohibition on disclosure.","plain_summary":"The question was whether the Town of Cicero improperly withheld police disciplinary-file records under FOIA when a federal court's confidentiality order barred their disclosure. The Public Access Bureau held that the Town did not violate FOIA, because a public body does not violate the Act when it withholds records that a binding court order prohibits it from disclosing. The Town produced the underlying confidentiality order from a related federal lawsuit, and the Bureau confirmed with the Town's counsel that the withheld file related to the claims covered by that order, satisfying the Town's burden despite FOIA's general presumption of openness. This determination concerns the Town of Cicero's response to a request for closed police complaint/investigation records.","holding":"A public body does not violate FOIA by withholding records whose disclosure is prohibited by a valid, applicable court order.","legal_question":"Whether a public body may withhold records under FOIA when disclosure is prohibited by a federal court confidentiality order.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Town of Cicero","requesting_party":"Mr. Sam Stecklow (Invisible Institute)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought records related to closed complaints against police department employees.","ocr_status":"ok","ocr_quality":93.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_a/protective-orders/61358%2C%20issued%20February%2026%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","court order","confidentiality","FOIA denial"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 26, 2020\n\nVia electronic mail\n\nMr. Sam Stecklow\n\nInvisible Institute\n\nExperimental Station\n\n[street address redacted for site publication -- see original PDF]\nfoia@invisibleinstitute. com\n\nVia electronic mail\n\nMs. Courtney P. Willits, Esq. \nDel Galdo Law Group, LLC\n1441 South Harlem Avenue\n\nBerwyn, Illinois 60402\n\nwill its@dlglawgroup. com\n\nRE: FOIA Request for Review — 2019 PAC 61358\n\nDear Mr. Stecklow and Ms. Willits: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2018)). For the reasons discussed below, this\noffice concludes that the Town of Cicero ( Town) did not improperly deny records requested by\nMr. Sam Stecklow which are prohibited from being disclosed by a court order. \n\nOn December 26, 2019, Mr. Stecklow, on behalf of the Invisible Institute, \n\nto the Town seeking records related to complaints against sworn\n\nsubmitted a FOIA request\nemployees of the Town' s police department which were closed in 2017. On January 2, 2020, the\nTown provided certain records with redactions but withheld fifteen pages of records in their\nentireties, citing as its basis a confidentiality order issued by a federal judge. On January 3, \n2020, Mr. Stecklow requested a copy of the confidentiality order and questioned why he did not\nreceive a copy of file No. 17- 014 that he said was referenced in a memorandum detailing which\nfiles were provided in the Town' s response to his request. On January 7, 2020, the Town\nresponded that File No. 17- 014 was not provided because disclosure was prohibited by the\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • \" 1\"\n\n1' Y: ( 877) 844-3461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TIT: (800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601 South University Alt.. Carbondale, \n\nIL 62901 • ( 618) 529- 6400 • ' IrY: (877) 675- 9339 • Fax ( 618) 529- 6416 • \n\n\fMr. Sam Stecklow\n\nMs. Courtney Willits\nFebruary 26, 2020\nPage 2\n\nfor\nconfidentiality order and that the Town did not possess a copy of that order. \nReview, Mr. Stecklow questioned whether the confidentiality order prohibits disclosure of File\nNo. 17- 014. \n\nIn his Request\n\nOn January 21, 2020, this office sent a copy of the Request\nTown and asked it provide a copy of the protective order and a detailed explanation for the\nassertion that the protective order prohibits disclosure of the records at issue: On January 27, \n2020, counsel\nforwarded a copy of the Town' s response to Mr. Stecklow; he did not submit a reply. \n\nfor the Town furnished those materials. On January 28, 2020, this office\n\nfor Review to the\n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2018); see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department ofPublic Health, 218 I11. 2d 390, 415 ( 2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt\n140/ 1. 2 ( West 2016). \n\nfrom disclosure. 5 ILCS\n\nThe Attorney General has previously determined, in accordance with the United\nStates Supreme Court decision in GTE Sylvania, Inc. v. Consumers Union of the United States, \n445 U. S. 375, 100 S. Ct. 1194 ( 1980), that a public body does not violate FOIA when it\nwithholds records pursuant to a binding court order; see also In re Appointment of Special\nProsecutor, 2017 IL App ( 1st) 161376, ¶ 53, 91 N. E. 3d 424, 435 ( 2017) ( City of Chicago ( City) \ndid not improperly withhold materials generated in connection with a grand jury investigation\nand special prosecution because two protective orders barred the release of grand jury materials\nby the City); Ill. Att'y Gen. Pub. Acc. Op. No. 16- 009, issued November 7, 2016, at 22- 23\nvillage did not improperly withhold records specifically prohibited from disclosure by court). \n\nThe Town provided this office with a copy of a confidentiality order to which the\n\nparties agreed in Bull v. Town of Cicero, Docket No. 19 - CV -01308 ( N.D., Ill.). Among other\nthings, the order designates as confidential all \" information and documents generated by, related\nto, and/ or included in any investigation of any and all claims made by or against any of the\nindividual parties[.]\" t\nin the\nPublic Access Bureau, counsel for the Town confirmed that the records from File No. 17- 014\n\nIn a telephone conversation with an Assistant Attorney General\n\nthat were withheld pursuant\nto the agreed confidentiality order relate to the investigation of the\nunderlying claims in the lawsuit. Because the confidentiality order broadly prohibits disclosure\nof such materials, this office concludes that the Town did not improperly withhold those records\nin its response to Mr. Stecklow' s request. \n\nBull v. Town of Cicero, Docket No. 19 -CV -01308 ( N. D., 111., August 1, 2019) ( court order). \n\n\fr. Sam Stecklow\n\nMs. Courtney Willits\nFebruary 26, 2020\nPage 3\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756. This file is closed. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n61358 f prot order proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed complaint records about police employees","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":950,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-02-25","case_number":null,"request_numbers":["61612"],"title":"Secretary of State properly charged corporate law fees for records, overriding FOIA","filename":"61612, issued February 25, 2020.pdf","rel_path":null,"word_count":879,"summary":"The requester challenged the fees charged by the Illinois Secretary of State for corporate records, arguing they violated FOIA fee provisions. The PAC determined that specific statutory fee schedules for corporate documents take precedence over FOIA's general fee provisions.","plain_summary":"A requester asked for corporate records from the Secretary of State and was charged a fee based on specific corporate laws. The requester argued these fees were too high under FOIA rules. The Attorney General's office ruled that because specific laws set the prices for these corporate documents, those laws override FOIA, and the fees were appropriate.","holding":"The Secretary of State properly charged fees for corporate records as mandated by the Business Corporation Act and the General Not for Profit Corporation Act, which supersede FOIA fee provisions.","legal_question":"Whether the fee provisions of the Business Corporation Act and the General Not for Profit Corporation Act take precedence over the fee provisions of FOIA when requesting corporate records from the Secretary of State.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Illinois Secretary of State's Office","requesting_party":"Mr. Arvin Boddie","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought corporate records for two entities and contested the $585.00 fee charged by the Secretary of State.","ocr_status":"ok","ocr_quality":93.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_b/Fee-fixed-by-statute/61612%2C%20issued%20February%2025%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","corporate records","Secretary of State","statutory fees"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nFebruary 25, 2020\n\nVia electronic mail\n\nMr. Arvin Boddie\n\nPost Office Box 288910\n\n[street address redacted for site publication -- see original PDF]\naboddieattyatlaw@sbcglobal.\n\nnet\n\nRE: FOIA Request for Review — 2020 PAC 61612\n\nDear Mr. Boddie: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)). For the reasons set forth below, the\n\nPublic Access Bureau concludes that no further action in this matter is warranted. \n\nOn January 17, 2020, you submitted a FOIA request\n\nto the Illinois Secretary of\nState' s Office seeking printed records consisting of \"ALL records, documents, data and/ or other\ninformation ( including ELECTRONICALLY STORED INFORMATION) relating to: \n1) Entity\nNamed D' S MULTI COMPLEX; 2) File Number 72264169; 3) Entity Named JOHNSON\nFUNERAL SERVICES, INC.; and 4) File Number 655988124.\" On January 22, 2020, the\nSecretary of State's Office responded that its Business Services Department located the articles\nof incorporation and an affidavit of compliance for D' s Multi Complex which could be obtained\nfor a fee of $5. 00 per record. With respect\nto Johnson Funeral Services, the Secretary of State' s\nOffice stated that it possessed twenty- three records, including articles of incorporation, annual\nreports, amended annual\nreinstatements, \n\nreports, register agent changes, and involuntary dissolutions and\nfees amounted to\n\nthat could be obtained for $ 25. 00 per record. The total\n\n585. 00. You asked the State' s Attorney' s Office to reconsider, stating that you represent a not- \n\nfor- profit organization and that the $ 585. 00 fee is inconsistent with section 6 of FOIA (5 ILCS\n140/ 6 ( West 2018)). The Secretary of State' s Office responded that the fee is authorized by the\nBusiness Corporation Act (805 ILCS 5/ 1. 01 ( West 2018)), and supersedes the fee provisions of\n\nFOIA. The Secretary of State' s Office also stated that you could schedule an appointment\n\nto\n\nOffice of the Illinois Secretary of State ( January 17, 2020). \n\nFreedom of Information Act Request Form submitted by Arvin Boddie, Attorney at Law, to\n\n500 South Second Street, Springfield, \n\nIllinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 6290N ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fr. Arvin Boddie\n\nFebruary 25, 2020\nPage 2\n\nview the documents for no fee. Your Request for Review asserts that the Secretary of State' s\nOffice improperly denied your request by imposing an unreasonable fee. \n\nSection 6( b) of FOIA (5 ILCS 140/ 6( b) ( West 2018)) provides, in pertinent part: \n\nExcept when a fee is otherwise fixed by statute, each\n\npublic body may charge fees reasonably calculated to reimburse its\nactual cost for reproducing and certifying public records and for\nthe use, by any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black and\n\nwhite, letter or legal sized copies requested by a requester. The fee\nfor black and white, letter or legal sized copies shall not exceed 15\n\ncents per page. * * * \n\nThe cost for certifying a record shall not\n\nexceed $ 1. ( Emphasis added.) \n\nThe plain language of section 6( b) of FOIA permits a public body, such as the Secretary of\nState' s Office, to charge fees fixed by a statute other than FOIA. Section 15. 15 of the Business\nCorporation Act of 1983 ( 805 ILCS 5/ 15. 15 ( West 2018)) provides that \"[ t] he Secretary of State\n\nshall charge and collect[ ]\" \n\na fee of $25. 00 for \" furnishing a copy or certified copy of any\n\ndocument, instrument, or paper relating to a corporation[.]\" Section 115. 15 of the General Not\nfor Profit Corporation Act of 1986 ( 805 ILCS 105/ 115. 15 ( West 2018)) provides that \"[ t] he\nSecretary of State shall charge and collect[ ]\" a fee of $5. 00 for \"furnishing a copy or certified\ncopy of any document, instrument, or paper relating to a corporation[.]\" \n\nJohnson Funeral Services, Inc. is registered as a business corporation and D' s\n\nMulti Complex is registered as a not- for-profit corporation. Because the records you requested\n\nrelate to a business corporation and not- for- profit corporation, the specific fees for those records\nfixed by the Business Corporation Act of 1983 and General Not for Profit Corporation Act of\n1986 are applicable and take precedence over the fee provisions of FOIA. Accordingly, this\noffice has determined that no further action is warranted in this matter. \n\nThis filed is closed. If you have any questions, please contact me at 312- 814- \n\n6756 or ssilverman@atg. state. il. us. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n\fMr. Arvin Boddie\n\nFebruary 25, 2020\nPage 3\n\n61612fnofiwarsa\n\ncc: \n\nVia electronic mail\n\nMs. Donna Leonard\n\nExecutive Counsel\n\nIllinois Secretary of State' s Office\n17 North State Street, Suite 1169\n\nChicago, Illinois 60602\n\ndleonard@ilsos. gov\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Fees for corporate records from a secretary of state","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":951,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-08-31","case_number":null,"request_numbers":["61760"],"title":"City of Peoria improperly withheld employee misconduct investigation records under 7(1)(a), (c), (f), (m)","filename":"61760, issued August 31, 2020.pdf","rel_path":null,"word_count":2826,"summary":"The requester sought records regarding misconduct complaints against two City of Peoria employees, and the PAC determined the City improperly withheld certain portions of the responsive emails and letters.","plain_summary":"A requester asked the City of Peoria for records regarding misconduct complaints against two employees. The City withheld some information, claiming it was private or exempt, but the Attorney General's office found that some of those redactions were improper and requested the City release the specific portions of the documents.","holding":"The City of Peoria improperly withheld specific sentences and paragraphs from the requested records that did not qualify for the claimed FOIA exemptions.","legal_question":"Whether the City of Peoria properly applied FOIA exemptions 7(1)(a), 7(1)(c), 7(1)(f), and 7(1)(m) to withhold records concerning employee misconduct investigations.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(c)","7(1)(f)","7(1)(m)"],"public_body":"City of Peoria","requesting_party":"Mr. Patrick B. McGrath","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought records related to misconduct complaints and investigations involving two specific City of Peoria employees.","ocr_status":"ok","ocr_quality":92,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_c/Information-that-bears-on-public-duties-of-public-officials-and-employees/61760%2C%20issued%20August%2031%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","misconduct investigation","FOIA redaction","employee privacy"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL ' \n\nATTORNEY GENERAL\n\nAugust 31, 2020\n\nVia electronic mail\n\nMr. Patrick B. McGrath\n\nDavies - McGrath Law Office, P. C. \n\n[street address redacted for site publication -- see original PDF]\npmcgrath@mcgrathpc.com\n\nVia electronic mail\n\nMs. Chrissie L. Peterson\n\nInterim Corporation Counsel\n\nOffice of the Corporation Counsel\nCity of Peoria\n419 Fulton, Suite 200\n\nPeoria, Illinois 61602\n\ncpeterson@peoriagov. org\n\nRE: FOIA Request for Review — 2020 PAC 61760\n\nDear Mr. McGrath and Ms. Peterson: \n\nThis determination is issued pursuant\n\nto section 9. 5( f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2018)). For the reasons that follow, the\nPublic Access Bureau concludes that the City of Peoria ( City) improperly withheld certain\nlimited information in the records responsive to Mr. Patrick B. McGrath' s January 9, 2020, FOIA\n\nrequest. \n\nOn that date, Mr. McGrath submitted a FOIA request\n\nto the City seeking records\npertaining to complaints or allegations of misconduct against two City employees, Ashley Elias\nand Raven Fuller. Mr. McGrath stated that the request\n\nincluded copies of all complaints or\n\nrecords created or obtained in the investigation of those complaints or allegations, \n\nallegations, \nand records pertaining to the outcome of the investigations. On January 16, 202Q, the City\nprovided certain records but redacted or withheld certain information pursuant to1 sections\n7( 1)( a), 7( 1)( c), 7( 1)( 0, and 7( 1)( m) of FOIA ( 5 ILCS 140/ 7( 1)( a), (\n\n1)( 0, ( 1)( m) ( West\n\n1)( c), (\n\n500 South Second Street, Springfield, \n100 West Randolph Street, Chicago, \n\nIllinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 1782- 7046\nIllinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601 South University Ave., Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Patrick B. McGrath\n\nMs. Chrissie L. Peterson\n\nAugust 31, 2020\n\nPage 2\n\n2018), as amended by Public Acts 101- 434, effective January 1, 2020; 101- 452, effective\nJanuary 1, 2020; 101- 455, effective August 23, 2019). On February 19, 2020, this office\nreceiv d Mr. McGrath' s completed Request for Review contesting the City' s partial denial. \n\nOn February 20, 2020, this office forwarded a copy of the Request for Review to\n\nthe City and asked it to provide unredacted copies of the responsive records for this office' s\nconfidential review, together with a detailed explanation of the legal and factual bases for the\n\napplicability of the asserted exemptions. On February 27, 2020, this office received the\nrequested materials. On March 2, 2020, this office forwarded a copy of the City's response to\nMr. McGrath; he did not submit a reply. \n\nDETERMINATION\n\n1\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2018); see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 ( 2006). A public body that withholds\nor redacts a record \" has the burden of proving by clear and convincing evidence\" that the\ninformation is exempt\n\n5 ILCS 140/ 1. 2 ( West 2018). The exemptions from\n\nfrom disclosure. \n\ndisclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois\nUniversity, 176 Ill. 2d 401, 407 ( 1997). \n\nSection 7( 1)( c) of FOIA\n\nSection 7( 1)( c) exempts\n\nfrom disclosure \"[ p] ersonal\n\ninformationcontained within\n\npublic records, the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy, unless the disclosure is consented to in writing by the individual subjects of the\ninformation.\" Section 7( 1)( c) defines \" unwarranted invasion of personal privacy\" as: \n\nT] he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject' s\n\nright to privacy outweighs any legitimate public interest in\nobtaining the information. The disclosure of information that bears\non the public duties of public employees and officials shall not be\n\nconsidered an invasion of personal privacy. \n\nA public body' s assertion that the release of information would constitute a clearly unwarranted\ninvasion of personal privacy is evaluated on a case- by- case basis. Chicago Journeymen\nPlumbers' Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192, 196 ( 1st Dist. \n2001). The phrase \" clearly unwarranted invasion of personal privacy\" evinces a strict standard to\nclaim the exemption, and the burden is on the public body having charge of the record to prove\n\n\fMr. Patrick B. McGrath\n\nMs. Chrissie L. Peterson\n\nAugust 31, 2020\n\nPage 3\n\nthat standard has been met. Schessler v. Department ofConservation, 256 Ill. App. 3d 198, 202\n4th Dist. 1994). \n\nThe Public Access Bureau has consistently determined that records pertaining to\nfrom\n\ncomplaints or allegations of misconduct against public employees are generally not exempt\ndisclosure in their entireties under section 7( 1)( c) because such information bears on the\n\nperformance of the employees' public duties. See, for example, Ill. Att' y Gen. PAC Req. Rev. \nLtr. 31045, issued Aprils 13, 2015; Ill. Att'y Gen. PAC Req. Rev. Ltr. 60991, issued March 12, \n2020. With respect\nto sexual misconduct or harassment complaints, this office! has recognized\nthat complainants have legitimate privacy interests in the information they subrnit, but\ndetermined that \"[ r] edacting the relatively minimal content\nsalacious and disclosing the remaining information concerning the alleged misconduct would\nstrike the appropriate balance between the public interest and the complainant's privacy interest.\" \nIll. Att' y Gen. PAC Req. Rev. Ltr. 52303, issued October 16, 2018, at 6. Additionally, this office\ndetermined that redacting personally -identifying information of any complainants and witnesses\nwould greatly reduce the impact on their personal privacy.\" \nIll. Att' y Gen. PAC Req. Rev. Ltr. \n52303, at 7. \n\nthat could be characterized as\n\nIn its response to this office, the City contended that it had redacted certain\n\ninformation concerning Mr. Elias and Ms. Fuller that was personal\nbearing on the public duties of those two employees. Specifically, the City stated that it redacted\na portion of an e- mail from Mr. Elias to several\nAdditionally, the City stated that it redacted a portion of a letter from Ms. Fuller that \" described\naccusations made against Fuller' s sexual conduct, her friendships and status as an unmarried\n\nindividuals in which he discussed his family. \n\nin nature and did not have a\n\nwoman. \n\nThis office's review of an unredacted copy of the e- mail from Mr Elias confirmed\n\nthat the ;City redacted most of a paragraph in which Mr. Elias discussed highly personal matters\nin nature and ldo not relate\nrelated t'o his immediate family. These details are highly personal\ndirectly oto public duties. This office has determined that Mr. Elias' right to privacy outweighs\nthe public interest in that particular information. See, for example, I11. Att'y Gen. PAC Req. Rev. \nLtr. 57449, issued December 31, 2019 ( determining that discrete portions of a -mails concerning\na then -employee fell within the scope of section 7( 1)( c) because the portions revealed details\nabout the employee that were highly personal\n\nin nature and did not relate directly to the\n\nemployee'\n\ns work performance). However, a portion of the redacted information ' is general\n\nin\n\nnature and pertains to Mr. Elias' employment with the City and the misconduct allegation against\n\nLetter from Chrissie L. Peterson, Interim Corporation Counsel, City of Peoria; Office of the\n\nCorporation Counsel, \n\nto Teresa Lim, Assistant Attorney General, Public Access Bureau[,] Office of the Attorney\n\nGeneral, State of Illinois ( February 26, 2020), at 4. \n\n\fMr. Patrick B. McGrath\n\nMs. Chrissie L. Peterson\n\nAugust 31, 2020\n\nPage 4\n\nhim. Because such information bears directly on the public duties of Mr. Elias', its disclosure\nwould not constitute a clearly unwarranted invasion of personal privacy. Accordingly, this office\nconcludes that the City has not demonstrated by clear and convincing evidence that all of the\nredacted information in the e- mail from Mr. Elias falls within the scope of section 7( 1)( c). 2\n\nThis office' s review of the letter from Ms. Fuller similarly confirmed that the City\n\nredacted portions in which Ms. Fuller discussed accusations made against her related to sexual\n\nconduct and her personal relationships and marital status. This office agrees that Ms. Fuller' s\n\ndiscussion of her personal relationships do not pertain directly to her employment or work\nperformance. The discussion reveals specific details about Ms. Fuller' s private ' life thatare\nhighly personal\nHowever, the information redacted from the fourth paragraph of the letter pertains to alleged\n\nin nature, the disclosure of which would be objectionable to a reasonable person. \n\nmisconduct\n\nat the workplace. Such information bears on Ms. Fuller' s employment and public\n\nduties. Accordingly, this office concludes that the City has not demonstrated by clear and\nconvincing evidence that all of the redacted information in the letter from Ms. Fuller falls within\nthe scope of section 7( 1)( c). \n\nSection 7( 1)( f) of FOIA\n\nSection 7( 1)( f) exempts from inspection and copying \"[ p] reliminary drafts, notes, \nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" Section\n7( 1)( f) is \" intended to protect\ndiscussion among agency employees before a final decision is made.\" Harwood v. McDonough, \n344 Ill. App. 3d 242, 248 ( 1st Dist. 2003). \" The government\nthat reflect\n\nthe agency' s give- and- take leading up to its final decisions.\" Chicago Tribune Co. v. \n\nthe communications process and encourage frank and open\n\nis entitled to withhold documents\n\nCook County Assessor' s Office, 2018 IL App ( 1st) 170455, ¶ 29, 109 N. E. 3d 872; 880 ( 2018). \nThe 7( 1)( f) exemption also encompasses \" communications between government', agencies and\noutside consultants whose analyses and recommendations ' played essentially the; same part in an\nagency's process of deliberation as documents prepared [ internal citation] by agency personnel\nmight have done.' Harwood, 344 Ill. App. 3d at 248 ( quoting Department of the Interior v. \nKlamath, Water Users Protective Ass' n, 532 U. S. 1, 10, 121 S. Ct. 1060, 1067 ( 2091)). However, \n\nmaterial\n\npurely factual material\" is not exempt from disclosure under section 7( 1)( f) unless the factual\ndeliberative discussions: Watkins v. \nMcCarthy, 2012 IL App ( 1st) 100632, ¶ 36, 980 N.E. 2d 733, 743 ( 2012) ( quoting Enviro Tech\n\nis \" inextricably intertwined\" with predecisional\n\n2The City also redacted an employee identification number in the provided records. Employee\nidentification numbers constitute \" private information\" under that term' s definition in section 2( c- 5) of FOIA ( 5\nILCS 140/ 2( c- 5) ( West 2018)). Accordingly, \nFOIA ( 5 ILCS 140/ 7( 1)( b) ( West 2018)). \n\nfrom disclosure under section 7( 1)( b) of\n\ninformation is exempt\n\nthat\n\n\fMr. Patrick B. McGrath\n\nMs. Chrissie L. Peterson\n\nAugust 31, 2020\n\nPage 5\n\nInternational, Inc. v. United States Environmental Protection Agency, 371 F. 3d 370, 374- 75 ( 7th\nCir. 2004)). \n\nWith regard to interview notes, the Public Access Bureau has previously\n\ndetermined that handwritten notes reflecting an evaluator' s mental\nmay fall within the scope of section 7( 1)( f). See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. \n48868, issued October 17, 2017, at 4 ( handwritten notes reflecting mental\nmember about university president' s job performance exempt\nPAC Req. Rev. Ltr. 58984, issued August\nrequest\nreflected the note - takers' mental\n\nimpressions of board\nfrom disclosure);' I11. Att'y Gen. \n1, 2019, at 2 ( public body did not improperly deny a\n\nfor a copy of interview notes because they were preliminary to a hiring, decision and\nimpressions of a job applicant). But see Ill. Att' y Gen. PAC\n\nimpressions of an individual\n\nReq. Rev. Ltr. 50756, issued March 12, 2018, at 5 ( handwritten notes that appeared to be factual\ndescriptions or summaries of a meeting not exempt from disclosure under section 7( 1)( f) where\nthere was no evidence they were deliberative). \n\nThe City argued that it withheld certain preliminary notes and draft documents\n1) \n\nf). In particular, the City asserted that it withheld: (\n\nthat fell within the scope of section 7( 1)(\npersonal notes taken by Human Resource Director, Mary Ann Stalcup\" related: to her interviews\nwith Mr. Elias and Ms. Fuller; ( 2) \" handwritten notes of Attorney [ Donald] Leist as well as the\nquestions he formulated to interview Elias\" and likewise handwritten notes and questions related\nto his interview of Ms. Fuller; and ( 3) documents \" drafted by Leist as part of his investigation\ninto the matter\" of the complaint involving Mr. Elias and Ms. Fuller that were not presented to\neither individuals or executed. 3 The City argued that most of the records constituted\npreliminary drafts, notes, recommendations, memoranda, and other records in which opinions\nwere expressed by Attorney Donald Leist[,]\" who served as the City's Corporation Counsel; the\nCity argued that those records are further exempt from disclosure under section 7( 1)( m). 4\nAdditionally, the City contended that it had redacted one e- mail because it was protected by the\nattorney- client privilege. Specifically, the City stated that the \" communication was from\nAttorney Jill O' Brien ( who provides employment\nLeist[.] 15\n\nlaw services to the City) to Attorney Donald\n\n3Letter from Chrissie L. Peterson, Interim Corporation Counsel, City of Peoria; Office of the\n\nCorporation Counsel, to Teresa Lim, Assistant Attorney General, Public Access Bureau[,] Office of the Attorney\nGeneral, State of Illinois ( February 26, 2020), at 3- 4. \n\nCorporation Counsel, \n\nto Teresa Lim, Assistant Attorney General, Public Access Bureau[,] Office, of the Attorney\n\nLetter from Chrissie L. Peterson, Interim Corporation Counsel, City of Peoria; Office of the\n\nGeneral, State of Illinois ( February 26, 2020), at 4. \n\nLetter from Chrissie L. Peterson, Interim Corporation Counsel, City of Peoria,' Office of the\n\nCorporation Counsel, \nGeneral, State of Illinois ( February 26, 2020), at 3. \n\nto Teresa Lim, Assistant Attorney General, Public Access Bureau[,] Office) of the Attorney\n\n\fr. Patrick B. McGrath\n\nMs. Chrissie L. Peterson\n\nAugust 31, 2020\n\nPage 6\n\nThis office' s review of the handwritten notes of Ms. Stalcup and Mr. Leist\n\ndetermined that the notes reflect their mental impressions of Mr. Elias and Ms. Fuller, as they\nquestioned the two individuals regarding the incident\nthat was the subject of a complaint. The\nnotes contain details reflecting the formulation of action and reveal opinions about the two\ninformation about the\nindividuals and the relevant\n\nincident. While the notes contain factual\n\nincident, the information is inextricably intertwined with the mental\nand Mr. Leist. This office' s review of the documents prepared by Mr. Leist as part of the\ninvestigation also confirmed that the City withheld certain draft materials that had not been\nexecuted; the materials do not reflect final decisions. Further, there is no indication that the\n\nimpressions of Ms. Stalcup\n\ndocuments were disclosed to Mr. Elias or Ms. Fuller. This office has also reviewed the e- mail\n\nfrom Ms. O' Brien to Mr. Leist and determined that the e- mail reflects Ms. O' Brien acting as a\nconsultant to the City. Disclosure of the e- mail would provide insight into the City' s deliberative\nprocess, as Ms. O' Brien advised the City on how to proceed with the investigation of the\ncomplaint. There is no indication that the handwritten notes, documents, and communication\nhave been publicly cited and identified by the head of the City. Because those records are\npreliminary and deliberative in nature, the City did not improperlywithhold the; records pursuant\nto section 7( 1)( f).6\n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the City disclose the first, fifth, and sixth sentences of the last paragraph of the e- \nmail, dated February 23, 2017, from Mr. Elias. This office also requests that the City disclose\nthe entire fourth paragraph of the letter, dated February 23, 2017, from Ms. Fuller. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n6Because this determination concludes that the responsive records are exempt\n\nfrom disclosure\n\npursuant t\n\nsection 7(\n\n1)(\n\nf), we decline to address the applicability of sections\n\n7( 1)( a) and 7( 1)( m)', ofFOIA to those\n\nrecords. \n\n\fMr. Patrick B. McGrath\nMs. Chrissie L. Peterson\nAugust 31, 2020\n\nPage 7\n\n61760 f 71c proper improper 71f proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Misconduct complaint records involving two city employees","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":952,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-10-26","case_number":null,"request_numbers":["61964"],"title":"Lockport Police Department improperly withheld arrest records under 7(1)(d)(vii)","filename":"61964, issued October 26, 2020.pdf","rel_path":null,"word_count":1524,"summary":"The Lockport Police Department withheld police reports and video footage regarding an arrest, citing FOIA exemption 7(1)(d)(vii). The PAC determined the Department failed to meet its burden of proof to justify the exemption and improperly denied the request.","plain_summary":"The question was whether the Lockport Police Department properly withheld arrest narratives and video footage under FOIA's law-enforcement exemption for records that would obstruct an ongoing criminal investigation (5 ILCS 140/7(1)(d)(vii)). The Public Access Bureau held that the police department improperly denied the request because its explanation for invoking the exemption was conclusory and did not show how disclosure would interfere with a criminal investigation. The rule applied is that a public body cannot rely on the mere existence of an ongoing investigation or pending litigation to justify withholding law-enforcement records; it must provide specific, non-conclusory facts demonstrating actual interference. The police department was directed to disclose the withheld narrative and video recordings, subject only to permissible redactions such as private information and information identifying uninvolved third parties.","holding":"A public body invoking the section 7(1)(d)(vii) exemption must show with specific facts, not conclusory assertions, that disclosure would obstruct an ongoing criminal investigation, and merely citing pending litigation or an open case is insufficient.","legal_question":"Whether the Lockport Police Department properly invoked section 7(1)(d)(vii) of FOIA to withhold records related to an arrest.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)(vii)"],"public_body":"Lockport Police Department","requesting_party":"Mr. Felix Sarver (The Herald-News)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought police reports, supplementary reports, and dash camera footage concerning a specific arrest.","ocr_status":"ok","ocr_quality":95.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_vii/61964%2C%20issued%20October%2026%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","arrest records","video footage","FOIA denial","exemption 7(1)(d)(vii)"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nOctober 26, 2020\n\nI\n\n1\n\nVia electronic mail\n\nMr. Felix Sarver\n\nNews Reporter\n\nThe Herald -News\n\n2175 Oneida Street\n\nJoliet, Illinois 604351\nfsarver@ shawmedia. com\n\nVia electronic mail\n\nMs. Rita Tinker\n\nFOIA Officer\n\nLockport Police Department\n\n1212 Farrell Road\n\n[street address redacted for site publication -- see original PDF]\nrtinker@lockportpolice.\n\ninfo\n\nRE: FOIA Request for Review — 2020 PAC 61964\n\nDear Mr. Sarver and Ms. Tinker: \n\nThis determination letter is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2018)). For the reasons that follow, the\nPublic Access Bureau concludes that the Lockport Police Department ( Police Department) \n\nimproperly denied Mr. Felix Sarver's February 19, 2020, FOIA request. \n\nOn that date, Mr. Sarver, on behalf of The Herald -News, submitted a FOIA\n\nrequest\n\nto the Police Department seeking copies of any and all police reports, supplementary\n\npolice reports, dash camera footage, and any other video footage concerning the arrest of a\nnamed person on February 14, 2020. On February 28, 2020, the Police Department provided Mr. \nSarver with copies of a case report, citations, and what appears to be a booking photo, but\nredacted certain information and withheld entire records pursuant\n\nto section 7( 1)( d)( vii) of FOIA\n\n5 ILCS 140/ 7( 1)( d)( vii) ( West 2018), as amended by Public Acts 101- 434, effective January 1, \n2020; 101- 452, effective January 1, 2020; 101- 455, effective August 23, 2019). Later that day, \n\n500 South Second Street, Springfield, \n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\nIllinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n601 South University Ave., Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Felix Sarver\n\nMs. Rita Tinker\n\nOctober 26, 2020\n\nPage 2\n\nMr. Sarver submitte4 the above -referenced Request for Review disputing the Police\nDepartment' s redactions of the arrest narratives and its withholding of requested video footage. \n\nOn March 9, 2020, this office sent a copy of the Request for Review to the Police\n\nDepartment and asked it to provide copies of the withheld records for this office' s confidential\n\nreview, and a detailed explanation of the factual and legal bases for the applicability of section\n7( 1)( d)( vii) of FOIA: In particular, this office asked the Police Department\ndisclosure of the responsive records would create a substantial likelihood that the accused person\nwould be deprived of a fair or impartial hearing. On March 10, 2020, the Police Department\nprovided this office with unredacted copies of the responsive paper records and a written\n\nto specify how\n\nresponse. On June 3; 2020, the Police Department provided this office with copies of the\n\nresponsive\n\nvideo recordings. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 ( West 2018); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 ( 2006). A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/ 1. 2 ( West 2018). The exemptions from disclosure are to be\n\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 I11. 2d 401, \n407 ( 1997). \n\nSection 7( 1)( d)( vii) of FOIA\n\nSection 7( 1)( d)( vii) of FOIA exempts from disclosure: \n\nd) \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nvii) \n\nobstruct an ongoing criminal investigation by the\n\nagency that is the recipient of the request. \n\nConclusory statements that the disclosure of requested records would obstruct a law enforcement\nproceeding are insufficient to demonstrate that law enforcement records are exempt from\ndisclosure under FOIA. See Day v. City of Chicago, 388 Ill. App. 3d 70, 74- 77 ( 1st Dist. 2009). \n\n\fMr. Felix Sarver\n\nMs. Rita Tinker\n\nOctober 26, 2020\n\nPage 3\n\nIn Day, the court explained: \" Simply saying there is an ' ongoing criminal\nthe case has not been cleared,' with little additional explanation, is not ' objective indicia' \n\ninvestigation because\n\nsufficient\n\nto show the ongoing investigation exemption applies.\" Day, 388 I11. App. 3d at 76; see\n\nalso Ill. Att'y Gen. Pub. Acc. Op. No. 17- 011, issued August 14, 2017, at 7- 8 ( public body\nimproperly withheld irecord under section 7( 1)( d)( vii) because it failed to demonstrate that\ndisclosure would interfere with law enforcement); Baudin v. City ofCrystal Lake, 192 Ill. App. \n3d 530, 536 ( 2nd Dist. 1989) (\" The classification of information as ' law enforcement' or\ninvestigatory' does not necessarily foreclose access unless it can be shown, in a particular case, \nthat disclosure would interfere with law enforcement and would, therefore, not be in the public\n\ninterest.\"). \n\nIn its response to this office, the Police Department asserted that it partially\n\ndenied the request pursuant\n\nto section 7( 1)( d)( vii) because of \" ongoing open litigation,\" and that\n\nthe report would be made available in its entirety at the conclusion of court proceedings.' \nonly other explanation the Police Department provided is as follows: \n\nThe\n\nThe Defendant\n\nin this report was first chair to the Will\n\nCounty States Attorney and is now a criminal defense\nattorney. \nThere is a special prosecutor from DuPage County assigned\nto this case. \n\ni Judge has requested a Substitution of Judge\nThe Attorney Registration & Disciplinary Commission\nARDC) has sent a subpoena for all records and videos for\nreview. l\n\n1\n\nThe Police Department' s explanation for the applicability of the exemption is\n\nconclusory. The Police Department did not provide facts from which this office could conclude\nthat any of the responsive records are exempt\nFurthermore, the Police Department did not explain how the release of these records would\n\nfrom disclosure under section 7( 1)( d)( vii). \n\ninvestigation, despite this office' s specific request\n\ninterfere with any criminal\ninformation. As discussed above, Illinois courts have made it clear that the mere existence of an\nongoing investigation is an inadequate basis for denying a request. Therefore, this office\nconcludes that the Police Department improperly denied the responsive narratives and video\nrecordings pursuant\n\nto section 7( 1)( d)( vii) of FOIA. \n\nfor that\n\nMcCullough ( March 10, 2020). \n\nE- mail from Rita Tinker, FOIA Officer, Lockport Police Department, to [ Christina] Lucente- \n\n2E -mail\n\nfrom Rita Tinker, FOIA Officer, Lockport Police Department, \n\nto [ Christina] Lucente- \n\nMcCullough, Assistant Attorney General, Public Access Bureau ( March 10, 2020). \n\n\fMr. Felix Sarver\n\nMs. Rita Tinker\n\nOctober 26, 2020\n\nPage 4\n\nTo remedy its improper denial, this office requests that the Police Department\n\ndisclose to Mr. Sarver copies of the narrative and video recordings, subject only to permissible\nredactions under section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2018), as amended by Public Acts 101- \n434, effective January 1, 2020; 101- 452, effective January 1, 2020; 101- 455, effective August\n23, 2019). Specifically, the Police Department may properly redact information that meets the\ndefinition of \"private information\" pursuant to section 7( 1)( b) of FOIA ( 5 ILCS 140/ 7( 1)( b) \nWest 2018), as amended by Public Acts 101- 434, effective January 1, 2020; 101- 452, effective\nJanuary 1, 2020; 101E455, effective August 23, 2019), 3 and dates of birth and information that\nwould unavoidably identify third parties who were not arrested pursuant to section 7( 1)( c) of\nFOIA ( 5 ILCS 140/ 7( 1)( c) ( West 2018), as amended by Public Acts 101- 434, effective January\n1, 2020; 101- 452, effective January 1, 2020; 101- 455, effective August 23, 2019). If the Police\nDepartment\nmeets the requirements of section 9( a) of FOIA ( 5 ILCS 140/ 9( a) ( West 2018)). \n\nredacts any such information, it should issue to Mr. Sarver a notice of denial\n\nthat\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this file. Please contact\nme at ( 312) 814- 5383 or the Chicago address on the first page of this letter if you have any\n\nquestions. \n\nVery truly yours, \n\nCHRISTINA M. LUCENTE- MCCULLOUG> \n\nAssistant Attorney General\nPublic Access Bureau\n\n61964 f 71 dvii improper pd\n\n3\n\nSection 2( c- 5) of FOIA ( 5 ILCS 140/ 2( c- 5) ( West 2018)) defines \" private information\" as: \n\nunique identifiers, including a person' s social security number, driver' s license\nnumber; employee identification number, biometric identifiers, personal\n\nfinancial\n\ninformation, passwords or other access codes, medical records, home\n\nor personal telephone numbers, and personal email addresses. Private\n\ninformation also includes home address and personal\n\nlicense plates, except as\n\notherwise provided by law or when compiled without possibility of attribution to\nany person. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports and dash-camera footage of an arrest","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":953,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-11-18","case_number":null,"request_numbers":["61967"],"title":"Chicago Public Schools did not violate FOIA by refusing to create new records or answer interrogatories","filename":"61967, issued November 18, 2020.pdf","rel_path":null,"word_count":2491,"summary":"The requester sought selective enrollment test results and call logs from Chicago Public Schools, and the PAC determined that CPS did not violate FOIA because it was not required to create new records or answer interrogatories.","plain_summary":"A requester asked Chicago Public Schools for specific test data and phone call logs. The Attorney General's office found that the school district followed the law because FOIA only requires agencies to provide existing records, not to create new documents or answer general questions about their operations. The case was closed with no further action required.","holding":"Chicago Public Schools did not violate FOIA because it is not required to create new records or answer questions that do not identify specific existing documents.","legal_question":"Whether a public body is required under FOIA to create new records or answer interrogatories in response to a request for information.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Public Schools","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"records creation","subject_description":"The requester sought selective enrollment test data and phone call logs, which the public body argued would require the creation of new records.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_d/Data-Requests/61967%2C%20issued%20November%2018%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["records creation","interrogatories","school records","FOIA request"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nNovember 18, 2020\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Annie Righi\n\nFreedom of Information Act Officer\n\nChicago Public Schools\n\nOne North Dearborn Street, 9th Floor\n\nChicago, Illinois 60602\n\narighi@cps. edu\n\nRE: FOIA Request\n\nfor Review — 2020 PAC 61967\n\nDear\n\nand Ms. Righi: \n\nThis determination is issued pursuant\n\nto section 9. 5( 1) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2018)). For the reasons stated below, the\n\nPublic Access Bureau concludes that the response by Chicago Public Schools ( CPS) to\n\nDecember 20, 2019, FOIA request did not violate FOIA. \n\nOn December 20, 2019, \n\nsubmitted a four- part FOIA request to CPS\n\nseeking: \n\n1. The selective enrollment\ntest results ( Classical Reading, \nClassical Math, and Gifted) of each student enrolled in each\n\nselective enrollment school for Kindergarten and first grade\n\nanonymized to prevent the identification of individual students. I\n\nam requesting data be provided to me in a spreadsheet -readable\nformat ( e. g. csv, xls, xlxs, tab -delimited txt, tab -separated values) \nthat maintains the integrity of the data. \n\n500 South Second Street, Springfield, \n\nIllinois 62701 • (\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois 60601 • (\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601 South University Ave., Carbondale, \n\nIllinois 62901 •-( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Annie Righi\n\nNovember 18, 2020\n\nPage 2\n\nsic 2.] The complete list of test scores for each student that\ntesting ( Classical Reading, \n\n1. [\ncompleted the selective enrollment\nClassical Math, and Gifted) placement\ntests during the 2016- 2017, \n2017- 2018, 2018- 2019 testing periods ( ie the testing that is used to\ndetermine placement\n\nfor the 2018-- 2020 school years), \n\nanonymized to prevent the identification of individual students. \nThis shall include the non -identifying student information\nincluding the raw and normalized scores for the placement test, the\ndate of testing ( month and year), socioeconomic tier of the student, \nsex, race[,] ethnicity, and IEP status of the tested student, grade, \nthe school they enrolled the year after testing, subsequent NWEA\nMAP test results for reading and math for those students ( for the\nbeginning, middle, and end of year scores and percentiles), and\nTRC/ Dibels Next test results for those students ( for the beginning, \nmiddle, and end -of -year scores and percentiles). I am requesting\ndata be provided to me in a spreadsheet -readable format ( e. g. csv, \nxls, xlxs, tab -delimited txt, tab -separated values) that maintains the\n\nintegrity of the data. \n\ninto a CPS school\n\nfor the 2017 through 2020 school\n\n2. [ sic 33 The anonymized data on students offered early\nenrollment\nyears. Early enrollment students are those with birthdays after the\nconventional cutoff of being age five by September 1st Tor\nkindergarten or equivalent age by September 1st for higher grades. \nI am requesting each student' s placement testing results ( scores\nand percentiles), socioeconomic tier of the student, sex, race, \n\nethnicity, and IEP status of the tested student, grade, the school\nthey enrolled in, subsequent NWEA MAP test results for reading\nand math for those students ( for the beginning, middle, and end of\nyear scores and percentiles), and TRC/ Dibels Next test results for\n\nthose students ( for the beginning, middle, and end - of -year scores\nand percentiles). \nspreadsheet - readable format ( e. g. csv, xls, xlxs, tab -delimited txt, \ntab -separated values) that maintains the integrity of the data. \n\nI am requesting data be provided to me in a\n\n3. [ sic 4.] The dates and call times for all phone calls between\nboth the CPS Office of Diverse Learners and the CPS Office of\nAccess and Equity to and from phone numbers 312- 404- 1880, 773- \n\n\fMs. Annie Righi\n\nNovember\n\n18, 2020\n\nPage 3\n\n968- 7128, and 773- 275- 2455 from August 2017 through January\n31, 2020. 1'\n\n1\n\nOn February 20, 2020, CPS responded that the request failed to cite a public\n\nrecord for review, would require the manual creation of records not maintained by CPS in the\nnormal course of business, would require CPS to conduct research, and that certain information\nwas exempt under section 7. 5( r) of FOIA. 2 CPS further contended that part four of the request\n\nalso seeks answers to questions. On February 28, 2020, \nReview contesting CPS' s response. \n\nsubmitted a Request\n\nfor\n\nasked it to provide this office with a detailed written response to the allegations in the Request\n\nOn March 16, 2020, this office sent a copy of the Request\n\nfor Review to CPS and\n\nfor Review. On April 17, 2020, CPS provided a confidential\ncover letter notifying this office of its confidential\ncover letter to\n\nhe replied on May 11, 2020. \n\nresponse to this office, along with a\n\nresponse.' After this office forwarded the\n\nDETERMINATION\n\nUnder section 1. 2 of FOIA ( 5 ILCS 140/ 1. 2 ( West 2018)), \"[ a] 11 records in the\n\ncustody or possession of a public body are presumed to be open to inspection and copying.\" \nSection 3( a) of FOIA ( 5 ILCS 140/ 3( a) ( West 2018), as amended by Public Act 101- 081, \neffective July 12, 2019) provides that \"[ e] ach public body shall make available to any person for\ninspection or copying all public records, except as otherwise provided in Section 7 and 8. 5 of this\nAct.\" \n\n2019). We refer to the numbered parts, as parts one through four, as indicated in the brackets above. \n\nFOIA request on Chicago Public Schools FOIA Center from\n\nDecember 20, \n\n25 ILCS 140/ 7. 5( r) ( West 2018), as amended by Public Acts 101- 013, effective June 12, 2019; \n101- 027, effective June 25, 2019; 101- 081, effective July 12, 2019; 101- 221, effective January 1, 2020; 101- 236, \neffective January 1, 2020; 101- 375, effective August 16; 2019; 101- 377, effective August 16, 2019; 101- 452, \neffective January 1, 2020; 101- 466, effective January 1, 2020; 101- 600, effective December 6, 2019; 101- 620, \neffective December 20, 2019; 101- 649, effective July 7, 2020. \n\n3Because CPS claimed its entire response was confidential, this office is not at liberty to reveal\n\nits\n\nin this determination. \n\nIn the future, CPS should provide this office with an additional\n\ncontent\nforward to the requester with any confidential information redacted, in accordance with section 9. 5( d) of FOIA ( 5\nILCS 140/ 9. 5( d) ( West 2018) (\" The Public Access Counselor shall forward a copy of the answer to the person\nsubmitting the request for review, with any alleged confidential information to which the request pertains redacted\nfrom the copy.\")). \n\nresponse letter to\n\n\fMs. Annie Righi\n\nNovember 18, 2020\n\nPage 4\n\nDatabase Records\n\nFOIA \" is not intended to create an obligation on the part of any public body to\n\n5 ILCS 140/ 1 ( West 2018). Thus, FOIA does not require a public body to compile data\n\nmaintain or prepare any public record which was not maintained or prepared by such public\nbody[.]\" \nthat\nit does not ordinarily keep. Hiles v. Waubonsee Community College, 2016 IL App ( 2d) \n150836, ¶ 75, 56 N. E. 3d 1049, 1065 ( 2016). See also Chicago Tribune Co. v. Department of\nFinancial and Professional Regulation, 2014 IL App 4th 130427, ¶ 133- 34, 8 N. E. 3d 11, 19\n2014) (\"[\n\na] request to inspect or copy must reasonably identify a public record and not general\ndata, information, or statistics.\"); Kenyon v. Garrels, 184 I11. App. 3d 28, 32 ( 4th Dist. 1989) ( a\npublic body is not required to create records in order to respond to a FOIA request). However, \ndata kept in databases constitute public records subject to the requirements of FOIA. See Hites, \n\n2016 IL App ( 2d) 150836, 180- 81, 56 N. E. 3d at 1066- 67. \n\nIn Hites, the Illinois Appellate Court analyzed a series of requests for information\n\ncontained in multiple databases. The Hites court distinguished requests for raw data maintained\n\nin a public body' s databases from requests seeking information about\nrequire the creation of new records. The court analogized a database to a file cabinet and stated\n\nthe data, which would\n\nthat \" the data that populates the database is like the files. FOIA permits a proper request for a\n\nsingle file, some of the files, or all of the files.\" Hiles, 2016 IL App ( 2d) 150836, ¶¶ 71, 56\nN. E. 3d at 1065. The court held that compiling raw data already maintained in databases and\navailable through computerized searches of the public body's databases did not involve the\ncreation of new records, even if the public body had to create and apply computer programming\nor coding to retrieve the information. Hites, 2016 IL App ( 2d) 150836, 1175- 81, 56 N. E. 3d at\n1065- 67. \n\nThis office has reviewed\n\nRequest\n\nfor Review, CPS' s confidential\n\nresponse, and\nrequest, CPS informed him that \" CPS does not maintain any one record or database that reflects\nthe testing and demographics data that you seek. In order to respond to those portions of your\nrequest, the CPS would be required to compile data from multiple sources and district\n\nreply. In response to the first three parts of\n\nFOIA\n\ndepartments, then combine the data, creating new record( s) not maintained by the District in the\nfor Review asserts that CPS should provide\nRequest\nnormal course of business.\" 4\nhim the records because it maintains the records in its systems. However, in contrast to Hites, \n\nthe available information indicates that CPS would need to do more than compile existing data in\norder to comply with the first three parts of\na public body to collect, cross- reference, match, and collate various data scattered through its\ndepartments and multiple databases. See Martinez v. Cook Cty. State' s Attorney' s Office, 2018 IL\nApp ( 1st) 163153, ¶ 25, 103 N. E. 3d 351, 357 ( 2018) ( request\n\nFOIA request. FOIA does not require\n\nthat would have required public\n\n4FOIA response on Chicago Public Schools FOIA Center from Annie Righi, Freedom of\n\nInformation Officer, Chicago Public Schools, \n\nto\n\nFebruary 20, 2020). \n\n\fMs. Annie Righi\n\nNovember 18, 2020\n\nPage 5\n\nbody to manually review its files and compile each \" instance\" in which it \" used\" specific\ninformation did not reasonably describe a record but instead was a general\nwas \" scattered throughout [\n\nthe public body' s] records\"). This office has located no legal support\n\nfor data that\n\nrequest\n\nfor the notion that FOIA requires a public body to compile information from multiple sources\nand create a custom report\nresponse to the first three parts of\n\nfor a requester. Accordingly, this office concludes that CPS' s\n\nrequest did not violate FOIA. \n\nIn his reply, \n\nclarified that part one of his request was \" for the\n\nselective enrollment\nenrollment schools for the 2021 school year. * * * \n\ntesting that was completed this school year for admission into selective\n\nI am requesting just the scores for the\n\nrecently completed testing to examine anomalies in the data. i5 In the event that\nwishes to confer with CPS to clarify the information he is seeking and to discuss options for\nobtaining some of the information he requested, this office asks that CPS consult with him about\nwhether the release of those records would be feasible. 6\n\nDates and Times of Phone Calls\n\nThe requirements of FOIA apply to \" public records,\" which are existing records\nhaving been prepared by or for, or having been or being used by, received by, in the possession\nof, or under the control of any public body.\" 5 ILCS 140/ 2( c) ( West 2018). However, a public\nbody is not required to answer questions or generate new records in response to a FOIA request. \nKenyon, 184 I11. App. 3d at32. \n\nPart four of\n\nFOIA request sought the dates and call times for certain\n\nphone calls spanning nearly two and a half years. CPS responded to\nfailed to request a record but asked questions about a large volume of records which it would\n\nthat his request\n\n2020). \n\nE- mail from\n\nto Senior Assistant Attorney General [ Edie] Steinberg ( May 11, \n\n6Because we conclude that CPS did not improperly deny the first three parts of\n\nFOIA request, it is not necessary to address the issue of whether the requested anonymized records were exempt\nfrom disclosure under section 7. 5( r) of FOIA, which exempts from inspection and copying information prohibited\nfrom being disclosed by the Illinois School Student Records Act ( ISSRA) ( 105 ILCS 10/ 1 et seq. ( West 2018)). \nHowever, this office notes that while section 6( a) of ISSRA ( 105 ILCS 10/ 6( a) ( West 2018)) provides that \"[ n] o\nschool student records or information contained therein may be released, transferred, disclosed or otherwise\ndisseminated[,]\" a masked record, which deletes or redacts individual identifying information, is not exempt from\ndisclosure under ISSRA. See Bowie v Evanston Community Consolidated School District 65, 128 111 2d 373, 379\n1989) ( records of aggregate test scores of a large number of student in multiple grades redacted of identifying\ninformation and scrambled not exempt as a school student record). See also 111. Att'y Gen. PAC Req. Rev. Ltr. \n48297, issued October 3, 2017 ( data regarding the names of grammar schools from which freshmen enrolled in\ncertain selective enrollment high schools did not identify individual students even though ten or less students\nenrolled from certain schools; the data did not include additional details about the students, such as demographic\n\ninformation or a description of a well- publicized event\n\ninvolving the students). \n\n\fMs. Annie Righi\n\nNovember 18, 2020\n\nPage 6\n\nneed to review and then create a new record to answer his questions. \n\nIndeed, \n\ndid not\n\nidentify records which he wished to be made available to him, and CPS was not obligated under\ninquiry questions regarding the dates and times of certain\nFOIA to answer\nphone calls. See Kenyon, 184 Ill. App. 3d at 32- 33. Because\nfor Review\nlogs and suggested that he could provide a more narrow range of\nstated that he was seeking call\nfor the specific call\ndates for those records, \nlogs he seeks: \n\nmay wish to submit a new FOIA request\n\nRequest\n\ngeneral\n\nThe Public Access Counselor\n\nhas determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at 312- 814- 5201 or at the Chicago address listed on the bottom of the first\n\npage of this letter. \n\nVery truly yours, \n\nSTEINBERG\n\nSenior Assistant Attorney Cod\nPublic Access Bureau\n\n61967 f 3a proper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Selective enrollment test data and phone call logs","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":954,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-06-24","case_number":null,"request_numbers":["62182"],"title":"Village of Tinley Park did not violate FOIA by providing YouTube link to meeting video","filename":"62182, issued June 24, 2024.pdf","rel_path":null,"word_count":1352,"summary":"The requester sought a copy of a Village Board meeting video, which the Village denied by providing a link to its YouTube page. The PAC determined that providing a link to a publicly available video on a hosting service satisfies the Village's obligations under FOIA.","plain_summary":"A citizen asked the Village of Tinley Park for a copy of a recorded board meeting, but the Village only provided a link to the video on YouTube. The citizen complained that this did not provide reasonable access to the record. The Attorney General's office ruled that directing a requester to a publicly available online video is a sufficient way to provide access under FOIA.","holding":"The Village of Tinley Park did not violate FOIA by providing a link to a YouTube video of a public meeting instead of a physical copy.","legal_question":"Does a public body satisfy its FOIA obligations by providing a link to a video of a public meeting hosted on a third-party platform rather than providing a direct copy of the file?","disposition":"no_violation","primary_statute":["5 ILCS 140/8.5"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Tinley Park","requesting_party":"Anonymous","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"public records","subject_description":"The requester sought a physical copy of a recorded Village Board meeting video that was already available online.","ocr_status":"ok","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_d/62182%2C%20issued%20June%2024%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["video recording","public meeting","YouTube","access to records"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"June 24, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Laura Godette\nDeputy Village Clerk\nVillage of Tinley Park\nlgodette@tinleypark. org\n\nRE: FOIA Request for Review – 2020 PAC 62182\n\nDear\n\nand Ms. Godette: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (5 ILCS 140/ 9.5(f) (West 2022), as amended by\nPublic Act 103- 069, effective January 1, 2024). For the reasons that follow, the Public Access\nBureau concludes that the response by the Village of Tinley Park ( Village) to\n\nFebruary 21, 2020, request did not violate FOIA. \n\nOn February 21, 2020, \n\nsubmitted a FOIA request to the Village\n\nseeking a copy of the video of the February 18, 2020 Village Board meeting. On February 28, \n2020, the Village denied the video pursuant to section 8.5 of FOIA ( 5 ILCS 140/ 8.5 (West\n2018)) and directed him to a recording of the meeting on the Village' s YouTube page. \n\nOn March 4, 2020, \n\nsubmitted a follow- up request to the Village, \nnoting that he was unable to copy the video from the referenced web page and requested a copy\nof the recording. On March 12, 2020, the Village denied this request, stating that it was a\n\n\fMs. Laura Godette\nJune 24, 2024\nPage 2\n\nrepeated request for a record that was properly denied and thus unduly burdensome pursuant to\nsection 3(g) of FOIA ( 5 ILCS 140/ 3(g) (West 2018), as amended by Public Act 101- 081, \neffective July 12, 2019). \n\nOn March 13, 2020, \n\nsubmitted the above- referenced Request for\n\nReview disputing the Village' s denial of his request. He argued that the Village' s \" failure to\nprovide a copy of the video denies [ him] reasonable access to the document as required by\nFOIA[,]\" as it would require him to have an \" internet capable device as well as access to the\ninternet and the Village' s web page at any time [ he] and others need to access and review the\nmeeting for various purposes.\" 1\n\nOn March 19, 2024, this office forwarded a copy of this Request for Review to\n\nVillage, requesting an explanation of the legal and factual bases for section 8.5 and section 3(g). \nWhile this office never received a formal response, this office and the Village exchanged\ncorrespondence over the next two years. Within these communications involved questions\nregarding whether the issue had been incorporated into a lawsuit and as a result, would render\nthis matter moot under section 11 of FOIA. 5 ILCS 140/ 11 (West 2018). This office withdraws\nits request that the Village address the merits of the Request for Review as we have determined it\nis unnecessary for the reasons explained below. \n\nDETERMINATION\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with this Act.\" 5 ILCS\n140/ 1 (West 2018). Section 8.5(a) of FOIA ( 5 ILCS 140/ 8.5(a)) ( West 2018)) provides that \" a\npublic body is not required to copy a public record that is published on the public body' s website. \nThe public body shall notify the requester that the public record is available online and direct the\nrequester to the website where the record can be reasonably accessed.\" ( Emphasis added.) \nSection 8.5(b) of FOIA ( 5 ILCS 140/ 8.5(b) (West 2018)) further provides: \n\nIf the person requesting the public record is unable to\nreasonably access the record online after being directed to the\nwebsite pursuant to subsection ( a) of this Section, the requester\nmay resubmit his or her request for the record stating his or her\ninability to reasonably access the record online, and the public\nbody shall make the requested record available for inspection and\ncopying as provided in Section 3 of this Act. \n\nGeneral ( March 13, 2020), at 2-3. \n\n1Letter from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney\n\n\fMs. Laura Godette\nJune 24, 2024\nPage 3\n\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n2006). \" The most reliable indicator of legislative intent is the statutory language, given its plain\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56. Where the language of a statute is clear and unambiguous, a reviewing body\nmay not depart from the plain language by reading into the statute exceptions, limitations, or\nconditions that the legislature did not express.\" Hayashi v. Illinois Department of Financial & \nProfessional Regulation, 2014 IL 116023, ¶ 16. A reviewing body \" has a duty to avoid a\nconstruction of the statute that would defeat the statute' s purpose[.]\" People v. Latona, 184 Ill. \n2d 260, 269 ( 1998). \n\nThe information provided to this office and a viewing of the Village' s website\n\ndemonstrates that the recording of the February 18, 2020, meeting can be accessed on the\nVillage' s YouTube channel through an internet link posted on the Village' s website. 2 3 The plain\nlanguage of section 8.5 of FOIA relieves a public body of the obligation to provide copies of\nrecords if the requester can reasonably access the records on the public body' s website. \n\ncontends that the requested recording was not reasonably\n\naccessible because he was unable to download and save a copy of the recording and because he\nand others who may wish to review the recording do not have continuous and uninterrupted\naccess to the internet. Construing section 8.5 in that manner would establish an impossible\nstandard that would defeat its purpose and be contrary to its plain language. \" Access\" is defined\nas \" to open or load ( a computer file, an Internet site, etc.)[.]\" 4 \" Copy\" is defined as \"[ t]o make a\nduplicate of[.]\" 5 If the General Assembly had intended to require public bodies to publish\n\nrecords on their websites in formats that may be copied and saved, it would have said so\nexpressly. Instead, section 8.5 provides merely provides that a requester must able to\nreasonably access the record online[.]\" \ndid not assert that he is unable to use a\ncomputer or access the Village' s website, and the Village has no means or obligation to ensure\n\n2Village of Tinley Park, Village Board Meetings and Agendas, \n\nhttps:// tinleypark. org/ government/ minutes_ and_ agendas/ village_ board_ minutes_ and_ agendas. php ( last visited June\n22, 2024). \n\n3This office has previously determined that recording that may be accessed clicking on an internet\n\nLink on a public body' s website to recordings posted on another website such as Youtube are \" published\" on the\npublic body' s website for purposes of section 8.5(a) of FOIA. Ill. Att'y Gen. PAC Req. Rev. Ltr. 55627, issued\nDecember 13, 2021, at 3) (\" It would be unreasonable to construe FOIA as requiring a public body to embed a video\non its website in order to rely on section 8.5(a), rather than allowing a website link directly to a video hosting service\nsuch as YouTube.\"). \n\n4Merriam- Webster Dictionary, https:// www.merriam- webster. com/ dictionary/ access ( last visited\n\nJune 22, 2024). \n\nJune 22, 2024). \n\n5Merriam- Webster Dictionary, https:// www.merriam- webster. com/ dictionary/ access ( last visited\n\n\fMs. Laura Godette\nJune 24, 2024\nPage 4\n\nthat he has continuous and uninterrupted access to the internet. Accordingly, this office\nconcludes that the Village did not improperly deny\nrecording. 6\n\nrequest for a copy of the\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, you may contact me at (312) 814- 3180 or at Matthew. Rogina@ilag. gov\n\nVery truly yours, \n\nMATTHEW C. ROGINA\nSenior Assistant Attorney General\nPublic Access Bureau\n\n62182 f 8.5 proper mun\n\nmatter has is moot due to litigation. \n\n6As a result, this office does not need to address section 3(g) nor the Village' s assertion that this\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A recorded village board meeting video","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":955,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-11-21","case_number":null,"request_numbers":["62344"],"title":"Peoria Police Department improperly withheld arrestee names from 1992 murder case records","filename":"62344, issued November. 21, 2024.pdf","rel_path":null,"word_count":2499,"summary":"The requester sought records related to a 1992 murder case, which the Peoria Police Department partially redacted; the PAC determined the Department properly redacted witness and third-party information but improperly redacted the names of arrestees.","plain_summary":"A requester asked for police records from a 1992 murder case, but the police department blacked out several names. The Attorney General's office reviewed the records and decided that while the police were allowed to hide the names of witnesses and third parties, they were not allowed to hide the names of the people who were arrested. The police have been asked to provide a new copy of the records with the arrestees' names visible.","holding":"The Peoria Police Department improperly redacted the names of arrestees from the requested records.","legal_question":"Whether the Peoria Police Department properly applied FOIA exemptions 7(1)(b) and 7(1)(c) to redact the names of witnesses, third parties, and arrestees from investigative records.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"Peoria Police Department","requesting_party":"Ms. Celeste Stack","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought investigative records and photographs related to a 1992 murder case.","ocr_status":"ok","ocr_quality":93.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_iv/62344%2C%20issued%20November.%20%2021%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","redaction","arrestee names","FOIA exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"November 21, 2024\n\nVia electronic mail\nMs. Celeste Stack\nAttorney\nHale & Monico\n[street address redacted for site publication -- see original PDF]\ncelestestewartstack@gmail. com\n\nVia electronic mail\nMs. Rebecca Boland\nFOIA Officer\nPeoria Police Department\n600 Southwest Adams Street\nPeoria, Illinois 61602\nrboland@peoriagov. org\n\nRE: FOIA Request for Review – 2020 PAC 62344\n\nDear Ms. Stack and Ms. Boland: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2023 Supp.)). For the reasons that follow, the\nPublic Access Bureau concludes that the Peoria Police Department ( Department) did not\nimproperly redact information that would identify witnesses or third parties from the records\nresponsive to Ms. Celeste Stack' s FOIA request, but improperly redacted references to the\narrestees. \n\nOn January 15, 2020, Ms. Stack submitted a FOIA request to the Department\n\nseeking copies of all records, including photographs and investigative reports, related to a\nmurder case against a named person from 1992. On January 30, 2020, the Department\nresponded by providing Ms. Stack with copies of records but redacted certain information\n\n\fMs. Celeste Stack\nMs. Rebecca Boland\nNovember 21, 2024\nPage 2\n\npursuant to sections 7(1)( b) and 7(1)(c) of FOIA. 1 On March 27, 2020, Ms. Stack submitted the\nabove- referenced Request for Review contesting the Department' s partial denial of her FOIA\nrequest. \n\nOn April 7, 2020, this office forwarded a copy of Ms. Stack' s Request for Review\n\nto the Department and asked it to furnish unredacted copies of the responsive records for this\noffice' s confidential review, together with a detailed explanation of the factual and legal bases for\nthe asserted exemptions. On April 17, 2020, the Department\nStack with copies of the records with considerably fewer redactions and a written response\nstating that it had redacted certain information pursuant to sections 7(1)(a), 7(1)(b), 7(1)( c), \n7(1)(d)( iv), and 7(1)( d)( vi) of FOIA. 2 In conjunction with section 7(1)(a), the Department cited\nsection 1-7 of the Juvenile Court Act of 1987 ( JCA). 3 On April 30, 2020, Ms. Stack confirmed\nreceipt of the Department' s supplemental\n\nresponse and responded by stating: \n\ninstead elected to provide Ms. \n\nUnfortunately, the revised production is also impossible to\ndecipher as all the names of the witnesses, etc have been erased. \nAgain, these records were produced in court in discovery, were\npart of a public trial and the records from the trial and multiple\nappeals are all in the public domain. Peoria has added the claim\nthat some juveniles were interviewed but fails to designate which\nerased materials are actually from juveniles. In sum, Peoria' s\nrevisions do nothing to improve the situation as the materials are\nstill impossible to decipher.[ 4] \n\nBefore proceeding, this office notes that section 7(1)(a) and the JCA are inapplicable because the\nrecords do not concern minors suspected of criminal offenses; rather, as explained below, a\nminor witness' identity falls within the scope of other exemptions the Department cited. \n\nOn May 1, 2020, this office received from the Department unredacted copies of\nthe records sent to Ms. Stack on April 17, 2020. Later, on March 18, 2021, when an Assistant\nAttorney General ( AAG) in the Public Access Bureau followed up with Ms. Stack, she advised\nthat she was still seeking unredacted copies of the records because: \" The case file is 20 years\nold, no investigation is ongoing. In fact, someone was convicted and served an entire sentence. \n\n15 ILCS 140/7(1)(b), (1)(c) (West 2019 Supp.). \n\n25 ILCS 140/7(1)( a), ( 1)(b), (1)(c), ( 1)(d)(iv), (1)(d)(vi) (West 2019 Supp.). \n\n3705 ILCS 405/ 1-7 (West 2018). \n\n4E- mail from Celeste Stewart Stack to Ms. [ Sarah] Pratt ( April 30, 2020). \n\n\fMs. Celeste Stack\nMs. Rebecca Boland\nNovember 21, 2024\nPage 3\n\nPeoria redacted factual details so that the documents are worthless as they cannot be followed or\nunderstood. This violates the purpose of FOIA.\" 5\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1.2 (West 2022). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 ( 1997). \n\nIn its revised response to the request, the Department explained that it redacted\n\nthe names and private information of persons who provided information to the police and other\npersons mentioned in the reports pursuant to sections 7(1)(b) and 7(1)(d)( iv) of FOIA, and that it\nalso redacted information that would constitute a clearly unwarranted invasion of personal\nprivacy pursuant to section 7(1)(c). As discussed in further detail below, the Department\nprimarily redacted discrete information pertaining to witnesses and third parties, leaving in a\nlarge volume of intelligible information. Accordingly, it is not evident why Ms. Stack alleges\nthat the redacted records are indecipherable and worthless. \n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\" \nSection 2(c-5) of FOIA 6 defines \" private information\" as: \n\nunique identifiers, including a person' s social security number, \ndriver' s license number, employee identification number, biometric\nidentifiers, personal financial\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal\notherwise provided by law or when compiled without possibility of\nattribution to any person. \n\ninformation, passwords or other\n\nlicense plates, except as\n\nThis office' s review confirmed that many of the redactions are of \"unique\nidentifiers\" that are expressly defined as \" private information,\" including social security\nnumbers, home or personal telephone numbers, and home addresses. Although Ms. Stack\nappears to argue that the asserted exemptions, which include section 7(1)( b), cannot apply\nbecause the homicide occurred decades ago and the police reports were part of the prosecution\n\n5E- mail from Celeste Stack to Ms. [ Suzanne] Borland ( March 18, 2021). \n\n65 ILCS 140/2(c-5) (West 2018). \n\n\fMs. Celeste Stack\nMs. Rebecca Boland\nNovember 21, 2024\nPage 4\n\nand appeals, there is no basis in FOIA from which this office could conclude that the protections\nof section 7(1)(b) expire under such circumstances. Therefore, the Department did not\nimproperly redact private information pursuant to section 7(1)(b). \n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal information\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)(c) defines \" unwarranted invasion of personal privacy\" \nas \" the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject' s right to privacy outweighs any legitimate public interest in obtaining\nthe information.\" Section 7(1)(c) also contains an exception providing that \"[ t]he disclosure of\ninformation that bears on the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy.\" \n\nIn contrast to the identities of arrestees, which generally are not exempt from\n\nin an underlying incident but\n\ndisclosure under section 7(1)(c), 7 this office has consistently determined that the disclosure of\nthe identities of third parties who have no direct involvement\nwhose names appear incidentally in a police report constitutes a clearly unwarranted invasion of\npersonal privacy. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 26558, issued January 7, 2014, at\n3; see also Mays v. Drug Enforcement Administration, 234 F.3d 1324, 1327 ( D.C. Cir. 2000) \nAbsent exceptional circumstances, the balance [ between the public interest in disclosure and\nthe right to privacy] categorically favors withholding the names and addresses of third parties as\" \nsuch information does not provide insight into the conduct or performance of a government\nagency); Ill. Att'y Gen. Pub. Acc. Op. No. 22-005, issued March 24, 2022, at 10 (\" The\ncomplainants, as well as witnesses and third parties described incidentally in the complaints, \nhave legitimate privacy interests in the disclosure of their identities.\"). \n\nAdditionally, section 7(1)(d)(iv) of FOIA exempts from disclosure: \n\nRecords in the possession of any public body created in the\n\nd) \ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\n7See 5 ILCS 140/ 2.15(a) ( West 2020) ( requiring public disclosure of information that identifies\n\neach arrestee within 72 hours after arrest); see also Ill. Att'y Gen. Pub. Acc. Op. No. 12- 006, issued March 16, 2012, \nat 7 (concluding that the disclosure of the identities of arrestees and basic facts about their arrests and the related\ninvestigations would not constitute a clearly unwarranted invasion of personal privacy). \n\n\fMs. Celeste Stack\nMs. Rebecca Boland\nNovember 21, 2024\nPage 5\n\nunavoidably disclose the identity of a confidential\n\niv) \nsource, confidential\nconfidential source, or persons who file complaints with or\nprovide information to administrative, investigative, law\nenforcement, or penal agencies[.] ( Emphasis added.) \n\ninformation furnished only by the\n\nThis provision allows police departments to protect the anonymity of both confidential\ninformants and other persons who provide them with information. Chicago Alliance for\nNeighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 200-01 (2004) ( names and\naddresses of beat meeting participants properly redacted because they provided information to\npolice department). Witness statements may be withheld in their entireties only if disclosure of\nthe contents \" would necessarily result in the disclosure of the identity of that source\" of\ninformation and, therefore, \" redaction of the [ records] cannot be meaningfully accomplished.\" \nCopley Press, Inc. v. City of Springfield, 266 Ill. App. 3d 421, 426 ( 1994). \n\nThis office' s review of the responsive records confirmed that the Department\nredacted the names of witnesses who provided information to the police. The names of the\nwitnesses who provided information to the Department fall within the scope of section\n7(1)(d)(iv), and the names of other witnesses and third parties mentioned in the reports fall\nwithin the scope of section 7(1)(c) of FOIA. The Department also redacted dates of birth, which\nare exempt from disclosure under section 7(1)( c). 8 This office' s review of the redacted material\nfurther confirmed that much of the information the Department redacted from the witness\nstatements is exempt under section 7(1)(d)(iv) because it would unavoidably identify those\nwitnesses even after their names are redacted. For instance, the disclosure of descriptions of\nwitnesses' familial connections to involved parties would expose their identities. Although Ms. \nStack contends that the witnesses' identities are not exempt because the records were produced in\ncourt in discovery and were part of a public trial where a person was convicted and then served a\nprison sentence, the exemptions set forth in sections 7(1)(c) and 7(1)( d)(iv) of FOIA do not cease\nto protect the identities of witnesses in the context of police reports merely because discovery\noccurs, a trial is held, or a case ends. Henareh v. United States, No. 1:17-cv-00630, 2018 U.S. \nDist. LEXIS 207234, at * 8-9 (S.D.N.Y. Dec. 6, 2018) ( disclosure of recordings \" during criminal\ndiscovery does not warrant public disclosure pursuant to FOIA if the recordings otherwise fall\nwithin an applicable exemption.\"). The applicability of law enforcement exemptions for records\nthat would interfere with or obstruct criminal\nwhen the investigations and proceedings end, but the Department\n\ninvestigations and legal proceedings 9 do expire\n\nis not relying on those\n\n8\" An individual' s birth date is highly personal by its very nature and the subject' s right to privacy\noutweighs any legitimate public interest in disclosing this information.\" Ill. Att'y Gen. Pub. Acc. Op. No 16-009, \nissued November 7, 2016, at 12. \n\n95 ILCS 140/7(1)(d)(i), (1)(d)(vii) (West 2019 Supp.). \n\n\fMs. Celeste Stack\nMs. Rebecca Boland\nNovember 21, 2024\nPage 6\n\nexemptions in this matter. Thus, the age and status of the prosecution related to this\ninvestigation is immaterial here. \n\nAdditionally, Ms. Stack argues that the witness identities are not exempt because\n\nrecords from the trial and appeals are already in the public domain. A requester seeking\notherwise exempt records carries \" the burden of pointing to specific information in the public\ndomain that appears to duplicate that being withheld.\" Afshar v. Department of State, 702 F.2d\n1125, 1130 ( D.C. Cir. 1983). \" That is so because the task of proving the negative-- that\ninformation has not been revealed-- might require the government\npotentially limitless search.\" Davis v. United States Department of Justice, 968 F.2d 1276, 1279\nD.C. Cir. 1992). In the absence of supporting evidence such as trial transcripts, the assertion\nthat recordings were played in a criminal trial fails to demonstrate that \" specific information\nidentical to that being withheld that has been placed in the permanent public record.\" Black v. \nUnited States Department of Justice, 69 F. Supp. 3d 26, 30 (D.C. Cir. 2014). \n\nto undertake an exhaustive, \n\nThis office has received no specific evidence showing what if any witness\n\nidentities were revealed in open court and preserved in a permanent public record. Nothing in\nsections 7(1)( c) and 7(1)( d)(iv) expressly or impliedly requires a law enforcement agency to\nascertain whether otherwise exempt information in its possession has been disclosed in a judicial\nproceeding. Accordingly, there is no basis for this office to conclude that Ms. Stack is entitled to\nunredacted copies of the records at issue because they are in the public domain. \n\nNonetheless, this office' s review found that the Department redacted references to\nthe arrestees from some of the witness statements. The arrestees' identities are not exempt under\nsection 7(1)( c) as noted above, and the Department did not demonstrate that disclosing the\narrestees' names in the witness statements would unavoidably identify the witnesses. Under\nthese circumstances, this office concludes that the Department\nnames. 10 If Ms. Stack is interested in obtaining a new copy of the record without the redaction\nof the arrestee names, this office asks her to confirm that; if she does, this office asks the\nDepartment to provide Ms. Stack with a new copy of the records without redacting the arrestees' \nnames. \n\nimproperly redacted the arrestees' \n\n10Sections 7(1)(a) and 7(1)(d)(vi) do not apply to the arrestees' names because they were not\n\njuveniles at the time of the incident, rendering the JCA inapplicable, and because the Department did not explain\nhow or why disclosing the arrestees' names would endanger the life or physical safety of any person. \n\n\fs. Celeste Stack\nMs. Rebecca Boland\nNovember 21, 2024\nPage 7\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (773) 590- 6840 or matthew. goodman@ilag. gov. \n\nVery truly yours, \n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n\n62344 f 71b proper 71c proper improper 71div proper pd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Investigative records and photos of a 1992 murder case","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":956,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-09-14","case_number":null,"request_numbers":["62833"],"title":"Village of Orland Park improperly withheld work-from-home records under 7(1)(kk)","filename":"62833, issued September 14, 2021.pdf","rel_path":null,"word_count":2452,"summary":"The requester sought various records regarding Village of Orland Park employees' work-from-home status during the COVID-19 pandemic. The PAC determined that the Village complied with FOIA regarding the first four parts of the request but improperly withheld records responsive to the fifth part.","plain_summary":"A citizen requested information from the Village of Orland Park about which employees were allowed to work from home during the COVID-19 pandemic. The Attorney General's office found that the Village followed the law for most of the request but wrongly refused to provide the records for the fifth part of the request. The Village improperly withheld those specific records.","holding":"The Village of Orland Park improperly withheld records responsive to part five of the FOIA request.","legal_question":"Whether the Village of Orland Park properly withheld records under section 7(1)(kk) of FOIA, which exempts certain personal account information from disclosure.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(kk)"],"public_body":"Village of Orland Park","requesting_party":"Michael F. Henry","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request concerned Village of Orland Park employee work-from-home policies and lists of employees approved for remote work during the COVID-19 pandemic.","ocr_status":"ok","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_u/62833%2C%20issued%20September%2014%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","COVID-19","work from home","FOIA exemption","Village of Orland Park"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nSeptember 14, 2021\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Mallory A. Milluzzi\n\nPartner/ Attorney\n\nKlein, Thorpe and Jenkins, Ltd\n\n20 North Wacker Drive, Suite 1660\n\n[street address redacted for site publication -- see original PDF]\nmamilluzzi@ktjlaw.\n\ncom\n\nRE: FOIA Request for Review – 2020 PAC 62833; N007633- 040920\n\nDear\n\nand Ms. Milluzzi: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5( f) (West 2020)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the response by the Village of Orland Park ( Village) to the\n\nfirst four parts of\n\nApril 9, 2020, FOIA request did not violate FOIA, but\n\nthe Village improperly withheld records responsive to part five. \n\nOn that date, \n\nsubmitted a FOIA request to the Village asking: \n\n1] Please provide the criteria used to determine if an\n\nemployee of the Village of Orland Park was being allowed to work\n\nfrom home due to the Covidl9 pandemic. [ 2] Please provide a list\n\nof each and every employee of the Village who was approved to\n\nwork from home and the reason they were approved to work from\n\nhome. [ 3] Please provide a list of all the employes [ sic] who were\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: (877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Mallory A. Milluzzi\n\nSeptember 14, 2021\n\nPage 2\n\nrequired to come to work at the Village offices and the reason they\n\nwere required to work from the Village Office. [ 4] Please provide\n\nthe information on\n\nand how she can do her job as\n\nadministrative\n\nassistant\n\nto the Mayor and how she can answer calls\n\nto the Mayors [ sic] Office when she is working from home. [ 5] \n\nPlease provide the list of employees who have remote computer\n\naccess to the Villages [ sic] Systems and networks to perform their\n\nJobs remotely[.][\n\n1] \n\nOn May 4, 2020, the Village responded, denying part five of\n\nrequest pursuant\n\nto\n\nsections 7(1)(u) and 7(1)(v) of FOIA (5 ILCS 140/7(1)(u), (1)(v) (West 2020)). Additionally, \n\nthe Village informed\n\nthat it located no records responsive to parts two and three of his\n\nFOIA request. The Village further asserted that parts one and four of the request did not fall\n\nwithin the scope of FOIA, as they posed questions rather than reasonably describing any public\n\nrecords. Later that afternoon, \n\nsubmitted the above-referenced Request for Review\n\ndisputing the Village' s response to his FOIA request. \n\nOn May 8, 2020, this office sent a copy of the Request\n\nfor Review to the Village\n\nand asked it to provide unredacted copies of any and all records that were withheld for this\n\noffice's confidential review, together with a detailed explanation of the legal and factual bases for\n\nthe applicability of the section 7(1)( u) and 7(1)( v) of FOIA. This office also asked the Village to\n\nprovide a detailed written explanation for its responses to parts one and four of\n\nFOIA request. Specifically, \n\nthis office asked the Village to explain whether\n\nit possesses any\n\nrecords pertaining to the criteria used to determine if a Village employee could work from home\n\ndue to the COVID- 19 pandemic. On May 19, 2020, counsel\n\nfor the Village submitted the\n\nrequested materials and additionally asserted the applicability of section 7(1)(kk) of FOIA (5\n\nILCS 140/ 7(1)( kk) ( West 2020)). The Village provided a complete version of its written answer\n\nfor this office's confidential review and a redacted version for forwarding to . \n\nSee 5\n\nILCS 140/ 9.5(d) ( West 2020). On May 20, 2020, this office forwarded the redacted copy of the\n\nVillage's response to ; \n\nhe did not submit a written reply. \n\nDETERMINATION\n\nParts One through Four of the FOIA Request\n\nSection 1.2 of FOIA (5 ILCS 140/1.2 (West 2020)) provides that \"[ a]ll records in\n\nthe custody or possession of a public body are presumed to be open to inspection or copying.\" \n\n1FOIA Request submitted by\n\nto the Village of Orland Park FOIA Center\n\nApril 9, 2020). \n\n\fMs. Mallory A. Milluzzi\n\nSeptember 14, 2021\n\nPage 3\n\nHowever, \"[ a] request to inspect or copy must reasonably identify a public record[.]\" Chicago\n\nTribune Co. v. Department of Financial and Professional Regulation, 2014 IL App ( 4th) \n\n130427, ¶33, 8 N.E.3d 11, 19 (2014). A FOIA request \" reasonably describes records if 'the\n\nagency is able to determine precisely what records are being requested.'\" Kowalczyk v. \n\nDepartment of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (quoting Yeager v. Drug Enforcement\n\nAdmin., 678 F. 2d 315, 326 ( D. C. Cir. 1982)). Public bodies are not required to search beyond\n\nthe four corners of a FOIA request, nor are they required to divine the requester's intent. Manna\n\nv. U.S. Dep' t of Justice, 106 F. Supp. 3d 16, 19 ( D.D.C. 2015). Further, a public body is not\n\nrequired to answer questions or generate new records in response to a FOIA request. Kenyon v. \n\nGarrels, 184 Ill. App. 3d 28, 32 ( 4th Dist. 1989) \n\nIn its response to this office, the Village argued that asking for the \" criteria\" for\nworking from home \" is not a request for records\" subject to FOIA.2 If the Village possessed a\n\ndocument\n\nlaying out the requirements or factors involved in deciding who was eligible to work\n\nfrom home, asking for the \" criteria\" was sufficient to identify such a record. The Village's\n\nattorney advised, however, \nlaying out the criteria for staying or working from home.\" 3 The Village provided information\n\nconfirmed that it did not have a document\n\nthat \" the Village * * * \n\nsupporting its assertion on a confidential basis. This office has not received information\n\nsuggesting that the Village did possess a record listing the criteria. \n\nThe Village next argued that part four of the request\n\nimproperly \" asks the Village\n\nto provide general information about\n\nemployment and to explain * * * how she\n\ndoes her job.\"\n\n4\n\nThis office agrees that part four of\n\nrequest did not reasonably\n\nidentify public records but instead sought an explanation, which the Village was not required to\n\nprovide under FOIA. \n\nAs to parts two and three of the request, the Village argued that asking \" the reason\n\nwhy\" employees were approved to work from home or required to come to work \" is clearly\n\nasking the Village to interpret or advise requesters as to the meaning or significance of the public\nrecords, which is not allowed or required under FOIA.\" 5 See 5 ILCS 140/3.3 (West 2020) ( FOIA\n\nChristina Lucente- McCullough, Public Access Bureau, Office of the Attorney General ( May 19, 2020), at [ 2]. \n\n2Letter\n\nfrom Mallory A. Milluzzi, Assistant Village Attorney, Klein, Thorpe, and Jenkins, Ltd., to\n\nChristina Lucente- McCullough, Public Access Bureau, Office of the Attorney General ( May 19, 2020), at [ 2]. \n\n3Letter\n\nfrom Mallory A. Milluzzi, Assistant Village Attorney, Klein, Thorpe, and Jenkins, Ltd., to\n\nChristina Lucente- McCullough, Public Access Bureau, Office of the Attorney General ( May 19, 2020), at [ 2]. \n\n4Letter\n\nfrom Mallory A. Milluzzi, Assistant Village Attorney, Klein, Thorpe, and Jenkins, Ltd., to\n\nChristina Lucente- McCullough, Public Access Bureau, Office of the Attorney General ( May 19, 2020), at [ 2]. \n\n5Letter\n\nfrom Mallory A. Milluzzi, Assistant Village Attorney, Klein, Thorpe, and Jenkins, Ltd., to\n\n\fMs. Mallory A. Milluzzi\n\nSeptember 14, 2021\n\nPage 4\n\nis not intended to compel public bodies to interpret or advise requesters as to the meaning or\n\nsignificance of the public records.\"). Regardless, \n\nthe Village asserted, it possessed no lists\n\nresponsive to those two parts of the request, nor did it have a record indicating the reasons why\n\neach employee was working remotely or not. This office has not received information indicating\n\nthat the Village did possess lists responsive to parts two and three of\n\nrequest naming\n\neach employee and the rationales for their ability to work remotely. Under the circumstances of\n\nthis matter, this office concludes that the Village's response to the first four parts of\n\nrequest did not violate FOIA. \n\nPart Five of FOIA Request\n\nUnder FOIA, a public body \" has the burden of proving by clear and convincing\n\nevidence\" that information it withholds is exempt from disclosure. 5 ILCS 140/1.2 (West 2020). \n\nIn its confidential\n\nresponse to this office, the Village argued that the record responsive to part\n\nfive of\n\nrequest is exempt under sections 7(1)(u), 7(1)(v), and 7(1)(kk) of FOIA\n\nbecause disclosing a list of employees who have remote access to the Village' s computer\n\nnetwork could result in a security breach. \n\nSection 7(1)(u) of FOIA\n\nSection 7(1)( u) of FOIA exempts from disclosure \"[\n\ni]nformation that would\n\ndisclose or might lead to the disclosure of secret or confidential information, codes, algorithms, \n\nprograms, or private keys intended to be used to create electronic or digital signatures under\n\nthe Electronic Commerce Security Act.\" (Emphasis added.) Section 5-105 of the Electronic\n\nCommerce Security Act ( 5 ILCS 175/ 5-105 ( West 2020)) defined an \" electronic signature\" as \" a\nsignature in electronic form attached to or logically associated with an electronic record.\" 6 The\n\nsame section defines a \" digital signature\" as: \n\nA] type of electronic signature created by transforming an\n\nelectronic record using a message digest function and encrypting\n\nthe resulting transformation with an asymmetric\n\ncryptosystem\n\nusing the signer's private key such that any person having the\n\ninitial untransformed\n\nelectronic record, the encrypted\n\ntransformation, and the signer's corresponding public key can\n\naccurately determine whether\n\nthe transformation was created using\n\nthe private key that corresponds to the signer's public key and\n\nwhether\n\nthe initial electronic record has been altered since the\n\nElectronic Transactions Act ( 815 ILCS 333/ 1 et seq. ( West 2020), added by Public Act 102- 038, effective June 25, \n\n6The Electronic Commerce Security Act has since been repealed and replaced by the Uniform\n\n2021). \n\n\fMs. Mallory A. Milluzzi\n\nSeptember 14, 2021\n\nPage 5\n\ntransformation was made. A digital signature is a security\n\nprocedure. \n\nThe Village did not articulate how the language of the section 7(1)( u) exemption, \n\nwhich is narrow and highly technical in nature, could apply to the basic information at issue in\n\nthe responsive record. Therefore, \n\nthe Village improperly withheld the employee list pursuant\n\nto\n\nsection 7(1)(u) of FOIA. \n\nSection 7(1)(v) of FOIA\n\nSection 7(1)(v) of FOIA exempts from disclosure: \n\nVulnerability assessments, security measures, and response\n\npolicies or plans that are designed to identify, prevent, or respond\n\nto potential attacks upon a community's population or systems, \n\nfacilities, or installations, \n\nthe destruction or contamination of\n\nwhich would constitute a clear and present danger to the health or\n\nsafety of the community, but only to the extent\n\nthat disclosure\n\ncould reasonably be expected to jeopardize the effectiveness of the\n\nmeasures or the safety of the personnel who implement them or the\n\npublic. Information exempt under this item may include such\n\nthings as details pertaining to the mobilization or deployment of\n\npersonnel or equipment, \n\nto the operation of communication\n\nsystems or protocols, or to tactical operations. \n\nBy its plain language, section 7(1)(v) applies to \"[ v]ulnerability assessments, \n\nsecurity measures, and response policies or plans * * * \n\nthe destruction or contamination of which\n\nwould constitute a clear and present danger to the health or safety of the community[.]\" The\n\nresponsive record is not a vulnerability\n\nassessment or response policy or plan, and it does not\n\ndiscuss or reflect security measures designed to deal with potential attacks. Thus, the document\n\nsimply is not among the types of homeland security records that fall within the plain language of\n\nthe section 7(1)(v) exemption. \n\nSection 7(1)(kk) of FOIA\n\nSection 7(1)(kk) of FOIA permits a public body to withhold \"[ t]he public body's\n\ncredit card numbers, debit card numbers, bank account numbers, Federal Employer\n\nIdentification\n\nNumber, security code numbers, passwords, and similar account information, the disclosure of\n\nwhich could result\n\nin identity theft or impression or defrauding of a governmental entity or a\n\nperson.\" ( Emphasis added.) \n\n\fMs. Mallory A. Milluzzi\n\nSeptember 14, 2021\n\nPage 6\n\nIn construing statutes such as FOIA, the primary goal is to ascertain and\n\neffectuate the intent of the General Assembly. See Southern Illinoisan v. Illinois Dep' t of Public\n\nHealth, 218 Ill. 2d 390, 415 (2006). \"[ W]hen a statute lists several classes of persons or things\n\nbut provides that the list is not exhaustive, \n\nthe class of unarticulated persons or things will be\n\ninterpreted as those 'others such like' the named persons or things.\" Board of Trustees of\n\nSouthern Illinois Univ. v. Illinois Dep' t of Human Rights, 159 Ill. 2d 206, 211 ( 1994). In other\n\nwords, the listed terms are examples of what the General Assembly intended the statute to cover. \n\nSee Duffy v. Illinois Dep' t of Human Rights, 354 Ill. App. 3d 236, 239 ( 4th Dist. 2004). \n\nIn analyzing the language of section 7(1)(kk), this office has determined that the\n\nexemption concerns \"\n\ntypes of account\n\ninformation that could be exploited to gain unauthorized\n\naccess to accounts.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 64908 66410, issued January 28, 2021, at\n\n2. In that matter, this office explained that such account access information \"\n\nis not akin to basic\n\nidentifying information,\" such as the names and badge numbers of police officers. Ill. Att'y Gen. \n\nPAC Req. Rev. Ltr. 64908, at 2. \n\nThis office' s review of the withheld information confirmed that it is not \" similar\n\naccount information\" to credit card numbers, bank account numbers, passwords, and the like. \n\nTherefore, \n\nthe Village improperly withheld the employee list pursuant\n\nto section 7(1)( kk) of\n\nFOIA. \n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat the Village provide\n\nwith a copy of the record responsive to part five of his\n\nrequest. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at clucentemccullough@atg. state.il.us or the Chicago\n\naddress listed on the first page of this letter. \n\nVery truly yours, \n\nCHRISTINA M. LUCENTE-MCCULLOUGH\n\nAssistant Attorney General\n\nPublic Access Bureau\n\n62833 f 3d response complete 71u improper 71v 71kk improper improper mun\n\n\fMr. Michael F. Henry\n\nMs. Mallory A. Milluzzi\n\nSeptember 14, 2021\n\nPage 7\n\ncc: \n\nVia electronic mail\n\nMs. Alexandra Snodsmith\n\nAssistant Freedom of Information Officer\n\nVillage of Orland Park\n\n14700 South Ravinia Avenue\n\nOrland Park, Illinois 60462\n\nclerk@orlandpark. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Employee work-from-home policies and remote-work approval lists","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":957,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2025-12-02","case_number":null,"request_numbers":["64491"],"title":"Homewood Police Department properly withheld lineup recordings but not photo array under FOIA","filename":"64491, issued December 2, 2025.pdf","rel_path":null,"word_count":1829,"summary":"The requester sought audio and video recordings of a photo array and related police reports, which the Homewood Police Department denied under section 7(1)(d)(v). The PAC determined the denial was improper and directed the Department to provide the records, subject to appropriate redactions.","plain_summary":"A citizen requested audio and video recordings of a police photo lineup, as well as the photo array and lineup report, from the Homewood Police Department. The department denied the audio and video recordings under a state law that keeps lineup recordings confidential, and denied the photo array and report under a FOIA exemption for investigative techniques. The Illinois Attorney General's office reviewed the request and found that the audio and video recordings were properly withheld, but the photo array and lineup report were not exempt and must be provided to the requester, subject to any lawful redactions.","holding":"The Homewood Police Department properly withheld the requested audio and video recordings under section 7(1)(a) of FOIA, but improperly withheld the photo array and lineup report under section 7(1)(d)(v).","legal_question":"Whether the Homewood Police Department properly invoked section 7(1)(d)(v) of FOIA to withhold audio and video recordings of a photo array.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(d)(v)"],"public_body":"Homewood Police Department","requesting_party":"Christina Lucente-McCullough (on behalf of requester)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request concerned audio and video recordings of a police-administered photo array and associated lineup reports.","ocr_status":"ok","ocr_quality":97.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_a/64491%2C%20issued%20December%202%2C%202025.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","photo array","video recording","FOIA denial","redaction"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"December 2, 2025\n\nVia electronic mail\n\nVia electronic mail\nDeputy Chief McGrath\nHomewood Police Department\n[street address redacted for site publication -- see original PDF]\ndmcgrath@homewoodil. gov\n\nRE: FOIA Request for Review – 2020 PAC 64491\n\nDear\n\nand Mr. McGrath: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). \n\nOn August 18, 2020, \n\nsubmitted a FOIA request to the\n\nHomewood Police Department ( Police Department) seeking copies of: \n\n1. Any audio and/ or video recording of viewing of [ the] photo\narray administered by independent administrator, Detective\nNeitzel, on [ April 17, 2018], at approximately 1533 hours[,] \n2. The recording from the E-Lineup computer, the photo array, \nincluding [ a named individual] and the five fillers[,] and\n\n\fDeputy Chief McGrath\nDecember 2, 2025\nPage 2\n\n3. The demographics and line- up report that was placed into\nevidence, as well as any other corresponding reports.[1] \n\nOn August 25, 2020, the Police Department provided\nH18- 04521, but redacted certain information pursuant to sections 7(1)( b) and 7(1)( c) of FOIA. 2\nrequest for the remaining video and audio\nHowever, the Police Department denied\nrecords pursuant to section 7(1)( d)( v) of FOIA. 3 On August 26, 2020, this office received\n\nwith a copy of police report\n\nRequest for Review contesting the Police Department's denial of the requested audio\n\nand/ or video recordings. \n\nOn September 9, 2020, this office sent a copy of this Request for Review to the\nPolice Department and asked it to provide this office with unredacted copies of any responsive\nrecords for this office' s confidential review, together with a detailed description of the\napplicability of section 7(1)(d)(v). On September 29, 2020, this office received the Police\nDepartment' s written response and the requested materials. In its written response, the Police\nDepartment claimed that responsive records involved a law enforcement lineup, which are\nprohibited from being disclosed pursuant\nProcedure of 1963 (Criminal Code).4 On October 1, 2020, this office forwarded a copy of the\nPolice Department' s response to\n\nto section 107A- 2(k) of the Code of Criminal\n\nhe replied on October 2, 2020. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2024); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 ( 2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1.2 (West 2024). \n\nSection 7(1)( a) of FOIA and the Code of Criminal Procedure\n\nSection 7(1)( a) of FOIA exempts from disclosure \"[ i]nformation specifically\n\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\n\n2020). \n\n1Public Records Request submitted by\n\nto Village of Homewood (August 18, \n\n2020; 101-452, effective January 1, 2020; 101-455, effective August 23, 2019. \n\n25 ILCS 140/7(1)(b), (1)(c) (West 2018), as amended by Public Acts 101-434, effective January 1, \n\n2020; 101-452, effective January 1, 2020; 101-455, effective August 23, 2019. \n\n35 ILCS 140/7(1)(d)(v) (West 2018), as amended by Public Acts 101-434, effective January 1, \n\n4725 ILCS 5/107A-2(k) (West 2020). \n\n\fDeputy Chief McGrath\nDecember 2, 2025\nPage 3\n\nor State law.\" 5 In connection with section 7(1)( a), the Police Department quoted the section\n107A-2(k) of the Criminal Code, which provides: \n\nAny electronic recording made during a lineup that is\n\ncompiled by any law enforcement agency as required by this\nSection for the purposes of fulfilling the requirements of this\nSection shall be confidential and exempt from public inspection\nand copying, as provided under Section 7 of the Freedom of\nInformation Act, and the recording shall not be transmitted to any\nperson except as necessary to comply with this Section. (Emphasis\nadded). \n\nSection 107A- 2(a) of the Criminal Code requires law enforcement agencies to use one of four\nspecified methods when conducting a line-up.6 In pertinent part, these methods include the use\nof \" independent administrator\" or an \" automated computer program or other device that can\nautomatically display a photo lineup to an eyewitness in a manner that prevents the lineup\nadministrator\nafter the lineup is completed.\" ( Emphasis added) \n\nfrom seeing which photograph or photographs the eyewitness is viewing until\n\nSection 107A-0.1 of the Criminal Code7 defines an independent administrator as\na line up administrator who is not participating in the investigation of the criminal offense and\nis unaware of which person in the lineup is the suspected perpetrator.\" Further, section 107A-0.1\nsimply defines a lineup administrator as \" the person who conducts a lineup.\" \n\nThe Police Department withheld the photo arrays and the recordings of\n\nreviewing electronic line-up software on a Police Department computer. \ndisputed the Police Department' s assertion that section 107A- 2(k) of the Criminal Code\nprohibited disclosure of those records. \nclassified as an independent administrator because \" he was an actively investigating detective\nthat interviewed the offender[.]\" 8\n\nclaimed that Detective Neitzel cannot be\n\nThe plain language of section 107A-2(k) of the Criminal Code prohibits\ndisclosure of any electronic recording made during a lineup that is compiled by any law\n\n101-452, effective January 1, 2020; 101-455, effective August 23, 2019. \n\n55 ILCS 140/7(1)(a) ( West 2018), as amended by Public Acts 101-434, effective January 1, 2020; \n\n6725 ILCS 5/107A-2(a) ( West 2020). \n\n7725 ILCS 5/107A-0.1 (West 2020). \n\nPublic Access Bureau ( October 2, 2020). \n\n8E- mail from\n\nto Christina Lucente- McCullough, Assistant Attorney General, \n\n\fDeputy Chief McGrath\nDecember 2, 2025\nPage 4\n\nenforcement agency for the purpose of complying with the requirements of section 107A- 2. An\nindependent administrator is not required to be present when an individual uses an automated\ncomputer program, and the prohibition against disclosure of any recordings made during a lineup\napplies regardless of whether an independent administrator oversees the lineup. You also\nasserted that you are entitled to the recording because it will demonstrate that the Police\nDepartment did not comply with the requirements of section 107A-2 of the Criminal Code. \nHowever, the consequences for alleged noncompliance do not include waiving the ability to\nwithhold a recording within the scope of section 107A-2(k). See 725 ILCS 5/107A-2(j) (West\nto disclose the\n2020). Nor do you fall under the exception that permits the Police Department\nrecording because it is \"necessary to comply with this Section.\" 725 ILCS 5/107A-2(k) (West\n2020). Therefore, the Police Department demonstrated by clear and convincing evidence that\nsection 107A-2(k) the Criminal Code specifically prohibits it from disclosing the requested\nrecordings. \n\nOn the other hand, this office determines that the requested photo array and line-\n\nup report do not fall within the scope of section 107A-2(k) of the Criminal Code. The plain\nlanguage of that provision prohibits disclosure of any electronic recordings made during a lineup. \nDespite the fact that the photo array was used during the line-up in question, it is not an\nelectronic recording of the lineup and neither is the corresponding report. The narrowly tailored\ndisclosure prohibition in section 107A-2(k) is further supported by corresponding language in\nsection 107A- 2(i),9 which distinguishes three types of records prepared in connection with a\nlineup: \n\nThe photographs, recordings, and the official report of the lineup\nrequired by this Section shall be disclosed to counsel for the\naccused as provided by the Illinois Supreme Court Rules regarding\ndiscovery. All photographs of suspected perpetrators shown to an\neyewitness during a lineup shall be disclosed to counsel for the\naccused as provided by the Illinois Supreme Court Rules regarding\ndiscovery. (Emphasis added). \n\nBecause the plain language of section 107A-2(k) of the Criminal Code only applies to electronic\nrecordings, the Police Department has not sustained its burden of demonstrating by clear and\nconvincing evidence that photo arrays and lineup report are exempt from disclosure under\nsection 7(1)( a) of FOIA. \n\nSection 7(1)( d)(v) of FOIA\n\nSection 7(1)( d)( v) of FOIA exempts from disclosure: \n\n9725 ILCS 5/107A-2(i) (West 2020). \n\n\fDeputy Chief McGrath\nDecember 2, 2025\nPage 5\n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nv) disclose unique or specialized investigative\n\ntechniques other than those generally used and known or\ndisclose internal documents of correctional agencies related\nto detection, observation or investigation of incidents of\ncrime or misconduct, and disclosure would result in\ndemonstrable harm to the agency or public body that is the\nrecipient of the request[.] \n\nIn its response, the Police Department asserted that it properly withheld the\n\nto section 7(1)( d)( v) to\nrequested records, including the photo arrays and line- up report, pursuant\nprotect the disclosure of \"special investigative techniques.\" 10 Bare assertions without a detailed\nrationale do not satisfy a public body' s burden of explaining how exemptions are applicable. See\nRockford Police Benevolent & Protective Ass'n v. Morrissey, 398 Ill. App. 3d 145, 151 (2010) \nciting Illinois Education Ass' n v. Illinois State Board of Education, 204 Ill. 2d 456, 464 ( 2003)). \nThe public body satisfies its burden when it provides a detailed justification for the claimed\nexemption which addresses the specific documents requested and allows for adequate adversarial\ntesting.\" Turner v. Joliet Police Department, 2019 IL App (3d) 170819, ¶ 10. \n\nThe Police Department's sparse explanation for the section 7(1)(d)(v) exemption\nis generalized and conclusory. The Police Department did not set forth facts suggesting that any\nunique or specialized techniques are depicted in the withheld records. The use of photographs\nand lineups during a law enforcement\ninvestigation is a common and generally- known technique. \nFurther, the Police Department did not explain how or why disclosure of the photographs and the\nlineup report would cause it to endure demonstrable harm. Accordingly, the Police Department\nfailed to prove by clear and convincing evidence that the withheld photo array and lineup report\nare exempt from disclosure under section 7(1)( d)( v). \n\nAccordingly, this office requests that the Police Department provide\nwith copies of the photo array and line-up report, subject to the redaction of any discrete portions\n\n10Letter from Deputy Chief McGrath, Homewood Police Department, to Christina Lucente-\n\nMcCullough, Assistant Attorney General, Office of the Attorney General, Public Access Bureau (September 17, \n2020). \n\n\fDeputy Chief McGrath\nDecember 2, 2025\nPage 6\n\nthat fall within the scope of exemptions listed in section 7 of FOIA. 11 If the Police Department\nwith a notice of partial denial\ndoes elect to redact any information, it shall provide\nthat meets the requirements of section 9 of FOIA. 12\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nCHRISTINA LUCENTE- MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n64491 f 71a proper improper 71dv improper pd\n\n115 ILCS 140/7 (West 2024). \n\n125 ILCS 140/9 (West 2024). \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Audio and video recordings of a police photo array","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":958,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-01-13","case_number":null,"request_numbers":["64820"],"title":"Chicago Public Schools properly withheld records under Rule 766 and 7(1)(a)","filename":"64820, issued January 13, 2023.pdf","rel_path":null,"word_count":1313,"summary":"The requester sought records regarding complaints, lawsuits, and investigative files concerning the Chicago Public Schools' General Counsel, which the district denied citing Illinois Supreme Court Rule 766. The PAC determined that the district's reliance on the rule to withhold the records was proper under FOIA.","plain_summary":"A requester asked Chicago Public Schools for legal records and complaints involving their General Counsel. The school district refused to release the documents, arguing that a specific Illinois Supreme Court rule requires these types of records to remain confidential. The Attorney General's office agreed with the district, concluding that the records were properly withheld.","holding":"Chicago Public Schools did not violate FOIA by withholding records protected from disclosure by Illinois Supreme Court Rule 766.","legal_question":"Whether records protected by Illinois Supreme Court Rule 766 are exempt from disclosure under FOIA section 7(1)(a) as information specifically prohibited from disclosure by federal or state law.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(a)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Chicago Public Schools","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought complaints, lawsuits, and investigative files concerning the General Counsel of the Chicago Public Schools.","ocr_status":"ok","ocr_quality":96.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_a/Waiver/64820%2C%20issued%20January%2013%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","legal records","confidentiality","Supreme Court Rule 766"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJanuary 13, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Andrew Mason\nFreedom of Information Act Officer\nChicago Public Schools\n42 West Madison, 3rd Floor\nChicago, Illinois 60602\namason19@cps. edu\n\nRE: FOIA Request for Review – 2020 PAC 64820\n\nDear\n\nand Mr. Mason: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons stated below, the\nPublic Access Bureau concludes that the response by the Chicago Public Schools ( CPS) to Mr. \n\nMay 8, 2020, FOIA request did not violate the requirements of FOIA. \n\nOn May 8, 2020, \n\nsubmitted a three-part FOIA request seeking in part\n\none: \" Complaints and lawsuits against and investigative files of Joseph Moriarty General\nCounsel) along with any letters to the ARDC on his behalf and any legal bills to represent him to\nthe ARDC or in any other complaint( s) or lawsuit( s).\" On September 11, 2020, CPS denied part\none of\nFOIA request pursuant to section 7(1)(a) of FOIA (5ILCS 140/7(1)(a) \nWest 2020)), citing Illinois Supreme Court Rule 766 ( Rule 766) ( Ill. S. Ct. R. 766 ( effective\nJune 14, 2006)). On September 16, 2020, \ncontesting the denial of part one of his FOIA request. \n\nsubmitted a Request for Review\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Andrew Mason\nJanuary 13, 2023\nPage 2\n\nOn October 13, 2020, this office sent a copy of the Request for Review to CPS\n\nand asked it to provide copies of any withheld records responsive to part one of\nFOIA request for this office' s confidential review, together with a detailed explanation of the\nfactual and legal bases for withholding the requested records. On December 4, 2020, CPS\nprovided this office its response. On December 10, 2020, this office forwarded the written\nresponse to\n\nOn December 16, 2020, \n\nsubmitted a reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2020). Exemptions to disclosure are to be narrowly construed. Lieber v. Board of\nTrustees of Southern Illinois Univ., 176 Ill. 2d 401, 408 ( 1997). \n\nSection 7(1)( a) of FOIA exempts from disclosure \"[ i]nformation specifically\n\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\" In its response to the Request for Review, CPS asserted that any responsive\nrequests are exempt from disclosure pursuant to section 7(1)(a) of FOIA Rule 766 as the law\nprohibiting disclosure. Rule 766 pertains to the confidentiality and privacy of proceedings\nbefore the Attorney Registration and Disciplinary Commission (ARDC) and states, in part: \n\na) Public Proceedings. Proceedings under Rules 751 through 780\nshall be public with the exception of the following matters, which\nshall be private and confidential: \n\ninvestigations conducted by the Administrator [of the ARDC] * * *. \n\nIllinois Supreme Court rules \"have the force of law, and the presumption must\n\nbe that they will be obeyed and enforced as written.\" Bright v. Dicke, 166 Ill. 2d 204, 210\n1995). The Illinois Supreme Court has explained: \" When interpreting supreme court rules, our\ncourt is guided by the same principles applicable to the construction of statutes. [ Citations.] \nWith rules, as with statutes, our goal is to ascertain and give effect to the drafters' intention. \nCitation.]\" People v. Marker, 233 Ill. 2d 158, 164– 65 ( 2009). \n\nSection ( a) of Rule 766 expressly provides that investigations conducted by the\nAdministrator of the ARDC (Administrator) are \" private and confidential[.]\" As explained by\nthe Court in In re Mitan, 119 Ill. 2d 229, 256 ( 1987): \n\nThe purpose underlying the general rule of privacy and\nconfidentiality is to protect an attorney's reputation for honesty and\n\n\fMr. Andrew Mason\nJanuary 13, 2023\nPage 3\n\nintegrity from the irreparable harm that might result if a publicly\nannounced disciplinary investigation or charge later proved to be\nwithout substance. \n\nRule 766 does not specify who is bound by this confidentiality requirement. Its\npurpose as explained by the Court in Mitan, however, can only be served if the confidentiality\napplies broadly. Rule 766 does not contain an exception for investigations of attorneys who are\npublic employees or officials. If it did, FOIA could be used to circumvent the confidentiality\nrequirements of Rule 766. 1 Accordingly, this office has previously determined that records\nrelating to a matter that is private and confidential pursuant to Rule 766 are exempt pursuant to\nsection 7(1)( a) of FOIA. See Ill. Att'y Gen. PAC Rev. Ltr. 67547, issued December 6, 2021, at\n3-4. \n\nThe Public Access Bureau has reviewed the materials submitted by\n\ntreatment by selectively disclosing names and addresses of\n\nas well as CPS. A review of those materials establishes that CPS properly withheld any\nresponsive records because they relate to a matter that is private and confidential pursuant to\nargued that because CPS previously provided similar types of documents\nRule 766. \nin response to prior FOIA requests for records concerning other CPS employees, he is entitled to\nreceive these records as well. Yet there is no indication that CPS waived the ability to deny the\nrecords at issue here by disclosing the same records concerning the same individual\nparty. See Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 413\n1997) ( providing preferential\ncolleges students to certain requesters while withholding the same information sought by another\nrequester waived the ability to deny the information under FOIA). Further, \"[ t]he waiver rule\nmust not be mechanically applied whenever there is disclosure of information but, rather, \nrequires consideration of the circumstances related to the disclosure, including the purpose and\nextent of the disclosure as well as the confidentiality surrounding the disclosure.\" Chicago\nAlliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 202 ( 1st Dist. 2004). \nCPS explained that when it learned about Rule 766 it began to apply the 7(1)(a) exemption. \nRequiring disclosure of the records at issue because CPS previously was unaware of Rule 766\nwould be contrary to the rule's express intent of keeping such records confidential. Thus, CPS's\nchoice to disclose similar types of records in the past does not preclude CPS from relying on\nRule 766 to withhold records in this instance. Accordingly, this office concludes that CPS did\nnot improperly withhold records at issue here under section 7(1)( a) of FOIA. \n\nto another\n\nThe Public Access Bureau has determined that resolution of this matter does not\n\n1There is no conflict between FOIA and Rule 766, but even if there was, we note that, \"[ i]t is well\n\nsettled in Illinois that where a supreme court rule conflicts with a statute on the same subject, 'the rule will prevail.'\" \nDalan/Jupiter, Inc. ex rel. JRC Midway Marketplace, L.P. v. Draper & Kramer, Inc., 372 Ill. App. 3d 362, 370 (1st\nDist. 2007) (quoting O'Connell v. St. Francis Hospital, 112 Ill. 2d 273, 281 (1986)). \n\n\fMr. Andrew Mason\nJanuary 13, 2023\nPage 4\n\nrequire the issuance of a binding opinion. This file is closed. Please contact me at ( 312) 814-\n5201 or at the Chicago address on the first page of this letter if you have questions. \n\nVery truly yours, \n\nSenior Assistant Attorney General\nPublic Access Bureau\n\n64820 f 71a proper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Complaints and investigative files about a school district's general counsel","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":959,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-01-28","case_number":null,"request_numbers":["64908","66410"],"title":"Village of Elmwood Park closed FOIA case on employee records denied due to requester's criminal history","filename":"64908 66410, issued January 28, 2021.pdf","rel_path":null,"word_count":1163,"summary":"The requester sought employee records including names, salaries, and badge numbers from the Village of Elmwood Park, which the Village denied citing the requester's history of impersonating officers. The PAC closed the files without issuing a binding opinion, noting the Village had responded to the requests.","plain_summary":"A requester asked the Village of Elmwood Park for employee records including names, salaries, and badge numbers. The Village denied the request, citing a FOIA exemption for account-related information, and noted the requester had a prior conviction for impersonating a police officer. The Illinois Attorney General's office found the exemption did not apply and requested the Village provide the information, except for employee identification numbers, but closed the case without issuing a binding opinion.","holding":"The Public Access Counselor determined that resolution of this matter does not require the issuance of a binding opinion; the file is closed.","legal_question":"Whether the Village of Elmwood Park properly denied a FOIA request for employee information based on the requester's criminal history.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Village of Elmwood Park","requesting_party":null,"pac_outcome":"Closed with no further action","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought names, salaries, hiring dates, and badge numbers for Village police, fire, and water department employees.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_kk/64908%2066410%2C%20issued%20January%2028%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","employee salary","FOIA request","Village of Elmwood Park"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJanuary 28, 2021\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Peter A. Pacione\n\nStorino, Ramello & Durkin\n\n9501 West Devon Avenue\n\nRosemont, Illinois 60018\n\nppacione@srd- law. com\n\nRE: FOIA Request\n\nfor Review — 2020 PAC 64908; 2021 PAC 66331 and 66410\n\nDear\n\nand Mr. Pacione: \n\nOn January 4, 2021, the Public Access Bureau received a Request for Review\n2021 PAC 66331) alleging that the Village of Elmwood Park ( Village) had not responded to\n\nDecember 27, 2020, Freedom of Information Act ( FOIA) ( 5 ILCS 140/ 1 et seq. \nWest 2018)) request seeking names, employee numbers, hiring dates, and salaries for all Village\nemployees as well as badge numbers for police officers and firefighters ( if firefighters have\n\nbadge numbers). On the same day, the Village responded that it had no records to provide\nbecause\nPAC 64908. \nthe January 4, 2021, response. \n\nrequest for the same information was under review by this office in 2020\nthen filed another Request for Review ( 2021 PAC 66410) contesting\n\nThe Village' s January 4, 2021, response resolves the allegation, in 2021 PAC\n\n66331, that the Village failed to respond to\nWith respect to the January 4, 2021, response, the underlying request in 2020 PAC 64908 sought\nthe names, ranks, badge numbers or employee numbers, and hiring dates and salaries of the\nVillage' s Police Department and Fire Department personnel; \nnames, titles, employee numbers, hiring dates, and salaries of Water Department personnel. On\nSeptember 14, 2020, the Village denied the request, stating that\nhad been\nconvicted of impersonating a Village police officer on numerous occasions. The Village\n\nDecember 27, 2020, FOIA request. \n\nalso requested the\n\n500 South Second Street, Springfield, \n\nIllinois 62701 • (\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois 60601 • (\n\n312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601 South University Ave., Carbondale, \n\nIllinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Peter A. Pacione\n\nJanuary 28, 2021\nPage 2\n\nsubsequently responded to this office by asserting that the requested information is exempt from\ndisclosure pursuant to section 7( 1)( kk) of FOIA,' which permits a public body to withhold \"[ t] he\npublic body' s credit card numbers, debit card numbers, bank account numbers, Federal Employer\ninformation, the\nIdentification Number, security code numbers, passwords, and similar account\ndisclosure of which could result\nentity or a person.\" ( Emphasis added.) Alternatively, the Village requested that\nbe asked to \" to assert or certify that he will not use the information for dishonorable or criminal\nstated that he is seeking information that is available to\npurposes.\" 2\nthe public and has no criminal purpose. Because the underlying requests in 2020 PAC 64908 and\n2021 PAC 66410 seek overlapping information that the Village denied for the same reason, we\nare consolidating those files for determination in this matter. \n\nin identity theft or impression or defrauding of a governmental\n\nIn his reply, \n\nIn construing statutes such as FOIA, the primary goal is to ascertain and\n\neffectuate the intent of the General Assembly. See Southern Illinoisan v. Illinois Department of\nPublic Health, 218 Ill. 2d 390, 415 ( 2006). \"[ W] hen a statute lists several classes of persons or\n\nthings but provides that the list is not exhaustive, the class of unarticulated persons or things will\n\nbe interpreted as those ' others such like' the named persons or things.\" Board of Trustees of\nSouthern Illinois Univ. v.. Illinois Dept of Human Rights, 159 Ill. 2d 206, 211 ( 1994). \nwords, the listed terms are examples of what the General Assembly intended the statute to cover. \nSee Duffy v. Illinois Dept of Human Rights, 354 Ill. App. 3d 236, 239 ( 4th Dist. 2004). \n\nIn other\n\nThe terms listed in section 7( 1)( kk) of FOIA above—\" credit card numbers, debit\n\ncard numbers, bank account numbers, Federal Employer Identification Number, security code\ninformation that\n\ninformation\"— are types of account\n\nnumbers, passwords, and similar account\n\ncould be exploited to gain unauthorized access to accounts. Those terms are not akin to basic\n\nidentifying information such as names or badge numbers that are publicly - displayed when police\nofficers and firefighters appear in public. Nor are they similar to ranks, hiring dates, or salary\ninformation, which pertains to the Village' s use of public funds and is expressly subject to\ndisclosure under section 2. 5 of FOIA. 3 Although the Village' s concerns about misuse of the\nrequested information are understandable in light of the criminal history described in its response\nto this office in 2020 PAC 64098, we are unable to conclude that the requested information is\n\n2020; 101- 452, effective January 1, 2020; 101- 455, effective August 23, 2019. \n\n5 ILCS 140/ 7( 1)( kk) ( West 2018), as amended by Public Acts 101- 434, effective January 1, \n\nLetter from Peter A. Pacione, Storino, Ramello & Durkin, to Steve Silverman, Office of the\n\nAttorney General, Assistant Attorney General, Bureau Chief, Public Access Bureau ( November 4, 2020), at 2. \n\nSection 2. 5 of FOIA ( 5 ILCS 140/ 2. 5 ( West 2018)) provides that \"[ a] II records relating to the\nobligation, receipt, and use of public funds of the State, units of local government, and school districts are public\n\nrecords subject\n\nto inspection and copying by the public.\" \n\n\fMr. Peter A. Pacione\n\nJanuary 28, 2021\nPage 3\n\nfrom disclosure pursuant\n\nexempt\nFOIA4 exempts from disclosure \" private information\", and that the Act defines that term to\n5 Accordingly, with the exception of employee\ninclude \" employee identification number[.]\" \nwith the\n\nto section 7( 1)( kk). We note, however, that section 7( 1)( b) of\n\nidentification numbers, this office requests that the Village provide\ninformation he requested. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have questions, \nyou may contact me at ( 312) 814- 6756 or ssilverman@atg. state. il.us\n\nVery truly yours, \n\nSTEVE SILVERMAN\nBureau Chief\n\nPublic Access Bureau\n\n66331 f pb resp mun 64908 66410 f 71kk improper mun\n\n452, effective January 1, 2020; 101- 455, effective August 23, 2019. \n\n5 ILCS 140/ 7 ( West 2018), as amended by Public Acts 101- 434, effective January 1, 2020; 101- \n\nSection 2. 5( c) of FOIA ( 5 ILCS 140/ 2( c- 5) ( West 2018)) defines \" private information\" as: \n\nunique identifiers, including a person' s social security number, driver' s license\nnumber, employee identification number, biometric identifiers, personal\n\nfinancial\n\ninformation, passwords or other access codes, medical\n\nrecords, home\n\nor personal\n\ntelephone numbers, and personal email addresses. Private\n\ninformationalso includes home address and personal\notherwise provided by law or when compiled without possibility of attribution to\nany person. \n\nlicense plates, except as\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Personnel records of police, fire, and water department employees","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":960,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-04-19","case_number":null,"request_numbers":["65306"],"title":"Chicago Public Schools must redact student images from security footage under 7(1)(c)","filename":"65306, issued April 19, 2022.pdf","rel_path":null,"word_count":1936,"summary":"The requester sought security video footage from Chicago Public Schools, which the district denied citing student privacy exemptions; the PAC determined the district must release the footage with student images redacted.","plain_summary":"This determination addresses whether Chicago Public Schools (CPS) properly withheld security video footage under FOIA sections 7.5(r) (incorporating the Illinois School Student Records Act), 7(1)(j)(iii) (school disciplinary adjudications), and 7(1)(c) (personal privacy). The Public Access Bureau held that CPS failed to meet its clear-and-convincing-evidence burden under any of the three exemptions to withhold the entire recording: CPS did not confirm the footage became part of a student's educational record under 7.5(r), did not show a formal disciplinary hearing occurred under 7(1)(j)(iii), and could not withhold the whole video under 7(1)(c) because footage of a public employee performing public duties bears on that employee's public duties. However, images identifying students captured in the footage remain highly personal and their privacy interest outweighs the public interest in disclosure. The Bureau therefore requested that CPS provide the recording with student images redacted, without issuing a binding opinion, and the file was closed.","holding":"A public body may not withhold an entire security recording under FOIA sections 7.5(r), 7(1)(j)(iii), or 7(1)(c) absent clear and convincing evidence the footage became part of a student's educational record, that a formal disciplinary hearing occurred, or that the recording is entirely personal/private, but images identifying students within such footage may be redacted under section 7(1)(c) to protect their privacy.","legal_question":"Whether Chicago Public Schools properly denied a FOIA request for security footage in its entirety based on student privacy exemptions under section 7(1)(c).","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Chicago Public Schools","requesting_party":"EB","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request concerns security camera footage from a school event that the district withheld to protect student privacy.","ocr_status":"ok","ocr_quality":94.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_r/Own-children-individual-student-incidents/65306%2C%20issued%20April%2019%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["security video","student privacy","redaction","FOIA denial"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 19, 2022\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Annie Righi\n\nFreedom of Information Act Officer\nChicago Public Schools\n\n[street address redacted for site publication -- see original PDF]\narighi@cps.edu\n\nRE: FOIA Request for Review — 2020 PAC 65306; CPS No. N008658-082520\n\nDear EB and Ms. Righi:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)).\n\nOn August 25, 2020, submitted a FOIA request to Chicago\nPublic Schools (CPS) seeking \"[t]he security video for CPS Event Detail Report #678534,\nsubmitted on Thursday, January 13, 2011 for an event on either Tuesday, January 11, 2011 or\nWednesday January 12, 2011.\"' On October 13, 2020, CPS denied his request pursuant to\nsections 7(1)(j)(iii)” and 7.5(r)? of FOIA. CPS' response to EB asserted that the\nrecording fell within the scope of those exemptions because, \"[t]he video footage you seek\n\n'Chicago Public Schools' online FOIA center FOTIA request submitted by (August\n25, 2020).\n\n°5 ILCS 140/7(i)(j)Gii) (West 2020).\n\n35 ILCS 140/7.5(r) (West 2020).\n\n500 South Second Street, Springfield, Illinois 62701 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 * TTY: (800) 964-3013 + Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 * Fax: (618) 529-6416\n\nMs. Annie Righi\nApril 19, 2022\nPage 2\n\ncontains images of students, and was likely used in student disciplinary proceedings.\"* On\nOctober 20, 2020, submitted this Request for Review disputing CPS' denial of his\nrequest. In his Request for Review, aa alleged that the video footage he secks captures\na physical altercation involving a then-assistant principal and a student, which led to the then-\nassistant principal being charged for assaulting the student.’ He also asserted that the student\nreceived a $10,000 settlement from CPS because of the incident in question.\n\nOn October 28, 2020, the Pubic Access Bureau sent a copy of the Request for\nReview to CPS and asked it to provide a copy of the responsive video footage, for this office's\nconfidential review, along with a detailed explanation of the factual and legal bases for\nwithholding the recording pursuant to the above-stated sections of FOIA. On December 10,\n2020, CPS provided a written response that was submitted under a claim of confidentiality\npursuant to section 9.5(d) of FOIA,‘ and a separate, non-confidential, response for this office to\nforward oii” On December 17, 2020, this office If you have\n\nquestions, you may contact me by mail at the Chicago address on the bottom of the first page of\nthis letter.\n\nSHANNON BARNAB\nAssistant Attorney General\nPublic Access Bureau\n\n66131 f 71m proper improper mun\n\nBecause this determination resolves this matter, the Public Access Bureau need not address the\napplicability of sections 7(1)(c), 7(1)(n), and 7(1)(p) of FOIA to the redacted information.\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Invoices and purchase orders for legal services","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":964,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-06-18","case_number":null,"request_numbers":["66688"],"title":"City of Joliet improperly redacted factual status updates from police records","filename":"66688, issued June 18, 2024.pdf","rel_path":null,"word_count":1487,"summary":"The PAC reviewed the City of Joliet's redactions of police records and determined that the City failed to justify the use of the attorney-client privilege exemption for factual status updates.","plain_summary":"A reporter requested police records, which the City of Joliet provided with redactions, claiming the information was protected by attorney-client privilege. The Attorney General's office reviewed the records and found that the redacted parts were merely factual status updates, not legal advice. Consequently, the City was instructed to release the unredacted information to the reporter.","holding":"The City of Joliet improperly redacted factual information from police records under the guise of attorney-client privilege.","legal_question":"Whether the City of Joliet properly applied the attorney-client privilege exemption (Section 7(1)(m)) to redact factual status updates from police records.","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(m)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(m)"],"public_body":"City of Joliet","requesting_party":"Mr. Felix Sarver (Herald-News)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought police reports that the City partially redacted, citing attorney-client privilege for communications regarding case status updates.","ocr_status":"ok","ocr_quality":93.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_m/Attorney-client-privilege/66688%2C%20issued%20June%2018%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","attorney-client privilege","redaction","FOIA exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"June 18, 2024\n\nVia electronic mail\nMr. Felix Sarver\nStaff Reporter\nHearld News\n[street address redacted for site publication -- see original PDF]\nfsarver@shawmedia. com\n\nVia electronic mail\nMr. Christopher Regis\nInterim Corporation Counsel\nCity of Joliet\n150 West Jefferson\nJoliet, Illinois 60436\ncregis@joliet. gov\n\nRE: FOIA Request for Review – 2021 PAC 66688\n\nDear Mr. Sarver and Mr. Regis: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022), as amended by Public Act 103-069, \neffective January 1, 2024). For the reasons stated below, the Public Access Bureau concludes\nthat the Joliet Police Department ( Department) improperly redacted certain information from a\nreport responsive to Mr. Felix Sarver' s December 30, 2020, FOIA request. \n\nOn that date, Mr. Sarver, on behalf of the Herald- News, submitted a FOIA\n\nrequest to the Department seeking copies of certain police reports. On January 7, 2021, the\nDepartment denied the request pursuant to section 7(l)(d)( iii) of FOIA ( 5 ILCS\n140/ 7(l)(d)( iii) (West 2018), as amended by Public Acts 101- 434, effective January 1, 2020; \n101- 452, effective January 1, 2020; 101- 455, effective August 23, 2019). Mr. Sarver\n\n\fMr. Felix Sarver\nMr. Christopher Regis\nJune 18, 2024\nPage 2\n\nsubmitted a Request for Review disputing the denial of the request ( 2021 PAC 64433). On\nJanuary 21, 2021, the Department withdrew its denial and provided Mr. Sarver with records\nbut redacted certain information pursuant to sections 7(l)(b) and 7(l)(c) of FOIA ( 5 ILCS\n140/ 7(l)(b), ( l)(c) ( West 2018), as amended by Public Acts 101- 434, effective January 1, \n2020; 101- 452, effective January 1, 2020; 101- 455, effective August 23, 2019). On January\n22, 2024, Mr. Sarver then submitted this Request for Review ( 2021 PAC 66688) disputing\nthe redactions on pages 11 and 13 of the records he received. \n\nOn February 10, 2021, the Public Access Bureau forwarded a copy of the Request\n\nfor Review to the Department and asked it to provide this office with an unredacted copy of the\ntwo pages for this office' s confidential review and a detailed explanation of the factual and legal\nbases for the applicability of the 7(1)(b) and 7(1)( c) exemptions. The Department responded on\nFebruary 19, 2021. On February 23, 2021, this office forwarded the written response to Mr. \nSarver; he did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 ( 2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1.2 (West 2022). \n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\" \nSection 7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal information contained within\npublic records, the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy, unless the disclosure is consented to in writing by the individual subjects of the\ninformation.\" \n\nAlthough this office requested in its further inquiry letter an explanation for the\n\napplicability of sections 7(1)(b) and 7(1)( c), the Department provided the below response: \n\nThe redacted pages contain details of conversations which\nwere held between the Corporation Counsel for the City of Joliet\nand certain employees of the City of Joliet. The content of these\nconversations would not be subject to discovery in litigation, and\nwere had in preparation for litigation.[ 1].\n\nAssistant Attorney General ( February 19, 2021). \n\n1Letter from Christopher Regis, Assistant Corporation Counsel, City of Joliet, to Steve Silverman\n\n\fMr. Felix Sarver\nMr. Christopher Regis\nJune 18, 2024\nPage 3\n\nThis office construes the Department' s response as withdrawing the assertion of\nsections 7(1)(b) and 7(1)(c) and instead asserting section 7(1)(m) of FOIA, which exempts from\ndisclosure: \n\nCommunications between a public body and an attorney\nrepresenting the public body that would not be subject to\n\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.]{ 2] \n\nCommunications protected by the attorney- client privilege are within the scope of\n\nsection 7(1)(m). See People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 ( 1997). A party\nasserting that a communication to an attorney is protected by the attorney- client privilege must\nshow that: \"( 1) a statement originated in confidence that it would not be disclosed; ( 2) it was\nmade to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices; and ( 3) it remained confidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 ( 2nd\nDist. 2006). Moreover, \"[ t]he privilege applies not only to the communications of a client to his\nattorney, but also to the advice of an attorney to his client.\" In re Marriage of Granger, 197 Ill. \nApp. 3d 363, 374 ( 1990); see also People v. Radojcic, 2013 IL 114197, ¶ 40, 998 N.E.2d 1212, \n1221- 22 (2013) (\"[ T]he modern view is that the privilege is a two-way street, protecting both the\nclient' s communications to the attorney and the attorney' s advice to the client.\"). A public body\nthat withholds records under section 7(1)(m) \" can meet its burden only by providing some\nobjective indicia that the exemption is applicable under the circumstances.\" ( Emphasis in\noriginal.) Illinois Education Ass'n v. Illinois State Board Of Education, 204 Ill. 2d 456, 470\n2003). \n\nAs set forth above, it is incumbent on a public body that redacts to provide some\n\nobjective indicia that the elements of the privilege are met. Here, the Department' s response is\nlacking sufficient detail to demonstrate that the redacted information is exempt from disclosure\nunder section 7(1)(m). The City redacted portions of records that document or reference\ndiscussions between City employees and an Assistant Corporation Counsel. The mere fact that\nmeetings or discussions were held involving the Assistant Corporation Counsel does not\ndemonstrate that the information documented in the report originated in confidence and was for\nthe purpose of seeking or providing legal advice. Additionally, the Department' s response is\nlacking basic detail regarding how the communications were held in preparation for litigation. \n\n25 ILCS 140/ 7(l)(m) ( West 2018), as amended by Public Acts 101-434, effective January I, \n\n2020; 101- 452, effective January 1, 2020; 101-455, effective August 23, 2019). \n\n\fr. Felix Sarver\nMr. Christopher Regis\nJune 18, 2024\nPage 4\n\nMoreover, this office' s confidential review of the unredacted pages show that the\ninformation is primarily a factual narrative as opposed to legal advice. Applying Illinois law, a\nfederal district court concluded in Dawson v. New York Life Ins. Co., 901 F. Supp. 1362, 1367\nN.D. Ill. 1995), that facts communicated by a corporation' s attorneys to the corporation' s\nemployees were not protected by the attorney- client privilege because the attorneys were acting\nmore as ' courier[ s] of factual information,' rather than ' legal advisers.'\" The court further\nexplained that \" common sense tells us that there is a difference between merely providing legal\ninformation and providing legal ' advice.' Here, the attorneys were simply called upon to provide\nfactual information to the * * * employees at issue. The attorneys' purpose was not to instruct the\nemployees on the proper use of this information.\" Dawson, 901 F. Supp. at 1367; see also\nDigital Vending Services International, Inc. v. University of Phoenix, Inc., No. 2:09-CV-555, \n2013 WL 1560212, at * 6 (E.D. Va., 2013) ( e-mails discussing status of preparation for oral\narguments in federal court are \" simply status updates and no legal advice is given by counsel. \nTherefore, these communications are not privileged.\"); Elder Care Providers of Indiana, Inc. v. \nHome Instead, Inc., No. 114-CV-01894SEBMJD, 2016 WL 881176, at * 4 (S.D. Ind. 2016); ( e-\nmail asking an attorney how to respond to a request for a status update is not privileged because\nit did not seek legal advice). \n\nBecause the redacted information provides only factual information rather than\n\nprivileged communications related to legal advice, this office concludes that the City has not\nsustained its burden of demonstrating that the redactions were permissible under section 7(1)(m) \nof FOIA. This office requests that the City disclose those portions of the records to Mr. Sarver. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, you may contact me at\n312) 814 3180 or Matthew. Rogina@ilag. gov. This file is closed. \n\nVery truly yours, \n\nMATTHEW C. ROGINA\nSenior Assistant Attorney Geneal\nPublic Access Bureau\n\n66688 f 71m improper pd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports redacted for attorney-client privilege","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":965,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-02-10","case_number":null,"request_numbers":["66839"],"title":"Personal political Facebook page not a public record under FOIA, Will County","filename":"66839, issued February 10, 2021.pdf","rel_path":null,"word_count":1105,"summary":"The requester sought social media posts, comments, and a list of blocked users from a Will County Board member's Facebook page, but the PAC determined the records were not public records subject to FOIA.","plain_summary":"A citizen requested social media data from a Will County Board member's Facebook page, believing it to be a public record. The Attorney General's office determined that because the page is used for personal political purposes rather than official County business, it is not subject to FOIA. Consequently, the office closed the case without requiring the County to provide the records.","holding":"The PAC concluded that no further action was warranted because the Facebook page in question is a personal political page rather than a record maintained by the County.","legal_question":"Whether a social media page maintained by a public official for political purposes constitutes a 'public record' under FOIA.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/2"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Will County","requesting_party":"FOICH.org","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"public records","subject_description":"The requester sought access to content and administrative settings from a public official's personal political Facebook page.","ocr_status":"ok","ocr_quality":94.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c/66839%2C%20issued%20February%2010%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["social media","public record","Facebook","public official"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nFebruary 10, 2021\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review — 2021 PAC 66839\n\nDear\n\nThis determination letter is issued pursuant\n\nto section 9. 5( c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2018)). For the reasons that follow, the\n\nPublic Access Bureau concludes that lio further action is warranted in this matter. \n\nOn January 28, 2021, you submitted a FOIA request\n\nto Will County ( County) \n\nstating: \n\nThis request will be for the documents recorded by Will\n\nCounty Board member Debbie Kraulidis, on her designated\nfacebook account titled \"Debbie Kraulidis for Will County Board\n13\". The title of this page communicates intent that it is to be used\n\nfor communication regarding the Will county board seat for district\n13.( 1) \n\nYou specified that you were seeking posts made by the account and \" associated comments by all\nmembers of the public, including all deleted comments, posted between December 7th, 2020 and\nJanuary 28th 2021 on the\" page. 2 You additionally requested a \"[ c] opy/ screenshot of account\nsettings showing users who have been blocked from posting or communicating on the Facebook\npage * * * \n\nduring the same timeline. i3 On February 2, 2021, the FOIA officer for the Will\n\nE- mail from\n\nFOICH.org, to County Board ( January 28, 2021). \n\n2E -mail from\n\nFOICH. org, to County Board ( January 28, 2021). \n\n3E -mail from\n\nFOICH. org, to County Board ( January 28, 2021). \n\n500 South Second Street, Springfield, \n\nIllinois 62701 • (\n\n217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n\n100 West Randolph Street, Chicago, \n\nIllinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fFebruary 10, 2021\nPage 2\n\nCounty Board ( Board) responded that the Board possessed no responsive records, as any such\nrecords are not under its control and are not public records. \n\nOn February 3, 2021, you submitted the above -referenced Request\ncontesting that response. You argue that two binding opinions issued by this office— Ill. Att'y\nGen. Pub. Acc. Op. No. 11- 006, issued November 15, 2011, and I11. Att' y Gen. Pub. Acc. Op. \nNo. 16- 006, issued August 9, 2016— signify that the records you requested are public records\nsubject\n\nto disclosure pursuant\n\nfor Review\n\nto FOIA. \n\nFOIA is intended to ensure public access to \" full and complete information\n\nregarding the affairs of government and the official acts and policies of those who represent them\nas public officials and public employees consistent with the terms of this Act.\" 5 ILCS 140/ 1\n\nWest 2018). FOIA requires that \"[ e] ach public body shall make available to any person for\ninspection or copying all public records[.]\" ( Emphasis added.) 5 ILCS 140/ 3( a) ( West 2018), \nas amended by Public Act 101- 081, effective July 12, 2019. Section 2( c) of FOIA ( 5 ILCS\n140/ 2( c) ( West 2018)) defines \" public records\" as \" all records * * * pertaining to the\ntransaction of public business, regardless of physical\nprepared by or for, or having been or being used by, received by, in the possession of, or\nunder the control of any public body.\" ( Emphasis added.) \n\nform or characteristics, having been\n\nYour FOIA request concerns the Facebook page of a political candidate for the\n\nBoard, who was elected and sworn in on December 7, 2020. There is no indication from the\n\nFacebook page4 or from your Request for Review that the page pertains to the transaction of the\nCounty' s public business, as opposed to Ms. Kraulidis' political campaign operation. In the\nbinding opinions you cite, this office explained that it is the content of an electronic\ncommunication, rather than whether a public body has physical custody of the device or direct\ncontrol of the method used to send or receive it, that governs whether the message is a public\nrecord subject to disclosure pursuant to FOIA. 111. Att'y Gen. Pub. Acc. Op. No. 11- 006, at 5; 5\n111. Att' y Gen. Pub. Acc. Op. No. 16- 006, at 7. Here, there is no basis from which this office\ncould conclude that the records you seek meet the threshold requirement of \"pertaining to the\ntransaction of public business,\" nor that any such records were prepared by, prepared for, used\nby, received by, possessed by, or controlled by the County. In particular, because the Facebook\n\n4Debbie Kraulidis For Will County Board 13, Facebook, https:// www. facebook. com/ Debbie- \n\nKraulidis- For- Will- County- Board- 13- 101866541353288 ( last visited February 5, 2021). \n\n5An action for administrative review was filed with respect to this binding opinion, culminating in\n\nthe Illinois Appellate Court decision City ofChampaign v. Madigan, 2013 IL App ( 4th) 120662, ¶ 38, 992 N.E. 2d\n629, 638 ( 2013) (\"[ T] o qualify as a ' public record' under FOIA, a communication must ( 1) ' pertain[ ] to the\ntransaction of public business' and have either been ( 2) prepared by, ( 3) prepared for, (4) used by ( 5) received by, ( 6) \npossessed by, or ( 7) controlled by a public body.\"). \n\n\fFebruary 10, 2021\nPage 3\n\npage is a political page rather than a page maintained by the County, any list of blocked accounts\nis not a public record subject\ndetermined that no further action is warranted in this matter. 6\n\nto FOIA. Accordingly, this office has\n\nto disclosure pursuant\n\nThis letter serves to close this matter. If you have any questions, please contact\n\nme at jjones@atg. state. il. us. \n\nVery truly yours, \n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n66839 f no fi war co\n\ncc: \n\nVia electronic mail\n\nMs. Beth Adams\n\nOperations Manager, FOIA Officer\n\nWill County Board\n302 North Chicago Street\n\nJoliet, Illinois 60432\n\nbadams@willcountyillinois.\n\ncom\n\n6This office notes that the Public Access Counselor' s authority to resolve disputes is limited to\nalleged violations of FOIA and the Open Meetings Act ( OMA) ( 5 ILCS 120/ 1 et seg. ( West 2018)). See 15 ILCS\n205/ 7( c)( 3) ( West 2018). To the extent this Request\nability to block a constituent on social media, that issue is not governed by FOIA or OMA and therefore is not\n\nfor Review raises a legal question concerning a public official' s\n\nsubject\n\nto review by this office. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A public official's personal political Facebook page","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":966,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-12-02","case_number":null,"request_numbers":["68242"],"title":"Oakton Community College partially violated FOIA in redacting disciplinary reports under 7(1)(b) and 7(1)(c)","filename":"68242, issued December 2, 2021.pdf","rel_path":null,"word_count":2799,"summary":"The requester sought unredacted RADAR reports and identifying information regarding complaints filed against them at Oakton Community College, and the PAC determined the College properly withheld certain private and personal information while failing to justify other redactions.","plain_summary":"An individual requested unredacted RADAR reports and related records from Oakton Community College. The Illinois Attorney General's Public Access Bureau concluded that the college did not improperly withhold information, except for certain discrete details. The decision did not specify what those details were or order any specific release.","holding":"The Public Access Bureau concluded that Oakton Community College did not improperly withhold information responsive to the FOIA request, with the exception of certain discrete information.","legal_question":"Whether Oakton Community College properly applied FOIA exemptions 7(1)(b) and 7(1)(c) to redact private and personal information from disciplinary reports.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"Oakton Community College","requesting_party":null,"pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request concerned disciplinary or complaint-based 'RADAR' reports generated by a community college regarding a student or employee.","ocr_status":"ok","ocr_quality":94.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Obligation-to-disclose-non-exempt-portions-of-records-that-contain-information-subject-to-redaction/68242%2C%20issued%20December%202%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["disciplinary records","private information","redaction","student records"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 2, 2021\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Michelle L. Weber\nRobbins Schwartz\n55 West Monroe, Suite 800\nChicago, Illinois 60603\nmweber@robbins-schwartz.com\n\nRE: Request for Review – 2021 PAC 68242\n\nDear\n\nand Ms. Weber: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that Oakton Community College (College) did not improperly\nwithhold information responsive to\nAugust 16, 2021 FOIA request, with the\nexception of certain discrete information. \n\nOn that date, \n\nsubmitted a FOIA request to the College seeking copies\n\nof: \n\nCollege. \n\n1. Any RADAR report( s)[ 1] which mention me, made/ filed\nduring 2021. Note: this request is for full & unredacted RADAR\nreports\n\n2. The name(s) of any and all complainants (or reporters if\n\noakton prefers that title) and/ or person( s) attached to or who\n\n1A RADAR report is generated when a complaint is made against a student or employee of the\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Michelle L. Weber\nDecember 2, 2021\nPage 2\n\ncontributed to such reports, alerts, advisements, and/or complaints\nof any kind which involve me\n\n3. The phone number, and/or email address(s) which\ncontributed to such reports, alerts, advisements, and/ or complaints\nof any kind which involve me\n\n4. The call recording/ footage, original email( s) and/ or\nrecorded security camera video and audio footage of such a person\nwho came into the oakton community college police station\nphysically to make any such report(s)/ complaint(s).[ 2] \n\nOn August 30, 2021, the College denied his request in its entirety pursuant to\n\nsections 7(1)( b), 7(1)( c), and 7(1)( d)( iv) of FOIA. 3 On October 29, 2021, \na Request for Review contesting the denial. He explained that he was most interested in any\nRADAR reports responsive to part one of his request, stating: \" I understand names and other\npersonal identifying information may be redacted i.e. there may be small redactions etc; I am\ninterested in the content of the reoprt( s)/ complaint( s) [ sic].\" 4 He explained what he believed to\nbe the contents of the reports and his personal interest in obtaining them as follows: \n\nsubmitted\n\nThe first allegation was that I, \n\nmight, \nallegedly, come to Oakton Community College with various\nfirearms/ other lethal weapons and shoot, maim, and/ or kill\nmembers of the Oakton Community College staff, faculty, and/or\nstudents. Whereas, the second allegation was that that I, \n\nmight, allegedly, engage in other actions which might\nharm my neighbors who live in my condominium building. As\nthese are disperate [sic] complaints, neither of which was/is true\nand neither of which was based upon any real facts, evidence, nor\nany information beyond one person's own musings/ideations, I\nhave a right to understand exactly what was filed against me as\nwell as any potential threats or perceived threats against my\ncommunity, school, and/ or workplace at large.[ 5] \n\n2E- mail from\n\nto Edwin, Miny, FOIA Team, and other(s)? ( August 16, 2021). \n\nJune 25, 2021. \n\n35 ILCS 140/7(1)(b), ( 1)(c), ( 1)(d)(iv) (West 2020), as amended by Public Act 102-038, effective\n\nState of Illinois (October 29, 2021). \n\n4E- mail from\n\nto Public Access Counselor, Office of the Attorney General, of the\n\nState of Illinois (October 29, 2021). \n\n5E- mail from\n\nto Public Access Counselor, Office of the Attorney General, of the\n\n\fMs. Michelle L. Weber\nDecember 2, 2021\nPage 3\n\nOn November 3, 2021, this office forwarded a copy of\n\nRequest for\n\nReview to the College and asked it to furnish unredacted copies of the responsive records for our\nconfidential review, together with a detailed explanation of the factual and legal bases for the\nasserted exemptions. On November 12, 2021, this office received those materials, including two\nversions of the College's written response: a complete version for this office's confidential\nreview and a redacted version for this office to forward to\nhe submitted a reply. \n\n6 On November 30, 2021, \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1.2 (West 2020). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997). \n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)(c) defines \"unwarranted invasion of personal privacy\" \nas \" the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject's right to privacy outweighs any legitimate public interest in obtaining\nthe information.\" Section 7(1)( c) also contains a relevant exception providing that \"[ t]he\ndisclosure of information that bears on the public duties of public employees and officials shall\nnot be considered an invasion of personal privacy.\" \n\nA public body' s assertion that the release of information would constitute a clearly\n\nunwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers' Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192, \n196 (1st Dist. 2001). The phrase \" clearly unwarranted invasion of personal privacy\" evinces a\nstrict standard to claim the exemption, and the burden is on the public body having charge of the\nrecord to prove that standard has been met. Schessler v. Department of Conservation, 256 Ill. \nApp. 3d 198, 202 ( 4th Dist. 1994). \n\nAdditionally, section 7(1)( d)( iv) of FOIA exempts from disclosure: \n\n65 ILCS 140/9.5(d) (West 2020) (\" The Public Access Counselor shall forward a copy of the\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy.\"). \n\n\fMs. Michelle L. Weber\nDecember 2, 2021\nPage 4\n\nRecords in the possession of any public body created in the\n\nd) \ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nunavoidably disclose the identity of a confidential\n\niv) \nsource, confidential information furnished only by the\nconfidential source, or persons who file complaints with or\nprovide information to administrative, investigative, law\nenforcement, or penal agencies[.] \n\nThis provision allows police departments to protect the anonymity of both confidential\ninformants and other persons who provide them with information. See, e.g., Chicago Alliance\nfor Neighborhood Safety v. Town of Chicago, 348 Ill. App. 3d 188, 200- 01 ( 1st Dist. 2004) \nnames and addresses of beat meeting participants properly redacted because they provided\ninformation to police department). Witness statements may be withheld in their entireties only if\ndisclosure of the contents \"would necessarily result in the disclosure of the identity of that\nsource\" of information and, therefore, \" redaction of the [records] cannot be meaningfully\naccomplished.\" Copley Press, Inc. v. City of Springfield, 266 Ill. App. 3d 421, 426 ( 4th Dist. \n1994). \n\nIn its non-confidential response to this office, the College acknowledged that it\n\nwithheld a RADAR Behavior Incident report and closely similar police report, \" which pertain to\nallegations against the requestor that he is in possession of firearms and made threatening\nremarks against members of the College and individuals in his condominium association.\" 7 The\nCollege asserted that it \"withheld the records on the grounds that a majority of the information\ncontained within the records is exempt from disclosure pursuant to FOIA.\" 8 ( Emphasis added.) \nThe College argued that any information that directly or indirectly identifies a person who\nprovided information to the police in this matter is exempt from disclosure under section\n7(1)(d)(iv), and that the narrative statement in the police report and RADAR report \"contains\n\nOffice of the Illinois Attorney General, Public Access Bureau (November 12, 2021), at 1. \n\n7Letter from Michelle L. Weber, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief, \n\nOffice of the Illinois Attorney General, Public Access Bureau (November 12, 2021), at 2. \n\n8Letter from Michelle L. Weber, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief, \n\n\fMs. Michelle L. Weber\nDecember 2, 2021\nPage 5\n\nspecific information and details which, if disclosed, would likely reveal [redacted].\" 9 The\nCollege argued that the narrative is therefore exempt from disclosure in its entirety. In addition, \nthe College argued that information that would identify individuals involved in the matter is\nexempt under section 7(1)( c) because \" individuals who report information to the College and its\nlaw enforcement officials regarding threats of safety have a reasonable expectation that their\nidentities will not be disclosed, particularly to the source of the threat.\" 10 Further, the College\nargued that\ninterest in disclosure does not outweigh the individuals' privacy\ninterests because he \" was properly notified of the allegations against him and afforded an\nopportunity to respond to those allegations[,]\" and the College has taken no adverse action\nagainst him. 11\n\nIn his reply, \n\nargued that he \" would not be able to link any person( s) to\n\nthese reports based upon the claims made within the narrative statement(s) and/or the details of\nthese reports, some of which, again, could also be redacted if that were truly necessary.\" 12 He\nstated that the College's response to this office's letter \"was the first time it was ever stated that\nthere had been allegations that I had allegedly made threatening remarks against both members\nof the college and individuals in my condominium association[,]\" and he argued that \"[ t]his\nclaim was not based upon any real/ accurate information and was made solely to induce police\naction as well as actions of the college against me.\" 13 He argued that \"[ a]s these false allegations\nmay be used against me in litigation between myself and my condominium association, I have a\nlegitimate interest in the content of these reports ( even if redacted), even if not in the identity of\nthe reporter(s), which outweighs the claim of privacy of one or some who filed false police\nreport( s).\" 14\n\nThis office' s review of the responsive records confirmed that the narrative largely\nconsists of information that falls within the scope of sections 7(1)(c) and 7(1)(d)(iv) of FOIA. \nThe name and employment position of a person who provided information directly to law\n\nOffice of the Illinois Attorney General, Public Access Bureau (November 12, 2021), at 3. \n\n9Letter from Michelle L. Weber, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief, \n\nOffice of the Illinois Attorney General, Public Access Bureau (November 12, 2021), at 4. \n\n10Letter from Michelle L. Weber, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief, \n\nOffice of the Illinois Attorney General, Public Access Bureau ( November 12, 2021), at 4. \n\n11Letter from Michelle L. Weber, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief, \n\n12E- mail from\n\nRequester) to Joshua Jones (November 30, 2021). \n\n13E- mail from\n\nRequester) to Joshua Jones (November 30, 2021). \n\n14E- mail from\n\nRequester) to Joshua Jones (November 30, 2021). \n\n\fMs. Michelle L. Weber\nDecember 2, 2021\nPage 6\n\nenforcement is exempt from disclosure under the plain language of section 7(1)(d)(iv). \nAdditionally, the name of the other party and the description of the information provided by that\nparty are exempt from disclosure under section 7(1)(c) because it would objectionable to a\nreasonable person to disclose the information to the subject of the report, and the person' s right to\nprivacy outweighs any legitimate public interest in obtaining the information. Although\ninterest in learning the contents of the allegedly false\n\nexpressed a clear personal\n\nstatements made about him, the public interest favors protecting the confidentiality of the person\nunder the circumstance of an alleged threat to public safety. Gabrielli v. U.S. Dep' t of Justice, \n594 F. Supp. 309, 312-13 (N.D.N.Y. 1984) (identity of individual who filed unfounded\ncomplaint exempt from disclosure under the version of section 7(1)( c) in Federal FOIA15\nbecause \"[ p]ersons who suspect criminal activity, but who have no hard and fast proof, could\nwell be deterred from providing to law enforcement authorities what may prove to be vital\ninformation for fear that their names would be released to the parties against whom they\nprovided information if their suspicions ultimately prove groundless.\"). \ndisclosing the substance of the statements would be reasonably likely to identify the person who\nmade them. Although\nidentity, he is not well-positioned to make that judgment without the ability to review the\ncontents of the remarks. \n\nprofessed that he would not be able to discern the person' s\n\nIt is apparent\n\nthat\n\nThe RADAR report and police report also, however, contain certain discrete\n\ninformation that falls outside the scope of the section 7(1)( c) and section 7(1)( d)( iv) exemptions. \nThe records contain limited information that bears upon the duties of public employees. There is\na compelling public interest in disclosure of records that shed light on the manner in which law\nenforcement officials perform their public duties. Ill. Att'y Gen. Pub. Acc. Op. No. 12-006, \nissued March 16, 2012, at 7. While the College expressly argued that \" a majority of the\ninformation\" in the reports is exempt from disclosure pursuant to FOIA, section 7(1) of FOIA (5\nILCS 140/ 7(1) ( West 2020), as amended by Public Act 102- 038, effective June 25, 2021) \nprovides: \n\nWhen a request is made to inspect or copy a public record\nthat contains information that is exempt from disclosure under this\nSection, but also contains information that is not exempt from\ndisclosure, the public body may elect to redact the information that\nis exempt. The public body shall make the remaining information\navailable for inspection and copying. ( Emphasis added.) \n\n15Exemption 7(c) of Federal FOIA (5 U.S.C. § 552(b)(7)(C) permits the withholding of\n\nrecords or information compiled for law enforcement purposes, but only to the extent that the production of such\nlaw enforcement records or information * * * could reasonably be expected to constitute an unwarranted invasion of\npersonal privacy[.]\" \n\n\fMs. Michelle L. Weber\nDecember 2, 2021\nPage 7\n\nIt is true that FOIA does not mandate \" the separation of disjointed words, phrases, or even\nsentences which taken separately or together have minimal or no information content.\" Mead\nData Central, Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 261 n. 55 (D.C. Cir. 1977). That is\nnot the case here, however, because the records contain information about law enforcement\nactivities and context, albeit limited in nature. Therefore, the College did not sustain its burden\nof proving by clear and convincing evidence that the records are exempt from disclosure in their\nentireties. \n\nIn accordance with the conclusions set out above, this office requests that the\n\nwith copies of records, subject to the redaction of the information\n\nCollege provide\ndescribed above and any other information that falls within the plain language of the definition\nof \" private information\" in section 2(c- 5) of FOIA16 pursuant to section 7(1)( b). 17 Under\nseparate cover, this office will provide the College with copies of the records with the\ninformation this office has identified as exempt highlighted. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at joshua. jones@ilag. gov. \n\nVery truly yours, \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n68242 f 71b proper 71c proper improper 71div proper improper co\n\n16Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2020)) defines \" private information\" as: \n\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\nfinancial information, passwords or other access codes, medical records, home\nor personal telephone numbers, and personal email addresses. Private\ninformation also includes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of attribution to\nany person. \n\n17Section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2020), as amended by Public Act 102-038, \n\neffective June 25, 2021) exempts from disclosure \"[ p]rivate information, unless disclosure is required by another\nprovision of this Act, a State or federal law or a court order.\" \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Disciplinary reports from a community college","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":967,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-03-25","case_number":null,"request_numbers":["68318"],"title":"Illinois Secretary of State properly denied repeated FOIA request as unduly burdensome","filename":"68318, issued March 25, 2022.pdf","rel_path":null,"word_count":1200,"summary":"The requester challenged the Illinois Secretary of State's denial of a FOIA request for employee rosters, which the agency had denied as a repeated request. The PAC determined that the request was indeed a repeat of a previous request for identical records and upheld the agency's denial.","plain_summary":"A citizen requested a list of employees and job titles from the Secretary of State's office. The office denied the request because they had already provided the exact same information to the requester just two months earlier. The Attorney General's office agreed with the agency, ruling that public bodies do not have to fulfill repeated requests for the same records.","holding":"The Illinois Secretary of State's Office properly denied the request as an unduly burdensome repeated request under section 3(g) of FOIA.","legal_question":"Whether a public body may deny a FOIA request as 'unduly burdensome' under section 3(g) when the request seeks records identical to those previously provided to the same requester.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Illinois Secretary of State's Office","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"repeated request","subject_description":"The requester sought a roster of employees and job titles for a specific office location.","ocr_status":"ok","ocr_quality":92.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_g/Repeated-requests/68318%2C%20issued%20March%2025%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["repeated request","unduly burdensome","employee records","FOIA denial"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nMarch 25, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review – 2021 PAC 68318\n\nDear\n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(c) ( West 2020)). For the reasons explained below, this\noffice has determined that your Request for Review is unfounded. \n\nOn November 16, 2021, this office received the information necessary to\n\ncomplete your Request for Review, which concerned a FOIA request that you submitted to the\nIllinois Secretary of State' s Office ( Secretary of State's Office) on November 4, 2021. Your\nFOIA request stated: \" FOIA Request, LIST ROSTER OF ALL EMPLOYEES AND JOB\nDUTIES/ TITLES FOR SOS [ Secretary of State' s Office)] LOCATED 100 W Randolph St, \nChicago, IL 60601, United States, THOMPSON CENTER, SEND IN PDF FORMAT.\" 1 On\nNovember 4, 2021, the Secretary of State's Office denied your request as an unduly burdensome\nrepeated request under section 3(g) of FOIA, 2 stating that it had already provided you with\ncopies of those records on September 10, 2021, in response to your September 8, 2021, FOIA\nrequest. Your Request for Review asked this office to, \" REVIEW THIS FOIA REQUEST, AS\nTHIS EMPLOYEE IS DENYING PUBLIC RECORDS AND ASSUMING THINGS ABOUT\nME.\" 3\n\n1E-mail from\n\nto Donna Leonard, [ Executive Counsel], \n\nIllinois Secretary of State] ( November 4, 2021). ( Emphasis in original). \n\n25 ILCS 140/3(g) (West 2020). \n\n2021). \n\n3E-mail from\n\nto Public Access [ Bureau] ( November 4, \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844-5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMarch 25, 2022\nPage 2\n\nSection 3(g) of FOIA provides, in pertinent part that \"[ r]epeated requests from\nthe same person for the same records that are unchanged or identical to records previously\nprovided or properly denied under this Act shall be deemed unduly burdensome under this\nprovision.\" ( Emphasis added.) Under the plain language of section 3(g), a request is an unduly\nburdensome repeated request if a public body has previously provided you with the responsive\nrecords or properly denied a prior, unchanged request. \n\nFurthermore, section 2(b) of FOIA 4 defines \" person\" as \" any individual, \n\ncorporation, partnership, firm, organization or association, acting individually or as a group.\" \nThis office has previously determined that two individuals who extensively worked in tandem on\nFOIA matters qualified as the same \" person\" for purposes of section 3(g) of FOIA. See Ill. Att'y\nGen. PAC Req. Rev. Ltr. 41654, issued August 28, 2019, at 2 (\" It would be absurd for a public\nbody to have to comply with separate requests from [ two named individuals] for the same\nmaterials given their extensive joint FOIA efforts.\"). \n\nOn January 13, 2022, an Assistant Attorney General ( AAG) in the Public Access\nBureau e-mailed you for clarification because it was unclear whether you were disputing that you\nhad submitted a FOIA request to the Secretary of State's Office for the same records, or that the\nSecretary of State' s Office had previously provided you with the responsive records. The AAG\nrequested that you provide this office with a copy of the September 8, 2021, FOIA request and\nthe Secretary of State's Office' s September 10, 2021, response, if applicable. On January 19, \n2022, you sent an e-mail to this office with no content or attachment, and on January 27, 2022, \nyou e-mailed this office inquiring about the status of this file, but you did not clarify your\nRequest for Review, dispute the Secretary of State's Office' s allegations, or provide the requested\ndocuments. On January 27, 2022, the AAG e-mailed you again and asked that you specifically\nclarify whether you are alleging that you did not submit a September 8, 2021, FOIA request to\nthe Secretary of State's Office seeking the same records. To date, you have not responded to the\nAAG's correspondence or otherwise disputed the Secretary of State' s Office' s allegations. \n\nOn February 13, 2021, the AAG spoke with Ms. Donna Leonard, FOIA officer\n\nfor the Secretary of State' s Office. Ms. Leonard explained that since July 2021, the Secretary of\nState' s Office has received numerous anonymous FOIA requests repeatedly requesting the same\nrecords, and that all requests were submitted using different e-mail addresses via the encrypted e-\nmail service ProtonMail, 5 all using the same, or substantially similar, phrasing and writing style. \nMs. Leonard stated that she has reason to believe that you, or other individuals working in\nconcert with you, submitted these FOIA requests. \n\n45 ILCS 140/2(b) (West 2020). \n\n5https:// mashable. com/article/ what-is-protonmail\n\n\fMarch 25, 2022\nPage 3\n\nRelevant to this matter, Ms. Leonard provided this office with a copy of a FOIA\n\nthat requested, \" List roster of all employees and job\n\nrequest that the Secretary of State's Office received on September 8, 2021, from the e-mail\naddress\nduties/ titles and salary working at the Secretary of State location Thompson center 100 W\nRandolph St, Chicago, IL 60601 send in PDF format[.]\" 6 Ms. Leonard also provided a copy of\nthe Secretary of State's Office' s September 10, 2021, response to that request, which provided the\nrequested employee roster. Ms. Leonard confirmed that the record responsive to your November\n4, 2021, FOIA request is identical to the record that it provided to the FOIA requester on\nSeptember 10, 2021, and that no additional responsive materials were created between\nSeptember 10, 2021, and November 4, 2021. \n\nBased on this office' s review, there is no material difference between the\n\nSeptember 8, 2021, FOIA request and your November 4, 2021, FOIA request, including the\nobvious similarity between the phrasing of the two FOIA requests. You have not responded to\nthis office' s multiple requests to clarify whether you dispute the Secretary of State's Office' s\nassertions that you submitted the September 8, 2021, FOIA request at issue. Therefore, this\noffice concludes that both the September 8, 2021, and November 4, 2021, FOIA requests were\nsubmitted by the same \" person\" for the purposes of section 3(g) of FOIA. Accordingly, this\noffice has determined that your November 4, 2021, FOIA request was for the same records that\nwere unchanged or identical to records previously provided to you, and therefore, the Secretary\nof State's Office properly denied your November 4, 2021, request as unduly burdensome, and\nthat your Request for Review is unfounded. This file is closed. \n\nat the bottom of the first page of this letter. \n\nIf you have any questions, you may contact me by mail at the Chicago address\n\nVery truly yours, \n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n\n68318 f unf sa\n\nSecretary of State] ( September 8, 2021). \n\n6E-mail from\n\nto [ Donna Leonard], [ Executive Counsel], [ Illinois\n\n\fMarch 25, 2022\nPage 4\n\ncc: \n\nVia electronic mail\nMs. Donna Leonard\nExecutive Counsel/ FOIA Officer\nIllinois Secretary of State\nexecutivecounsel@ilsos. gov\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An employee roster and job titles for an office location","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":968,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-09-27","case_number":null,"request_numbers":["68657"],"title":"City of Chicago Planning partially properly withheld parking lot sale emails under 7(1)(f) and 7(1)(r)","filename":"68657, issued September 27, 2022.pdf","rel_path":null,"word_count":1790,"summary":"The requester sought emails regarding the sale of a City-owned parking lot, and the PAC determined that the City of Chicago Department of Planning and Development improperly redacted certain non-exempt information.","plain_summary":"This determination addressed whether the City of Chicago Department of Planning and Development properly redacted emails about a parking-lot sale under FOIA exemptions 7(1)(f) (deliberative process) and 7(1)(r) (real estate sale/negotiation records). The Public Access Bureau found the Department properly withheld most redacted material because it consisted of predecisional deliberations or information tied to ongoing negotiations for the sale of city-owned parcels, which remain exempt under 7(1)(r) until a sale is consummated and under 7(1)(f) as give-and-take deliberative content. However, the Department improperly withheld a third-party email from a chamber-of-commerce representative (not deliberative or negotiation-related), purely factual utilization-rate tables not inextricably intertwined with deliberations, and any finalized (non-draft) marketing materials disseminated externally. The Department was asked to provide an updated, less-redacted copy of the emails covering these specific non-exempt portions. The Public Access Counselor determined a binding opinion was unnecessary and closed the file as a non-binding determination.","holding":"Records relating to real estate sale negotiations and predecisional deliberative communications may be withheld under 5 ILCS 140/7(1)(r) and 7(1)(f), but purely factual material not inextricably intertwined with deliberations and third-party communications unrelated to negotiations must be disclosed.","legal_question":"Whether the Department of Planning and Development properly applied FOIA exemptions 7(1)(f) and 7(1)(r) to redact emails concerning the sale of a city-owned parking lot.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(f)","7(1)(r)"],"public_body":"City of Chicago Department of Planning and Development","requesting_party":"Ms. Angelica Lis (on behalf of requester)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"real estate records","subject_description":"The request concerned emails and correspondence regarding the potential sale of a city-owned parking lot.","ocr_status":"ok","ocr_quality":92.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_r/68657%2C%20issued%20September%2027%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["redaction","real estate","deliberative process","email records"],"truncated_suspect":0,"site_category":"Property Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 27, 2022\nVia electronic mail\n\nVia electronic mail\n\nMs. Angelica Lis\n\nFOIA Officer\n\nCity of Chicago Department of Planning and Development\n121 North LaSalle Street, Room 1000\n\nChicago, Illinois 60602\n\nDPDFOIA @cityofchicago.org\n\nRE: FOIA Request for Review — 2021 PAC 68657\n\nDea anc Ms. Lis:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau has determined that the City of Chicago (City) Department of Planning\n\nand Development (Department) improperly redacted certain information responsive rol\nFOIA request.\n\nOn October 29, 2021 SEE submitted a FOIA request to the Department\nseeking copies of e-mails to and from the Department's Managing Deputy Commissioner, Mr.\nChip Hastings, between July 1, 2021, and October 28, 2021, containing three keywords related to\nthe intended sale of a City-owned parking lot at 4050 North Laporte. SE 2's requested\ncopies of written correspondence received by Mr. Hastings regarding a parking lot. On\nNovember 19, 2021, the Department responded by >rovidineizva ith copies of records\nwith redactions pursuant to sections 7(1)(b), 7(1)(f), and 7(1)(r) of FOIA (5 ILCS 140/7(1)(b),\n(1)(f), (1)(r) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558,\n\n500 South Second Street, Springfield, Illinois 62701 + (217) 782-1090 + TTY: (877) 844-5461 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 * TTY: (800) 964-3013 » Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416\n\nMs. Angelica Lis\nSeptember 27, 2022\nPage 2\n\neffective August 20, 2021). On November 22, 2021, EE submitted the above-referenced\nRequest for Review contesting the Department's redactions pursuant to sections 7(1)(f) and\n7(1)(t) of FOIA.\n\nOn November 24, 2021, this office sent a copy of i Request for Review\nto the Department and asked it to provide unredacted copies of the withheld records for this\noffice's confidential review and a detailed written explanation of the legal and factual basis for\nthe applicability of the sections 7(1)(f) and 7(1)(r) exemptions. On December 28, 2021, this\noffice received those materials. On December 29, 2021, this office forwarded a copy of the\nDepartment's response letter to] and notified him of his opportunity to reply. He did\nnot reply.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v.\nIllinois Dept. of Public Health, 218 Il. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020).\n\nAs an initial matter, the Department did not differentiate which records it\nwithheld under section 7(1)(f) from which records it withheld under section 7(1)(r).\nAccordingly, this determination letter examines the applicability of each exemption to all of the\ncontested information.\n\nSection 7(1)(r) of FOTA\nSection 7(1)(r) exempts from disclosure:\n\nThe records, documents, and information relating to real\nestate purchase negotiations until those negotiations have been\ncompleted or otherwise terminated. * * * The records,\ndocuments and information relating to a real estate sale shall\nbe exempt until a sale is consummated. (Emphasis added.)\n\nBy its plain language, section 7(1)(r) allows a public body to withhold communications involved\nin selling real property owned by the public body until the sale is complete. Nonetheless, the\nterm \"relating to\" must be read narrowly to comport with FOIA. See similarly Peoria Journal\nStar v. City of Peoria, 2016 IL App (3d) 140838, 913, 52 N.E.3d 711, 714 (2016) (\"[T]he phrase\n\nMs. Angelica Lis\nSeptember 27, 2022\nPage 3\n\n‘relating to' [in section 7(1)(n) of FOIA'] must be read narrowly and in light of FOIA's purpose\nto generally provide open access to public records.\"); Kalven v. City of Chicago, 2014 IL App\n(Ist) 121846, 919, 7 N.E.3d 741, 746-47 (2014), overruled in part on other grounds by Perry v.\nDepartment of Financial and Professional Regulation, 2018 IL 122349, 106 N.E.3d 1016 (2018)\n(concluding that it \"is contrary to the intent of FOIA\" to give the language \"relating to\" in section\n7(1)(n) \"an expansive interpretation and render a broad category of public documents immune to\npublic scrutiny.\").\n\nIn its response to this office, the Department asserted that it properly redacted\ninformation pursuant to section 7(1)(r) of FOIA because it was \"currently working to sell 4 city\nowned parking lots.\" The Department explained that it had retained commercial real estate\nbrokers Cushman & Wakefield to market the lots, and that: \"The sales are still ongoing\nnegotiation. [The Department] is still reviewing applications for this project, and have not made\na final selection.\"?\n\nThis office has reviewed the unredacted copies of the requested e-mails, which\nwere provided for our confidential review. Many of the contested e-mails concern the sale of\nCity-owned parcels of land at a time when the Department was marketing the properties and\nconsidering offers. The redacted communications involved in soliciting and reviewing offers for\nthe sale of real estate fall within the scope of section 7(1)(r) of FOIA. Section 7(1)(f) also\napplies to many of these e-mails, though others only fall within the scope of section 7(1)(f), as\ndiscussed further below.\n\nOn the other hand, certain discrete information redacted from a couple of the e-\nmails falls outside the scope of the exemption. Specifically, the information redacted from the e-\nmail from a representative of the Six Corners Chamber of Commerce falls outside the scope of\nthe exemption because it is extraneous to the Department's efforts to negotiate and complete\nproperty sales. Similarly, the redacted utilization rate tables are not akin to offers, evaluations of\noffers, negotiations with prospective buyers, or other aspects of real estate purchase negotiations\nand real estate sales themselves. Rather, the utilization rate tables are at a level removed from\n\n'Section 7(1)(n) of FOIA (5 ILCS 140/7(1)(n) (West 2020), as amended by Public Acts 102-038,\neffective June 25, 2021; 102-558, effective August 20, 2021) exempts from inspection and copying \"[r]ecords\nrelating to a public body's adjudication of employee grievances or disciplinary cases[.]\"\n\n*Letter from Angelica Lis, FOIA Officer, City of Chicago Department of Planning and\nDevelopment, to Jane Sternecky, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (December 28, 2021), a [2].\n\n3Letter from Angelica Lis, FOIA Officer, City of Chicago Department of Planning and\nDevelopment, to Jane Sternecky, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (December 28, 2021), a [2].\n\nMs. Angelica Lis\nSeptember 27, 2022\nPage 4\n\nthose processes as tangential considerations that do not directly relate to purchase negotiations\nand sales. Therefore, the Department did not prove by clear and convincing evidence that those\nrecords are exempt from disclosure under section 7(1)(r) of FOIA.\n\nSection 7(1)(f) of FOTA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption is equivalent in most respects to the deliberative process exemption in\nthe Federal FOIA (5 U.S.C. §552(b)(5) (2020)), which applies to \"inter- and intra-agency\npredecisional and deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247\n(Ist Dist. 2003). The exemption is \"intended to protect the communications process and\nencourage frank and open discussion among agency employees before a final decision is made.\"\nHarwood, 344 Ill. App. 3d at 248.\n\nHowever, \"[o]nly those portions of a predecisional document that reflect the give\nand take of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL App\n(Ist) 121846, 924, 7 N.E.3d 741, 748 (2013) (quoting Public Citizen, Inc. v. Office of\nManagement & Budget, 598 F.3d 865, 876 (D.C. Cir. 2010)). The Illinois Appellate Court has\nstated that \"purely factual material\" is not exempt from disclosure under section 7(1)(f) unless\n\"inextricably intertwined\" with predecisional discussions. Watkins v. McCarthy, 2012 IL App\n(Ist) 100632, 936, 980 N.E.2d 733, 743 (2012) (quoting Enviro Tech Int'l, Inc. v. United States\nEnvironmental Protection Agency, 371 F.3d 370, 374 (7th Cir. 2004)).\n\nIn its response to this office, the Department asserted that it redacted \"deliberative\nconversations, memos, and attachments.\"* The Department contended that these records contain\npreliminary opinions and the formulation of policies and actions. This office's review confirmed\nthat the Department withheld various internal communications pursuant to section 7(1)(f) of\nFOIA that are predecisional and deliberative in nature as the Department formulated actions with\nrespect to the sale of the parking lot. These materials reflecting the give and take of the\ndeliberative process and are therefore exempt from disclosure pursuant to section 7(1)(f) of\nFOIA.\n\nHowever, the e-mail from the Six Corners Chamber of Commerce is not exempt\nunder section 7(1)(f) because it is a third party communication with an entity representing\n\n4Letter from Angelica Lis, FOIA Officer, City of Chicago Department of Planning and\nDevelopment, to Jane Sternecky, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (December 28, 2021), at [2].\n\nMs. Angelica Lis\nSeptember 27, 2022\nPage 5\n\nindependent interests. Additionally, the Department did not demonstrate that the utilization rate\ntables for the parking lots meet the terms of the exemption. It is clear from portions of the e-\nmails disclosed tolfthat rate utilization tables were considered as part of the deliberative\nprocess; however, the tables themselves consist of purely factual information that does not\nprovide any additional insight into the process of formulating action and, therefore, are not\ninextricably intertwined with any undisclosed predecisional discussions. Accordingly, the\nutilization rate tables are not exempt from disclosure.\n\nAdditionally, it is unclear from the records this office reviewed confidentially\nwhether the Department withheld final promotional materials, rather than drafts. To the extent\nthat it withheld marketing materials disseminated externally, the Department did not demonstrate\nthat these materials are exempt from disclosure under either exemption and should disclose them.\n\nTo remedy its improper withholding of the information identified above as non-\nexempt, the Public Access Bureau asks that the Department provide, with an updated\ncopy of the requested e-mails without the redaction of these discrete portions.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, you may contact me at\n\njane.sternecky@ilag.gov. This letter serves to close this file.\n\nVery truly yours\n\nJANE STERNECKY\nAssistant Attorney General\nPublic Access Bureau\n\n68657 f 71r proper improper 71f proper improper mun\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Emails about a city-owned parking lot sale","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":969,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-05-19","case_number":null,"request_numbers":["69505","69506"],"title":"City of Edwardsville did not improperly deny building plans under 7(1)(k)","filename":"69505 69506, issued May 19, 2022.pdf","rel_path":null,"word_count":1827,"summary":"The requester sought building applications, permits, and inspection records for specific commercial zones in Edwardsville, which the City withheld citing security concerns. The PAC determined the City did not improperly deny the records under FOIA Section 7(1)(k).","plain_summary":"A reporter requested building plans and permit records from the City of Edwardsville for commercial warehouses, including an Amazon facility. The City denied the building plans under FOIA exemption 7(1)(k), arguing the projects were privately funded and not built with public funds. The Illinois Attorney General's Public Access Bureau concluded the City did not improperly deny the records, because the exemption applies to privately funded building plans regardless of security concerns. The Bureau did not decide whether disclosure would compromise security.","holding":"The City of Edwardsville did not improperly deny the requested records under section 7(1)(k) of FOIA.","legal_question":"Whether the City of Edwardsville properly withheld building plans and permit records under the FOIA exemption for documents that would compromise security (5 ILCS 140/7(1)(k)).","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(k)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(k)"],"public_body":"City of Edwardsville","requesting_party":"Mr. Eric Schmid (St. Louis Public Radio)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(k)","subject_description":"The request sought building applications, permits, and inspection records for commercial and industrial structures in specific zones.","ocr_status":"ok","ocr_quality":95.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_k/69505%2069506%2C%20issued%20May%2019%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["building plans","security exemption","permits","public records"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 19, 2022\n\nVia electronic mail\nMr. Eric Schmid\nMetro East Reporter\nSt. Louis Public Radio\n[street address redacted for site publication -- see original PDF]\neschmid@umsl. edu\n\nVia electronic mail\nMr. Jeffrey S. Berkbigler\nCity Attorney/ Corporation Counsel\nCity of Edwardsville, Illinois\njberkbigler@cityofedwardsville. com\n\nRE: FOIA Request for Review – 2022 PAC 69505 and 69506\n\nDear Mr. Schmid and Mr. Berkbigler: \n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(c) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the City of Edwardsville ( City) did not improperly deny\nrecords responsive to Mr. Eric Schmid' s December 16, 2021, FOIA request. \n\nOn that date, Mr. Schmid, on behalf of St. Louis Public Radio, submitted a FOIA\n\nrequest to the City seeking copies of applications filed, permits issued, and inspections made\npursuant to City ordinances which pertain to any building within the Gateway Commerce\nEnterprise Zone and a M-1 Light Manufacturing Zone. On December 23, 2021, Mr. Schmid\nnarrowed his request to records concerning commercial, industrial, or office/ professional\nstructures within the 1270/ 1255/ IL111 interchange area. On January 19, 2022, the City provided\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. Eric Schmid\nMr. Jeffrey S. Berkbigler\nMay 19, 2022\nPage 2\n\nresponsive records with certain information redacted under sections 7(1)(b) and 7(1)(c)1 of FOIA\nand denied structural and architectural building plans pursuant to section 7(1)(k) of FOIA. 2\n\nOn December 20, 2021, Mr. Schmid submitted a FOIA request to the City seeking\n\ncopies of applications filed, permits issued, and inspections made pursuant to a City ordinance\nwhich pertains to property at 3077 Gateway Commerce. On the same day, the City provided\nresponsive records with certain information redacted under sections 7(1)(b) and 7(1)(c) of FOIA\nand denied structural and architectural building plans pursuant to section 7(1)(k) of FOIA. \n\nOn January 20, 2022, Mr. Schmid submitted a Request for Review disputing the\ndenial of the building plans. He stated that the records he is seeking include building plans for\nan Amazon warehouse that collapsed after being hit by a tornado; he stated that he needs the\nrecords to verify Amazon officials' assertion that the building was in compliance with applicable\nbuilding codes and to determine whether surrounding warehouses were similarly designed and\nconstructed. On February 3, 2022, this office sent a copy of the Request for Review to the City\nand asked it provide copies of the records that were withheld for this office' s confidential review\nand a detailed explanation of the factual and legal bases for the applicability of the section\n7(1)(k) exemption. On March 2, 2022, the City submitted its response. On March 7, 2022, this\noffice forwarded the City's written response to Mr. Schmid; he replied on March 15, 2022. \n\nDETERMINATION\n\nSection 7(1)(k) of FOIA exempts from disclosure: \n\nArchitects' plans, engineers' technical submissions, and\nother construction related technical documents for projects not\nconstructed or developed in whole or in part with public funds\nand the same for projects constructed or developed with public\nfunds, including but not limited to power generating and\ndistribution stations and other transmission and distribution\nfacilities, water treatment facilities, airport facilities, sport\nstadiums, convention centers, and all government owned, operated, \nor occupied buildings, but only to the extent that disclosure would\ncompromise security. ( Emphasis added.) \n\n2021; 102-558, effective August 20, 2021. \n\n15 ILCS 140/ 7(1)(b), (1)(c) (West 2020), as amended by Public Acts 102- 038, effective June 25, \n\n102- 558, effective August 20, 2021. \n\n25 ILCS 140/ 7(1)(k) (West 2020), as amended by Public Acts 102- 038, effective June 25, 2021; \n\n\fMr. Eric Schmid\nMr. Jeffrey S. Berkbigler\nMay 19, 2022\nPage 3\n\nIn his Request for Review, Mr. Schmid asserted that the section 7(1)(k) \n\nexemption is inapplicable because disclosure of building plans would not compromise security. \nBecause the plain language of section 7(1)(k) exempts from disclosure building plans for projects\nconstructed entirely with private funds regardless of whether or not disclosure would\ncompromise security, this office asked the City to address whether the buildings in question were\nconstructed or developed in whole or in part with public funds. The City's responded, in relevant\npart: \n\nThe warehouses in question, including the \" Amazon\" \n\nwarehouse were all privately constructed projects. The\nwarehouses were constructed in the Gateway Commerce Center\ntool utilized\nEnterprise Zone which is an economic development\nthroughout many parts of the State. The Gateway Commerce\nCenter Enterprise Zone is an intergovernmental\nincentive program\nthrough the State, Madison County, the City of Edwardsville and\nthe Village of Pontoon Beach that does not provide any direct\nfunding like in some TIF grant or sales tax rebate, but rather abates\nlocal property taxes for a set period on eligible improvements\nconstructed in the enterprise zone and the state exempts sales tax\non building materials and certain utility taxes. However, these are\nonly incentives and do not constitute public funding in whole or in\npart[.][ 3] \n\nIn his reply, Mr. Schmid contended that the projects at issue should be considered publicly\nfunded because \" the public is, in some ways, subsidizing these types of projects and thus has a\nright to know more specific details about the buildings their dollars are supporting.\" 4\n\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n2006). \" The most reliable indicator of legislative intent is the statutory language, given its plain\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56, 969 N.E.2d 359, 372 ( 2012). \"[ W] hen a statute lists several classes of persons\nor things but provides that the list is not exhaustive, the class of unarticulated persons or things\nwill be interpreted as those ' others such like' the named persons or things.\" Board of Trustees of\n\nIllinois, to [ Steve] Silverman ( March 2, 2020). \n\n3E- mail from Jeffrey S. Berkbigler, City Attorney/ Corporation Counsel, City of Edwardsville, \n\n4E- mail from Eric Schmid, Metro East Reporter, St. Louis Public Radio, to Steve Silverman\n\nMarch 15, 2022). \n\n\fMr. Eric Schmid\nMr. Jeffrey S. Berkbigler\nMay 19, 2022\nPage 4\n\nSouthern Illinois Univ. v. Illinois Dep't of Human Rights, 159 Ill. 2d 206, 211 ( 1994). In other\nwords, the listed terms are examples of what the General Assembly intended the statute to cover. \nSee Duffy v. Illinois Dep't of Human Rights, 354 Ill. App. 3d 236, 239 ( 4th Dist. 2004). \n\nFOIA does not define the term \" public funds.\" Black' s Law Dictionary defines\np] ublic fund\" as \"[ t]he revenue or money of a governmental body.\" Black's Law Dictionary, \n743 ( 9th ed. 2009). While subsidies in the form of tax breaks relieve or reduce future obligations\nfunds to\nto contribute to a governmental body's funding, they do not directly convey government\nprivate entities. Even if the definition of \"public fund\" could be considered ambiguous because\nit lacks a temporal element, the examples in section 7(1)(k) of projects constructed in whole or in\npart with public funds are dissimilar to the private property of a business which is inaccessible to\nthe public. They consist of those that provide the public with (1) resources such as water and\nelectricity; ( 2) airports that provide the public with access to transportation; ( 3) sports stadiums\nfor public recreation; and ( 4) convention centers for public events. These examples, as well as\nthe language in section 7(1)(k) that covers \" all government owned, operated, or occupied\nbuildings,\" indicate that the General Assembly intended the exemption to apply to projects that\nare under government control or developed for the use or benefit of the general public. \n\nAlthough no Illinois reviewing court appears to have interpreted the meaning of\npublic funds\" in Illinois FOIA, the Arkansas Supreme Court considered whether leasing public\nproperty to a charitable organization for a nominal fee of $1 per year constituted the use of\npublic funds\" under that state's version of FOIA. 5 American Red Cross v. Weatherford, 311\nArk. 656, 846 S.W.2d 641 ( Ark. 1993). The Arkansas statute defined \" public records\" as\ndocumentation \" of the performance of lack of performance of official functions which are or\nshould be carried out by a public official or employee, a governmental agency, or any other\nagency wholly or partially supported by public funds or expending public funds.\" 6 ( Emphasis\nadded.) Based on the plain meaning of the term, the court construed \" public funds\" as limited to\nmoneys belonging to government[ ]\" and rejected as contrary to legislative intent a more\nexpansive interpretation: \n\nRefusal to read indirect government benefits or subsidies\n\ninto the term \" public funds\" is not at odds with a liberal\nconstruction of the FOIA. Were we to construe \" public funds\" to\ninclude an entirely separate and new category of government\nsupport, we would be amending the FOIA to expand its application\nsignificantly. * * * Did the General Assembly, without saying so, \n\n5Ark. Code Ann. §§ 25-19-101 to 25-19-107 ( West 1992). \n\n6Ark. Code Ann. § 25-19-103(1) (West 1992). \n\n\fr. Eric Schmid\nMr. Jeffrey S. Berkbigler\nMay 19, 2022\nPage 5\n\nintend the application of the FOIA to all private organizations\nwhich receive some government benefit, no matter how minor? We\nthink not. Weatherford, 311 Ark. at 661, 846 S.W.2d at 644. \n\nThe building plans at issue in this matter concern businesses that received tax\n\nfunds. Further, the examples in section 7(1)(k) for projects\n\nbreaks for developing private property. It is undisputed that these projects did not benefit from\ndirect payments of government\ndeveloped in whole or in part with public funds concern property that is directly controlled by\nthe government or property or resources for the use or benefit of the general public. Such\nprojects are readily distinguishable from the warehouses of private businesses for which Mr. \nSchmid seeks building plans. Accordingly, this office concludes that the City did not improperly\ndeny those records under section 7(1)(k) of FOIA. 7\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have questions, you may\ncontact me at (312) 814- 6756 or steven. silverman@ilag. gov. \n\nVery truly yours, \n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n69505 69506 f 71k proper mun\n\ndisclosure of the records would compromise security. \n\n7Because that determination is dispositive, it is not necessary for this office to determine whether\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Building permits and inspection records for commercial structures","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":970,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-06-08","case_number":null,"request_numbers":["69508"],"title":"DeKalb County Housing Authority improperly withheld employee complaint records under 7(1)(c) and 7(1)(n)","filename":"69508, issued June 8, 2022.pdf","rel_path":null,"word_count":3058,"summary":"The requester sought complaints and investigatory reports regarding a named employee, which the DeKalb County Housing Authority denied under FOIA exemptions 7(1)(c) and 7(1)(n). The PAC determined the Authority failed to meet its burden of proof to justify the exemptions and directed the release of the records with limited redactions.","plain_summary":"A person requested records of complaints and investigations regarding a specific public employee from the DeKalb County Housing Authority, but the Authority denied the request. The Illinois Attorney General's Public Access Bureau reviewed the case and concluded that the Authority did not prove by clear and convincing evidence that the records were entirely exempt from disclosure. The Authority must release the records, but may redact the complainant's name and other identifying information to protect their privacy.","holding":"The DeKalb County Housing Authority improperly withheld the requested records because it failed to demonstrate by clear and convincing evidence that the records were exempt from disclosure.","legal_question":"Whether the DeKalb County Housing Authority properly invoked FOIA exemptions 7(1)(c) and 7(1)(n) to withhold records of complaints and investigatory findings concerning a public employee.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(n)"],"public_body":"DeKalb County Housing Authority","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought records of complaints and investigatory findings regarding a named public employee.","ocr_status":"ok","ocr_quality":92.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_n/69508%2C%20issued%20June%208%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","employee misconduct","FOIA denial","redaction"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 8, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Vivian L. Bright\nOperations Director\nFOIA Officer\nDeKalb County Housing Authority\n310 North Sixth Street\nDeKalb, Illinois 60115\nvbright@dekcohousing.com\n\nRE: FOIA Request for Review – 2022 PAC 69508\n\nDear\n\nand Ms. Bright: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the DeKalb County Housing Authority (Housing\nAuthority) improperly withheld records responsive to\nFOIA request. \n\nJanuary 10, 2022, \n\nOn that date, \n\nsubmitted a FOIA request to the Housing Authority\n\nseeking copies of all complaints against a named employee and any reports of related\ninvestigatory findings from January 1, 2014, to January 10, 2022. On January 18, 2022, the\nto sections 7(1)( c) and 7(1)( n) of FOIA ( 5 ILCS\nHousing Authority denied the request pursuant\n140/7(1)(c), (1)(n) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; \n102- 558, effective August 20, 2021; 102- 694, effective January 1, 2022). On January 20, 2022, \nRequest for Review challenging the denial. She contended that\nthis office received\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Vivian L. Bright\nJune 8, 2022\nPage 2\n\ncomplaints alleging misconduct by public employees are not exempt in whole under sections\n7(1)( c) or 7(1)( n), as discussed in Watkins v. McCarthy1 and Kalven v. City of Chicago. 2\n\nOn February 1, 2022, this office forwarded a copy of the Request for Review to\n\nthe Housing Authority and asked it to provide copies of the withheld records, together with a\ndetailed explanation of the factual and legal bases for the applicability of the asserted\nexemptions. On February 14, 2022, this office received the requested materials. On February\n18, 2022, this office forwarded a copy of the Housing Authority' s response to\nshe\nreplied on February 23, 2022. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)( c) defines \" unwarranted invasion of personal privacy\" \nas: \n\nT]he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject' s\nright to privacy outweighs any legitimate public interest in\nobtaining the information. The disclosure of information that bears\non the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy. \n\n12012 IL App (1st) 100632, 980 N.E.2d 733 (2012). \n\nDepartment of Financial and Professional Regulation, 2018 IL 122349, 106 N.E.3d 1016 (2018). \n\n22014 IL App (1st) 121846, 7 N.E.3d 741 (2014), overruled in part on other grounds by Perry v. \n\n\fMs. Vivian L. Bright\nJune 8, 2022\nPage 3\n\nA public body's assertion that the release of information would constitute a clearly unwarranted\ninvasion of personal privacy is evaluated on a case- by-case basis. Chicago Journeymen\nPlumbers' Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192, 196 (1st Dist. \n2001). The phrase \" clearly unwarranted invasion of personal privacy\" evinces a strict standard to\nclaim the exemption, and the burden is on the public body having charge of the record to prove\nthat standard has been met. Schessler v. Department of Conservation, 256 Ill. App. 3d 198, 202\n4th Dist. 1994). Illinois courts consider the following factors in determining whether disclosure\nof information would constitute an unwarranted invasion of personal privacy: \"( 1) the plaintiff' s\ninterest in disclosure, (2) the public interest in disclosure, (3) the degree of invasion of personal\nprivacy, and ( 4) the availability of alternative means of obtaining the requested information.\" \nNational Ass'n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, \n13 ( 1st Dist. 2010). \n\nApplying the four- factor analysis described above, the Attorney General has\n\nissued two binding opinions concluding that records pertaining to complaints or allegations of\nmisconduct against public employees are generally not exempt from disclosure in their entireties\nunder section 7(1)(c) because such information bears on the performance of the employees' \npublic duties. Ill. Att' y Gen. Pub. Acc. Op. No. 18- 018, issued December 31, 2018, at 6; Ill. \nAtt'y Gen. Pub. Acc. Op. No. 22-005, issued March 24, 2022, at 6-13. Further, \"there is a\nsignificant public interest in disclosure of alleged instances of workplace harassment and\ndiscrimination.\" Ill. Att'y Gen. Pub. Acc. Op. No. 22-005, at 11. The Attorney General has\nrecognized, however, that \"[ i]nformation identifying individuals who made complaints of this\nnature against public employees is highly personal; the subjects' privacy rights outweigh any\nlegitimate public interest in disclosure of their identities.\" Ill. Att' y Gen. Pub. Acc. Op. No. 18-\n018, at 6. The Attorney General has concluded that \"names and other discrete information in the\nreports that identify the complainants are exempt from disclosure pursuant to section 7(1)( c).\" \nIll. Att'y Gen. Pub. Acc. Op. No. 18-018, at 6. Further, in circumstances involving complaints of\nsexual misconduct or harassment\nhave legitimate privacy interests in the information they submit, but determined that \"[ r]edacting\nthe relatively minimal content that could be characterized as salacious and disclosing the\nremaining information concerning the alleged misconduct would strike the appropriate balance\nbetween the public interest and the complainant' s privacy interest.\" Ill. Att' y Gen. PAC Req. \nRev. Ltr. 52303, issued October 16, 2018, at 6 (investigation report pertaining to sexual\nharassment complaint not exempt from disclosure in its entirety pursuant\n\nin the workplace, this office has recognized that complainants\n\nto section 7(1)( c)). \n\nThe Housing Authority argued that the individual who filed the harassment\n\ncomplaint at issue \"has an interest in his/her personal information contained in his/her complaint\nnot being disclosed[,]\" and that this \" complainant would have to waive this interest for the\n\n\fMs. Vivian L. Bright\nJune 8, 2022\nPage 4\n\nHACD to disclose the complaint under the FOIA request.\" 3 The Housing Authority contended\nthat the Illinois Supreme Court in Mancini Law Group, P.C. v. Schaumburg Police Department, \n2021 IL 126675, held that \"an Illinois public body does not have the ability to waive an\nindividual' s interest in his or her personal\na FOIA request.\" 4 Additionally, the Housing Authority argued that the accused also has a\nprivacy interest in disclosure of the complaint. In reply to that answer, \nmaintained\nthat the Housing Authority failed to show that the requested records are exempt from disclosure\nin their entireties. \n\ninformation that is contained in a document subject to\n\nThis office' s review of the confidential\n\nrecords confirmed that the Housing\n\nAuthority withheld documents concerning complaints made against one of its employees while\nshe was performing her public duties. Disclosure of the complaint does not constitute an\nunwarranted invasion of the accused's privacy interests, even if the complaint is later determined\nto be unfounded. See Gekas v. Williamson, 393 Ill. App. 3d 573, 586 ( 4th Dist. 2009) ( records\nconcerning alleged wrongdoing in the course of the deputy's public duties were subject to\ndisclosure regardless of whether the underlying allegations had merit). As noted above, \nhowever, information identifying the individuals who make complaints of this nature against a\npublic employee is highly personal, and the complainants' privacy rights outweigh any legitimate\npublic interest in disclosure of their identities. Accordingly, the name and other discrete\ninformation in the records that identify the complainant are exempt from disclosure under section\n7(1)(c) of FOIA. Although the Housing Authority contended that the complainant has a privacy\ninterest in the information that she or he submitted, the withheld records contain general\ndescriptions of alleged misconduct while on the job rather than highly personal details about the\ncomplainant. Accordingly, the Housing Authority has not sustained its burden of demonstrating\nby clear and convincing evidence that the records are exempt in whole pursuant to section\n7(1)( c). \n\nFurther, the Housing Authority' s reliance on Mancini\n\nis misplaced because that\n\ncase did not address whether records were highly personal and therefore exempt pursuant to\nsection 7(1)( c), but rather, whether a public body waived its ability to withhold records based on\na previous disclosure. The matter of a waiver is not relevant here because there is no claim that\nthe Housing Authority previously disclosed unredacted copies of the requested records. In\nMancini, the defendant police department furnished accident reports to the plaintiff requester, \ntelephone numbers, home addresses, and license plate\nwith driver' s license numbers, personal\n\nGeneral, Public Access Bureau (February 14, 2022), at [3]. \n\n3Letter from Timothy F. Horning, Meyer and Horning, P.C., to Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau (February 14, 2022), at [ 3]. \n\n4Letter from Timothy F. Horning, Meyer and Horning, P.C., to Teresa Lim, Assistant Attorney\n\n\fMs. Vivian L. Bright\nJune 8, 2022\nPage 5\n\nnumbers redacted pursuant to section 7(1)(b) and dates of birth and insurance policy account\nnumbers redacted pursuant\nto section 7(1)( c). Mancini Law Group, P.C. v. Schaumburg Police\nDepartment, 2021 IL 126675, ¶3. The plaintiff argued that the defendant was precluded from\nredacting the reports because it provided the same records, unredacted, to LexisNexis. Mancini, \n2021 IL 126675, ¶17. In analyzing preclusion, the court examined Sherman v. United States\nDepartment of the Army, 244 F.3d 357 ( 5th Cir. 2001), which addressed a similar claim. \nMancini, 2021 IL 126675, ¶42. In Sherman, the Fifth Circuit considered whether the United\nStates Army waived the ability to redact social security numbers ( SSNs) of service personnel\nfrom award orders pursuant to Exemption 6 of the Federal FOIA when it disclosed that\ninformation to the public in other records. Sherman, 244 F.3d at 360. The Fifth Circuit\nconcluded there was no waiver, holding that \"only the individual whose informational privacy\ninterests are protected by exemption 6 can effect a waiver of those privacy interests when they\nare threatened by a[ ] FOIA request.\" Sherman, 244 F.3d at 363-64. The Fifth Circuit further\nconcluded that the \" invasion of the informational privacy interest of individual soldiers in\ndisclosure of their SSNs would clearly be unwarranted in the absence of any public interest in\nthose SSNs\" and thus that the SSNs were exempt under Exemption 6. Sherman, 244 F.3d at\n366-67. Adopting the reasoning in Sherman, the court concluded \"that an Illinois public body\ndoes not have the ability to waive an individual' s interest in his or her personal or private\ninformation that is contained in a document subject to a FOIA request.\" Mancini, 2021 IL\n126675, ¶ 48. Thus, it held that the police department was not precluded from withholding\ninformation from the traffic accident reports pursuant to sections 7(1)(b) and 7(1)(c) of FOIA\ndespite having provided LexisNexis unredacted copies of the traffic accident reports. Mancini, \n2021 IL 126675, ¶57. \n\nNotably, in Mancini, \"the circuit court already held that the Department carried its\n\nburden proving, by clear and convincing evidence, that the information at issue is exempt under\nsections 7(1)(b) and 7(1)(c).\" Mancini, 2021 IL 126675, ¶50.5 Here, even if there was an\nalleged waiver, the Housing Authority has not shown by clear and convincing evidence that the\nrecords at issue are exempt in whole pursuant to section 7(1)(c). The exemption does not require\na public body to withhold all records that contain personal\nlanguage of section 7(1)(c) permits a public body to withhold records only if \"the subject's right\nto privacy outweighs any legitimate public interest in obtaining the information.\" \n\ninformation. Rather, the plain\n\nSection 7(1)( n) of FOIA\n\nSection 7(1)( n) of FOIA exempts from disclosure \"[ r]ecords relating to a public\n\nbody's adjudication of employee grievances or disciplinary cases; however, this exemption shall\nnot extend to the final outcome of cases in which discipline is imposed.\" FOIA does not define\n\nthe lower court's order. Mancini, 2021 IL 126675, ¶50. \n\n5The plaintiff did not appeal that determination, and the Supreme Court found no reason to disturb\n\n\fMs. Vivian L. Bright\nJune 8, 2022\nPage 6\n\nthe term \"adjudication,\" but Black's Law Dictionary defines the word as \"[ t]he legal process of\nresolving a dispute; the process of judicially deciding a case.\" Black' s Law Dictionary 47 ( 9th\ned. 2009). Black's Law Dictionary further defines an \" adjudication hearing\" as an \"[ a] gency\nproceeding in which a person' s rights and duties are decided after notice and an opportunity to be\nheard.\" Black's Law Dictionary 788 (9th ed. 2009). Applying similar definitions, the court in\nKalven construed an \" adjudication\" for purposes of section 7(1)( n) as a \" formalized legal process\nthat results in a final and enforceable decision.\" Kalven v. City of Chicago, 2014 IL App (1st) \n121846, ¶ 13, 7 N.E.3d 741, 745, overruled in part on other grounds by Perry v. Dep' t of\nFinancial and Professional Regulation, 2018 IL 122349, 106 N.E.3d 1016 (2018). In Kalven, \nthe court emphasized that \"[ t]he phrase ' related to' must be read narrowly,\" and held that the\nscope of section 7(1)(n) is limited to records generated during an adjudication; it does not\nencompass records of the underlying investigation that precede an adjudication. Kalven, 2014 IL\nApp (1st) 121846, ¶22, 7 N.E.3d at 747. \n\nIn its response to this office, the Housing Authority clarified that it had no reports\n\nresponsive to the request. The\n\nof findings, but it withheld a complaint of sexual harassment\nHousing Authority stated that the complaint was brought to the attention of the Board of\nCommissioners, which then hired the law firm of Meyer & Horning to investigate the facts\nsurrounding the alleged harassment and determine whether any employees violated the Housing\nAuthority' s personnel policies. According to the Housing Authority, the investigation was\nongoing and may result in employee discipline. The Housing Authority contended that the\nwithheld records fall within the scope of section 7(1)( n) because they \" relate to employee\ndiscipline.\"6 The Housing Authority argued that the purpose of section 7(1)(n) is to permit\npublic bodies to conduct disciplinary investigations and that disclosing the complaint at this\nstage in the investigation would affect its ability to arrive at a conclusion.7\n\nIn her reply, \n\nnoted that under Kalven v. City of Chicago, only records\n\nof the adjudication of a complaint are entirely exempt. She also noted that a former Housing\nAuthority employee had publicly shared on social media allegations of employee misconduct\nthat occurred in 2014 or 2015. \nshould be completed and the documents released. \n\nspeculated that any investigation of that complaint\n\nUnder the plain language of section 7(1)(n), the exemption is limited to records\n\npertaining to the \" adjudication of employee grievances or disciplinary cases[.]\" ( Emphasis\nadded.) In this matter, the Housing Authority has not demonstrated that it reached an\n\nGeneral, Public Access Bureau (February 14, 2022), at [ 2]. \n\n6Letter from Timothy F. Horning, Meyer and Horning, P.C., to Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau (February 14, 2022), at [ 2]. \n\n7Letter from Timothy F. Horning, Meyer and Horning, P.C., to Teresa Lim, Assistant Attorney\n\n\fMs. Vivian L. Bright\nJune 8, 2022\nPage 7\n\nadjudicatory stage of a disciplinary case. Indeed, the Housing Authority confirmed that it was\nstill in the process of investigating the complaint and had not made a decision whether to pursue\nemployee discipline. Records pertaining to the investigation of a misconduct complaint are\ndistinct from and precede an adjudication, as discussed above. The withheld records are\ncomparable to the Complaint Register (CR) documents at issue in Kalven as both involve records\nof an investigation into an allegation of misconduct by a public employee, which may be used\nlater in a disciplinary adjudication. Kalven, 2014 IL App (1st) 121846, ¶20, 7 N.E.3d at 747\nChicago Police Department\nto section 7(1)( n) \nbecause \" CRs are created to investigate reports of police misconduct, and any disciplinary\nadjudication that may take place as a result of the CRs comes later.\"); see also Ill. Att'y Gen. \nPub. Acc. Op. No. 13-011, at 8 (police chief's interviews with witnesses and other evidence\nsupporting city's decision to issue suspension not exempt under section 7(1)( n) where the city did\nnot demonstrate that its process culminated in a formalized legal proceeding constituting an\nadjudication\" within the scope of the exemption). Accordingly, the Housing Authority has not\ndemonstrated by clear and convincing evidence that the withheld records fall within the scope of\nsection 7(1)( n). \n\nimproperly withheld CR documents pursuant\n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the Housing Authority provide\nThe Housing Authority may redact the name, personal e- mail address, home address, and\npersonal signature of the complainant pursuant to sections 7(1)(b) and 7(1)(c) of FOIA. \n\nwith copies of the responsive records. \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\nAssistant Attorney General\nPublic Access Bureau\n\n69508 f 71c improper 71n improper co\n\n\fMs. Vivian L. Bright\nJune 8, 2022\nPage 8\n\ncc: \n\nVia electronic mail\nMr. Timothy F. Horning\nAttorney for DeKalb County Housing Authority\nMeyer & Horning, P.C. \n3400 North Rockton Avenue\nRockford, Illinois 61103\nthmeyerhorning@aol.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Complaints and investigatory findings about a public employee","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":971,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-03-23","case_number":null,"request_numbers":["69562"],"title":"City of Chicago Mayor's Office partially violated FOIA in redacting text messages","filename":"69562, issued March 23, 2022.pdf","rel_path":null,"word_count":2919,"summary":"The Chicago Tribune requested text messages between Mayor Lori Lightfoot and various officials, but the Mayor's Office redacted portions citing FOIA exemptions 7(1)(c) and 7(1)(f). The PAC determined that while most redactions were proper, the City improperly redacted certain discrete information.","plain_summary":"A reporter requested text messages from the Mayor of Chicago, but the City blacked out parts of the messages claiming they were private or not related to public business. The Attorney General's office reviewed the records and decided that most of the redacted information was properly withheld, but that the City must release some specific parts that were improperly withheld. The City is now required to provide a revised response to the reporter.","holding":"The City of Chicago Mayor's Office improperly redacted certain discrete information from the requested text messages while correctly applying exemptions to the remainder.","legal_question":"Whether the City of Chicago Mayor's Office properly applied FOIA exemptions 7(1)(c) and 7(1)(f) to redact text messages between the Mayor and other officials.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(f)"],"public_body":"City of Chicago Mayor's Office","requesting_party":"Mr. Gregory Pratt (Chicago Tribune)","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request sought text messages between Mayor Lori Lightfoot and various officials and prominent persons during August 2021.","ocr_status":"ok","ocr_quality":92.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/69562%2C%20issued%20March%2023%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["text messages","Mayor","FOIA exemption","deliberative process","privacy"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 23, 2022\n\nVia electronic mail\nMr. Gregory Pratt\nChicago Tribune\ngpratt@chicagotribune.com\n\nVia electronic mail\nMr. Tom Skelton\nFOIA Officer\nCity of Chicago Mayor' s Office\n[street address redacted for site publication -- see original PDF]\nmofoia@cityofchicago.org\n\nRE: FOIA Request for Review – 2022 PAC 69562\n\nDear Mr. Pratt and Mr. Skelton: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). For the reasons explained below, the\nPublic Access Bureau concludes that while most of the information the City of Chicago Mayor's\nOffice ( Mayor' s Office) redacted in response to a FOIA request from Mr. Gregory Pratt is\nexempt from disclosure, the Mayor's Office improperly redacted certain discrete information. \n\nOn September 7, 2021, Mr. Pratt submitted a FOIA request to the Mayor's Office\non behalf of the Chicago Tribune seeking copies of text messages between Mayor Lori Lightfoot\nand various named officials and other prominent persons in August 2021. On December 20, \n2021, the Mayor' s Office completed its response, providing Mr. Pratt with copies of certain\nresponsive records but denying the request in part pursuant to sections 7(1)(c) and 7(1)(f) of\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Gregory Pratt\nMr. Tom Skelton\nMarch 23, 2022\nPage 2\n\nFOIA.1 On January 24, 2022, Mr. Pratt submitted the above-referenced Request for Review\ncontesting the partial denial as to around 90 of the text message exchanges. 2\n\nOn January 26, 2022, this office sent a copy of the Request for Review to the\n\nMayor's Office and asked it to provide this office with unredacted copies of the disputed e-mail\nthreads for this office' s confidential\nexplanation of the legal and factual bases for redacting or withholding information from those\nthreads. On February 14, 2022, the Mayor' s Office furnished those materials. On February 16, \n2022, Mr. Pratt submitted a reply. \n\nreview. This office also requested a detailed written\n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 ( West 2020); see also Southern Illinoisan v. \nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020). \n\nPublic Records\n\nSection 2(c) of FOIA defines \" public records\" as: \n\nall records, reports, forms, writings, letters, memoranda, books, \npapers, maps, photographs, microfilms, cards, tapes, recordings, \nelectronic data processing records, electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction of public business, regardless of\nphysical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body. \n\nIn accordance with this definition, the court in City of Champaign v. Madigan, 2013 IL App\n4th) 120662, ¶ 38, 992 N.E.2d 629, 638 ( 2013) stated that \" to qualify as a 'public record' under\nFOIA, a communication must (1) 'pertain[ ] to the transaction of public business' and have either\nbeen ( 2) prepared by, (3) prepared for, (4) used by ( 5) received by, ( 6) possessed by, or (7) \n\n2021; 102-558, effective August 20, 2021. \n\n15 ILCS 140/7(1)(c), (1)(f) (West 2020), as amended by Public Acts 102-038, effective June 25, \n\neight, and some of the separately-enumerated text messages are found within the same threads. \n\n2Mr. Pratt enumerated the text messages he contested, but did not designate a thread with number\n\n\fMr. Gregory Pratt\nMr. Tom Skelton\nMarch 23, 2022\nPage 3\n\ncontrolled by a public body.\" A record pertains to the transaction of public business when it\npertain[ s] to 'business or community interests as opposed to private affairs.' Indeed, FOIA is\nnot concerned with an individual's private affairs.\" City of Champaign, 2013 IL App (4th) \n120662, ¶ 31, 992 N.E.2d at 637 ( internal citation omitted). \n\nThe Mayor' s Office asserted that most of the disputed text messages are not public\nrecords subject to disclosure pursuant to FOIA because \" they do not pertain to the transaction of\npublic business, nor were they prepared by, prepared for, used by, received by, possessed by, or\ncontrolled by a public body.\" 3 The Mayor's Office argued that the text messages are personal\nexchanges that \" do not have any nexus to the transaction of public business.\" 4 The Mayor' s\nOffice further claimed: \n\nMessages from Mayor Lightfoot's personal phone are\n\nunlike those from a city- issued device. * * * These messages are\nthe private exchanges between Mayor Lightfoot and the various\nofficials. There is no presumption that the messages should be\ndisclosed just because the sender or recipient happens to be a\npublic official.[ 5] \n\nIn his reply, Mr. Pratt confirmed that he is \"only seeking records related to public\n\nbusiness and the mayor' s official capacity.\" 6 Still, he disputed the argument\nMayor Lightfoot's personal device should be subject to a higher standard for disclosure: \n\nthat messages on\n\nMost of the texts here, if not all of them, come from her personal\ndevice, but that doesn' t mean the bar should in some way be\nhigher. It's long-settled case law that it doesn't matter the device\nused, just the content generated. \n\nThe fact is, Mayor Lightfoot uses her personal device to\n\nconduct public business. She does that extensively. Per records the\ncity has released, I think the majority of city aldermen use Mayor\n\nChief, Public Access Bureau, Office of the Attorney General (February 14, 2022), at [3]. \n\n3Letter from Tom Skelton, FOIA Officer – Office of the Mayor, to Joshua Jones, Deputy Bureau\n\nChief, Public Access Bureau, Office of the Attorney General ( February 14, 2022), at [ 3]. \n\n4Letter from Tom Skelton, FOIA Officer – Office of the Mayor, to Joshua Jones, Deputy Bureau\n\nChief, Public Access Bureau, Office of the Attorney General (February 14, 2022), at [3]. \n\n5Letter from Tom Skelton, FOIA Officer – Office of the Mayor, to Joshua Jones, Deputy Bureau\n\n6E- mail from Gregory Royal Pratt to Joshua Jones (February 16, 2022). \n\n\fMr. Gregory Pratt\nMr. Tom Skelton\nMarch 23, 2022\nPage 4\n\nLightfoot's personal phone to contact her and she uses it to contact\nthem. ( It may even be the vast majority.) Gov. Pritzker uses it, too, \nas do State's Attorney Kim Foxx, Speaker Welch and many many\nothers. ( Every time Mayor Lightfoot has contacted me about news\nstories, she has used the personal device as well.)[7] \n\nThis office's review confirmed that most of the redacted messages do not pertain\n\nto the transaction of public business. Instead, these messages either pertain to political matters\nthat are distinct from transacting public business (19, 20, 91) or aspects of peoples' personal lives\nthat constitute private affairs ( examples include 17, 24, 25, 30, 61, 71). Many of these text\nmessages also fall within the scope of section 7(1)(c), as discussed further below. Whether\nMayor Lightfoot' s personal phone was used to transmit these messages has no bearing, however, \non whether they constitute public records. It is well settled that any text messages sent by the\nCity' s mayor pertaining to the transaction of public business are subject to disclosure, regardless\nof the device used. Better Gov't Ass'n v. City of Chicago Office of Mayor, 2020 IL App (1st) \n190038, ¶ 19, 169 N.E.3d 1066, 1073 ( 2020). \n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" An \" unwarranted invasion of personal privacy\" is defined as \" the\ndisclosure of information that is highly personal or objectionable to a reasonable person and in\nwhich the subject' s right to privacy outweighs any legitimate public interest in obtaining the\ninformation.\" Moreover, \"[ t]he disclosure of information that bears on the public duties of\npublic employees and officials shall not be considered an invasion of personal privacy.\" The\nGeneral Assembly's use of the term \"clearly\" in the phrase \" clearly unwarranted invasion of\npersonal privacy\" evinces a strict standard to claim the exemption. Schessler v. Dep' t of\nConservation, 256 Ill. App. 3d 198, 202 (4th Dist. 1994). \n\nIn support of the applicability of section 7(1)(c), the Mayor's Office argued: \n\nMany of these text messages address health matters and\n\nfamily matters of these figures. The public' s interest in disclosure\nof these records is very low as the records address matters that are\ncommonly considered a matter of personal privacy. Someone' s\nhealth and the health of their family is a matter of personal privacy\n\n7E- mail from Gregory Royal Pratt to Joshua Jones ( February 16, 2022). \n\n\fMr. Gregory Pratt\nMr. Tom Skelton\nMarch 23, 2022\nPage 5\n\nregardless of whether they are a public figure. Many of these text\nmessages are simply personal remarks and greetings between\nMayor Lightfoot and these local figures. Again, there is very little\npublic interest in disclosure of these records. Additionally, since\nthese records come from Mayor Lightfoot's personal cell phone, \nthere would be a high degree of invasion of personal privacy to\ndisclose these records.[8] \n\nThe Mayor's Office also asserted that Mr. Pratt's speculations about the redacted content were\nincorrect, addressing several particular e- mail threads. \n\nIn his reply, Mr. Pratt confirmed that he was not seeking health information about\nanyone. Mr. Pratt questioned, however, whether Mayor Lightfoot may view text messages about\nnominally personal matters, such as a birthday celebration, to be \" an extension of her job as\nmayor[,]\" as \" they're communicating about an event that really is a city function for her and that\nshe' s being invited to because she' s mayor.\" 9 Additionally, he stated: \n\nI do also have concerns about the mayor' s office redacting personal\ngreetings and well wishes. For instance, I think they redact \"happy\nbirthday\" sometimes, and that's kind of silly, since the mayor isn't\nshy about her birthday and so I don' t really see the unwarranted\ninvasion of personal privacy there from someone wishing her a\nhappy birthday. I also think they redact stuff like Merry Christmas\nor Happy Thanksgiving at times. For the purposes of this FOIA\nrequest for review I will say that I don' t care in these instances\nabout those redactions – but I will say it's bizarre to me that the\ncity wastes valuable time and energy making them, since its\nredactability is dubious and it probably casts doubt on a lot of\ngenuinely harmless messages, leading us to this time- intensive\nexercise.[10] \n\nThis office's review confirmed that much of the redacted information concerns\n\npersonal health issues, condolences, holiday greetings, vacation plans, and other matters that\nwould intrude on the parties' personal lives if disclosed. The redacted messages that consist of\n\nChief, Public Access Bureau, Office of the Attorney General (February 14, 2022), at 2. \n\n8Letter from Tom Skelton, FOIA Officer – Office of the Mayor, to Joshua Jones, Deputy Bureau\n\n9E- mail from Gregory Royal Pratt to Joshua Jones ( February 16, 2022). \n\n10E- mail from Gregory Royal Pratt to Joshua Jones (February 16, 2022). \n\n\fMr. Gregory Pratt\nMr. Tom Skelton\nMarch 23, 2022\nPage 6\n\npurely personal content are exempt from disclosure under section 7(1)(c); examples include\nitems 2, 4, 12, 21, 34, 47, 69, 75, 79, and 86. \n\nIn contrast to the responsive messages that solely relate to highly personal\n\nrelationships with Mayor Lightfoot. Unlike messages that just\n\ninformation such as a medical diagnosis, however, some of the redactions also concern the nature\nof the parties' professional\ninvolve personal friendships, messages concerning working with Mayor Lightfoot in her official\ncapacity bear on the correspondents' public duties. The Mayor' s Office redacted discrete\ninformation from items including 32, 33, 39, 45, 66, 72, and 83 that cannot be considered highly\npersonal because the information pertains to public business of the Office of the Mayor. With\nrespect to some of the messages, there is no FOIA exemption for jokes pertaining to public\nduties and public business; the scope of section 7(1)( c) specifically excludes information that\nbears on the public duties of public officials, and the notion that a remark was made in a jest does\nnot somehow place the record of the communication beyond FOIA' s disclosure requirements\nwhen it relates to the Mayor's official capacity. Accordingly, although the Mayor's Office\ndemonstrated that a significant portion of the responsive text messages is exempt from disclosure\nunder section 7(1)(c), the Mayor's Office did not meet the strict standard of proving by clear and\nconvincing evidence that all of the messages it claims to be exempt under section 7(1)( c) fall\nwithin the scope of the exemption. \n\nSection 7(1)(f) of FOIA\n\nSection 7(1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)( f) exemption applies to \" inter- and intra- agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). Section 7(1)(f) \nis \" intended to protect the communications process and encourage frank and open discussion\namong agency employees before a final decision is made.\" Harwood, 344 Ill. App. 3d at 248. \nIn order to qualify for the deliberative process exemption, a document must be both\npredecisional in the sense that it is actually antecedent to the adoption of an agency policy, and\ndeliberative in the sense that it is actually related to the process by which policies are\nformulated.\" Chicago Tribune Co. v. Cook County Assessor's Office, 2018 IL App (1st) 170455, \n\n28, 109 N.E.3d 872, 880 ( 2018). \n\nIn its response to this office, the Mayor's Office stated that in limited instances, it\n\nredacted information pursuant to section 7(1)( f). The Mayor' s Office stated that the Public\nAccess Bureau had previously determined that the same types of records, in which the mayor and\nan alderman confer to formulate action, are exempt from disclosure. Ill. Att'y Gen. PAC Req. \n\n\fMr. Gregory Pratt\nMr. Tom Skelton\nMarch 23, 2022\nPage 7\n\nRev. Ltr. 65053, issued February 17, 2021, at 4 (\"Intra–agency communications that reflect the\nprocess of formulating action are exempt from disclosure under section 7(1)( f) of FOIA.\"). The\nMayor's Office stated: \n\nThe text messages here concern the formulation of\n\ngovernmental actions that impact the Mayor' s Office and City\nCouncil. Specifically, Text Exchange #13 is about the Executive\nPowers ordinance that the City Council passed during the\nbeginning of the COVID-19 Pandemic and includes information\nregarding a third- party' s health matters. Text Exchange # 23 is\nabout a then pending City Council ordinance. The text messages\nwere part of the formulating of these ordinances and were about\ngovernmental actions that concern both the Mayor and City\nCouncil. They were thus an intra- agency communication that\nreflect the process of formulating governmental actions.[11] \n\nIn his reply, Mr. Pratt reiterated his skepticism that all of the redactions under\n\nsection 7(1)( f) are proper based on past FOIA disputes with the Mayor' s Office. \n\nThis office's review confirmed that item 23 consists of a predecisional and\n\ndeliberative exchange within the scope of section 7(1)( f). As the Mayor' s Office asserted, this\ncorrespondence is akin to the correspondence between an alderman and the Mayor that this\noffice determined to be exempt in Ill. Att'y Gen. PAC Req. Rev. Ltr. 65053. The redacted\ninformation in item 13 is also predecisional and deliberative in its entirety. The Mayor's Office\nacknowledged that these messages contain discussion concerning an ordinance that had already\npassed but there is a forward-looking component that is inextricably intertwined with the\ndiscussion of the approved ordinance. Disclosure of the redacted information would provide\ninsight into the Mayor's Office's process of formulating future action. Accordingly, this office\nconcludes that the Mayor' s Office sustained its burden of proving by clear and convincing\nevidence that the information it redacted pursuant to section 7(1)(f) is exempt from disclosure in\nits entirety. \n\nIn accordance with these conclusions, this office requests that the Mayor' s Office\nissue a revised response to Mr. Pratt's request, disclosing the information this office identified as\nnon- exempt above. \n\nChief, Public Access Bureau, Office of the Attorney General (February 14, 2022), at [4]. \n\n11Letter from Tom Skelton, FOIA Officer – Office of the Mayor, to Joshua Jones, Deputy Bureau\n\n\fr. Gregory Pratt\nMr. Tom Skelton\nMarch 23, 2022\nPage 8\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have questions, please\ncontact me at joshua.jones@ilag.gov. \n\nVery truly yours, \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n69562 f not a pub rec 71c proper improper 71f proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A mayor's text messages with city officials","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":972,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-07-18","case_number":null,"request_numbers":["69899"],"title":"Lake County State's Attorney's Office improperly redacted former employee's name from emails under FOIA","filename":"69899, issued July 18, 2023.pdf","rel_path":null,"word_count":3521,"summary":"The requester sought emails between four individuals, which the Lake County State's Attorney's Office partially denied under FOIA exemptions 7(1)(c), 7(1)(f), and 7(1)(m). The PAC determined the office improperly redacted the records and requested they provide the requester with the records subject only to permissible redactions.","plain_summary":"The requester sought e-mails between four specified individuals, which the state's attorney's office partially withheld to protect a former employee's name and negotiations with the public defender's office. The PAC determined that the employee's name bore on the performance of public duties and was improperly redacted, and that communications between the two adversarial offices did not qualify as deliberative or attorney-client material, though some information about mental-health records, victims, and confidential sources could still be redacted. The state's attorney's office was directed to release the records subject only to those narrower, permissible redactions.","holding":"The Lake County State's Attorney's Office improperly redacted the name of a former employee from records responsive to the FOIA request.","legal_question":"Whether the Lake County State's Attorney's Office properly applied FOIA exemptions 7(1)(c), 7(1)(f), and 7(1)(m) to withhold emails between specified individuals.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(f)","7(1)(m)"],"public_body":"Lake County State's Attorney's Office","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"email records","subject_description":"The request sought emails sent between four specified individuals over a three-month period.","ocr_status":"llm_reocr","ocr_quality":88.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_m/Attorney-client-privilege/69899%2C%20issued%20July%2018%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["email records","redaction","FOIA exemptions","State's Attorney"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 18, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Melanie K. Nelson\nChief Deputy, Civil Trial Division\nLake County State' s Attorney' s Office\n18 North County Street, 3rd Floor\nWaukegan, Illinois 60085\nmnelson@lakecountyil.gov\n\nRE: FOIA Request for Review – 2022 PAC 69899\n\nDear\n\nand Ms. Nelson: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the Lake County State's Attorney's Office (State's\nAttorney' s Office) improperly redacted records responsive to\n3, 2021, FOIA request. \n\nDecember\n\nOn that date, \n\nsubmitted a FOIA request to the State's Attorney's Office\nseeking copies of e- mails sent between four specified individuals between the dates of December\n1, 2020, and March 1, 2021. On December 17, 2021, the State's Attorney's Office granted\n\nrequest in part and denied it in part pursuant\n\nto sections 7(1)( c), 7(1)( f), and 7(1)( m) of\n\nFOIA (5 ILCS 140/7(1)(c), (1)(f), (1)(m) (West 2020), as amended by Public Acts 102-038, \neffective June 25, 2021; 102- 558, effective August 20, 2021). On February 14, 2022, \nsubmitted the above- referenced Request for Review disputing the partial denial of his request. \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 2\n\nOn February 25, 2022, this office forwarded a copy of the Request for Review to\n\nthe State's Attorney's Office and asked it to provide unredacted copies of the responsive records, \nas well as a detailed explanation of the factual and legal bases for the applicability of the asserted\nexemptions. \n\nOn March 16, 2022, the State's Attorney's Office provided this office with a\n\nwith a supplemental\n\nwritten response. As part of that response, it provided\ncontaining fewer redactions. The State's Attorney's Office stated that the remaining withheld\nto section 7(1)( c) and e-\ninformation consisted of the name of an employee withheld pursuant\nmail communications consisting of negotiations between the State's Attorney's Office and Public\nDefender' s Office withheld pursuant\nOffice further argued that certain types of information within these e-mails also is exempt\npursuant to sections 7(1)( a), 7(1)( c), and 7(1)( d)( iv) of FOIA ( 5 ILCS 140/ 7(1)( a), ( 1)( c), \n1)(d)(iv) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558, \neffective August 20, 2021). \n\nto sections 7(1)( f) and 7(1)( m). The State' s Attorney' s\n\nresponse\n\nOn March 16, 2022, this office forwarded a copy of the State' s Attorney' s Office' s\n\nresponse to\n\nhe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 ( 2006). A public body that withholds\nrecords \"has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/ 1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 ( 1997). \n\nSection 7(1)( c) of FOIA\n\nSection 7(1)( c) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" Section 7(1)( c) defines \" unwarranted invasion of personal\nprivacy\" as \" the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject' s right to privacy outweighs any legitimate public interest in\nobtaining the information.\" Additionally, section 7(1)(c) provides that \"[ t]he disclosure of\ninformation that bears on the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy.\" (Emphasis added.) \n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 3\n\nIt is undisputed that the State' s Attorney' s Office redacted the name of a former\n\nemployee from e-mail exchanges between the State's Attorney and the Lake County Public\nDefender. The context indicates that these two public officials were discussing the progress of\nassistant state's attorneys implementing the new State's Attorney's policies while that former\nemployee was still employed by the State' s Attorney' s Office. Because the e- mail discussion\ninvolves a public employee's actions while the individual was performing public duties as an\nemployee, the exchange, including the employee' s name, unequivocally bears on the\nperformance of that employee's public duties. Therefore, the disclosure of the name would not\nconstitute an unwarranted invasion of the employee' s personal privacy under the plain language\nof section 7(1)(c). Accordingly, this office concludes that the State's Attorney's Office\nimproperly withheld the name of the employee pursuant to section 7(1)( c) of FOIA. \n\nSection 7(1)( f) of FOIA\n\nSection 7(1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" Under\nthe exemption, \"[ t]he government\ngive- and- take leading up to its final decisions.\" Chicago Tribune Co. v. Cook County Assessor' s\nOffice, 2018 IL App (1st) 170455, ¶29, 109 N.E.3d 872, 880 (2018). \n\nis entitled to withhold documents that reflect the agency' s\n\nIn its response to this office, the State's Attorney's Office cited Harwood v. \n\nMcDonough, 344 Ill. App. 3d 242 ( 1st Dist. 2003) and State Journal- Register v. University of\nIllinois Springfield, 2013 IL App (4th) 120881, 994 N.E.2d 705 (2013) in support of its assertion\nthat the e- mails between the State' s Attorney' s Office and Public Defender' s Office are exempt\nfrom disclosure under section 7(1)(f) because they are \" part of a predecisional deliberation of\nplea negotiations.\" 1\n\nThe Appellate Court, First District, explained in Harwood that section 7(1)( f) \n\napplies to \"inter- and intra-agency predecisional and deliberative material,\" and is \"intended to\nprotect the communications process and encourage frank and open discussion among agency\nemployees before a final decision is made.\" ( Emphasis added.) Harwood, 344 Ill. App. 3d at\n247- 48. \" Inter\" is defined as \"[ a] mong; between[,]\" 2 while \" intra\" is defined as \"[ i]n; near; \n\nAttorney's Office, to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau (March 16, 2022), at 4. \n\n1Letter from Melanie K. Nelson, Chief Deputy, Civil Trial Division, Lake County State's\n\n2Black' s Law Dictionary 728 (5th ed. 1979). \n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 4\n\nwithin.\" 3 Thus, communications generally must be exchanged among or between public bodies\nor occur internally within a public body to meet the threshold requirement of section 7(1)(f). \nFisher v. Office of the Illinois Attorney General, 2021 IL App ( 1st) 200225, ¶ 19, 195 N.E.3d\n719, __ (2021) (\" In order to be exempt under this provision, the responsive materials must be\nboth ( 1) inter or intra agency and ( 2) predecisional and deliberative.\"). \n\nThe Harwood court did hold that predecisional deliberative communications\nbetween public bodies and third party consultants also may be withheld pursuant to section\n7(1)( f), but only if the consultants' \" analyses and recommendation ‘ played essentially the same\npart in an agency's process of deliberation as documents prepared by agency personnel might\nhave done.'\" Harwood, 344 Ill. App. 3d at 248, citing Dep' t of Interior v. Klamath Water Users\nProtective Ass'n, 532 U.S. 1, 11, 121 S. Ct. 1060, 1067 (2001). In Klamath, the U.S. Supreme\nCourt considered whether the U.S. Department of Interior properly withheld, pursuant to section\n552(b)(5) of the federal FOIA,4 records of communications with a Native-American Indian tribe\nconcerning a plan to allocate water resources. The court stated that the exemption may shield\npre-decisional material prepared by a third party consultant on behalf of a public body if the third\nparty \" does not represent an interest of its own, or the interest of any other client, when it advises\nthe agency that hires it. Its only obligations are to truth and its sense of what good judgment\ncalls for, and in those respects the consultant\ndo.\" Klamath Water Users Protective Ass' n, 532 U.S. at 11, 121 S. Ct. at 1067. However, \ncommunications with third parties that have independent interests and that stand to benefit from\nthe public body' s final decision cannot be characterized as intra- agency communications. \nKlamath, 532 U.S. at 13-15, 121 S. Ct. at 1068-69. The court concluded that the records in\nquestion did not fall within the scope of the deliberative process exemption because the tribe\nrepresented its own interests rather than the interests of the Department of Interior. Klamath, \n532 U.S. at 15, 121 S. Ct. at 1069. Likewise, the Attorney General has issued a binding opinion\nconcluding that an attorney's letter to a public body on behalf of a client with independent\ninterests in a legal dispute was not exempt from disclosure pursuant to section 7(1)( f) of FOIA. \nIll. Att'y Gen. Pub. Acc. Op. No. 22-013, issued November 21, 2022, at 15. Collectively, these\nprecedents stand for the principle that the deliberative process exemption does not allow the\nwithholding of records a public body exchanged with an entity that was representing its own\nindependent\nthe public body. Construing these authorities in a different context, this office has determined\nthat communications between public bodies with opposing interests are similarly not exempt\nfrom disclosure pursuant to section 7(1)(f). See Ill. Att'y Gen. PAC Req. Rev. Ltr. 60989, issued\n\ninterests, rather than the public body' s interests, when it exchanged the records with\n\nfunctions just as an employee would be expected to\n\n3Black' s Law Dictionary 738 (5th ed. 1979). \n\n4Federal FOIA Exemption 5 (5 U.S.C. § 552(b)(5) (West 2000)) applies to \"inter-agency or intra-\n\nagency memorandums or letters which would not be available by law to a party other than an agency in litigation\nwith the agency[.]\" \n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 5\n\nApril 3, 2020, at 4 (\" Rather than jointly deliberating in a collaborative manner, the parties were\nrepresented by separate counsel and actively negotiating as adversaries over the terms of that\nagreement.\"). \n\nis 'to protect the communications process and encourage frank and open\n\nHowever, in State Journal- Register, 2013 IL App ( 4th) 120881, ¶ 26, 994 N.E.2d\nat 713, a panel of the Appellate Court, Fourth District, held that a letter sent to a public body by\nan attorney representing a potentially adverse party fell within the scope of section 7(1)( f). The\ncourt quoted the holding in Harwood that \"the purpose of exempting predecisional and\ndeliberative material\ndiscussion among agency employees before a final decision is made.'\" ( Emphasis added.) State\nJournal Register, 2013 IL App ( 4th) 120881, ¶ 26, 994 N.E.2d at 713 ( quoting Harwood, 344 Ill. \nApp. 3d at 248)). Nevertheless, that court then went on to hold that portions of a letter sent to\nthe University by an attorney representing an individual who was considering filing suit against\nthe University were exempt from disclosure pursuant to section 7(1)(f) because the information\nin the letter \" would have undoubtedly been relied upon by [ the University] in formulating a plan\nor policy for settling potential litigation with the victim.\" State Journal-Register, 2013 IL App\n4th) 120881, ¶ 29, 994 N.E.2d at 714 ( quoting Harwood, 344 Ill. App. 3d at 248). In reaching\nthis conclusion, the court did not address the issue of whether the letter was \"inter- or intra-\nagency\" material, or distinguish the holdings in Harwood and Klamath that limit the deliberative\nprocess exemption to communications with outside parties who represent\npublic body. Because the opinion in State-Journal Register does not provide any explanation of\nhow a letter from opposing counsel could be construed as \" inter- and intra- agency predecisional\nor deliberative material\" as described in Harwood and Klamath, we are compelled instead to\nfollow the weight of authority and apply the analysis in those cases when considering the e- mails\nexchanged between the State's Attorney's Office and Public Defender's Office. \n\nthe interests of the\n\nWhile the State's Attorney's Office and Public Defender's Office shared a goal of\nreaching plea agreements in the cases discussed in the contested e- mails, both public bodies and\ntheir clients had opposing interests as to the terms of possible plea agreements and the subject\nmatter of the e- mails. The State' s Attorney' s Office represents the public in prosecuting crimes, \nwhile the Public Defender's Office advocates for its clients' interests; they are adversarial parties. \nAccordingly, the withheld correspondence between those offices does not constitute inter- or\nintra-agency communications of the State's Attorney's Office within the scope of the deliberative\nprocess exemption, and the State' s Attorney' s Office has not sustained its burden of\ndemonstrating that the communications are exempt from disclosure in whole or in part pursuant\nto section 7(1)( f) of FOIA. \n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 6\n\nSection 7(1)( m) of FOIA\n\nSection 7(1)( m) of FOIA exempts from disclosure: \n\nCommunications between a public body and an attorney\nrepresenting the public body that would not be subject to\n\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.] \n\nCommunications protected by the attorney-client privilege are within the scope of\n\nsection 7(1)( m). People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 ( 1st Dist. 1997). A\nparty asserting that a communication to an attorney is protected by the attorney-client privilege\nmust show that: \"( 1) a statement originated in confidence that it would not be disclosed; ( 2) it\nwas made to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices; and ( 3) it remained confidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 ( 2d\nDist. 2006). Moreover, \"[ t]he privilege applies not only to the communications of a client to his\nattorney, but also to the advice of an attorney to his client.\" In re Marriage of Granger, 197 Ill. \nApp. 3d 363, 374 ( 5th Dist. 1990); see also People v. Radojcic, 2013 IL 114197, ¶ 40, 998\nN.E.2d 1212, 1221-22 (2013) (\"[ T]he modern view is that the privilege is a two-way street, \nprotecting both the client' s communications to the attorney and the attorney' s advice to the\nclient.\"). A public body that withholds records under section 7(1)(m) \"can meet its burden only\nby providing some objective indicia that the exemption is applicable under the circumstances.\" \nEmphasis in original.) Illinois Education Ass'n v. Illinois State Board of Education, 204 Ill. 2d\n456, 470 ( 2003). \n\nThe work product doctrine \" applies to documents prepared by either client or\n\nattorney in anticipation of litigation or trial.\" Dalen v. Ozite Corp., 230 Ill. App. 3d 18, 27 (2nd\nDist. 1992). The protection of the doctrine, however, is waived by voluntary disclosure to a third\nparty. Dalen, 230 Ill. App. 3d at 29 (company waived work product doctrine by providing\nopposing counsel access to its files even though company' s attorney' s claimed disclosure of\nmemorandum containing work product was inadvertent because he did not have time to purge\nthe memorandum from the files); see also Eagle Compressors, Inc., v. HEC Liquidating Corp., \n206 F.R.D. 474, 479 (N.D. Ill. 2002) (\" The voluntary disclosure of attorney work product to an\nadversary waives work product protection.\") \n\nIn its response to this office, the State' s Attorney' s Office argued that e-mails from\nthe Public Defender's Office that include the mental impressions of assistant public defenders in\n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 7\n\npursuit of plea negotiations are exempt despite being shared with the State' s Attorney' s Office, \nwhich is a third party adversary. \n\nThe State's Attorney's Office does not have, nor did it claim to have, an attorney-\n\nclient relationship with the Public Defender' s Office. Section 7(1)( m) of FOIA applies to\ncommunications between a public body and an attorney * * * representing the public body\" and\nto work product prepared \" upon the request of an attorney advising the public body.\" The\nattorney-client privilege and work product doctrine do not apply to communications or materials\nexchanged by adversarial parties. \n\nThe State' s Attorney' s Office additionally argued, citing Nelson v. County of\n\nKendall, 2014 IL 116303, and Newman, Raiz & Shelmadine, LLC. v. Brown, 394 Ill. App. 3d\n602 ( 1st Dist. 2009) that disclosure of this material would be incongruous with FOIA because the\nPublic Defender's Office is not subject to FOIA. Because this FOIA request concerns public\nrecords maintained by the State' s Attorney' s Office, it is not relevant whether the Public\nDefender's Office would be subject to FOIA. The definition of \"public records\" in section 2(c) \nof FOIA5 ( 5 ILCS 140/ 2(c) ( West 2020)) expressly applies to all records in the possession of the\nState's Attorney's Office pertaining to the transaction of public business. This definition does not\ncontain an exception for records exchanged with third parties that are not public bodies subject to\nthe requirements of FOIA. Further, while the cases cited by the State' s Attorney' s Office\nconfirmed that the judiciary is not subject to FOIA, none of them addressed whether public\ndefenders' offices are part of the judiciary. This office has previously determined that public\ndefenders' offices are not part of the judiciary and are subject to the requirements of FOIA. See\nIll. Att'y Gen. PAC Req. Rev. Ltr. 39421, issued January 8, 2019, at 6 (\" the Public Defender' s\nOffice is not part of the judicial branch of government, for purposes of FOIA. Instead, it is a\ncounty office, which falls under the definition of a \" public body\" in section 2(a) of FOIA.\"). \nAccordingly, this office concludes that the State's Attorney's Office has not sustained its burden\nof demonstrating that any portions of the contested records exempt from disclosure pursuant to\nsection 7(1)(m) of FOIA. \n\n5Section 2(c) of FOIA defines \" public records\" as: \n\nall records, reports, forms, writings, letters, memoranda, books, papers, maps, \nphotographs, microfilms, cards, tapes, recordings, electronic data processing\nrecords, electronic communications, recorded information and all other\ndocumentary materials pertaining to the transaction of public business, \nregardless of physical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or under the\ncontrol of any public body. \n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 8\n\nPotential Redactions Pursuant\n\nto Sections 7(1)( a), 7(1)( c), and 7(1)( d)(iv) \n\nIn its response to this office, the State' s Attorney' s Office asserted that unspecified\n\npieces of information contained within the withheld records would also be exempt pursuant to\nsections \"( 7)( 1)( a)( confidentiality provisions of the Mental Health and Developmental\nDisabilities Confidentiality Act, 740 ILCS 110/3); 7(1)(d)(iv) (withholding information\nidentifying complaining witnesses) and 7(1)( c)( personal privacy relating to victims of crime).\" 6\nAlthough the State's Attorney's Office did not specify which records or portions of records may\nbe exempt under these provisions, this office' s review of the withheld records confirms that\ndiscrete portions of some of the withheld e-mails would be subject to permissible redactions. \n\nSection 7(1)(a) exempts from disclosure \"[ i]nformation specifically prohibited\nfrom disclosure by federal or State law or rules and regulations implementing federal or State\nlaw.\" Section 3(a) of the Mental Health and Developmental Disabilities Confidentiality Act\nprovides: \n\nAll records and communications shall be confidential and\n\nshall not be disclosed except as provided in this Act. Unless\notherwise expressly provided for in this Act, records and\ncommunications made or created in the course of providing mental\nhealth or developmental disabilities services shall be protected\nfrom disclosure regardless of whether the records and\ncommunications are made or created in the course of a therapeutic\nrelationship. \n\nSection 2 of the Mental Health Confidentiality Act ( 740 ILCS 110/ 2 (West 2014)) \n\ndefines \"record,\" in pertinent part, as \" any record kept by a therapist or by an agency in the\ncourse of providing mental health or developmental disabilities service to a recipient concerning\nthe recipient and the services provided.\" To the extent that information within the requested\nrecords falls within this category, the State' s Attorney' s Office is specifically prohibited from\ndisclosing such information except in accordance with the terms of that act. \n\nSection 7(1)(c) exempts from disclosure \"[ p]ersonal information contained within\n\npublic records, the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy.\" Section 7(1)(d)(iv) exempts from disclosure: \n\n6Letter from Melanie K. Nelson, Chief Deputy, Civil Trial Division, Lake County State's\n\nAttorney's Office, to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau (March 16, 2022), at 3-\n4. \n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 9\n\nRecords in the possession of any public body created in the\n\nd) \ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nunavoidably disclose the identity of a confidential source, \n\niv) \nconfidential information furnished only by the confidential source, \nor persons who file complaints with or provide information to\nadministrative, investigative, law enforcement, or penal agencies[.] \n\nAccordingly, the State's Attorney's Office may redact the identities of victims, witnesses and\nother third parties who were not arrested or charged with crimes. See, for example, Dillon v. \nDOJ, 102 F. Supp. 3d 272, 295 (D.C. Cir. 2015) (disclosure of the names of third parties in law\nenforcement\n\nrecords would constitute an unwarranted invasion of personal privacy). \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the State's Attorney's Office provide\nwith copies of the withheld\nrecords, subject only to permissible redactions. If any information is redacted, the State' s\nAttorney's Office must provide\ndetailed factual basis for the applicability of any asserted exemptions. \n\nwith a supplemental written response that includes a\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at ( 773) 590- 7878 or benjamin. silver@ilag. gov. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n79899 f 71c improper 71f improper 71m improper sao\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 18, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Melanie K. Nelson\nChief Deputy, Civil Trial Division\nLake County State's Attorney's Office\n18 North County Street, 3rd Floor\nWaukegan, Illinois 60085\nmnelson@lakecountyil.gov\n\nRE: FOIA Request for Review – 2022 PAC 69899\n\nDear\n\nand Ms. Nelson: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the Lake County State's Attorney's Office (State's\nAttorney's Office) improperly redacted records responsive to\n3, 2021, FOIA request. \n\nDecember\n\nOn that date, \n\nsubmitted a FOIA request to the State's Attorney's Office\nseeking copies of e- mails sent between four specified individuals between the dates of December\n1, 2020, and March 1, 2021. On December 17, 2021, the State's Attorney's Office granted\n\nrequest in part and denied it in part pursuant\n\nto sections 7(1)(c), 7(1)(f), and 7(1)(m) of\n\nFOIA (5 ILCS 140/7(1)(c), (1)(f), (1)(m) (West 2020), as amended by Public Acts 102-038, \neffective June 25, 2021; 102- 558, effective August 20, 2021). On February 14, 2022, \nsubmitted the above- referenced Request for Review disputing the partial denial of his request. \n\nOn February 25, 2022, this office forwarded a copy of the Request for Review to\n\nthe State's Attorney's Office and asked it to provide unredacted copies of the responsive records, \nas well as a detailed explanation of the factual and legal bases for the applicability of the asserted\nexemptions. \n\nOn March 16, 2022, the State's Attorney's Office provided this office with a\n\nwith a supplemental\n\nwritten response. As part of that response, it provided\ncontaining fewer redactions. The State's Attorney's Office stated that the remaining withheld\nto section 7(1)(c) and e-\ninformation consisted of the name of an employee withheld pursuant\nmail communications consisting of negotiations between the State's Attorney's Office and Public\nDefender's Office withheld pursuant\nOffice further argued that certain types of information within these e-mails also is exempt\npursuant to sections 7(1)(a), 7(1)(c), and 7(1)(d)(iv) of FOIA (5 ILCS 140/ 7(1)(a), (1)(c), \n1)(d)(iv) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558, \neffective August 20, 2021). \n\nto sections 7(1)(f) and 7(1)(m). The State's Attorney's\n\nresponse\n\nOn March 16, 2022, this office forwarded a copy of the State's Attorney's Office's\n\nresponse to\n\nhe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \"has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/ 1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" Section 7(1)(c) defines \" unwarranted invasion of personal\nprivacy\" as \" the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\" Additionally, section 7(1)(c) provides that \"[ t]he disclosure of\n\nIt is undisputed that the State's Attorney's Office redacted the name of a former\n\nemployee from e-mail exchanges between the State's Attorney and the Lake County Public\nDefender. The context indicates that these two public officials were discussing the progress of\nassistant state's attorneys implementing the new State's Attorney's policies while that former\nemployee was still employed by the State's Attorney's Office. Because the e- mail discussion\ninvolves a public employee's actions while the individual was performing public duties as an\nemployee, the exchange, including the employee's name, unequivocally bears on the\nperformance of that employee's public duties. Therefore, the disclosure of the name would not\nconstitute an unwarranted invasion of the employee's personal privacy under the plain language\nof section 7(1)(c). Accordingly, this office concludes that the State's Attorney's Office\nimproperly withheld the name of the employee pursuant to section 7(1)(c) of FOIA. \n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" Under\nthe exemption, \"[ t]he government\ngive- and- take leading up to its final decisions.\" Chicago Tribune Co. v. Cook County Assessor's\nOffice, 2018 IL App (1st) 170455, ¶29, 109 N.E.3d 872, 880 (2018). \n\nis entitled to withhold documents that reflect the agency's\n\nIn its response to this office, the State's Attorney's Office cited Harwood v. \n\nMcDonough, 344 Ill. App. 3d 242 (1st Dist. 2003) and State Journal- Register v. University of\nIllinois Springfield, 2013 IL App (4th) 120881, 994 N.E.2d 705 (2013) in support of its assertion\nthat the e- mails between the State's Attorney's Office and Public Defender's Office are exempt\nfrom disclosure under section 7(1)(f) because they are \" part of a predecisional deliberation of\nplea negotiations.\" 1\n\nThe Appellate Court, First District, explained in Harwood that section 7(1)(f) \n\napplies to \"inter- and intra-agency predecisional and deliberative material,\" and is \"intended to\nprotect the communications process and encourage frank and open discussion among agency\nemployees before a final decision is made.\" (Emphasis added.) Harwood, 344 Ill. App. 3d at\n247- 48. \" Inter\" is defined as \"[ a] mong; between[,]\" 2 while \" intra\" is defined as \"[ i]n; near; \n\nAttorney's Office, to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau (March 16, 2022), at 4. \n\nwithin.\" 3 Thus, communications generally must be exchanged among or between public bodies\nor occur internally within a public body to meet the threshold requirement of section 7(1)(f). \nFisher v. Office of the Illinois Attorney General, 2021 IL App (1st) 200225, ¶ 19, 195 N.E.3d\n719, __ (2021) (\" In order to be exempt under this provision, the responsive materials must be\nboth (1) inter or intra agency and (2) predecisional and deliberative.\"). \n\nThe Harwood court did hold that predecisional deliberative communications\nbetween public bodies and third party consultants also may be withheld pursuant to section\n7(1)(f), but only if the consultants' \" analyses and recommendation ‘ played essentially the same\npart in an agency's process of deliberation as documents prepared by agency personnel might\nhave done.'\" Harwood, 344 Ill. App. 3d at 248, citing Dep' t of Interior v. Klamath Water Users\nProtective Ass'n, 532 U.S. 1, 11, 121 S. Ct. 1060, 1067 (2001). In Klamath, the U.S. Supreme\nCourt considered whether the U.S. Department of Interior properly withheld, pursuant to section\n552(b)(5) of the federal FOIA,4 records of communications with a Native-American Indian tribe\nconcerning a plan to allocate water resources. The court stated that the exemption may shield\npre-decisional material prepared by a third party consultant on behalf of a public body if the third\nparty \" does not represent an interest of its own, or the interest of any other client, when it advises\nthe agency that hires it. Its only obligations are to truth and its sense of what good judgment\ncalls for, and in those respects the consultant\ndo.\" Klamath Water Users Protective Ass' n, 532 U.S. at 11, 121 S. Ct. at 1067. However, \ncommunications with third parties that have independent interests and that stand to benefit from\nthe public body's final decision cannot be characterized as intra- agency communications. \nKlamath, 532 U.S. at 13-15, 121 S. Ct. at 1068-69. The court concluded that the records in\nquestion did not fall within the scope of the deliberative process exemption because the tribe\nrepresented its own interests rather than the interests of the Department of Interior. Klamath, \n532 U.S. at 15, 121 S. Ct. at 1069. Likewise, the Attorney General has issued a binding opinion\nconcluding that an attorney's letter to a public body on behalf of a client with independent\ninterests in a legal dispute was not exempt from disclosure pursuant to section 7(1)(f) of FOIA. \nIll. Att'y Gen. Pub. Acc. Op. No. 22-013, issued November 21, 2022, at 15. Collectively, these\nprecedents stand for the principle that the deliberative process exemption does not allow the\nwithholding of records a public body exchanged with an entity that was representing its own\nindependent\nthe public body. Construing these authorities in a different context, this office has determined\nthat communications between public bodies with opposing interests are similarly not exempt\nfrom disclosure pursuant to section 7(1)(f). See Ill. Att'y Gen. PAC Req. Rev. Ltr. 60989, issued\n\ninterests, rather than the public body's interests, when it exchanged the records with\n\nfunctions just as an employee would be expected to\n\n3Black's Law Dictionary 738 (5th ed. 1979). \n\n4Federal FOIA Exemption 5 (5 U.S.C. § 552(b)(5) (West 2000)) applies to \"inter-agency or intra-\n\nagency memorandums or letters which would not be available by law to a party other than an agency in litigation\n\nApril 3, 2020, at 4 (\" Rather than jointly deliberating in a collaborative manner, the parties were\nrepresented by separate counsel and actively negotiating as adversaries over the terms of that\nagreement.\"). \n\nis 'to protect the communications process and encourage frank and open\n\nHowever, in State Journal- Register, 2013 IL App (4th) 120881, ¶ 26, 994 N.E.2d\nat 713, a panel of the Appellate Court, Fourth District, held that a letter sent to a public body by\nan attorney representing a potentially adverse party fell within the scope of section 7(1)(f). The\ncourt quoted the holding in Harwood that \"the purpose of exempting predecisional and\ndeliberative material\ndiscussion among agency employees before a final decision is made.'\" (Emphasis added.) State\nJournal Register, 2013 IL App (4th) 120881, ¶ 26, 994 N.E.2d at 713 (quoting Harwood, 344 Ill. \nApp. 3d at 248)). Nevertheless, that court then went on to hold that portions of a letter sent to\nthe University by an attorney representing an individual who was considering filing suit against\nthe University were exempt from disclosure pursuant to section 7(1)(f) because the information\nin the letter \" would have undoubtedly been relied upon by [ the University] in formulating a plan\nor policy for settling potential litigation with the victim.\" State Journal-Register, 2013 IL App\n4th) 120881, ¶ 29, 994 N.E.2d at 714 (quoting Harwood, 344 Ill. App. 3d at 248). In reaching\nthis conclusion, the court did not address the issue of whether the letter was \"inter- or intra-\nagency\" material, or distinguish the holdings in Harwood and Klamath that limit the deliberative\nprocess exemption to communications with outside parties who represent\npublic body. Because the opinion in State-Journal Register does not provide any explanation of\nhow a letter from opposing counsel could be construed as \" inter- and intra- agency predecisional\nor deliberative material\" as described in Harwood and Klamath, we are compelled instead to\nfollow the weight of authority and apply the analysis in those cases when considering the e- mails\nexchanged between the State's Attorney's Office and Public Defender's Office. \n\nthe interests of the\n\nWhile the State's Attorney's Office and Public Defender's Office shared a goal of\nreaching plea agreements in the cases discussed in the contested e- mails, both public bodies and\ntheir clients had opposing interests as to the terms of possible plea agreements and the subject\nmatter of the e- mails. The State's Attorney's Office represents the public in prosecuting crimes, \nwhile the Public Defender's Office advocates for its clients' interests; they are adversarial parties. \nAccordingly, the withheld correspondence between those offices does not constitute inter- or\nintra-agency communications of the State's Attorney's Office within the scope of the deliberative\nprocess exemption, and the State's Attorney's Office has not sustained its burden of\ndemonstrating that the communications are exempt from disclosure in whole or in part pursuant\n\nSection 7(1)(m) of FOIA\n\nSection 7(1)(m) of FOIA exempts from disclosure: \n\nCommunications between a public body and an attorney\nrepresenting the public body that would not be subject to\n\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.] \n\nCommunications protected by the attorney-client privilege are within the scope of\n\nsection 7(1)(m). People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 (1st Dist. 1997). A\nparty asserting that a communication to an attorney is protected by the attorney-client privilege\nmust show that: \"(1) a statement originated in confidence that it would not be disclosed; (2) it\nwas made to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices; and (3) it remained confidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 (2d\nDist. 2006). Moreover, \"[ t]he privilege applies not only to the communications of a client to his\nattorney, but also to the advice of an attorney to his client.\" In re Marriage of Granger, 197 Ill. \nApp. 3d 363, 374 (5th Dist. 1990); see also People v. Radojcic, 2013 IL 114197, ¶ 40, 998\nN.E.2d 1212, 1221-22 (2013) (\"[ T]he modern view is that the privilege is a two-way street, \nprotecting both the client's communications to the attorney and the attorney's advice to the\nclient.\"). A public body that withholds records under section 7(1)(m) \"can meet its burden only\nby providing some objective indicia that the exemption is applicable under the circumstances.\" \nEmphasis in original.) Illinois Education Ass'n v. Illinois State Board of Education, 204 Ill. 2d\n456, 470 (2003). \n\nThe work product doctrine \" applies to documents prepared by either client or\n\nattorney in anticipation of litigation or trial.\" Dalen v. Ozite Corp., 230 Ill. App. 3d 18, 27 (2nd\nDist. 1992). The protection of the doctrine, however, is waived by voluntary disclosure to a third\nparty. Dalen, 230 Ill. App. 3d at 29 (company waived work product doctrine by providing\nopposing counsel access to its files even though company's attorney's claimed disclosure of\nmemorandum containing work product was inadvertent because he did not have time to purge\nthe memorandum from the files); see also Eagle Compressors, Inc., v. HEC Liquidating Corp., \n206 F.R.D. 474, 479 (N.D. Ill. 2002) (\" The voluntary disclosure of attorney work product to an\nadversary waives work product protection.\") \n\nIn its response to this office, the State's Attorney's Office argued that e-mails from\nthe Public Defender's Office that include the mental impressions of assistant public defenders in\n\npursuit of plea negotiations are exempt despite being shared with the State's Attorney's Office, \nwhich is a third party adversary. \n\nThe State's Attorney's Office does not have, nor did it claim to have, an attorney-\n\nclient relationship with the Public Defender's Office. Section 7(1)(m) of FOIA applies to\ncommunications between a public body and an attorney * * * representing the public body\" and\nto work product prepared \" upon the request of an attorney advising the public body.\" The\nattorney-client privilege and work product doctrine do not apply to communications or materials\nexchanged by adversarial parties. \n\nThe State's Attorney's Office additionally argued, citing Nelson v. County of\n\nKendall, 2014 IL 116303, and Newman, Raiz & Shelmadine, LLC. v. Brown, 394 Ill. App. 3d\n602 (1st Dist. 2009) that disclosure of this material would be incongruous with FOIA because the\nPublic Defender's Office is not subject to FOIA. Because this FOIA request concerns public\nrecords maintained by the State's Attorney's Office, it is not relevant whether the Public\nDefender's Office would be subject to FOIA. The definition of \"public records\" in section 2(c) \nof FOIA5 (5 ILCS 140/ 2(c) (West 2020)) expressly applies to all records in the possession of the\nState's Attorney's Office pertaining to the transaction of public business. This definition does not\ncontain an exception for records exchanged with third parties that are not public bodies subject to\nthe requirements of FOIA. Further, while the cases cited by the State's Attorney's Office\nconfirmed that the judiciary is not subject to FOIA, none of them addressed whether public\ndefenders' offices are part of the judiciary. This office has previously determined that public\ndefenders' offices are not part of the judiciary and are subject to the requirements of FOIA. See\nIll. Att'y Gen. PAC Req. Rev. Ltr. 39421, issued January 8, 2019, at 6 (\" the Public Defender's\nOffice is not part of the judicial branch of government, for purposes of FOIA. Instead, it is a\ncounty office, which falls under the definition of a \" public body\" in section 2(a) of FOIA.\"). \nAccordingly, this office concludes that the State's Attorney's Office has not sustained its burden\nof demonstrating that any portions of the contested records exempt from disclosure pursuant to\nsection 7(1)(m) of FOIA. \n\n5Section 2(c) of FOIA defines \" public records\" as: \n\nall records, reports, forms, writings, letters, memoranda, books, papers, maps, \nphotographs, microfilms, cards, tapes, recordings, electronic data processing\n\nPotential Redactions Pursuant\n\nto Sections 7(1)(a), 7(1)(c), and 7(1)(d)(iv) \n\nIn its response to this office, the State's Attorney's Office asserted that unspecified\n\npieces of information contained within the withheld records would also be exempt pursuant to\nsections \"(7)(1)(a)(confidentiality provisions of the Mental Health and Developmental\nDisabilities Confidentiality Act, 740 ILCS 110/3); 7(1)(d)(iv) (withholding information\nidentifying complaining witnesses) and 7(1)(c)(personal privacy relating to victims of crime).\" 6\nAlthough the State's Attorney's Office did not specify which records or portions of records may\nbe exempt under these provisions, this office's review of the withheld records confirms that\ndiscrete portions of some of the withheld e-mails would be subject to permissible redactions. \n\nSection 7(1)(a) exempts from disclosure \"[ i]nformation specifically prohibited\nfrom disclosure by federal or State law or rules and regulations implementing federal or State\nlaw.\" Section 3(a) of the Mental Health and Developmental Disabilities Confidentiality Act\nprovides: \n\nAll records and communications shall be confidential and\n\nshall not be disclosed except as provided in this Act. Unless\notherwise expressly provided for in this Act, records and\ncommunications made or created in the course of providing mental\nhealth or developmental disabilities services shall be protected\nfrom disclosure regardless of whether the records and\ncommunications are made or created in the course of a therapeutic\nrelationship. \n\nSection 2 of the Mental Health Confidentiality Act (740 ILCS 110/ 2 (West 2014)) \n\ndefines \"record,\" in pertinent part, as \" any record kept by a therapist or by an agency in the\ncourse of providing mental health or developmental disabilities service to a recipient concerning\nthe recipient and the services provided.\" To the extent that information within the requested\nrecords falls within this category, the State's Attorney's Office is specifically prohibited from\ndisclosing such information except in accordance with the terms of that act. \n\nSection 7(1)(c) exempts from disclosure \"[ p]ersonal information contained within\n\npublic records, the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy.\" Section 7(1)(d)(iv) exempts from disclosure: \n\n6Letter from Melanie K. Nelson, Chief Deputy, Civil Trial Division, Lake County State's\n\nAttorney's Office, to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau (March 16, 2022), at 3-\n\nRecords in the possession of any public body created in the\n\nd) \ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nunavoidably disclose the identity of a confidential source, \n\niv) \nconfidential information furnished only by the confidential source, \nor persons who file complaints with or provide information to\nadministrative, investigative, law enforcement, or penal agencies[.] \n\nAccordingly, the State's Attorney's Office may redact the identities of victims, witnesses and\nother third parties who were not arrested or charged with crimes. See, for example, Dillon v. \nDOJ, 102 F. Supp. 3d 272, 295 (D.C. Cir. 2015) (disclosure of the names of third parties in law\nenforcement\n\nrecords would constitute an unwarranted invasion of personal privacy). \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the State's Attorney's Office provide\nwith copies of the withheld\nrecords, subject only to permissible redactions. If any information is redacted, the State's\nAttorney's Office must provide\ndetailed factual basis for the applicability of any asserted exemptions. \n\nwith a supplemental written response that includes a\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (773) 590- 7878 or benjamin. silver@ilag. gov. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n79899 f 71c improper 71f improper 71m improper sao","plain_summary_pre_resummarize":"A requester asked the Lake County State's Attorney's Office for emails between four individuals from December 2020 to March 2021. The office partially denied the request, citing exemptions for personal privacy and deliberative process. The Illinois Attorney General's Public Access Bureau reviewed the case and found that the office improperly redacted a former employee's name, because the name related to the employee's public duties. The determination also discussed whether emails between the State's Attorney and Public Defender were exempt as deliberative communications, but did not order a specific scope of release.","card_headline":"Emails between four individuals over three months","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":973,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-05-15","case_number":null,"request_numbers":["69962"],"title":"Romeoville Police Department improperly withheld applicant background records under 7(1)(a) and 7(1)(f)","filename":"69962, issued May 15, 2024.pdf","rel_path":null,"word_count":3113,"summary":"The requester sought polygraph results and background check records related to her employment denial, which the Romeoville Police Department withheld under FOIA exemptions. The PAC determined that the Department improperly withheld portions of the records that did not qualify for the claimed exemptions.","plain_summary":"A job applicant requested her own background check and polygraph results from the Romeoville Police Department, but the department refused to release them. The Attorney General's office reviewed the records and found that the police department failed to prove that all the withheld information was legally exempt. The department was instructed to release the non-exempt portions of the records.","holding":"The Romeoville Police Department improperly withheld non-exempt information from the requester's background check report.","legal_question":"Whether the Romeoville Police Department properly applied FOIA exemptions 7(1)(a) and 7(1)(f) to withhold an applicant's background check and polygraph records.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(f)"],"public_body":"Romeoville Police Department","requesting_party":"Anonymous (redacted in text)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The requester sought access to her own employment background check and polygraph examination results following a denial of employment.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d-5/69962%2C%20issued%20May%2015%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["background check","employment records","police records","FOIA exemption"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"May 15, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. Richard E. Vogel\nTracy Johnson & Wilson\n2801 Black Road, 2nd Floor\nJoliet, Illinois 60435\nrvogel@tracylawfirm. com\n\nRE: FOIA Request for Review – 2022 PAC 69962\n\nDear\n\nand Mr. Vogel: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons explained below, the\nPublic Access Bureau concludes that the Romeoville Police Department ( Police Department or\nRPD) improperly withheld certain non-exempt information responsive to\nFebruary 8, 2022, FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the Police Department\n\nseeking copies of her August 21, 2021, polygraph exam results and all her background check\nrecords pertaining \" to [ the] reason for denial of employment by the [ Police Department] starting\nfrom 8/19/2021 to 9/14/2021.\" 1 On February 10, 2022, the Police Department denied\n\nrequest in its entirety pursuant\n\nto section 7(1)( f) of FOIA ( 5 ILCS 140/ 7(1)( f) (West\n\n2021 Supp.), as amended by Public Acts 102-694, effective January 7, 2022, revised February 3, \n2022; 102- 791, effective May 13, 2022; 102- 1055, effective June 10, 2022). On February 22, \n\n1FOIA request submitted by\n\nFebruary 8, 2022). \n\n\fMr. Richard E. Vogel\nMay 15, 2024\nPage 2\n\n2022, \nDepartment' s response. \n\nsubmitted the above-referenced Request for Review disputing the Police\n\nOn February 27, 2022, this office sent a copy of the Request for Review to the\n\nPolice Department and asked it to provide unredacted copies of the records that it withheld for\nthis office' s confidential review, together with a detailed explanation of the factual and legal\nbases for the applicability of section 7(1)(f) of FOIA. On March 9, 2022, the Police Department\nsubmitted its written response. In its response, the Police Department provided\nwith\na copy of her August 21, 2021, polygraph examination.2 However, the Police Department\nasserted it properly withheld records related to\nto\nsections 7(1)(a) and 7(1)(d-5) of FOIA,3 in addition to section 7(1)(f). On March 16, 2022, this\noffice sent a copy of the Police Department' s written response to\nthat afternoon. \n\nbackground check pursuant\n\nshe replied later\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 ( West 2022); see also Southern Illinoisan v. \nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2022). \n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p]reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption is equivalent to the deliberative process exemption in the federal FOIA\n5 U.S.C. §552( b)( 5) ( 2020)), which applies to \" inter- and intra- agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (2003). The\nexemption is \" intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App. \n3d at 248. The deliberative process exemption \" typically does not justify the withholding of\npurely factual material.\" Enviro Tech Intern., Inc. v. United States Environmental Protection\nAgency, 371 F.3d 370, 374 ( 7th Cir. 2004). Rather, \"[ o] nly those portions of a predecisional\ndocument that reflect the give and take of the deliberative process may be withheld.\" Kalven v. \n\n2E- mail from Richard E. Vogel, Tracy, Johnson & Wilson, to\n\nMarch 9, 2022). \n\n35 ILCS 140/7(1)(a), ( 1)(d-5) (West 2021 Supp.), as amended by Public Acts 102-694, effective\nJanuary 7, 2022, revised February 3, 2022; 102-791, effective May 13, 2022; 102-1055, effective June 10, 2022. \n\n\fMr. Richard E. Vogel\nMay 15, 2024\nPage 3\n\nCity of Chicago, 2013 IL App (1st) 121846, ¶ 24, quoting Public Citizen, Inc. v. Office of\nManagement & Budget, 598 F.3d 865, 876 ( D.C. Cir. 2010); see also Chemical Weapons\nWorking Group v. U.S. E.P.A., 185 F.R.D. 1, 3 (D.C. Cir 1999), quoting Dudman\nCommunications v. Dep' t of the Air Force, 815 F.2d 1565, 1568 ( D.C. Cir. 1987) (\"[ T] he critical\nquestion is whether 'disclosure of the materials would expose an agency's decision-making\nprocess in such a way as to discourage candid discussion within the agency and thereby\nundermine the agency's ability to perform its functions.'\"). \n\nIn its response to this office, the Police Department asserted that some of the\nwithheld information falls within the scope of section 7(1)( f) because it is predecisional and\ngenerated as part the Police Department's employment process. The Police Department\nexplained: \n\nin nature, RPD asserts that the\n\nWhile RPD is aware that the background check information\nreflected in the records provided with this letter contains material\nthat in and of itself if factual\ndisclosure of this material will unavoidably reveal its deliberative\nand decision making process with respect to applicants for\nprospective employment, and its opinions as to the factors that\nrender an applicant unqualified for employment with the RPD. \nDisclosure of the results of this background check necessarily\ndefines an opinion of the RPD as to a prospective set of facts that\ndisqualifies an applicant from employment with RPD. Requiring\nthe release of this material may potentially inform other future job\napplicants to RPD of the RPD's criteria for hiring based on\nbackground check results. [ 4] \n\nAdditionally, the Police Department confirmed that these background check results have never\nbeen publicly cited by either the Chief of the RPD or the Village President of the Village of\nRomeoville. \n\nThis office' s review of the remaining background check records showed that\n\ncertain portions contain predecisional opinions, assessments, and information involved in\nformulating actions which would reveal the give- and- take of the Police Department' s deliberative\nprocess. This office points to discrete notes and brief opinions cited on pages 6 and 7 of the\n\n4Letter from Richard E. Vogel, Tracy, Johnson & Wilson, to Christina M. Lucente-McCullough, \n\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (March 9, 2022), \nat [2]. \n\n\fMr. Richard E. Vogel\nMay 15, 2024\nPage 4\n\nwithheld background check report.5 Although this information contains some factual details, it is\ninextricably intertwined with the Police Department' s deliberations regarding\nqualifications. Further, there is no indication that any portion of\ncheck was publicly cited or identified by the head of the Police Department or other associated\npolice departments. Therefore, we conclude that this information was not improperly withheld\npursuant to section 7(1)( f). \n\nbackground\n\nOn the other hand, a large portion of this record contains strictly factual\n\ninformation gathered by the Police Department on various aspects of\nfinancial\ninformation, past references, and employment history. Although these records reveal\ninformation the Department apparently considered, they do not provide insight into the weight\ngiven to any particular piece of background information or otherwise reveal the give- and- take of\nthe Police Department's deliberations regarding its employment decision-making process and, \ntherefore, are not within the scope of section 7(1)( f). In addition, information and opinions\nexpressed by\nagency- communications that may be properly redacted under the exemption. Accordingly, this\noffice concludes that the Police Department improperly withheld this information pursuant to\nsection 7(1)( f). \n\nor third parties that provided information are not inter-agency or intra-\n\ntraffic record, \n\nSection 7.5(q) of FOIA\n\nAlthough not asserted by the Police Department, this office will analyze the\n\napplicability of section 7.5(q) of FOIA6 to certain past employment information. Section 7.5(q) \nof FOIA exempts from disclosure \"[ i]nformation prohibited from being disclosed by the\nPersonnel Records Review Act [PRRA].\" Section 11 of PRRA (820 ILCS 40/11 (West 2022)) \nprovides: \" This Act shall not be construed to diminish a right of access to records already\notherwise provided by law, provided that disclosure of performance evaluations under the\nFreedom of Information Act shall be prohibited.\" ( Emphasis added.) \n\nIn construing a statute, the primary goal is to ascertain and give effect to the intent\n\nof the General Assembly. Wisnasky-Bettorf v. Pierce, 2012 IL 111253, ¶ 16. \"We view the\nstatute as a whole, construing words and phrases in light of other relevant statutory provisions\nand not in isolation. Each word, clause, and sentence of a statute must be given a reasonable\nmeaning, if possible, and should not be rendered superfluous.\" People v. Gutman, 2011 IL\n110338, ¶ 12. \n\n5E- mail from Richard E. Vogel, Tracy, Johnson & Wilson, to Christina M. Lucente-McCullough, \n\nAssistant Attorney General, Public Access Bureau (March 9, 2022). See pages 8-14 of the attachment titled\nScanned form a Xerox Multifunction Printer.pdf.\" \n\n65 ILCS 140/7.5 (West 2022), as amended by Public Acts 103-008, effective June 7, 2023; 103-\n\n034, effective June 9, 2023). \n\n\fMr. Richard E. Vogel\nMay 15, 2024\nPage 5\n\nThe Senate Debates on House Bill 5154, which amended section 11 of the PRRA\nto add the language barring disclosure of \" performance evaluations,\" indicates that the term was\nintended to apply to periodic comprehensive evaluations: \n\nThe premise is, there is—some protection should be in place for\nemployees and employers. If there is a performance evaluation\npiece— you work all year, you know your supervisor has set some\ngoals for you to meet— I don' t know that it's your business or\nanyone else's business on what this particular staff person have\nobtained within that year' s evaluation. I think what is and what\nshould be known is, perhaps, the title that the person is in, how\nmuch they' re actually being paid, even so far just to say whether or\nnot they are an employee of the State of Illinois or any other public\nemployee. But how well you did on your actual performance\nevaluation year-to-year, I think is a— a measure of privacy. \nRemarks of Sen. Lightford, April 29, 2010, Senate Debate on\nHouse Bill No. 5154, at 182. \n\nWhen I write an employee evaluation, I do it for that employee to\nchange the behavior to get a better result. When that performance\nevaluation is written, my goal is to make sure that employee— their\ngoals are met. Their ability to perform their job is enhanced. I\ndon't write it for an audience. If I write a performance evaluation\nfor an audience, then it would change, because I know that other\npeople are looking at it. Remarks of Sen. Millner, April 29, 2010, \nSenate Debate on House Bill No. 5154, at 186. \n\nHaving been on both sides of the employee evaluation questions, it\nis written for that individual so that individual can correct\nparticular behavior and if it's going to be on the Internet and\navailable to the entire world, it does become where the person\nwriting the evaluation will be much more sensitive to what they\nwrite and then the employee may not gain from it. Remarks of\nSen. Hendon, April 29, 2010, Senate Debate on House Bill No. \n5154, at 188. \n\nIn describing the scope of the exemption in the legislation, the House bill's sponsor explained\nthat the \" performance evaluation process\" identifies the need for improvements and promotes\ncorrective action.\" Remarks of Rep. Chapa LaVia, March 11, 2010, House Debate on House\nBill No. 5154, at 107 (\"[ I]t's just a thorough and constructive evaluation. Employees should\nreceive guidance, corrective action and further development all within the goal of helping\n\n\fMr. Richard E. Vogel\nMay 15, 2024\nPage 6\n\nemployees achieve excellence.\"). These comments indicate that the General Assembly only\nintended to bar disclosure of periodic comprehensive performance evaluations that are used to\nenhance the performance of employees by highlighting their strengths and weaknesses. \nConfidentiality of such evaluations was deemed necessary in order for supervisors to candidly\nidentify performance problems and initiate corrective action. By contrast, this office has found\nthat section 11 of the PRRA was not intended to apply to specific instances of misconduct. See\nIll. Att'y Gen. PAC Rev. Ltr. 47540, issued September 13, 2017. \n\nThis office has reviewed the background check records and concludes that certain\n\npast performance evaluations. In particular, \npersonnel files from the Cicero and Bedford Park\n\ninformation was drawn directly from\nthe Police Department collected\nPolice Departments and highlighted certain information in performance evaluations that the\nGeneral Assembly intended to prohibit from being disclosed. Because section 11 of the PRRA\nprohibits the disclosure of performance evaluations, the Police Department did not violate FOIA\nby withholding discrete information pulled directly from\npursuant to section 7.5(q) of FOIA. Certain discrete information that was redacted, however, \nappears to have been drawn from records in personnel files other than performance evaluations. \nThat information is not exempt from disclosure under section 7.5(q) of FOIA. \n\npersonnel records\n\nSection 7(1)( a) of FOIA and LEADS Information\n\nSection 7(1)( a) of FOIA exempts from inspection and copying \"[ i]nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" In its response to this office, the Police Department asserted\nit obtained some of the information in\nbackground check report through the Illinois\nLaw Enforcement Agencies Data System ( LEADS). \n\nSection 1240. 80( d) of title 20 of the Administrative Code ( 20 Ill. Adm. Code\n\n1240.80(d) (2020), last amended at 23 Ill. Reg. 7521, effective June 18, 1999) provides that\nLEADS data shall not be disseminated to any individual or organization that is not legally\nauthorized to have access to the information.\"7 See also Better Gov't Ass'n v. Zaruba, 2014 IL\nApp ( 2d) 140071, ¶ 27 (\" The regulations make clear that the public is not entitled to view or\npossess data that is transmitted through, received through, or stored in LEADS.\"). \n\nThis office's review of the background check report confirmed that certain\n\ninformation was generated from LEADS. Members of the public, including individuals such as\nrequesting records about themselves, are not among the parties authorized to access\nLEADS data under section 1240. 30( c) of title 20 of the Administrative Code ( 20 Ill. Adm. Code\n1240.30(c) (2020), last amended at 23 Ill. Reg. 7521, effective June 18, 1999). Because the\n\n7That provision implements section 7 of the Illinois Criminal Identification Act (20 ILCS 2630/ 7\n\nWest 2020)). \n\n\fMr. Richard E. Vogel\nMay 15, 2024\nPage 7\n\nPolice Department is specifically prohibited from disseminating LEADS data to unauthorized\nparties, the Police Department did not improperly withhold certain parts of the report pursuant\nsection 7(1)(a) of FOIA. \n\nto\n\nHowever, the Department did not illustrate that all of the information in the report\n\ndriving and financial history was specifically generated from the\n\nconcerning\nLEADS database. This office's review also determined that some of the information is general in\nnature. General\ninformation that is obtained from the LEADS database and incorporated into an\ninvestigative report is not exempt under section 7(1)(a) of FOIA. See Ill. Att'y Gen. PAC Req. \nRev. Ltr. 34767, issued August 12, 2016, at 6. Accordingly, the Police Department did not\ndemonstrate by clear and convincing evidence that certain limited parts of the report fall within\nthe scope of the 7(1)( a) exemption. \n\nSection 7(1)( d-5) of FOIA\n\nSection 7(1)( d-5) of FOIA exempts from disclosure: \n\nA law enforcement\n\nrecord created for law enforcement\n\npurposes and contained in a shared electronic record management\nsystem if the law enforcement agency that is the recipient of the\nrequest did not create the record, did not participate in or have a\nrole in any of the events which are the subject of the record, and\nonly has access to the record through the shared electronic record\nmanagement system. \n\nIn its response to this office, the Police Department asserted that certain information in the\nbackground check records is exempt because it was \"obtained by the RPD from a shared\nelectronic law enforcement database from entries made by other law enforcement and in which\nthe RPD had no other involvement, other than the receipt of the information.\" 8 Additionally, the\nPolice Department submitted a signed affidavit from Deputy Chief, Brant Hromadka, confirming\nthe fact that certain information was obtained from a shared electronic law enforcement\ndatabase. 9\n\nThis office' s review confirmed that certain information the Police Department\nwithheld was obtained from other law enforcement agencies, such as the Brookfield Police\n\n8Letter from Richard E. Vogel, Tracy, Johnson & Wilson, to Christina M. Lucente-McCullough, \n\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (March 9, 2022), \nat [3]. \n\n9E- mail from Richard E. Vogel, Tracy, Johnson & Wilson, to Christina M. Lucente-McCullough, \n\nAssistant Attorney General, Public Access Bureau ( March 9, 2022). See pages 28-29 of the attachment titled\nScanned form a Xerox Multifunction Printer.pdf.\" \n\n\fMr. Richard E. Vogel\nMay 15, 2024\nPage 8\n\nDepartment. Under the plain language of section 7(1)(d-5), the withheld information is exempt\nfrom disclosure because the Police Department did not create certain records, but rather accessed\nit from a shared electronic record management system. Therefore, this office concludes that the\nPolice Department did not improperly withhold certain information pursuant to section 7(1)( d-5). \n\nHowever, the Police Department did not illustrate that all of the information in the\n\nfinancial history was specifically generated from a shared\n\nreport concerning\nelectronic law enforcement database. In the financials section of the background check report, \nthe Police Department stated that it obtained this information from an Accurint report. Based on\nan electronic search, Accurint is a service provided by LexisNexis and is open to any person who\nsubscribes to this service.10 Information that is not obtained from a shared electronic law\nenforcement database is not exempt under section 7(1)( a) of FOIA. Accordingly, the Police\nDepartment did not demonstrate by clear and convincing evidence that certain limited parts of\nthe report fall within the scope of the 7(1)( a) exemption. \n\nUnder separate cover, this office will identify for the Police Department\n\nthe\n\nportions of the background check report that fall within the asserted exemptions. This office\nrequests that the Department disclose the remaining information in the report. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n69962 f 71a proper improper 71d5 proper improper 71f proper improper 75q proper mun\n\n10LexisNexis Risk Solutions, Accurint, available at https:// www.accurint. com. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An applicant's background check and polygraph records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":974,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-03-11","case_number":null,"request_numbers":["70082"],"title":"Town of Normal not required to answer questions under FOIA","filename":"70082, issued March 11, 2022.pdf","rel_path":null,"word_count":793,"summary":"The requester sought clarification and information regarding police misconduct records, but the PAC determined the request was an improper inquiry rather than a request for specific public records. Consequently, the PAC closed the file without further action.","plain_summary":"The requester asked the Town of Normal a series of questions about police misconduct files rather than requesting specific documents. The Attorney General's office explained that FOIA is designed to provide access to existing records, not to force government agencies to answer questions or provide explanations. Because the request did not ask for specific records, the PAC closed the case.","holding":"The PAC determined that the Town of Normal was not required to respond to the requester's questions because FOIA is a mechanism for requesting existing records, not for posing inquiries to a public body.","legal_question":"Whether a public body is required under FOIA to respond to a request that asks questions rather than seeking the production of specific public records.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Town of Normal","requesting_party":"Demetria Kalodimos, Nashville Banner","pac_outcome":"Closed - no further action","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought information and clarification regarding police misconduct reports related to a specific cold case investigation.","ocr_status":"ok","ocr_quality":94.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3.3/70082%2C%20issued%20March%2011%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","FOIA request","public records","request for information"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nMarch 11, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\nMs. Demetria Kalodimos\nExecutive Producer\nNashville Banner\n\nRE: FOIA Request for Review – 2022 PAC 70082; FOIA RR- 81-2022\n\nDear Ms. Kalodimos: \n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(c) (West 2020)). For the reasons set forth below, the\nPublic Access Bureau concludes that no further action is warranted in this matter. \n\nOn January 31, 2022, you submitted a FOIA request to the Town of Normal\n\nTown) stating: \n\ncold case. This offices response\n\nA recent Freedom of Information request by another party revealed\nthe existence of numerous documents relevant to the investigation\nof the\nreads…..\" The document retrieval in relation to misconduct by\nmember( s) of the Normal Police Department relating to the case\nnumber P75- 1942 returned a preliminary estimate of\napproximately 3,500 pages\" I would like clarification on this: Are\nthere truly 3500 pages of misconduct reports? If so, I would like to\nknow more about the individual officers and representatives cited\nwith misconduct\nthe largest files and most serious matters that resulted in findings\nand or penalty. In previous documents supplied to me, it has been\nrevealed that the murder weapon in this case was taken out of\ncustody and brought to a University for some period of time. I\nsuspect this matter is one that is described in misconduct reports. If\nso, that particular occurrance [ sic] is of interest and needs to be\n\nin relation to this case, and request information on\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMs. Demetria Kalodimos\nMarch 11, 2022\nPage 2\n\nthoroughly explored. According to Attorney General Kwame\nRaoul' s office, the statewide Professional Conduct Database\ninformation is restricted, however such reports remain an open\nrecord in the individual police stations including Normal P.D.[1] \n\nOn February 4, 2022, the Town denied your request, stating that it did not maintain a record that\nwould satisfy your request and that it was not required to answer your questions. On February\n28, 2022, this office received the materials necessary to complete your Request for Review. \n\nFOIA applies only to requests for public records. 5 ILCS 140/ 3(a) ( West 2020) \n\nEach public body shall make available to any person for inspection or copying all public\n\nrecords, except as otherwise provided in Sections 7 and 8.5 of this Act.\"). FOIA \" is not intended\nto compel public bodies to interpret or advise requesters as to the meaning or significance of the\npublic records.\" 5 ILCS 140/ 3.3 (West 2020). A FOIA request \" must reasonably identify a\npublic record and not general data, information, or statistics.\" Chicago Tribune Co. v. Dep't of\nFinancial & Professional Regulation, 2014 IL App (4th) 130427, ¶ 33, 8 N.E.3d 11, 19 (2014). \nA public body is not required to answer questions or to generate new records in response to a\nFOIA request. Kenyon v. Garrels, 184 Ill. App. 3d 28, 32 (4th Dist. 1989). \n\nRather than asking for copies of public records, your communication to the Town\n\nasked questions, made statements, and sought the Town' s interpretation of the \" most serious\nmatters that resulted in findings and or penalty.\" 2 Because the Town was not required to respond\nto your questions, this office will take no further action at to this matter. 3 You may wish to\nsubmit a new FOIA request to the Town that clearly describes the specific records or files you\nseek. \n\n1Request # RR-81-2022 ( January 31, 2022). \n\n2Request # RR-81-2022 ( January 31, 2022). \n\n3In your Request for Review, you reference a FOIA response you received on February 7, 2022, \nthat \" mischaracterized the records as private and then denied their very existence.\" You did not provide this office\nwith copies of that response or related FOIA request. Letter from Demetria Kalodimos, Executive Producer, the\nNashville Banner, to Public Access Bureau, Office of the Attorney General ( undated). \n\n\fs. Demetria Kalodimos\nMarch 11, 2022\nPage 3\n\nThis letter closes this file. If you have any questions, you may contact me at\n\nLaura. Harter@illinois. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n70082 f no fi war mun\n\ncc: \n\nVia electronic mail\nThe Honorable Angelia Huonker\nTown Clerk\nTown of Normal\n11 Uptown Circle\nP.O. Box 589\nNormal, Illinois 61761\nahuonker@normal. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police misconduct reports in a cold case investigation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":975,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-09-28","case_number":null,"request_numbers":["70185"],"title":"Cook County Sheriff's Office improperly withheld email under 7(1)(a), 7(1)(d-5), 7(1)(d)(v)","filename":"70185, issued September 28, 2023.pdf","rel_path":null,"word_count":1562,"summary":"The Cook County Sheriff's Office denied a FOIA request for an email regarding an incident log, citing multiple exemptions; the PAC determined the Sheriff's Office failed to meet its burden of proof to justify withholding the record.","plain_summary":"A journalist requested an email from the Cook County Sheriff's Office, which the office refused to release by claiming it was exempt from disclosure. The Attorney General's Public Access Counselor reviewed the email and found that the Sheriff's Office did not provide enough evidence to justify keeping it secret. Consequently, the PAC directed the Sheriff's Office to release the email to the requester.","holding":"The Cook County Sheriff's Office improperly withheld the requested email because it failed to prove by clear and convincing evidence that the asserted FOIA exemptions applied.","legal_question":"Whether the Cook County Sheriff's Office met its burden of proving by clear and convincing evidence that an email regarding an incident log was exempt from disclosure under FOIA sections 7(1)(a), 7(1)(d-5), and 7(1)(d)(v).","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(d-5)","7(1)(d)(v)"],"public_body":"Cook County Sheriff's Office","requesting_party":"Mr. Jonah Newman (Injustice Watch)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(d-5)","subject_description":"The request sought an email correspondence labeled 'RE: Incident Log 30 May 2020' from the Cook County Sheriff's Office.","ocr_status":"ok","ocr_quality":90.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d-5/70185%2C%20issued%20September%2028%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["email records","law enforcement records","FOIA denial","burden of proof"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 28, 2023\n\nVia electronic mail\n\nMr. Jonah Newman\n\nEditor\n\nInjustice Watch\n\n[street address redacted for site publication -- see original PDF]\njonahnewman@injusticewatch.org\n\nVia electronic mail\n\nMs. Sarah M. Smith\n\nAssistant General Counsel - FOIA\nCook County Sheriff's Office\n\n50 West Washington Street, Room 704\nChicago, Illinois 60602\nSarah.Smith@ccsheriff.org\n\nRE: FOIA Request for Review — 2022 PAC 70185\nDear Mr. Newman and Ms. Smith:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons stated below, the\nPublic Access Bureau concludes that the Cook County Sheriff's Office (Sheriff's Office) failed to\nprove by clear and convincing evidence that the disputed record responsive to Mr. Jonah\nNewman's December 16, 2021, FOIA request is exempt from disclosure.\n\nOn that date, Mr. Newman submitted a FOIA request to the Sheriff's Office on\nbehalf of Injustice Watch seeking copies of certain e-mails from e-mail logs. On February 18,\n2022, the Sheriff's Office responded, in relevant part, by denying the e-mail \"RE: Incident Log\n\nMr. Jonah Newman\nMs. Sarah M. Smith\nSeptember 28, 2023\nPage 2\n\n30 May 2020\" pursuant to sections 7(1)(a), 7(1)(d-5), and 7(1)(d)(v) of FOIA.! On March 1,\n2022, Mr. Newman submitted a Request for Review contesting the denial of that e-mail.\n\nOn March 16, 2022, this office forwarded a copy of the Request for Review to the\nSheriff's Office and asked it to provide a copy of the withheld record for this office's confidential\nreview, together with a detailed description of the applicability of the asserted exemptions. On\nthat same date, the Sheriff's Office furnished those materials. On March 25, 2022, this office\nforwarded a copy of the Sheriff's Office's response to Mr. Newman; he did not submit a reply.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.” 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v.\nIllinois Dept. of Public Health, 218 Il. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2022).\n\nIn its answer to this office's inquiry letter, the Sheriff's Office explained the\ncontext of the e-mail in question as follows:\n\nWe denied production of this record after I spoke to\nDirector Aracelis Gotay of our Incident Command Center. Director\nGotay provided that the record was highly confidential and had\nonly been seen by one other person. The email concerns\n\"Operation Cermak\", an operation monitoring protests of the death\nof George Floyd and other unrest in the city on May 30, 2020.!\n\nSection 7(1)(a) and LEADS\n\nSection 7(1)(a) of FOIA exempts from inspection and copying \"[i]nformation\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" The Sheriff's Office asserted that it properly denied the\nrequest under section 7(1)(a) because \"Direct Gotay provided that the email includes information\n\n15 ILCS 140/7(1)(a), (1)(d-5), (1)(d)(v) (West 2022).\n\n?E-mail from Sarah M. Smith, Assistant General Counsel-FOIA, Cook County Sheriff's Office, to\nSteven Silverman (March 16, 2022).\n\nMr. Jonah Newman\nMs. Sarah M. Smith\nSeptember 28, 2023\nPage 3\n\nprovided by other law enforcement agencies, including information from CLEAR\"! and\nLEADS|[,]\"* though the Sheriff's Office acknowledged that \"[t]he email also includes information\ngathered while monitoring social media and other public websites.\"* The Sheriff's Office\nreferenced section 1240.80(d) of title 20 of the Administrative Code (20 III. Adm. Code\n§1240.80(d) (2022), last amended at 23 Ill. Reg. 7521, effective June 18, 1999), which provides\nthat \"LEADS data shall not be disseminated to any individual or organization that is not legally\nauthorized to have access to the information.\" This provision specifically prohibits disclosure of\nLEADS data. See Better Government Ass'n v. Zaruba, 2014 IL App (2d) 140071, 27 (\"The\nregulations make clear that the public is not entitled to view or possess data that is transmitted\nthrough, received through, or stored in LEADS.\").\n\nThis office's review of the withheld record revealed that it does not contain any\nLEADS print-outs; no portion of the record is self-evidently LEADS data or data that appears to\nderive from LEADS, such as criminal history record information. In addition, the Sheriff's\nOffice did not identify LEADS as the source of any specific information in the withheld record.\nTherefore, the Sheriff's Office failed to prove by clear and convincing evidence that any\ninformation in the record is exempt from disclosure under section 7(1)(a) of FOIA as\nconfidential LEADS data.\n\nSection 7(1)(d)(v) of FOIA\nSection 7(1)(d)(v) of FOIA exempts from disclosure:\n\nRecords in the possession of any public body created in the\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes,\n\nbut only to the extent that disclosure would:\nKOK\n\n(v) disclose unique or specialized investigative\ntechniques other than those generally used and known or\ndisclose internal documents of correctional agencies related\nto detection, observation or investigation of incidents of\n\n5\"CLEAR\" is an acronym for \"Citizen Law Enforcement Analysis and Reporting,\" a database\nsystem used by the Chicago Police Department.\n\n4\"LEADS\" is an acronym for \"Law Enforcement Agencies Data System.\"\n\n5E-mail from Sarah M. Smith, Assistant General Counsel-FOIA, Cook County Sheriff's Office, to\nSteven Silverman (March 16, 2022).\n\nMr. Jonah Newman\nMs. Sarah M. Smith\nSeptember 28, 2023\nPage 4\n\ncrime or misconduct, and disclosure would result in\ndemonstrable harm to the agency or public body that is the\nrecipient of the request[.]\n\nThe Sheriff's Office asserted that \"[b]ecause of the highly sensitive nature of the\ninformation in the email and the techniques used to gather the information,\" it denied the request\nunder section 7(1)(d)(v) \"to protect disclosure of unique or specialized investigative\ntechniques.\"°\n\nBare assertions without a detailed rationale do not satisfy a public body's burden\nof explaining how exemptions are applicable. See Rockford Police Benevolent & Protective\nAss'n v. Morrissey, 398 Il. App. 3d 145, 151 (2010) (citing [/linois Education Ass'n v. Illinois\nState Board of Education, 204 Ill. 2d 456, 464 (2003)). \"The public body satisfies its burden\nwhen it provides a detailed justification for the clatmed exemption which addresses the specific\ndocuments requested and allows for adequate adversarial testing.\" Turner v. Joliet Police\nDepartment, 2019 IL App (3d) 170819, | 10.\n\nThe Sheriff's Office's sparse explanation for the section 7(1)(d)(v) exemption is\ngeneralized and conclusory. The Sheriff's Office did not set forth facts suggesting that any\nunique or specialized techniques are depicted in the withheld record, nor did the Sheriff's Office\nprovide facts suggesting that any law enforcement techniques discussed in the record are not\ngenerally used and known. Further, the Sheriffs Office did not explain how or why disclosure of\nthe e-mail would cause it to endure demonstrable harm. Law enforcement monitoring of social\nmedia and other public websites is a common and generally-known technique. Accordingly, the\nSheriff's Office failed to prove by clear and convincing evidence that the e-mail is exempt from\ndisclosure under section 7(1)(d)(v).\n\nSection 7(1)(d-5) of FOIA\nSection 7(1)(d-5) of FOIA exempts from disclosure:\n\nA law enforcement record created for law enforcement\npurposes and contained in a shared electronic record management\nsystem if the law enforcement agency that is the recipient of the\nrequest did not create the record, did not participate in or have a\nrole in any of the events which are the subject of the record, and\n\nE-mail from Sarah M. Smith, Assistant General Counsel-FOIA, Cook County Sheriff's Office, to\nSteven Silverman (March 16, 2022).\n\nMr. Jonah Newman\nMs. Sarah M. Smith\nSeptember 28, 2023\nPage 5\n\nonly has access to the record through the shared electronic record\nmanagement system.\n\nThe Sheriff's Office did not explain its assertion of section 7(1)(d-5) of FOIA to\ndeny the request, except perhaps by stating that the record includes information obtained from\nCLEAR. By its plain language, the section 7(1)(d-5) exemption does not apply when the law\nenforcement agency that received the FOIA request created the record. The withheld e-mail was\ncreated by the Sheriff's Office. Further, while the exemption expressly does not apply when the\nlaw enforcement agency that received the request did not have a role in the events at issue in the\nrecord, the Sheriff's Office plainly participated in the events that are the subject of the e-mail.\nLastly, although the exemption expressly applies only when the law enforcement agency solely\nhas access to the record through a shared electronic record management system, the e-mail was\nsent by the Sheriff's Office, and the Sheriff's Office did not set forth facts illustrating that the\nrecord consists of information to which it had access only through a shared electronic record\nmanagement system. Therefore, the Sheriff's Office failed to prove by clear and convincing\nevidence that the e-mail is exempt from disclosure under section 7(1)(d-5).\n\nFor the reasons stated above, to remedy its improper denial, the Public Access\nBureau asks the Sheriff's Office to provide Mr. Newman with a copy of the withheld record.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\n\nany questions, please contact me at joshua.jones@ilag.gov.\n\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n70185 f 71a improper 71d5 improper 71dv improper co\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An email about an incident log","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":976,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-10-13","case_number":null,"request_numbers":["70212"],"title":"City of Chicago OEMC improperly redacted civil unrest slide deck under 7(1)(f) and 7(1)(v)","filename":"70212, issued October 13, 2022.pdf","rel_path":null,"word_count":2044,"summary":"The Chicago Tribune requested a slide deck regarding civil unrest and preparedness, which the City of Chicago partially redacted under FOIA exemptions 7(1)(f) and 7(1)(v). The PAC determined that the City failed to justify many of its redactions and ordered the release of the majority of the document.","plain_summary":"A reporter requested a presentation about the City's response to civil unrest, but the City blacked out large portions of the document claiming they were exempt from disclosure. The Attorney General's office reviewed the slides and found that the City did not have a valid legal reason to hide most of that information. The City was ordered to release the majority of the slides to the reporter.","holding":"The City of Chicago improperly redacted portions of the requested slide deck as it failed to meet its burden of proving the information was exempt under FOIA.","legal_question":"Whether the City of Chicago properly applied FOIA exemptions 7(1)(f) (pre-decisional/deliberative process) and 7(1)(v) (vulnerability assessments/security procedures) to a slide deck regarding civil unrest.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)","7(1)(v)"],"public_body":"City of Chicago Office of Emergency Management and Communications (OEMC)","requesting_party":"Mr. Gregory Pratt (Chicago Tribune)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"The request concerned a slide deck titled '2020 Civil Unrest Overview and 2021 Preparedness Workshop' detailing the City's emergency response strategies.","ocr_status":"ok","ocr_quality":93.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_v/70212%2C%20issued%20October%2013%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["civil unrest","redactions","public records","emergency management","FOIA"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 13, 2022\n\nVia electronic mail\nMr. Gregory Pratt\nChicago Tribune\ngpratt@chicagotribune. com\n\nVia electronic mail\nMr. Marc Augustave\nSenior Counsel\nCity of Chicago Department of Law\nLegal Information and Prosecutions Division\nmarc. augustave@cityofchicago. org\n\nRE: \n\nFOIA Request for Review – 2022 PAC 70212 ( 2021- PAC- C-0071) \n\nFOIA No. F211648- 060121\n\nDear Mr. Pratt and Mr. Augustave: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the City of Chicago ( City) Office of Emergency\nManagement and Communications ( OEMC) improperly redacted some portions of the slide deck\nresponsive to Mr. Gregory Pratt' s June 1, 2021, FOIA request. \n\nOn that date, Mr. Pratt, on behalf of the Chicago Tribune, submitted a FOIA\n\nrequest to OEMC seeking a certain April 8, 2021, slide deck entitled \" 2020 Civil Unrest\nOverview and 2021 Preparedness Workshop.\" The document was attached to an e-mail between\nCity of Chicago Mayor Lori Lightfoot and OEMC Director Richard Guidice. On June 29, 2021, \nOEMC provided Mr. Pratt with a copy of the responsive slide deck, but redacted information\npursuant to sections 7(1)( f) and 7(1)( v) of FOIA ( 5 ILCS 140/ 7(1)( f), (1)( v) (West 2021 Supp.)). \nOn June 30, 2021, Mr. Pratt submitted a Request for Review challenging OEMC' s redactions. \n\nOn July 2, 2021, this office sent a copy of the Request for Review to OEMC and\nasked it to provide an un-redacted copy of the slide deck responsive to Mr. Pratt' s FOIA request, \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. Gregory Pratt\nMr. Marc Augustave\nOctober 13, 2022\nPage 2\n\ntogether with a detailed explanation of the legal and factual bases for its assertion of sections\n7(1)(f) and 7(1)( v) of FOIA. On July 13 and 14, 2021, OEMC provided a written answer and the\nrequested materials. On July 14, 2021, this office forwarded OEMC' s answer to Mr. Pratt; he\nreplied the same day. \n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 ( 2006). Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\" that the record is\nexempt from disclosure. 5 ILCS 140/ 1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 ( 1997). \n\nSection 7(1)( f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption is equivalent to the deliberative process exemption in the federal FOIA\n5 U.S.C. §552( b)(5) (West 2020)), 1 which applies to \" inter- and intra- agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 ( 1st Dist. 2003). The\nexemption is \"intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App. \n3d at 248. Factual material generally is not within the scope of section 7(1)( f) unless it cannot be\nreasonably segregated from deliberative material and, therefore, would provide insight into the\npublic body's decision- making process. State Journal- Register v. University of Illinois\nSpringfield, 2013 IL App 4th, 120881, ¶ 27, 994 N.E.2d 705, 713 ( 2014). \n\nIn its response to this office, OEMC stated that \" the redacted contents\n\ndemonstrate the opinions and deliberations by the authors in preparation for an action or policy\n\n1Because Illinois' FOIA statute is based on the federal FOIA statute, decisions construing the\n\nlatter, while not controlling, may provide helpful and relevant precedents in construing the state Act. Margolis v. \nDirector, Ill. Department of Revenue, 180 Ill. App. 3d 1084, 1087 ( 1st Dist. 1989). \n\n\fMr. Gregory Pratt\nMr. Marc Augustave\nOctober 13, 2022\nPage 3\n\nwhich had not yet been accomplished.\" 2 Mr. Pratt argued that the slide deck appeared to be a\nhistorical review with some forward- looking guidelines. \n\nThis office has reviewed the unredacted version of the slide deck and concludes\nthat most of the redactions were of facts concerning the City's response to past events. In other\ninstances, the City withheld final decisions, not deliberative or predecisional material. Such\nfactual material and final directives may not be withheld pursuant to section 7(1)(f). Only two\nslides, 55 and 56, contained pre-decisional opinions which may be withheld pursuant to section\n7(1)(f). There is no indication that slides 55 or 56 were publically cited or identified by the head\nof the City or OEMC. Accordingly, with the exception of the redactions on slides 55 and 56, this\noffice concludes that OEMC violated FOIA by redacting other pages of the slide deck pursuant\nto section 7(1)(f). \n\nSection 7(1)( v) of FOIA\n\nSection 7(1)(v) of FOIA exempts from disclosure: \n\nVulnerability assessments, security measures, and response\n\npolicies or plans that are designed to identify, prevent, or respond\nto potential attacks upon a community' s population or systems, \nfacilities, or installations, the destruction or contamination of\nwhich would constitute a clear and present danger to the health or\nsafety of the community, but only to the extent that disclosure\ncould reasonably be expected to jeopardize the effectiveness of the\nmeasures or the safety of the personnel who implement them or the\npublic. Information exempt under this item may include such\nthings as details pertaining to the mobilization or deployment of\npersonnel or equipment, to the operation of communication\nsystems or protocols, or to tactical operations. \n\nThis office has previously determined that section 7(1)(v) concerns homeland security and\nemergency preparations rather than routine duties carried out by an agency. See Ill. Att'y Gen. \nPub. Acc. Op. No. 21-005, issued June 2, 2021, at 7; Ill. Att'y Gen. PAC Req. Rev. Ltr. 48212, \nissued November 2, 2017, at 7. \n\nIn its response in this matter, the OEMC stated \"[ t]he portions of the slide deck\nwhich were redacted pursuant to section 7(1)(v) of FOIA relate to OEMC' s after action report\n\nHarter, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General, at 3. \n\n2Letter from Marc Augustave, Senior Counsel, City of Chicago, Department of Law, to Laura S. \n\n\fMr. Gregory Pratt\nMr. Marc Augustave\nOctober 13, 2022\nPage 4\n\nrelated to the civil unrest which occurred in 2020 and OEMC' s improvement plan in preparation\nfor 2021.\" 3\n\nThe redacted slides contain detailed descriptions of the\ncity's preparedness, provides recommendations, and identifies\nstrengths as well as specific areas for improvement\npreparedness plan. As such, the report describes a response plan, \nresponse policy, and vulnerability assessment designed to identify, \nprevent, or respond to potential attacks and civil unrest. The\nredacted slides contain detailed information concerning the\nlogistics for responding to attacks and unrest. \n\nto the city's\n\nBecause the redacted information provides detailed\ninformation concerning mobilization and tactical deployment of\nemergency response personnel, as well as policies or plans\ndesigned to protect the community, it is believed that its release\nwould compromise the security of emergency first responders. \nShould these security measures get into the hands of criminals or\nother individuals with nefarious intent, this information could be\nused to circumvent\nmembers. Furthermore, this information could be exploited by\nthese individuals to evade or overcome safety and security\nmeasures. Disclosure of the contents of these slides could\nreasonably be expected to jeopardize the effectiveness of the city's\nresponse, the safety of its personnel and that of the public.[ 4] \n\nthe ability of emergency response team\n\nIn his reply, Mr. Pratt questioned whether disclosure of the withheld information\n\nwould undermine the effectiveness of the City's security plans. He noted that the City has\nissued press releases detailing plans to shut down roads, raise bridges, detail cops downtown, \nbring out garbage trucks and line commercial corridors throughout the city. * * * [ T]he city has\nrepeatedly described its tactics to prevent looting without seeing them undermined or destroyed\nby the disclosure.\" 5\n\nHarter, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General, at 3. \n\n3Letter from Marc Augustave, Senior Counsel, City of Chicago, Department of Law, to Laura S. \n\nHarter, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General, at 4. \n\n4Letter from Marc Augustave, Senior Counsel, City of Chicago, Department of Law, to Laura S. \n\n5E- mail from Gregory Pratt, Chicago Tribune, to [ Laura Harter] ( July 14, 2021). \n\n\fMr. Gregory Pratt\nMr. Marc Augustave\nOctober 13, 2022\nPage 5\n\nThis office' s review of the withheld information confirmed that the slides address\n\nthe City's emergency response to past protests, civil unrest, and looting. Even though many of\nthe slides concerned past events, the overall purpose of the slide deck appears to be for training\nand for preparing the City's future responses to similar emergency situations. Disclosure of\ncertain slides would reveal vulnerabilities and specific emergency response plans and it is\napparent from the face of the slides that their disclosure would undermine those plans' \neffectiveness. 6\n\nOther slides in the presentation, however, report on information that is already\npublicly known. Specifically, on February 18, 2021, the City of Chicago Office of Inspector\nGeneral ( OIG) issued a detailed report on \" Chicago' s Response to the George Floyd Protests and\nUnrest.\" 7 The report described the City's response to the events following Mr. Floyd' s death on\nMay 25, 2020. OEMC redacted from its April 8, 2021, slide deck certain details that the OIG\nhad already disclosed at the time of Mr. Pratt' s FOIA request. In other instances, OEMC\nwithheld information that has been previously disclosed through other public sources. OEMC\nhas not explained how disclosure of these publicly known details could reasonably be expected\nto jeopardize the effectiveness of the City's emergency response plans. Other information\nredacted from the slide deck is non-specific or presented without enough context to make it\napparent how it constitutes a vulnerability assessment, security measure, or response policy or\nplan. Even if some of that information could be construed as a vulnerability assessment, security\nmeasure, or response policy or plan, OEMC has not demonstrated how disclosure of the\ninformation would undermine the effectiveness of its emergency response plans designed to\nprotect public safety. Accordingly, this office concludes that OEMC has not met its burden of\nestablishing that all of the information it redacted is exempt pursuant to section 7(1)(v) of FOIA. \n\nConsistent with the conclusions in this letter, this office requests that OEMC\n\nprovide Mr. Pratt with a copy of the responsive slide deck with redactions made only to slides\n21, 23, 27, 43, 44, 55, 56, 63-68, 75, and 87. \n\n6Slides 21, 23, 27, 43, 44, 63-68, 75, 87. \n\n7City of Chicago Office of Inspector General, Report on Chicago' s Response to George Floyd\n\nProtests and Unrest ( February 18, 2021), https:// igchicago. org/wp- content/ uploads/ 2021/ 02/OIG- Report- on-\nChicagos- Response- to-George- Floyd -Protests- and- Unrest. pdf. \n\n\fr. Gregory Pratt\nMr. Marc Augustave\nOctober 13, 2022\nPage 6\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 843- 0564 or laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n70212 C-0071 f 71f proper improper 71v proper improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A slide deck on civil unrest emergency response strategies","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":977,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-05-17","case_number":null,"request_numbers":["70344","70349","70357","70358"],"title":"Niles-Maine District Library violated FOIA by failing to search trustees' personal accounts","filename":"70344 70349 70357 70358, issued May 17, 2022.pdf","rel_path":null,"word_count":4052,"summary":"The requester sought communications regarding library business sent via personal accounts, and the PAC determined the Library failed to conduct an adequate search for these records.","plain_summary":"A citizen requested emails and communications regarding library business, but the library failed to search the personal accounts of its trustees. The Attorney General's office ruled that public business conducted on private devices or accounts is still subject to FOIA and ordered the library to perform a more thorough search. This means government officials cannot hide public records simply by using personal email or text messages.","holding":"The Niles-Maine District Library violated FOIA by failing to conduct an adequate search for responsive records, including those held in personal accounts of trustees.","legal_question":"Whether a public body is required to search the personal accounts and devices of its officials for records pertaining to the transaction of public business.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Niles-Maine District Library","requesting_party":"Mr. David Sutherland (Northwest Side Coalition Against Racism & Hate)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"FOIA search adequacy","subject_description":"The requester sought communications regarding library business that were conducted via the personal accounts and devices of library trustees.","ocr_status":"ok","ocr_quality":92.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_d/Personal-Accounts/70344%2070349%2070357%2070358%2C%20issued%20May%2017%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personal email","public records","search adequacy","library board"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 17, 2022\n\nVia electronic mail\nMr. David Sutherland\nOrganizer\nNorthwest Side Coalition Against Racism & Hate\ndave@nwscoalition. com\n\nVia electronic mail\nMr. Gregory J. Pritz\nAssistant Director\nBusiness and Operations Manager\nNiles- Maine District Library\n[street address redacted for site publication -- see original PDF]\ngpritz@nileslibrary.org\n\nRE: FOIA Requests for Review: 2021 PAC C-0099 (2022 PAC 70344) \n2021 PAC C-0102 ( 2022 PAC 70349) \n2021 PAC C-0104 (2022 PAC 70357) \n2021 PAC C-0105 ( 2022 PAC 70358) \n\nDear Mr. Sutherland and Mr. Pritz: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). This office has consolidated four\nRequests for Review in this determination because they concern similar issues and legal\narguments. For the reasons that follow, the Public Access Bureau concludes that the responses\nby the Niles- Maine District Library ( Library) to Mr. David Sutherland' s June 17, 2021, and June\n18, 2021, FOIA requests violated FOIA. \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17, 2022\nPage 2\n\nBACKGROUND\n\n2021 PAC C-0105\n\nOn June 17, 2021, Mr. Sutherland, on behalf of the Northwest Side Coalition\n\nAgainst Racism & Hate, submitted a FOIA request to the Library seeking copies of all \" records\nand communications * * * regarding the 'Communications, Technology and Procedural\nConsultant' contract between January 1, 2021 and the date this request\nincluding\nany communications on privately owned devices.1 The request noted that a copy of the proposal\nby the consultant, Steven Yasell, had been previously furnished in response to another request\nbut stated: \" It is unclear as to how this proposal was solicited by the Niles-Maine District\nLibrary Board and why.\" 2 On June 26, 2021, the Library responded by stating it had no\nresponsive records. On July 8, 2021, Mr. Sutherland submitted a complete Request for Review\nchallenging the completeness of the Library' s response. \n\nis processed[,]\" \n\n2021 PAC C-0099, 2021 PAC C-0102, and 2021 PAC C-0104\n\nOn June 18, 2021, Mr. Sutherland submitted a FOIA request to the Library\n\nseeking copies of \"all correspondence in Niles-Maine District Library Board Trustee Olivia\nHanusiak' s possession regarding library business in systems not maintained by the Niles- Maine\nDistrict Library\" from May 19, 2021, to the date of the request.3 That same day, Mr. Sutherland\nsubmitted two more FOIA requests similarly seeking copies of all correspondence regarding\nlibrary business in the possession of two other trustees, Joe Makula and Suzanne Schoenfeldt, \nthat were not maintained by the Library. All three requests cited City of Champaign v. Madigan, \n2013 IL App (4th) 120662, 992 N.E.2d 629 (2013), and Binding Opinion 16-006 issued by the\nAttorney General for the proposition that \"[ c] ommunications pertaining to the transaction of\npublic business are public records, even on personal accounts.\" 4 On June 26, 2021, the Library\nresponded by stating that it did not possess any public records responsive to the three requests. \nOn July 8, 2021, Mr. Sutherland submitted complete Requests for Review challenging the\ncompleteness of the Library' s responses. \n\n1FOIA request from Northwestside Coalition to Niles-Maine District Library (June 17, 2021). \n\n2FOIA request from Northwestside Coalition to Niles-Maine District Library (June 17, 2021). \n\n3FOIA request from Northwestside Coalition to Niles-Maine District Library (June 18, 2021). \n\n4FOIA requests from Northwestside Coalition to Niles -Maine District Library (June 18, 2021). \n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17, 2022\nPage 3\n\nOn July 19, 2021, this office forwarded copies of the four Requests for Review to\n\nthe Library and asked it to provide detailed descriptions of its searches for responsive records. \nOn August 10, 2021, this office received a consolidated response to 2021 PAC C-0099, 2021\nPAC C-0102, and 2021 PAC C-0104, including supporting material for this office' s confidential\nreview.5 On August 13, 2021, this office forwarded a copy of the Library's response to Mr. \nSutherland; he submitted a reply on August 19, 2021. On August 24, 2021, this office received a\nwritten response to 2021 PAC C-0105 that consisted of both a complete version of its written\nresponse for this office' s confidential\nreview and a redacted version for this office to forward to\nMr. Sutherland.6 On August 25, 2021, this office forwarded a copy of the redacted response to\nMr. Sutherland; he did not submit a reply to that answer. \n\nDETERMINATION\n\nFOIA is intended to ensure public access to \" full and complete information\n\nregarding the affairs of government and the official acts and policies of those who represent them\nas public officials and public employees[.]\" 5 ILCS 140/ 1 ( West 2020). FOIA, however, \" is not\nintended to cause an unwarranted invasion of personal privacy[.]\" 5 ILCS 140/1 (West 2020). \nIn accordance with these policies, FOIA requires that \"[ e] ach public body shall make available to\nany person for inspection or copying all public records, except as otherwise provided in\nSections 7 and 8.5 of this Act.\" ( Emphasis added.) 5 ILCS 140/ 3(a) ( West 2020). \n\nWhen presented with a FOIA request, a public body is required to conduct a\n\nreasonable search tailored to the nature of a particular request.\" Campbell v. U.S. Department\nof Justice, 164 F.3d 20, 28 ( D.C. Cir. 1998); see also Steinberg v. DOJ, 23 F.3d 548, 551 ( D.C. \nCir.1994) (\" The question [ whether a public body's search was sufficient] is not whether other\nresponsive records may exist, but whether the search itself was adequate.\"). The adequacy of a\npublic body's search for responsive records is judged by a standard of reasonableness and\ndepends upon the particular facts of the case. Better Government Ass' n v. City of Chicago, 2020\nIL App (1st) 190038, ¶31, 169 N.E.3d 1066, 1076 (2020). \" Although a public body is not\nrequired to perform an exhaustive search of every possible location, the body must construe\nFOIA requests liberally and search those places that are 'reasonably likely to contain responsive\n\n5See 5 ILCS 140/9.5(d) (West 2020) (\" The Public Access Counselor shall forward a copy of the\n\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy.\"). \n\n6See 5 ILCS 140/9.5(d) (West 2020) (\" The Public Access Counselor shall forward a copy of the\n\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy.\"). \n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17, 2022\nPage 4\n\nrecords.'\" Better Government Ass'n, 2020 IL App (1st) 190038, ¶31, 169 N.E.3d at 1076\nquoting Judicial Watch, Inc. v. U.S. Dep' t of Justice, 373 F. Supp. 3d 120, 126 ( D.D.C. 2019)). \n\nSection 2(c) of FOIA ( 5 ILCS 140/ 2(c) ( West 2020)) defines \" public records\" as\nall records * * * pertaining to the transaction of public business, regardless of physical form or\ncharacteristics, having been prepared by or for, or having been or being used by, received by, in\nthe possession of, or under the control of any public body.\" A record pertains to the transaction\nof public business when it \"pertain[ s] to 'business or community interests as opposed to private\naffairs.' Indeed, FOIA is not concerned with an individual's private affairs.\" City of Champaign\nv. Madigan, 2013 IL App ( 4th) 120662, ¶ 31, 992 N.E.2d 629, 637 ( 2013). \n\nIn City of Champaign v. Madigan, 2013 IL App ( 4th) 120662, ¶ 64, 992 N.E.2d\n\n629, 643 (2013), the Illinois Appellate Court affirmed a trial court's decision to uphold a binding\nopinion7 in which the Attorney General concluded that e- mails and text messages concerning\npublic business that were sent or received by city council members on their personal devices\nduring a public meeting were \" public records\" subject to the requirements of FOIA. The court\nheld that the communications were in the possession of the city council because a quorum was\npresent and acting collectively as a public body at the time. City of Champaign, 2013 IL App\n4th) 120662, ¶¶40, 42-43, 992 N.E.2d at 639-40. The court also stated that \"[ u]nder this\ninterpretation, a message from a constituent ' pertaining to the transaction of public business' \nreceived at home by an individual city council member on his personal electronic device would\nnot be subject to FOIA\" unless \" it was forwarded to enough members of the city council to\nconstitute a quorum for that specific body[.]\" City of Champaign, 2013 IL App (4th) 120662, \n41, 992 N.E.2d at 639. That reasoning, however, was not part of the court' s holding as records\nfrom individual constituents were not at issue in the case. \n\nIn Better Goverment Ass'n v. City of Chicago, 2020 IL App (1st) 190038, ¶36, \n\n169 N.E.3d 1066, 1078 ( 2020), the Illinois Appellate Court upheld the lower court' s finding that\nthe defendants did not perform a reasonable search for responsive records because they did not\ninclude searches of the personal e-mails and text messages of the relevant officials. In that case, \nthe plaintiff submitted two FOIA requests to the City of Chicago Mayor's Office and Department\nof Public Health seeking copies of certain communications involving specified officials. Better\nGovernment Ass'n, 2020 IL App (1st) 190038, ¶3, 169 N.E.3d at 1069. The Mayor's Office\nacknowledged that four officials named in the request used their personal e- mail accounts for\npublic business, but argued that it was not required, nor did it have the ability, to search those\naccounts for responsive records. Better Government Ass' n, 2020 IL App ( 1st) 190038, ¶ 4, 169\nN.E.3d at 1070. The defendants contended, in part, that those communications were not subject\n\n7Ill. Att'y Gen. Pub. Acc. Op. No. 11-006, issued November 15, 2011. \n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17, 2022\nPage 5\n\nto FOIA because they \"lack the requisite nexus to a public body.\" Better Government Ass'n, \n2020 IL App ( 1st) 190038, ¶ 19, 169 N.E.3d at 1073. The court rejected that argument: \n\nAlthough we agree with defendants that the individual officials\nidentified in the requests are not themselves public bodies under\nFOIA, this does not mean that their communications about public\nbusiness cannot be public records. Instead, it is sufficient that the\ncommunications were either prepared for, used by, received by, or\nin the possession of a public body. Better Government Ass'n, 2020\nIL App ( 1st) 190038, ¶ 19, 169 N.E.3d at 1073. \n\nin City of\n\nThe court also observed that the officials in question, unlike the city council\nChampaign, were not limited by quorum requirements in conducting public business and could\nmake unilateral decisions on behalf of their public bodies. Better Government Ass' n, 2020 IL\nApp (1st) 190038, ¶19, 169 N.E.3d at 1073. The court thus concluded that \"the e-mails and text\nmessages from those officials' personal accounts are ' in the possession of' a public body within\nthe meaning of FOIA. It is also reasonable to conclude that, at a minimum, many such\ncommunications are prepared for or eventually used by the public body.\" Better Government\nAss'n, 2020 IL App (1st) 190038, ¶19, 169 N.E.3d at 1073. Because the defendants did not make\nan inquiry into whether the personal\nany responsive records, the court affirmed the lower court's order directing the defendants to\nmake that inquiry. Better Government Ass' n, 2020 IL App ( 1st) 190038, ¶ 36, 169 N.E.3d at\n1078. \n\ntext messages and e- mail accounts of the officials contained\n\nIn addition, the Attorney General has issued a binding opinion concluding that e-\n\nmails pertaining to the transaction of public business that were sent to or from the personal e-\nmail accounts of Chicago Police Department (CPD) employees are subject to the requirements of\nFOIA. Ill. Att' y Gen. Pub. Acc. Op. No. 16- 006, issued August 9, 2016. CPD contended that the\ne-mails were not public records because they were prepared and possessed by individual officers\nbut were not received and used by CPD. Ill. Att' y Gen. Pub. Acc. Op. No. 16- 006, at 7. This\noffice rejected that argument as \" undercut[ting] the principle that public bodies act through their\nemployees\" and as \" erroneously focus[ ing] not on the content of a communication but on the\nmethod by which it is transmitted.\" Ill. Att'y Gen. Pub. Acc. Op. No. 16-006, at 7. The Attorney\nGeneral further concluded: \n\nInterpreting the definition of \"public records\" in FOIA to exclude\ncommunications pertaining to the transaction of public business\nwhich were sent from or received on personal e- mail accounts of\npublic officials and public employees would be contrary to the\nGeneral Assembly' s intent of ensuring full and complete\n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17, 2022\nPage 6\n\ninformation regarding the affairs of government. Such an\ninterpretation would yield an absurd result by enabling public\nofficials to sidestep FOIA and conceal how they conduct their\npublic duties simply by communicating via personal electronic\ndevices. Ill. Att'y Gen. Pub. Acc. Op. No. 16-006, at 7. (Emphasis\nadded.) \n\nParties' Arguments\n\nIn its response to this office, the Library maintained that the \" communications\n\ntrustee cannot bind a public body or take any action individually[.]\" 9\n\ninvolving the personal accounts and devices of Library trustees\" do not constitute \"public\nrecords\" subject to FOIA' s requirements. 8 Specifically, the Library argued that, based on City of\nChampaign, a communication on a trustee's private device is not subject to FOIA unless it is sent\nto a quorum of Board members or sent during a public meeting. The Library further argued that\nthe court's ruling in Better Government Ass'n did not overturn City of Madigan, including \"the\npremises that an individual\nThe Library asserted that its trustees did not have individual authority under the Public Library\nDistrict Act of 1991 to make decisions on behalf of the Library. Specifically, the trustees could\nonly function as a public body when a majority of a quorum is present.\" 10 Additionally, the\nLibrary contended that Binding Opinion 16- 006 is not applicable because the binding opinion\nonly addressed whether employee communications are subject to FOIA, whereas Mr. \nSutherland' s requests concerned communications involving elected officials who did not have\nindividual decision-making powers. Consistent with this position, the Library explained that to\nsearch for records responsive to the June 18, 2021, requests, it had \" asked all of the trustees at\nissue whether or not they had any responsive records to this FOIA request that would meet the\nCity of Champaign public records exceptions for private trustee communications, and they all\nsearched their records and stated in writing that they have no responsive records[.]\" 11 The\nLibrary noted, however, that the proposal\nJune 17, 2021, request \" was ultimately considered and approved by the Library Board and\n\nin the e- mail that was the subject of Mr. Sutherland' s\n\nGeneral, Public Access Bureau (August 24, 2021), at 2. \n\n8Letter from Mallory Milluzzi, Klein, Thorpe and Jenkins, Ltd., to Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau (August 24, 2021), at 2. \n\n9Letter from Mallory Milluzzi, Klein, Thorpe and Jenkins, Ltd., to Teresa Lim, Assistant Attorney\n\nAttorney General, Public Access Bureau (August 24, 2021), at 2. \n\n10Letter from Mallory Milluzzi, Klein, Thorpe and Jenkins, Ltd., to Teresa Lim, Assistant\n\nAttorney General, Public Access Bureau (August 10, 2021), at 2. \n\n11Letter from Mallory A. Milluzzi, Klein, Thorpe & Jenkins, Ltd., to Teresa Lim, Assistant\n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17, 2022\nPage 7\n\nbecause] there [ are] so many questions surrounding this proposal, we are providing it in good\nfaith as part of this PAC review.\" 12\n\nIn his reply to this office, Mr. Sutherland expressed skepticism that the Library\n\nhad no records responsive to his June 18, 2021, requests. He contended that the Library \"ignores\nwhat has happened in the State of Illinois and nationwide and worldwide since City of\nChampaign was decided on July 16, 2013: pandemic and virtual meetings of public bodies\nattended by public officials on personal devices.\" 13 He asserted that \"[ i]t is not only conceivable\nbut practical that public officials join the 'public body' via their personal devices during this time; \nconceivable that public officials can communicate about ' public business' on their personal\ndevices during any meeting of the 'public body' while off screen[,]\" and that public officials\nmight otherwise engage in public business outside of physical meetings without the public being\naware of those activities.14 Mr. Sutherland stated that in response to prior FOIA requests to the\nLibrary, he had learned that the Library' s Board president had \" proposals and letters of\nagreement that were never received via the Library network\" but instead sent to her \"only\nthrough her own private email account.\" 15 He questioned how those documents could not\nconstitute public records: \" There is surely no requirement that a quorum of the body have also\nreceived these documents for them to be considered public records.\" 16 Mr. Sutherland also\nquestioned the adequacy of the Library's method of asking the named trustees to search their\naccounts for responsive records. \n\nConclusion\n\nThis office concludes that the Library did not perform an adequate search for\n\nrecords responsive to Mr. Sutherland's requests. Although it was reasonable for the Library to\n\nAttorney General, Public Access Bureau (August 24, 2021), at 3. \n\n12Letter from Mallory Milluzzi, Klein, Thorpe and Jenkins, Ltd., to Teresa Lim, Assistant\n\nLim (August 19, 2021). \n\n13E- mail from David Sutherland, Northwest Side Coalition Against Racism and Hate, to [Teresa] \n\nLim (August 19, 2021). \n\n14E- mail from David Sutherland, Northwest Side Coalition Against Racism and Hate, to [Teresa] \n\nLim (August 19, 2021). \n\n15E- mail from David Sutherland, Northwest Side Coalition Against Racism and Hate, to [Teresa] \n\nLim (August 19, 2021). \n\n16E- mail from David Sutherland, Northwest Side Coalition Against Racism and Hate, to [Teresa] \n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17, 2022\nPage 8\n\nrequest that the specified trustees search their own records,17 limiting the parameters of the\nsearch to only those communications forwarded to a quorum of its trustees or transmitted during\na Library Board meeting was too narrow to locate all responsive public records. The Library's\nargument relies on comments in City of Champaign about hypothetical\nrecords that were not at\nissue in that case, and the Library conflates the meanings of \"final action\" pursuant to the Open\nMeetings Act ( OMA) ( 5 ILCS 120/ 1 et seq. ( West 2020)) and \" public business\" under FOIA by\nasserting that e-mails that do not involve a quorum of Library Board members are not public\nrecords because individual Library Board members do not have authority to make decisions for\nthe Library Board under the Public Library District Act of 1991. OMA is intended \"to ensure\nthat the actions of public bodies be taken openly and that their deliberations be conducted\nopenly.\" (Emphasis added.) 5 ILCS 120/1 (West 2020). Because an individual trustee cannot\ntake final action attributable to the Library Board, an e- mail reflecting an individual Library\nBoard member's decision outside of a meeting would not constitute improper final action by a\npublic body under section 2(e) of OMA. 18 Nevertheless, a trustee can transact \" public business\" \neither through unilateral actions or by communicating on behalf of the Board to pursue its\nobjectives. The definition of \"public records\" in FOIA is not limited to those records that\ndocument final actions collectively taken by public bodies; FOIA defines \"public records\" to\nbroadly encompass \" all records * * * pertaining to the transaction of public business, * * * \nhaving been or being used by, received by, in the possession of, or under the control of any\npublic body.\" 5 ILCS 140/ 2(c) ( West 2020). \n\nTo construe the phrase \" possession of * * * any public body\" so narrowly would\nbe contrary to FOIA's purpose of ensuring full and complete information concerning the affairs\nof government. Under the Library' s narrow interpretation, elected officials could conceal records\ndocumenting how they conducted their public duties by simply electing not to use their public\nbodies' electronic devices, e- mail accounts, and recordkeeping systems. FOIA cannot reasonably\nbe construed as giving elected officials the option to withhold communications concerning public\nbusiness simply because the communications are maintained on personal e- mail accounts and do\nnot involve a quorum of the public body's members. To conclude otherwise would be to\ndetermine that it is permissible for elected officials to communicate on behalf of the public body\n\n17See Nissen v. Pierce County, 183 Wash. 2d 863, 886-87, 357 P.3d 45, 57 (Wash. 2015) \n\nA]gency employees are responsible for searching their files, devices, and accounts for records responsive to a\n\nrelevant [ public records] request. * * * When done in good faith, this procedure allows an agency to fulfill its\nresponsibility to search for and disclose records without unnecessarily treading on the constitutional rights of its\nemployees.\"). \n\n18Section 2(e) of OMA (5 ILCS 120/2(e) ( West 2020), as amended by Public Act 102-558, \n\neffective August 20, 2021; 102-237, effective January 1, 2022) provides: \" Final action shall be preceded by a public\nrecital of the nature of the matter being considered and other information that will inform the public of the business\nbeing conducted.\" \n\n\fr. David Sutherland\nMr. Gregory J. Pritz\nMay 17, 2022\nPage 9\n\nthey represent in secret so long as they use personal devices and accounts and do not copy a\nsufficient number of their fellow members. See Ill. Att' y Gen. Req. Rev. Ltr. 49623, issued\nFebruary 14, 2018 (concluding that e-mail communications sent by a county board member on\nhis personal account would be subject to FOIA if they pertained to the transaction of the county' s\nbusiness). \n\nAlthough the Library has now provided Mr. Sutherland with a copy of the e-mail\nto the Board President and it is therefore no longer at issue, \n\nin which Mr. Yasell sent a proposal\nthe record nevertheless illustrates how communications on trustees' private accounts can be\npublic records. On May 18, 2021, Mr. Yasell sent an e-mail to the Board President' s personal e-\nmail with a proposal that indicated it was \" From: Yissilmissil Productions\" and \" To: Niles-Maine\nDistrict Library[.]\" 19 Even though the e- mail conveying the proposal was sent to the Board\nPresident's personal e-mail address and did not copy a quorum of Board members, it was clearly\nprepared for the Library. The Board President received the communication because of her role\nwith the Board, and it would be absurd to conclude that the transmittal e-mail was not a public\nrecord solely because the Board President could not act alone in approving the proposal. \nFurther, it is reasonable to conclude that any preliminary communications with individual\ntrustees and other documents prepared for and used by the Board are public records subject to\nFOIA, regardless of how they were transmitted. \n\nThis office requests that the Library ask the trustees to perform additional\n\nsearches of their personal accounts and devices for any responsive communications pertaining to\nLibrary business within the specified time period. The Library should disclose copies of any\nresponsive records to Mr. Sutherland, subject to any permissible redactions. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\nAssistant Attorney General\nPublic Access Bureau\n\nC-0099 C-0102 C-0104 C-0105 f consol 3a search improper lib\n\n19E- mail from Steve Yassell to Joe Makula and Carolyn Drblik (May 18, 2021). \n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17, 2022\nPage 10\n\ncc: \n\nVia electronic mail\nMs. Mallory Milluzzi\nAttorney for Niles-Maines District Library\nKlein, Thorpe & Jenkins\n20 North Wacker Drive\nChicago, Illinois 60606\nmamilluzzi@ktjlaw.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Library trustees' communications via personal accounts","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":978,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-03-02","case_number":null,"request_numbers":["70498"],"title":"City of Chicago improperly withheld parking ticket locations and license plates under 7(1)(c)","filename":"70498, issued March 2, 2023.pdf","rel_path":null,"word_count":1892,"summary":"A journalist requested parking ticket data from the City of Chicago, but the City withheld location and license plate information citing privacy concerns. The PAC determined the City failed to prove these records were exempt and ordered their disclosure.","plain_summary":"A journalist asked the City of Chicago for details on parking tickets, including where they were issued and the license plate numbers of the vehicles. The City refused to provide this information, claiming it could reveal private details about drivers. The Attorney General's office disagreed, stating the City did not provide enough evidence to justify keeping the records secret, and ordered the City to release the information.","holding":"The City of Chicago Department of Finance improperly withheld ticket issuance locations and license plate numbers by failing to meet its burden of proof for the claimed exemptions.","legal_question":"Did the City of Chicago meet its burden of proof to demonstrate that parking ticket location data and license plate numbers are exempt from disclosure under FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"City of Chicago Department of Finance","requesting_party":"Mr. Christopher Hacker (CBS Chicago)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request sought specific data fields for parking tickets issued by the City of Chicago between 2015 and 2022.","ocr_status":"ok","ocr_quality":96.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c-5/70498%2C%20issued%20March%202%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["parking tickets","privacy","license plate","public records","data disclosure"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 2, 2023\n\nVia electronic mail\nMr. Christopher Hacker\nMulti-Platform Producer/ Data Journalist\ncmhacker@cbs. com\n\nVia electronic mail\nMr. Francis R. Davis\nFOIA Officer, Assistant Director\nCity of Chicago Department of Finance\n[street address redacted for site publication -- see original PDF]\nfrank. davis@cityofchicago. org\n\nRE: FOIA Request for Review – 2022 PAC 70498; FOIA F016543- 021422\n\nDear Mr. Hacker and Mr. Davis: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the City of Chicago ( City) Department of\nFinance ( Department) to Mr. Christopher Hacker' s February 14, 2022, FOIA request violated the\nrequirements of FOIA. \n\nOn that date, Mr. Hacker, on behalf of CBS Chicago, submitted a FOIA request to\n\nthe Department seeking certain information concerning parking tickets the City has issued. \nSpecifically, he sought the following fields of information for each ticket issued from 2015 to\nFebruary 14, 2022: \n\nDate issued\nLocation issued ( address) \nReason ( e.g. city ordinance cited) \nVehicle make, model and year\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. Christopher Hacker\nMr. Francis R. Davis\nMarch 2, 2023\nPage 2\n\nLicense plate number or unique identifier for each vehicle\nticketed\nWhether the ticket was appealed\nIf appealed, appeal outcome[ 1] \n\nOn March 9, 2022, the Department provided Mr. Hacker with a data file that included ticket\nnumbers, notice numbers, dates and times the tickets were issued, violation codes, violation\ndescriptions, vehicle makes, hearing disposition, and hearing disposition reasons. The\nDepartment stated that pursuant to section 7(1)(c)2 of FOIA, it withheld the names of the\nindividuals to whom the vehicles were registered who received tickets in the mail. On March 14, \n2022, Mr. Hacker filed this Request for Review alleging that the Department' s response was\nincomplete in that it did not include information on the ticket locations or the license plate or\nother unique identifiers for each vehicle ticketed. He further explained that he did not seek the\nnames of the individuals who were ticketed, so it is unclear why the Department stated that it\nwithheld that information. \n\nOn March 22, 2022, this office sent a copy of the Request for Review to the\n\nDepartment and asked it to respond in writing to Mr. Hacker' s contention that the Department' s\nresponse is incomplete. In particular, this office asked the Department to clarify whether it\ntracks ticket locations and the license plate numbers of ticketed vehicles. If so, this office asked\nthe Department whether it considers that information to be exempt from disclosure and the basis\nfor that position. On March 30, 2022, the Department responded, asserting that the ticket\nlocation and license plate numbers are exempt from disclosure pursuant to sections 7(1)(b) 3 and\n7(1)(c) of FOIA. On March 31, 2022, this office forwarded the Department' s response to Mr. \nHacker; he did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1.2 (West 2020). Section 3(a) of FOIA ( 5 ILCS 140/ 3(a) ( West 2020)) further provides: \nEach public body shall make available to any person for inspection or copying all public\nrecords, except as otherwise provided in Sections 7 and 8.5 of this Act.\" The exemptions from\n\nFOIA Officer ( February 14, 2022). \n\n1E- mail from Christopher Hacker, Multi-Platform Producer/ Data Journalist, CBS Chicago, to\n\n25 ILCS 140/ 7(1)(c) (West 2021 Supp.). \n\n35 ILCS 140/ 7(1)(b) (West 2021 Supp.). \n\n\fMr. Christopher Hacker\nMr. Francis R. Davis\nMarch 2, 2023\nPage 3\n\ndisclosure contained in section 7 of FOIA ( 5 ILCS 140/ 7 (West 2021 Supp.)) are to be narrowly\nconstrued. See Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407\n1997). \n\nIn its response to this office, the Department explained that Mr. Hacker has\n\nsubmitted several FOIA requests seeking ticket data. The Department previously provided him\nwith ticket data from 2015 - 2021 including ticket numbers, issue dates, locations, camera IDs, \nvehicle speeds, posted speed, fine level, violation codes, and descriptions. In the FOIA request\nat issue here, the Department provided parking \" ticket numbers, violation codes, fines assessed, \nand the dates and times that tickets were issued[,]\" 4 among other things. The Department\nargued: \n\nMr. Hacker previously received a considerable amount of data\nfrom [ the Department], including the ticket issuance addresses at\nissue here. Since Mr. Hacker already had violation ticket numbers\nand locations, providing this information along with license plate\nnumbers would enable the datasets to be combined [ in a manner\nthat] could connect individual tickets to identifiable individuals. In\norder to \" anonymize\" this data and protect the personal privacy of\nthe ticketed parties, [ the Department] redacted the license plate\nnumbers and the addresses of the violations pursuant to Section\n7(1)(b) and ( c).[5] \n\nSection 7(1)(b) of FOIA\n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\" \nSection 2(c-5) of FOIA ( 5 ILCS 140/ 2(c-5) (West 2020)) defines \" private information\" to\ninclude \" personal\npossibility of attribution to any person.\" \n\nlicense plates, except as otherwise provided by law or when compiled without\n\n4Letter from Francis R. Davis, Freedom of Information Officer, City of Chicago, Department of\n\nFinance, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General ( March 30, \n2022), at [ 2]. \n\n5Letter from Francis R. Davis, Freedom of Information Officer, City of Chicago, Department of\n\nFinance, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General ( March 30, \n2022), at [ 2]. \n\n\fMr. Christopher Hacker\nMr. Francis R. Davis\nMarch 2, 2023\nPage 4\n\nAs an initial matter, the Department withheld all of the license plate numbers\nwithout regard to whether they were personal rather than belonging to rental car companies, \nother businesses, or government agencies. Regardless of whether the license plates could be\nattributed to an individual, if the license plate is not personal, it is not exempt pursuant to section\n7(1)(b). \n\nAssuming some of the license plates are personal, the Department also argued that\neven though Mr. Hacker did not request the identities of the individuals who received the tickets, \nwhen combined with the information that has already been made public, the license plate\nnumbers at issue are attributable to specific persons.\" 6 However, the Department has not\nexplained, nor is it apparent to this office, how the disclosed information could be used with the\nlicense plate numbers to identify individuals. Accordingly, this office concludes that the\nDepartment has not met its burden of establishing that the license plate numbers are exempt\npursuant to section 7(1)(b) of FOIA. \n\nSection 7(1)( c) of FOIA\n\nSection 7(1)( c) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)( c) defines \" unwarranted invasion of personal privacy\" \nas \" the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject' s right to privacy outweighs any legitimate public interest in obtaining\nthe information. The disclosure of information that bears on the public duties of public\nemployees and officials shall not be considered an invasion of personal privacy.\" \n\nThe Department argued in its response to this office that it withheld the ticket\n\nissuance location information and the license plate numbers because it wanted to prevent the data\nfrom being used to identify individuals. As discussed above, it is not clear how this information\ncould be used to identify individuals. Even assuming it could be used to identify individuals, the\ndisclosure of the identities of individuals who received parking tickets is not highly personal or\nobjectionable to a reasonable person. A ticket, citation, or notice to appear is a document by\nwhich the prosecution for a violation of an ordinance is commenced, and is therefore available\nfor public inspection unless sealed by the court. \n\nlicense plate numbers to reveal personal\n\nThe Department also contends that the ticket location could be combined with the\ninformation about individuals. It stated that Mr. Hacker\n\n6Letter from Francis R. Davis, Freedom of Information Officer, City of Chicago, Department of\n\nFinance, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General ( March 30, \n2022), at [ 4]. \n\n\fr. Christopher Hacker\nMr. Francis R. Davis\nMarch 2, 2023\nPage 5\n\nsought seven years' worth of [the Department' s] ticketing data, \nwhich, when combined with license plate numbers, allows the\nrequester to search the data set by location, then limit by plate\nnumbers. In this manner, the data set would provide patterns\nwhere specific individuals are issued tickets in specific areas, \nallowing this data set to serve as a method to determine someone' s\nplace of work or the location of their home. * * * No one that is\nissued a ticket expects that their personal\ninformation is going to\nbe made publicly available[.][ 7] \n\nThe Department' s contention that disclosure of the ticket locations and license\n\ninformation is speculative. Even assuming\n\nplates would lead to the disclosure of highly personal\nthat the provided information could identify individuals, the Department has not provided any\nexamples from the responsive data to support its contention that highly personal\ncould be gleaned from patterns in the data. The Department has not established that any of the\ninformation could lead to the definitive identification of an individual' s home or workplace. \nAccordingly, this office concludes that the Department has not met its burden of establishing by\nclear and convincing evidence that the ticket location information and the related license plate\nnumbers are exempt from disclosure. \n\ninformation\n\nIn accordance with the conclusions expressed above, this office requests that the\n\nDepartment disclose to Mr. Hacker the ticket issuance locations and license plate numbers\nassociated with the tickets responsive to his request. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at laura.harter@ilag. gov or (217) 843- 0564. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n70498 f 71b improper 71c improper mun\n\n7Letter from Francis R. Davis, Freedom of Information Officer, City of Chicago, Department of\n\nFinance, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General ( March 30, \n2022), at [ 3]. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Parking ticket data fields from 2015 to 2022","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":979,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-08-23","case_number":null,"request_numbers":["70612"],"title":"Cook County Sheriff's Office did not violate FOIA by refusing to create a new record from existing data","filename":"70612, issued August 23, 2024.pdf","rel_path":null,"word_count":3811,"summary":"The requester sought specific metadata regarding audio recordings of calls made by individuals under electronic monitoring, but the Cook County Sheriff's Office denied the request on the basis that the records did not exist in the requested format. The PAC determined that the Sheriff's Office was not required to create a new record by compiling and manipulating data from separate databases to satisfy the request.","plain_summary":"Mr. Chapman asked the Cook County Sheriff's Office for a list of metadata related to phone calls made by people on electronic monitoring. The Sheriff's Office refused, arguing that the information wasn't already compiled in a single report. The Attorney General's office agreed, stating that FOIA does not require public bodies to create new documents or combine data from different databases to answer a request.","holding":"The Cook County Sheriff's Office did not violate FOIA because it is not required to create a new record to fulfill a request.","legal_question":"Does FOIA require a public body to create a new record by compiling and manipulating data from existing databases to satisfy a request?","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Cook County Sheriff's Office","requesting_party":"Mr. Matt Chapman","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"creation of records","subject_description":"The requester sought a compilation of metadata regarding audio recordings of calls made by individuals under electronic monitoring.","ocr_status":"ok","ocr_quality":92.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_d/Data-Requests/70612%2C%20issued%20August%2023%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["creation of records","electronic monitoring","data compilation","FOIA request"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"August 23, 2024\n\nVia electronic mail\nMr. Matt Chapman\nmatt@mchap. io\n\nVia electronic mail\nMr. Rob Olmstead\nDeputy General Counsel for Public Policy and Information\nCook County Sheriff' s Office\n[street address redacted for site publication -- see original PDF]\nrobert. olmstead@ccsheriff. org\n\nRE: FOIA Request for Review – 2022 PAC 70612 ( 2021- PAC- C-0191) \n\nFOIA R019181- 073021\n\nDear Mr. Chapman and Mr. Olmstead: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA). 1\n\nOn July 30, 2021, Mr. Matt Chapman submitted a FOIA request to the Cook\n\nCounty Sheriff' s Office ( Sheriff' s Office) seeking certain data for calls made concerning\nindividuals under electronic monitoring ( EM). Specifically, he sought: \n\nThe following information for all audio for all calls made or\nreceived by Protocol relating to any person on EM under CCSO[:] \n1. Person being called\n2. Relationship to person being called\n3. Whether call is for primary contact or secondary contact ( or\nother) \n\n15 ILCS 140/9.5(f) (West 2023 Supp.). \n\n\fMr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 2\n\n4. Date and time of audio start. \n5. Date and time of audio end. \n6. Size of audio file. \n7. Booking ID\nPlease limit the timeframe of this request from Jan. 1, 2020 to [ July\n30, 2021].[ 2] \n\nOn August 6, 2021, the Sheriff' s Office informed Mr. Chapman that it had previously produced\ncall data to him in response to FOIA request number R016665- 052521. Later the same day, Mr. \nChapman responded to the Sheriff' s Office, stating that the response to R016665- 052521 did not\nsatisfy his current request. He clarified that his request sought information about the call\nrecordings and noted \"[ t]o the extent that Protocol BI has the ability to look up recordings by\nperson, then the functionality, by necessity, exists to complete this request, though likely through\na database query.\" 3 On August 10, 2021, the Sheriff' s Office informed Mr. Chapman that\nProtocol' s case management system cannot query audio files in conjunction with the fields\nrequested\" 4 and stated that it could not generate a report responsive to his request. Mr. Chapman\nthen asked the Sheriff' s Office if it could contact the database vendor to arrange for it to run a\nquery for the responsive information. On August 11, 2021, the Sheriff' s Office responded: \n\nThe fields you are requesting are not extractable from the case\nmanagement system as a collective. Your request would require\ndedicated development work by County vendors to create a\ncustomized query and functionality that serves no purpose except\nto address your FOIA. FOIA does not require the creation of a\nnew record in response to a FOIA request that is not kept in the\nnormal course of business.[ 5] \n\nLater the same day, Mr. Chapman submitted this Request for Review challenging the Sheriff' s\nOffice' s denial. He contended that running a query in the database would not be the creation of a\nnew record. \n\nOn August 26, 2021, this office sent a copy of the Request for Review to the\nSheriff' s Office and requested a detailed written explanation in response to Mr. Chapman' s\n\n2FOIA Request submitted by Matt Chapman. \n\nOfficer/ Legal Department] ( August 6, 2021). \n\n3Message from [ Matt Chapman] to Elizabeth [ Scannell, Cook County Sheriff' s Office, FOIA\n\n4Message from Beth Scannell to [Matt Chapman] ( August 10, 2021). \n\nDepartment, to Matt Chapman ( August 11, 2021). \n\n5Message from Elizabeth Scannell, Cook County Sheriff' s Office, FOIA Officer/ Legal\n\n\fMr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 3\n\nallegations. On September 16, 2021, the Sheriff' s Office responded. On September 17, 2021, \nthis office forwarded the Sheriff' s Office' s response to Mr. Chapman; he replied on September\n22, 2021. On February 7, 2022, Mr. Chapman submitted additional\nlight of the information in Mr. Chapman' s February 7, 2022, correspondence, on May 5, 2022, \nthis office sent another letter of inquiry to the Sheriff' s Office. It responded on May 31, 2022. \nOn June 3, 2022, this office forwarded that response to Mr. Chapman; he submitted a reply on\nJune 9, 2022. \n\ninformation to this office. In\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 ( 2006). The requirements of FOIA apply to\npublic records,\" which are records \" having been prepared by or for, or having been or being\nused by, received by, in the possession of, or under the control of any public body.\" 5 ILCS\n140/ 2(c) (West 2020). \" In this expansive definition of 'public records,' the legislature recognizes\nthat information or documentation may be stored in myriad media, some physical and some not. \nIllinois case law has long held that electronic records may be public records subject to FOIA.\" \nHites v. Waubonsee Community College, 2016 IL App (2d) 150836, ¶ 57. A public body must\nperform a reasonable search for responsive records under the circumstances of each request. \nBetter Government Ass'n v. City of Chicago, 2020 IL App (1st) 190038, ¶ 31. However, \"[ a] \nrequester is entitled only to records that an agency has in fact chosen to create and retain.\" \nYeager v. Drug Enforcement Administration, 678 F.2d 315, 321 ( D.C. Cir. 1982). \n\nIn Hites, the Illinois Appellate Court analyzed a series of requests for information\ncontained in multiple databases. The Hites court distinguished requests for raw data maintained\nin a public body' s databases from requests seeking information about the data, which would\nrequire the creation of new records. The court analogized a database to a file cabinet and stated\nthat \" the data that populates the database is like the files. FOIA permits a proper request for a\nsingle file, some of the files, or all of the files.\" Hites, 2016 IL App (2d) 150836, ¶ 71. The\ncourt held that compiling raw data already maintained in databases and available through\ncomputerized searches of the public body' s databases did not involve the creation of new records, \neven if the public body had to create and apply computer programming or coding to retrieve the\ninformation. Hites, 2016 IL App (2d) 150836, ¶¶ 75-81. \n\nWhile raw data that were previously compiled and available through\n\ncomputerized searches of a database are subject to disclosure, \" FOIA was not designed to\ncompel the compilation of data not ordinarily kept by the public body.\" Hites, 2016 IL App (2d) \n150836, ¶¶ 75-80 (public body not obligated under FOIA to provide a listing of search results or\nto create records reflecting totals that had not been previously compiled from its data); see also\nChicago Tribune Co. v. Dep't of Financial & Professional Regulation, 2014 IL App (4th) \n\n\fMr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 4\n\n130427, ¶ 37 (State agency not required to respond to a request seeking the number of claims\nagainst certain doctors by calculating the number and creating a new record). Additionally, \nFOIA does not require a public body to manually compile information from multiple sources and\ncreate a custom report for a requester. See Martinez v. Cook Cty. State' s Attorney' s Office, 2018\nIL App 1st 163153, ¶ 25 ( request that would have required public body to manually review its\nfiles and compile each \" instance\" in which it \"used\" specific information did not reasonably\ndescribe a record but instead was a general request for data that was \" scattered throughout [ the\npublic body' s] records\"); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 61967, issued November 18, \n2020, at 4-5 (concluding that where school district did not maintain responsive demographic and\ntesting data in one database, but rather across multiple sources and departments, \" FOIA does not\nrequire a public body to collect, cross reference, match, and collate various data scattered\nthrough its departments and multiple databases.\"). \n\nArguments\n\nIn its September 17, 2021, answer to this office, the Sheriff' s Office explained that\nCook County contracted with Track Group, Inc. to provide equipment and technology for its EM\nprograms \" and Track Group has in turn subcontracted with B.I. Incorporated ( d/b/a Protocol) to\nprovide call center monitoring and case management services. B.I. Incorporated uses a case\nmanagement system called Protocol to track alerts generated by EM devices and how those alerts\nare resolved.\" 6 The Sheriff' s Office explained that B.I. maintains records of outbound calls using\na telephone switch, but that data is maintained separately from the Protocol database, \" meaning\nthere is no formal data integration between the telephone switch and the case management\nsystem.\" 7 Neither Protocol nor the telephone switch database contains all of the information Mr. \nChapman requested: \n\nAudio files are maintained separately by B.I. Incorporated and are\ncategorized and retrievable based on the outbound call number. \nThey are not maintained or categorized by participant name or ID. \nThe data imprint of an audio file cannot be extracted in\nconjunction with other data fields related to a participant, nor is the\naudio file stored in such a way that it captures any of the other\nfields Mr. Chapman requested.[ 8] \n\nHarter, Deputy Bureau Chief, Public Access Counselor, Illinois Attorney General ( September 16, 2021), at 1. \n\n6Letter from Elizabeth Scannell, Deputy General Counsel, Cook County Sheriff's Office, to Laura\n\n7Henry Conforti Aff. ¶6 (June 1, 2021). \n\nHarter, Deputy Bureau Chief, Public Access Counselor, Illinois Attorney General ( September 16, 2021), at 2. \n\n8Letter from Elizabeth Scannell, Deputy General Counsel, Cook County Sheriff's Office, to Laura\n\n\fMr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 5\n\nThe Sheriff' s Office explained that while outbound call data may be exported from the telephone\nswitch database, it would include all B.I. customers, not just Sheriff' s Office data. There are no\nidentifiers, such as booking ID numbers, within the telephone switch database by which the\nrecords could be sorted by Sheriff' s Office data. \n\nIn his September 22, 2021, reply, Mr. Chapman suggested that the Sheriff' s Office\n\nprovide B.I. with a list of EM participants' phone numbers and booking ID numbers. Mr. \nChapman argued that the Sheriff' s Office or its contractors could then filter the telephone switch\ncall log records by calls made only to devices that are worn by the Sheriff' s Office' s EM\nparticipants and then provide him with information sufficient to satisfy his request. He also\nnoted that he is aware \" that agents at the call center track their calls through notes and I'm aware\nthat the notes themselves cannot be compiled in a way to satisfy the requirements of my request\nwithout undue burden.\" 9\n\nIn response to Mr. Chapman' s suggestion, the Sheriff' s Office explained that \"[ t]o\nfulfill Mr. Chapman' s FOIA request, all phone numbers provided for each EM participant would\nneed to be pulled from the case management system and merged with the call data system to find\nmatches.\" 10 The Sheriff' s Office explained that: \n\na query [ in the telephone switch database] for an individual record\ncan take 2 to 30 minutes. We estimate that around 10,000 people\nspent at least one day on EM during the timeframe Mr. Chapman\nseeks ( 18 months). Among those 10,000 participants, multiple\nphone numbers may be associated with the participant ( between\nthe site host and other contacts for the participant). The amount of\ntime and effort required to pull those records would put\nextraordinary strain on Protocol' s monitoring capabilities.[ 11] \n\n9Letter from Matt Chapman to Illinois Attorney General' s PAC Office ( September 21, 2021), at\n\n1]. \n\n10Letter from Sarah M. Smith, Assistant General Counsel, FOIA Officer Law Department, \n\nSheriff' s Office of Cook County, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General ( May 26, 2022), at [ 2]. \n\n11Letter from Sarah M. Smith, Assistant General Counsel, FOIA Officer Law Department, \n\nSheriff' s Office of Cook County, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General ( May 26, 2022), at [ 2]. \n\n\fMr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 6\n\nThe Sheriff' s Office stated that \"[ e] ach phone number would have to be queried separately ( with\nan estimate of 2-30 minutes for each query depending on the amount of information\navailable).\" 12\n\nMr. Chapman disputed that it would take the Sherriff' s Office a significant\n\namount of time to run the necessary query, arguing that it should be able to run a query for all\nphone numbers at once, particularly if the database is relational and the Sheriff' s Office can\ntherefore run a search using structured query language ( SQL). \n\nOn February 7, 2022, Mr. Chapman provided this office with a copy of\n\ninformation he had obtained from an attorney who represents an individual who is a participant\nin the Sheriff' s Office' s EM program. 13 Specifically, Mr. Chapman submitted a screenshot of\ninformation he believed was automatically generated by Track Group from a database containing\nEM call information. The screenshot reflected the start time of a call, the duration of the call, the\nphone number called, a user name, and a reference number, among other things, for a specific\nSheriff' s Office EM participant. Mr. Chapman asserted that this screenshot supports his\ncontention that the Sheriff' s Office' s contractors can run a database query to extract some or all\nof the information responsive to his request. \n\nIn response to the information submitted by Mr. Chapman, the Sheriff' s Office\n\nstated that, without knowing more about the origin of the record, it could only assume that it was\npulled using an individual' s phone number. The Sheriff' s Office contended that \" Protocol and\nthe CCSO have never disputed Protocol' s capability to do this. However, Mr. Chapman' s FOIA\nrequest does not seek call information based on an individual participant or phone number. \nInstead, it seeks all call data information for all CCSO EM participants between January 1, 2020\nand] July 30, 2021.\" 14\n\nAnalysis\n\nMr. Chapman has conceded that to the extent information he sought is stored in\nProtocol' s \" Notes\" field, it is unduly burdensome to compile that information in the manner he\nrequested. Therefore, the data categories at issue are booking ID number from the Protocol\ndatabase and any available outbound call data from the telephone switch database. It is\nundisputed that the Sheriff' s Office possesses data on outbound calls to EM participants and that, \n\n12E- mail from [ Sarah Smith] to Laura [ Harter] ( June 1, 2022). \n\npursuant to a subpoena issued to Track Group. \n\n13Mr. Chapman informed this office that the attorney obtained the data shown in the screenshot\n\n14Letter from Sarah M. Smith, Assistant General Counsel, FOIA Officer Law Department, \n\nSheriff' s Office of Cook County, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General ( May 26, 2022), at [ 2]. \n\n\fMr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 7\n\naside from the telephone numbers themselves, the data are public records subject to disclosure. 15\nIt is also undisputed that the responsive information is stored in two separate databases. The\nSheriff' s Office first argued that compiling the information Mr. Chapman requested \" would\nrequire dedicated development work by County vendors to build new features in the Protocol\nsystem to connect separately stored files to alert data.\" 16 The Sheriff' s Office then shifted its\nargument to assert that \" all phone numbers provided for each EM participant would need to be\npulled from [ Protocol] and merged with the [ telephone switch database] to find matches. This\nmerging could require the creation of a record through a new query written by the third-party\nsoftware vendor.\" 17 The Sheriff' s Office thereby acknowledged that extracting the responsive\ncall data could be accomplished by running a query of the telephone switch database using EM\nparticipants' phone numbers to identify responsive call data. Rather than creating new records, \nquerying databases to extract existing data is \"[ a] n electronic search that * * * meets the\ndefinition of 'copying' under FOIA.\" Hites, 2016 IL App (2d) 150836, ¶ 73. \n\nThere is no query that could be run in either database, however, that would\n\ngenerate a result that contains both booking IDs and the requested call data. Once the responsive\noutbound call data is extracted from the telephone switch database, it must be compiled and\ncorrelated with the correct booking ID information. The Sheriff' s Office did not address what\nmeasures would be required to accomplish this compilation. Mr. Chapman suggested the use of\nautomated tables in a spreadsheet to sort and link the booking IDs with EM users' phone\nnumbers and the related call data: \n\nThe spreadsheet works as follows: Phone numbers, device\n\nIDs, and CCSO booking IDs are entered into the \" Device Phone\nNumbers\" worksheet. The switch' s phone records can then be\ninserted into the [* * *] \" Data\" sheet. In the \" Data\" worksheet, the\nIs CCSO\" will then reflect a 1 (or TRUE) if that phone number' s\nwithin the list of phone numbers in the \" Device Phone Numbers\" \nworksheet. Clicking on the dropdown at \" Is CCSO\" and selecting\n1\" ( or TRUE) will then filter the relevant information.[ 18] \n\n15Section 7(1)(b) of FOIA exempts from disclosure \" private information\" and section 2(c-5) of\n\nFOIA defines \" private information\" to include, among other things, personal\nWest 2021 Supp.); 5 ILCS 140/ 2(c-5) (West 2020). \n\ntelephone numbers. 5 ILCS 140/ 7(1)(b) \n\nHarter, Deputy Bureau Chief, Public Access Counselor, Illinois Attorney General ( September 16, 2021), a t [3]. \n\n16Letter from Elizabeth Scannell, Deputy General Counsel, Cook County Sheriff' s Office, to Laura\n\n17Letter from Sarah M. Smith, Assistant General Counsel, FOIA Officer Law Department, \n\nSheriff' s Office of Cook County, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General ( May 26, 2022), at [ 2]. \n\n18Letter from Matt Chapman to Illinois Attorney General' s PAC Office ( September 21, 2021), at\n\n3-4]. \n\n\fMr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 8\n\nEven if Mr. Chapman' s suggestion is feasible, it is clear that compiling the\n\nrequested information would require more than merely running a query and extracting data from\na database; the available information indicates that the Sheriff' s Office would have to link and\nmanipulate extracted data from two separate databases into a unique arrangement. This office\nhas previously concluded that combining two reports to create a unique digital record constitutes\nthe creation of a new record. Ill. Att'y Gen. PAC Req. Rev. Ltr. 73026, issued October 19, 2022, \nat 3. FOIA does not require public bodies to manipulate data found in separate locations into\ncustom reports for requesters. See Everytown for Gun Safety Support Fund v. BATFE, 403 F. \nSupp. 3d 343, 359 ( S.D.N.Y. 2019), rev'd and remanded on other grounds, 984 F.3d 30 (2d Cir. \n2020) (\" whether information in a database constitutes an agency record hinges not on whether\nthe information is housed in the form requested, but whether generating the information requires\nthe agency to engage in additional research or conduct additional analyses above and beyond the\ncontents of its database.\"). \n\nIn an e-mail to this office, Mr. Chapman cited ACLU Immigrants' Rights Project\nv. United States Immigration & Customs Enforcement, 58 F.4th 643, 656 ( 2d Cir. 2023), for the\nproposition that a government agency cannot make an exempt record, such as personal phone\nnumbers, \"' the sole 'key' or 'code' necessary to access non-exempt records in a particular manner; \nitself use the exempt record to obtain non-exempt records in that manner; and then invoke the\nrecord' s exempt status to deny the public similar access to the non- exempt records.'\" 19 In that\ncase, the ACLU had requested data from United States Immigration & Customs Enforcement\nICE) for five categories of information pertaining to stages of the deportation process. The\nFOIA request specified that there should be a row in the spreadsheet for each individual alien\nand that the agency should substitute exempt \" A-Numbers\" for unique identification numbers for\neach individual \" because such a substitution is necessary to allow ACLU to track individual\" \naliens across the five different categories of data. ACLU Immigrants' Rights Project, 58 F.4th\n643 at 648. The United States District Court for the Southern District of New York found that\nFOIA did not require the agency to substitute unique IDs for the A-Numbers because to do so\nwould be the creation of a new record. ACLU Immigrants' Rights Project v. United States\nImmigration & Customs Enforcement, 19 Civ. 7058, 2021 U.S. Dist. LEXIS 45109, 2021 WL\n918235 ( S.D.N.Y. Mar. 10, 2021). The Second Circuit reversed, concluding that \" to hold\notherwise could have the perverse effect of encouraging agencies to make exempt records the\nsingular means for gaining access to non-exempt records responsive to a particular query and, \nthereby, effectively to conceal those records from the public, at least in the way responsive to the\nquery.\" ACLU Immigrants' Rights Project, 58 F.4th 643 at 656. \n\nThe facts here are distinguishable from ACLU Immigrants' Rights Project in two\n\nnotable respects. First, unlike the ACLU, Mr. Chapman' s FOIA request did not request\n\nImmigrants' Rights Project v. United States Immigration & Customs Enforcement, 58 F.4th 643 ( 2d Cir. 2023). \n\n19E- mail from Matt [ Chapman] to Laura [ Harter] ( January 27, 2023), quoting summary of ACLU\n\n\fr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 9\n\ntelephone switch data in which unique identifiers were substituted for personal phone numbers. 20\nSecond, the facts in ACLU Immigrants' Rights Project did not involve the combination of data\nfrom two separate databases; therefore, the case did not address the central\n\nissue in this matter. \n\nAccordingly, this office concludes that preparing the information Mr. Chapman\n\nrequested would require the creation of a new record, which is not required by FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 843- 0564 or laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n70612 C-0191 f 3d response complete co\n\n20This office has previously concluded that substituting unique codes for exempt identifying\ninformation is the creation of a new record that is not required by Illinois FOIA. Ill. Att'y Gen. Req. Rev. Ltr. \n71031, issued April 25, 2022; Ill. Att'y Gen. PAC Req. Rev. Ltr. 67739, issued June 29, 2021. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Metadata compilation of electronic monitoring call recordings","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":980,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-07-01","case_number":null,"request_numbers":["70844"],"title":"Cook County School District 130 did not violate FOIA by withholding union membership data","filename":"70844, issued July 1 2022.pdf","rel_path":null,"word_count":1268,"summary":"The Freedom Foundation requested employee information for members of SEIU Local 73 from Cook County School District 130, which the District denied. The PAC determined the District did not violate FOIA because the requested information is exempt from disclosure under the Illinois Educational Labor Relations Act (IELRA).","plain_summary":"The Freedom Foundation asked Cook County School District 130 for a list of employees covered by a collective bargaining agreement with SEIU Local 73, including their names and job details. The school district refused to provide this information, citing privacy and labor laws. The Attorney General's office agreed with the school district, ruling that state law protects this type of union-related employee information from being released through a FOIA request because disclosing which employees are covered by the agreement would necessarily reveal union membership or status.","holding":"Cook County School District 130 did not violate FOIA by denying the request for employee information because such disclosure is prohibited by section 3(d) of the IELRA.","legal_question":"Whether a school district violates FOIA by withholding employee information that would reveal union membership status, which is protected under section 3(d) of the Illinois Educational Labor Relations Act (IELRA).","disposition":"no_violation","primary_statute":["5 ILCS 140/7.5(yy)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(c)"],"public_body":"Cook County School District 130","requesting_party":"Freedom Foundation","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought personal and employment information for school district employees covered by a specific collective bargaining agreement.","ocr_status":"ok","ocr_quality":95.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_yy/70844%2C%20issued%20July%201%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["employee records","union membership","IELRA","personnel information"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 1, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Leslie Quade Kennedy\nPartner\nOdelson, Sterk, Murphey, Frazier & McGrath, Ltd. \n3318 West 95th Street\nEvergreen Park, Illinois\nlkennedy@osmfm. com\n\nRE: FOIA Request for Review – 2022 PAC 70844\n\nDear\n\nand Ms. Kennedy: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons explained below, the\nPublic Access Bureau concludes that the response by Cook County School District 130 ( District) \nto\n\nFOIA request did not violate FOIA. \n\nOn January 18, 2022, \n\non behalf of the Freedom Foundation, \n\nsubmitted a FOIA request to the District seeking \" the following information for each Cook\nCounty School District 130 employee covered by the collective bargaining agreement with SEIU\nLocal 73:\" \n\n1) First name\n2) Middle name\n3) Last name\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Leslie Quade Kennedy\nJuly 1, 2022\nPage 2\n\n4) Age or day of birth\n5) Job title\n6) Hire date\n7) Department name\n8) Work address\n9) Work email address.[ 1] \n\nOn January 26, 2022, the District denied the request, asserting that the request did\nnot reasonably identify a public record and that even if it did, the record would be exempt under\nsections 7(1)( a) and 7(1)( c) of FOIA ( 5 ILCS 140/ 7(1)( a), ( 1)( c) (West 2020), as amended by\nPublic Acts 102-038, effective June 25, 2021; 102-558, effective August 20, 2021). On March\n28, 2022, \nsection 3(d)(5) of the Illinois Educational Labor Relations Act (IELRA) (115 ILCS 5/3(d)(5) \nWest 2020)), which the District cited in conjunction with section 7(1)( a), does not apply\nbecause his request did not seek union membership information; instead, he claimed, it sought\ninformation concerning employees covered by the collective bargaining agreement \" regardless\nof, and not including information about the employees' membership in a labor organization.\"2\n\nsubmitted a Request for Review contesting the denial. He argued that\n\nOn April 4, 2022, this office sent a copy of the Request for Review to the District\n\nand asked it to provide this office with a detailed written explanation of the legal and factual\nbases for its denial of the request. On May 27, 2022, the District provided a complete version of\nits response for this office's confidential review and a redacted version for forwarding to\n\nOn June 7, 2022, \n\nsubmitted a reply. \n\nDETERMINATION\n\nAll records in the possession or custody of a public body are presumed to be\n\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020). \n\nOn June 30, 2022, the Public Access Bureau issued a binding opinion against the\nFreedom Foundation in a closely similar Request for Review. Ill. Att'y Gen. Pub. Acc. Op. No. \n22-009, issued June 30, 2022. The one difference is that the FOIA request in that matter asked\n\nCook County School District 130 (January 18, 2022). \n\n1Letter from\n\nOutreach Associate, Freedom Foundation, to FOIA Officer, \n\nPublic Access Counselor, Office of the Attorney General (March 28, 2022), at 2. \n\n2Letter from\n\nOutreach Associate, Freedom Foundation, to Leah Bartelt, \n\n\fMs. Leslie Quade Kennedy\nJuly 1, 2022\nPage 3\n\nfor each employee's \"[ u]nion,\"3 while the request in this matter instead asked for each employee's\na] ge or day of birth.\" 4 The other eight items in the requests are the same. Because the former\n\nrequest was submitted to a city rather than a school district, the labor law provisions at issue\nwere sections 6(c-5), 10( a)( 8), and 10( a)( 9) of the Illinois Public Labor Relations Act ( IPLRA). 5\nSection 6(c-5) of the IPLRA is identical to section 3(d) of the IELRA.6 Just as section 7.5(zz) of\nFOIA7 exempts from disclosure \"[ i]nformation prohibited from being disclosed under the Illinois\nPublic Labor Relations Act[,]\" section 7.5(yy) of FOIA8 exempts from disclosure \"[ i]nformation\nprohibited from being disclosed under the Illinois Educational Labor Relations Act.\" \n\nIn the binding opinion, this office explained that the requested information was\n\nexempt from disclosure under section 7.5(zz) because: \n\nMargaret M. Paul, City Clerk ( January 17, 2022). \n\n3Letter from Erin Volz, Policy & Outreach Associate, Freedom Foundation, to City of Berwyn, \n\nCook County School District 130 (January 18, 2022). \n\n4Letter from\n\nOutreach Associate, Freedom Foundation, to FOIA Officer, \n\nILCS 315/10(a)( 8), (a)( 9) (West 2020), as amended by Public Act 102-596, effective August 27, 2021. \n\n55 ILCS 315/6(c-5) (West 2020), as amended by Public Act 102-038, effective June 25, 2021; 5\n\n6Section 3(d) of the IELRA provides: \n\nNo employer shall disclose the following information of any employee: \n\n1) the employee’ s home address ( including ZIP code and county); ( 2) the\nemployee’ s date of birth; (3) the employee’ s home and personal phone number; \n4) the employee’ s personal email address; ( 5) any information personally\nidentifying employee membership or membership status in a labor organization\nor other voluntary association affiliated with a labor organization or a labor\nfederation (including whether employees are members of such organization, the\nidentity of such organization, whether or not employees pay or authorize the\npayment of any dues of moneys to such organization, and the amounts of such\ndues or moneys); and (6) emails or other communications between a labor\norganization and its members. \n\n75 ILCS 140/7.5(zz) ( West 2020), as amended by Public Acts 102-036, effective June 25, 2021; \n102-237, effective January 1, 2022; 102-292, effective January 1, 2022; 102-520, effective August 20, 2021; 102-\n559, effective August 20, 2021. \n\n85 ILCS 140/7.5(yy) (West 2020), as amended by Public Acts 102-036, effective June 25, 2021; \n102-237, effective January 1, 2022; 102-292, effective January 1, 2022; 102-520, effective August 20, 2021; 102-\n559, effective August 20, 2021. \n\n\fMs. Leslie Quade Kennedy\nJuly 1, 2022\nPage 4\n\nConfirming that certain specific City employees are within a\nbargaining unit represented by SEIU Local 73 would necessarily\nreveal the identity of the organization and information concerning\nemployee membership or membership status; the Foundation\nwould be informed that only these City employees are either\nmembers of the union or eligible to be members of the union, and\nthat a majority voted to be represented by the union.[9] \n\nThe same reasoning applies here because the same union membership and\n\nmembership status information is exempt from disclosure under section 3(d) of the IELRA. \nAlthough the request at issue here did not ask for each employee's \" union,\" that change is\ninconsequential because the request already identified the union as SEIU Local 73. Because\ncompliance with\nrepresents the bargaining unit for certain specific employees, the District did not violate section\n7.5(yy) of FOIA by denying the request. \n\nFOIA request would unavoidably involve identifying the union that\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at joshua.jones@ilag.gov. \n\nVery truly yours, \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n70844 f 75yy proper sd\n\nEnclosure\n\n9 Ill. Att'y Gen. Pub. Acc. Op. No. 22-009, at 10. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Employee information covered by a collective bargaining agreement","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":981,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-05-04","case_number":null,"request_numbers":["70898"],"title":"SURS properly withheld de-identified medical records under FOIA 7(1)(b)","filename":"70898, issued May 4, 2022.pdf","rel_path":null,"word_count":815,"summary":"The requester sought de-identified disability claim records from the State Universities Retirement System (SURS), which the PAC determined were exempt from disclosure as medical records.","plain_summary":"A requester asked for disability claim records from the State Universities Retirement System (SURS) with personal information removed. SURS denied the request, stating the documents were medical records exempt from disclosure. The Attorney General's office agreed, noting that unlike some other types of private information, the law does not allow for the release of medical records even if they are de-identified.","holding":"The PAC determined that SURS properly withheld the requested medical records because FOIA does not provide an exception for the disclosure of de-identified medical records.","legal_question":"Whether medical records are exempt from disclosure under FOIA section 7(1)(b) even if the requester seeks de-identified versions.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/7(1)(b)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)"],"public_body":"State Universities Retirement System (SURS)","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"medical records","subject_description":"The request sought disability claim evaluation records for SURS members.","ocr_status":"ok","ocr_quality":93,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c-5/70898%2C%20issued%20May%204%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["medical records","de-identified records","FOIA exemption","SURS"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nMay 4, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review – 2022 PAC 70898\n\nDear\n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2020)). For the reasons set forth below, the\nPublic Access Bureau will take no further action in this matter. \n\nOn March 8, 2022, you submitted a FOIA request to the State Universities\n\nRetirement System (SURS) seeking \"a list of SURS members evaluated by\n\nfrom January 2018 to present for disability claims showing only the member' s\n\n1. On March 15, 2022, SURS\n\nrace & the approve/deny recommendation of\ndenied your request, asserting that it did not maintain such a list for the provider in question or\nany other healthcare provider. SURS further explained that the only responsive records in its\npossession consisted of \" the post- examination narrative report for each member prepared and\nprovided by\nto SURS[]\", but that \"[ e] ach such narrative report is a medical\nrecord[]\" exempt from disclosure in their entireties pursuant to section 7(1)( b) of FOIA ( 5 ILCS\n140/7(1)(b) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558, \neffective August 20, 2021). 2 On March 30, 2022, you submitted this Request for Review\ncontesting SURS' denial. Specifically, you stated that you are interested only in de-identified\ncopies of the records in question, with all \" private information\" redacted\n\n1FOIA request from\n\nto FOIA Officer, SURS (March 8, 2022). \n\nOfficer, to\n\nMarch 15, 2022). \n\n2Letter from Heather V. Kimmons, Associate General Counsel and Freedom of Information Act\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMay 4, 2022\nPage 2\n\nSection 7(1)( b) of FOIA exempts from disclosure \"[ p] rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\" \nSection 2(c-5) of FOIA ( 5 ILCS 140/ 2(c-5) ( West 2020)) defines \" private information\" as: \n\nunique identifiers, including a person' s social security number, \ndriver's license number, employee identification number, biometric\nidentifiers, personal financial\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person. (Emphasis added.) \n\ninformation, passwords or other\n\nThe plain language of a statute is the best indication of the legislative intent. \n\nParis v. Feder, 179 Ill. 2d 173, 177 ( 1997). \" We will not depart from the plain statutory\nlanguage by reading into it exceptions, limitations, or conditions that are in conflict with the\nexpress legislative intent.\" People v. Roberts, 214 Ill. 2d 106, 116 ( 2005). \n\nUnder the plain language of the definition of \" private information\" in FOIA, the\n\nrecords comprising a medical patient's healthcare history are exempt from disclosure under\nsection 7(1)(b) of FOIA, and the Public Access Bureau has consistently determined that medical\nrecords are exempt from disclosure on that basis. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 23175, \nissued May 12, 2015, at 3. FOIA does not define the term \"medical records,\" but Black's Law\nDictionary defines the term as \"[ t]he documents that compose a medical patient' s healthcare\nhistory.\" Black's Law Dictionary (10th Ed. 2014), available at Westlaw BLACKS. As opposed\nto a driver' s license number, personal e- mail address, and certain other forms of \" private\ninformation\" that may be able to be discretely redacted from public records, each \" medical\nrecord\" constitutes the entirety of the public record in and of itself. \n\nSection 7(1)( b) of FOIA also provides that home addresses and personal\n\nlicense\n\nplates may be subject to disclosure \"when compiled without possibility of attribution to any\nperson.\" Although you have requested de- identified copies of the records in question, section\n7(1)(b) of FOIA provides no exception for the disclosure of \"medical records\" without the\npossibility of attribution to any person as it does with home addresses and personal\nlicense\nplates. Accordingly, this office has concluded that no further action is warranted in this matter. \n\n\fMay 4, 2022\nPage 3\n\nThis letter closes this file. If you have any questions, please contact me at\n\nChristopher.Boggs@ilag.gov. \n\nVery truly yours, \n\nCHRISTOPHER R. BOGGS\nSupervising Attorney\nPublic Access Bureau\n\n70898 f no fi war sa\n\ncc: \n\nVia electronic mail\nMs. Heather V. Kimmons\nAssociate General Counsel and FOIA Officer\nState Universities Retirement System\n1901 Fox Drive\nChampaign, Illinois 61820\nFOIA_ Officers@surs. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Disability claim evaluation records for SURS members","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":982,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-10-16","case_number":null,"request_numbers":["71207"],"title":"Village of Lindenhurst Police did not violate FOIA by redacting names, birth dates in call records","filename":"71207, issued October 16, 2022.pdf","rel_path":null,"word_count":1501,"summary":"A requester challenged the Village of Lindenhurst Police Department's redaction of personal information from police call records, and the PAC determined the redactions were permissible under FOIA.","plain_summary":"A resident requested police call records for their address, but the police department redacted certain names and dates of birth from the documents provided. The resident complained to the Attorney General's office, which reviewed the records and concluded that the police department correctly protected private information from public disclosure. The case is now closed with no further action required.","holding":"The Village of Lindenhurst Police Department did not violate FOIA by redacting identifying information from police records to protect personal privacy.","legal_question":"Whether the Village of Lindenhurst Police Department properly redacted names and dates of birth from police call records pursuant to FOIA privacy exemptions.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"Village of Lindenhurst Police Department","requesting_party":"Anonymous requester","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought records of all police calls made to their residence over a specific period.","ocr_status":"ok","ocr_quality":92.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c-5/71207%2C%20issued%20October%2016%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","privacy redaction","personal information","FOIA exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nOctober 16, 2022\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Thomas Jones\n\nChief of Police\n\nVillage of Lindenhurst Police Department\n2300 East Grand Avenue\n\nLindenhurst, Illinois 60046\njones@lindenhurstpd.org\n\nRE: FOIA Request for Review — 2022 PAC 71207\n\nDear ae Mr. Jones:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by Village of Lindenhurst Police Department\n(Police Department) to A Apri 11, 2022, FOIA request did not violate the\nrequirements of FOIA.\n\nOn April 11, 2022, submitted a FOIA request to the Police Department\nseeking copies of all police calls made to his address from March 20, 2022, to the present date.\nOn April 12, 2022, the Police Department provided EE with copies of responsive records,\nbut redacted certain information pursuant to section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West\n2021 Supp.), as amended by Public Acts 102-791, effective May 13, 2022; 102-1055, effective\nJune 10, 2022). On that same date, submitted the above-referenced Request for\nReview disputing the Police Department's response.\n\n500 South Second Street, Springfield, Illinois 62701 + (217) 782-1090 * TTY: (877) 844-5461 + Fax (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 + TTY: (800) 964-3013 + Fax (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 » TTY: (877) 675-9339 + Fax (618) 529-6416\n\nChief Thomas Jones\nOctober 16, 2022\nPage 2\n\nOn April 18, 2022, this office sent a copy of the Request for Review to the Police\nDepartment and asked it to provide unredacted copies of the contested records for this office's\nconfidential review, together with a detailed explanation of the legal and factual bases for the\napplicability of section 7(1)(b) of FOIA. The Police Department did not respond to this office.\nOn August 3, 2022, this office again forwarded a copy of the Request for Review and inquiry\nletter to the Police Department and requested a response. On August 4, 2022, the Police\nDepartment provided this office with the requested materials, and explained that it did not\nreceive the Request for Review the first time this office sent a copy. On August 8, 2022, this\noffice forwarded a copy of the Police Department's response letter to aa: he did not submit\na written reply.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisanv.\nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020).\n\nSection 7(1)(b) of FOIA\n\nSection 7(1)(b) of FOIA exempts from disclosure \"[p]rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\"\nSection 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2020)) defines \"private information\" as:\n\n[U]nique identifiers, including a person's social security number,\ndriver's license number, employee identification number,\nbiometric identifiers, personal financial information, passwords or\nother access codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person (Emphasis added).\n\nIn its response to this office, the Police Department stated it properly redacted \"name, address,\ndate of birth, telephone number, complainant's information, third party information, and police\nofficer identifiers/signatures\" pursuant to section 7(1)(b).! The information the Police\nDepartment redacted that meets the definition of \"private information\" because it uniquely\n\n‘E-mail from Cynthia Mroczek, F.O.LA. Officer, to Chief [Thomas] Jones (August 3, 2022).\n\nChief Thomas Jones\nOctober 16, 2022\nPage 3\n\nidentifies people's home or personal telephone numbers, home addresses, signatures, employee\nidentification numbers, and driver's license numbers. The Police Department did not improperly\nredact this information because it is exempt from disclosure under the section 7(1)(b) exemption.\nHowever, section 7(1)(b) does not encompass names and dates of birth. Because the rights of\ncertain third parties are at stake, this office will analyze those items below under the section\n7(1)(c) exemption.”\n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal\nprivacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\" Further, under section 7(1)(c), \"[t]he disclosure of information that\nbears on the public duties of public employees and officials shall not be considered an invasion\nof personal privacy.\" A public body's assertion that the release of information would constitute\nan unwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers' Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192,\n196 (Ist Dist. 2001).\n\nIn balancing the public interest in disclosure of personal information with\npersonal privacy rights, courts have held that while arrestees have diminished privacy interests,\nthe right to privacy \"is strongest where the individuals in question 'have been investigated but\nnever publicly charged.'\" Citizens for Responsibility and Ethics in Washington v. U.S. Dep't of\nJustice, 846 F. Supp. 2d 63, 71 (D.D.C. 2012) (quoting American Civil Liberties Union v. U.S.\nDep't of Justice, 655 F.3d 1, 7 (D.C. Cir. 2011)); see also Ill. Att'y Gen. Pub. Acc. Op. No. 16-\n009, issued November 7, 2016, at 16 (disclosure of information identifying suspect of a crime\nwho had not been arrested or charged would constitute a clearly unwarranted invasion of\npersonal privacy). Similarly, courts have concluded that the disclosure of the names of witnesses\nand other third parties in police reports would typically constitute an unwarranted invasion of\npersonal privacy. See, for example, Mays v. Drug Enforcement Administration, 234 F.3d 1324,\n1327 (D.C. Cir. 2000) (\"Absent exceptional circumstances, the balance [between the public\ninterest in disclosure and the right to privacy] categorically favors withholding the names and\naddresses of third parties as\" such information does not provide insight into the conduct or\nperformance of a government agency); see also Coleman v. F.B.I., 13 F. Supp. 2d 75, 80 (D.D.C.\n1998) (disclosure of FBI documents would constitute an unwarranted invasion of personal\n\n25 ILCS 140/7(1)(c) (West 2021 Supp.), as amended by Public Acts 102-791, effective May 13,\n2022; 102-1055, effective June 10,2022.\n\nChief Thomas Jones\nOctober 16, 2022\nPage 4\n\nprivacy because they \"reveal the identities of innocent third parties, witnesses or victims.\"); III.\nAtt'y Gen. Pub. Acc. Op. No. 22-005, issued March 24, 2022, at 10-11 (names and other\nidentifying information of third parties in complaint documents exempt from disclosure).\n\nBased on its confidential review of the responsive records, this office confirms\nthat the Police Department redacted the names of people accused of crimes, but there is no\nindication those individuals were arrested or charged with crimes. The Police Department also\nredacted names of witnesses and third parties mentioned incidentally in the police reports.\nAlthough [J has a personal interest in information related to incidents at his home\naddress, the redacted names are highly personal in the context of the reports. Moreover, the\ndisclosure of the names would not illuminate how law enforcement officials performed their\npublic duties, so there is no legitimate public interest in disclosure that outweighs the parties’\nprivacy rights. In addition to the section 7(1)(c) exemption, section 7(1)(d)(iv) of FOIA? plainly\nallows police to withhold witness identities. Lastly, the Attorney General has concluded that the\ndisclosure of a person's date of birth would generally constitute a clearly unwarranted invasion of\npersonal privacy (Ill. Att'y Gen. Pub. Acc. Op. No 16-009, issued November 7, 2016, at 12), so\nthe Police Department permissibly redacted that information. Because the disclosure of the\nredacted identifying information would constitute a clearly unwarranted invasion of personal\nprivacy, the Police Department did not improperly redact that certain names and dates of birth\nunder section 7(1)(c) of FOIA.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. Please contact\nme at c.lucentemccullough@ilag.gov or the Chicago address on the first page of this letter if you\nhave any questions.\n\nVery truly yours\n\nCHRISTINA M. LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n71207 f 71b proper 71c¢ proper pd\n\n3Section 7(1)(d)(iv) (S ILCS 140/7(1)(d)(iv) (West 2021 Supp.), as amended by Public Acts 102-\n791, effective May 13,2022; 102-1055, effective June 10,2022) exempts from disclosure information that would\n\"unavoidably disclose the identity of a confidential source, confidential information furnished only by the\nconfidential source, or persons who file complaints with or provide information to administrative, investigative, law\nenforcement, or penal agencies.\"\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police call records for a residence","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":983,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-03-17","case_number":null,"request_numbers":["71500"],"title":"City of Chicago Mayor's Office improperly redacted personal emails under 7(1)(c)","filename":"71500, issued March 17, 2023.pdf","rel_path":null,"word_count":1598,"summary":"The Chicago Tribune requested emails from Mayor Lori Lightfoot's non-city accounts, and the PAC determined that the Mayor's Office improperly redacted certain portions of a January 23, 2022, email under FOIA's personal privacy exemption.","plain_summary":"A reporter sought e-mails from the mayor's personal account concerning public business, one of which the mayor's office redacted as containing personal information about a grieving crime victim's family. The PAC determined that while some of the redacted material was purely personal and properly withheld, other portions concerned potential actions the mayor's office might take and served a public interest that outweighed the family's privacy interest. The mayor's office was directed to release a less-redacted version of the e-mail.","holding":"The City of Chicago improperly redacted portions of an email that did not meet the threshold for the personal privacy exemption.","legal_question":"Whether the City of Chicago properly applied FOIA section 7(1)(c) to redact personal information from emails sent via non-city accounts.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(f)"],"public_body":"City of Chicago, Office of the Mayor","requesting_party":"Mr. Gregory Pratt, Chicago Tribune","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request sought emails concerning public business sent from non-city email accounts used by the Mayor.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_c/Information-that-bears-on-public-duties-of-public-officials-and-employees/71500%2C%20issued%20March%2017%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personal email","privacy exemption","redaction","public business"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 17, 2023\n\nVia electronic mail\nMr. Gregory Pratt\nChicago Tribune\ngpratt@chicagotribune. com\n\nVia electronic mail\nMr. Thomas Skelton\nFOIA Officer\nOffice of the Mayor\nCity of Chicago\n[street address redacted for site publication -- see original PDF]\nthomas. skelton@cityofchicago. org\n\nRE: FOIA Request for Review – 2022 PAC 71500; F015831- 020122\n\nDear Mr. Pratt and Mr. Skelton: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the City of Chicago, Office of the Mayor\nMayor' s Office) to Mr. Gregory Pratt' s January 31, 2022, FOIA request violated FOIA. \n\nOn that date, Mr. Pratt, on behalf of the Chicago Tribune, submitted a FOIA\n\nrequest to the Mayor' s Office seeking, relevant to this Request for Review, all e-mails\nconcerning public business from January 1, 2022, through January 31, 2022, residing on any\nnon-city e-mail account used by Mayor Lori Lightfoot. After extending its time to respond, on\nApril 27, 2022, the Mayor' s Office provided Mr. Pratt with copies of the e- mails responsive to\nhis request, but redacted information pursuant to sections 7(1)(b), 7(1)( c), and 7(1)(f) of FOIA. 1\nOn April 27, 2022, Mr. Pratt submitted a Request for Review challenging the redactions made to\n\nJune 25, 2021; 102- 558, effective August 20, 2021. \n\n15 ILCS 140/ 7(1)(b), (1)(c), (1)(f) (West 2020), as amended by Public Acts 102- 038, effective\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. Gregory Pratt\nMr. Thomas Skelton\nMarch 17, 2023\nPage 2\n\none e-mail: a January 23, 2022, message sent at 5:33 p.m. from Mayor Lori Lightfoot' s personal\ne-mail address to her City e-mail address. \n\nOn May 4, 2022, this office sent a copy of the Request for Review to the Mayor' s\nOffice and asked it to provide an un-redacted copy of the e-mail identified in Mr. Pratt' s Request\nfor Review for this office' s confidential review. This office asked that the Mayor' s Office clarify\nthe applicable exemptions cited for the information redacted from the record and provide a\ndetailed explanation of the legal and factual bases for the applicability of those exemptions. On\nMay 23, 2022, this office received the Mayor' s Office' s written answer and a copy of the un-\nredacted record. Later that day, this office forwarded the Mayor' s Office' s answer to Mr. Pratt; \non May 25, 2022, this office received Mr. Pratt's reply. \n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 ( 2006). Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\" that the record is\nexempt from disclosure. 5 ILCS 140/ 1.2 (West 2018). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 ( 1997). \n\nIn its response to this office, the Mayor' s Office clarified that the e-mail at issue\ncontains notes from personal conversations about a crime victim and their family. The Mayor' s\nOffice stated that it redacted the e-mail on the basis of the section 7(1)(c) exemption. Section\n7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal\nrecords, the disclosure of which would constitute a clearly unwarranted invasion of personal\nprivacy, unless the disclosure is consented to in writing by the individual subjects of the\ninformation.\" Section 7(1)(c) defines \" unwarranted invasion of personal privacy\" as \" the\ndisclosure of information that is highly personal or objectionable to a reasonable person and in\nwhich the subject' s right to privacy outweighs any legitimate public interest in obtaining the\ninformation. The disclosure of information that bears on the public duties of public employees\nand officials shall not be considered an invasion of personal privacy.\" \n\ninformation contained within public\n\nA public body's contention that the release of information would constitute an\n\nunwarranted invasion of personal privacy is evaluated on a case- by-case basis. Chicago\nJourneymen Plumbers' Local Union 130, U.A. v. Department of Public Health, 327 Ill. App. 3d\n192, 196 ( 1st Dist. 2001). The phrase \" clearly unwarranted invasion of personal privacy\" \nevinces a strict standard to claim the exemption, and the burden is on the government agency\nhaving charge of the record to prove that standard has been met. Schessler v. Department of\n\n\fMr. Gregory Pratt\nMr. Thomas Skelton\nMarch 17, 2023\nPage 3\n\nConservation, 256 Ill. App. 3d 198, 202 ( 4th Dist. 1994). Illinois courts consider the following\nfactors in determining whether disclosure of information would constitute an unwarranted\ninvasion of personal privacy: \"( 1) the plaintiff' s interest in disclosure, ( 2) the public interest in\ndisclosure, ( 3) the degree of invasion of personal privacy, and ( 4) the availability of alternative\nmeans of obtaining the requested information.\" National Ass'n of Criminal Defense Lawyers v. \nChicago Police Department, 399 Ill. App. 3d 1, 13 (1st Dist. 2010). \n\nUnder the first and second factors of the balancing test, Mr. Pratt writes for The\n\nChicago Tribune. Because Mr. Pratt is seeking the requested information to distribute to the\npublic as part of his duties as a newspaper reporter, his interest and the public' s interest in\ndisclosure of the records are aligned. He contends that there is a public interest in the use of\npublic resources to address a matter of public concern. He speculated that if the record reflects\ncommunications with \" someone who's connected and reached out to the mayor * * * and is\nasking for something -- a settlement, a policy action, a personnel change, * * * \nsomething where the public interest of how people are using their access to power outweighs the\nalleged privacy interests.\" 2 The Mayor' s Office argues that \" there is no real public interest in the\ndisclosure of this information. The information does not relate to the affairs of government or\nthe official actions of public officials. * * * These notes are about purely personal matters.\" 3\n\nthat is probably\n\nAs to the third factor\n\nthe degree of invasion of personal privacy\n\nthis office's\n\nreview of the un-redacted e-mail confirmed that the Mayor' s Office withheld a series of notes\nthat appear to summarize a discussion about a grieving family of a crime victim. The notes\nreflect many personal details about the family that are unrelated to any actions by the Mayor' s\nOffice. A reasonable person would find the disclosure of the personal details highly\nobjectionable given the sensitive nature of the circumstances surrounding the incident. 4 Other\ndetails are less personal, however, and reflect facts the Mayor' s Office collected to apprise itself\nof the situation and inform its response or potential response. \n\nRegarding the fourth factor, there does not appear to be another means for Mr. \n\nPratt to obtain the withheld record. \n\n2E- mail from [ Gregory Pratt] to [Laura S. Harter] ( May 24, 2022). \n\nChief, Public Access Bureau, Office of the Attorney General ( May 22, 2022), at [ 2]. \n\n3Letter from Tom Skelton, FOIA Officer, Office of the Mayor, to Laura S. Harter, Deputy Bureau\n\nFOIA precludes this office from further identifying the substance of the record. \n\n4Because the Mayor' s Office provided the record to this office confidentially, section 9.5(c) of\n\n\fr. Gregory Pratt\nMr. Thomas Skelton\nMarch 17, 2023\nPage 4\n\nTaking all of these factors into account, this office concludes that there is a public\n\ninterest in the general subject matter of the e-mail, which reflects the Mayor' s summary of facts\nabout the circumstances of certain constituents in the aftermath of a tragic incident. The entirety\nof the e-mail does not concern a purely personal matter unrelated to government affairs and the\nMayor' s public duties. Rather, the notes appear to suggest some potential actions the Mayor' s\nOffice might consider or matters it would continue to monitor. In these portions of the e-mail, \nthe public interest in disclosure outweighs the relatively minor invasion of the victim' s family. \nHowever, other portions of the e-mail contain highly personal details, and the substantial\npersonal privacy interests of the crime victim' s family in those portions outweigh the minimal\npublic interest in disclosure. Therefore, this office requests that the Mayor' s Office disclose to\nMr. Pratt a less redacted version of the January 23, 2022, e-mail in which it redacts only: the\nfirst word in the first line, the fourth line before the second ellipsis and after the last ellipsis, and\nthe 6th and 7th lines, and the 11th, 12th, and 13th lines. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 843- 0564 or laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n71500 f 71c proper improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested emails from the Mayor's personal accounts used for city business. The Mayor's office redacted parts of the emails, claiming they were private. The Attorney General's office reviewed the records and decided that some of those redactions were unnecessary and ordered the city to release more information.","card_headline":"Emails from non-city accounts used by the mayor","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":984,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-05-05","case_number":null,"request_numbers":["71689"],"title":"City of Chicago Mayor's Office did not violate FOIA by redacting personal text messages under 7(1)(c)","filename":"71689, issued May 5, 2023.pdf","rel_path":null,"word_count":945,"summary":"The Chicago Tribune requested text messages between the Mayor and four public officials, and the PAC determined that the City's redaction of purely personal communications was appropriate because those messages did not constitute public records.","plain_summary":"A reporter requested text messages between the Mayor and other officials. The City provided the messages but redacted parts they claimed were private. The Attorney General's office reviewed the messages and agreed that the redacted portions were personal in nature and not subject to FOIA disclosure.","holding":"The City of Chicago did not violate FOIA by redacting text messages that were purely personal and did not pertain to the transaction of public business.","legal_question":"Whether text messages of a purely personal nature, which do not relate to the transaction of public business, constitute 'public records' subject to disclosure under FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/2(c)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"City of Chicago Mayor's Office","requesting_party":"Mr. Gregory Pratt (Chicago Tribune)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"public records","subject_description":"The request sought text messages exchanged between the Mayor and four public officials over a three-year period.","ocr_status":"ok","ocr_quality":91.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c/71689%2C%20issued%20May%205%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["text messages","public records","personal communications","Mayor's Office"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 5, 2023\n\nVia electronic mail\n\nMr. Gregory Pratt\n\nReporter\n\nChicago Tribune\n\n[street address redacted for site publication -- see original PDF]\ngpratt@chicagotribune.com\n\nVia electronic mail\n\nMr. Tom Skelton\n\nFOIA Officer\n\nCity of Chicago Mayor's Office\n\n121 North LaSalle Street, Suite 500\nChicago, Illinois 60602\nThomas.Skelton@cityofchicago.org\n\nRE: FOIA Request for Review — 2022 PAC 71689; City FOIA No.: F017544\nDear Mr. Pratt and Mr. Skelton:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons explained below, the\nPublic Access Bureau concludes that the City of Chicago (City) Mayor's Office (Mayor's Office)\ndid not improperly respond to Mr. Gregory Pratt's February 28, 2022, FOIA request by redacting\nthe text messages at issue in this matter.\n\nOn that date, Mr. Pratt, on behalf of the Chicago Tribune, submitted a FOIA\nrequest to the Mayor's Office seeking copies of all text messages exchanged between Mayor Lori\nLightfoot and four named public officials for the timeframe of May 20, 2019, through February\n28, 2022. On May 6, 2022, the Mayor's Office provided responsive text messages, but indicated\nthat it redacted some information that did not pertain to the transaction of public business\n\n500 South Second Street, Springfield, Illinois 62701 + (217) 782-1090 * TTY: (877) 844-5461 » Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 + Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 Fax: (618) 529-6416\n\nMr. Gregory Pratt\nMr. Tom Skelton\nMay 5S, 2023\nPage 4\n\npursuant to section 7(1)(c) of FOIA.'! On May 9, 2022, Mr. Pratt submitted a Request for\nReview disputing those redactions.\n\nOn May 13, 2022, this office sent a copy of the Request for Review to the\nMayor's Office and asked it to provide unredacted copies of the requested text messages for this\noffice's confidential review. This office also requested a detailed explanation of the factual and\nlegal bases for redacting the information from those text messages. On June 1, 2022, the\nMayor's Office furnished those materials and a written answer. Later that day, this office\nforwarded a copy of the Mayor's Office's answer to Mr. Pratt; he replied on June 3, 2022.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v.\nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020).\n\nSection 2(c) of FOIA defines \"public records\" as:\n\nall records, reports, forms, writings, letters, memoranda, books,\npapers, maps, photographs, microfilms, cards, tapes, recordings,\nelectronic data processing records, electronic communications,\nrecorded information and all other documentary materials\npertaining to the transaction of public business, regardless of\nphysical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body. (Emphasis added.)\n\nIn City of Champaign v. Madigan, 2013 IL App (4th) 120662, 931, 992 N.E.2d\n629, 636 (2013) the Illinois Appellate Court noted that FOIA does not define the term \"public\nbusiness.\" Turning then to the dictionary's definition of \"public,\" the court stated \"to qualify as a\npublic record a communication must first pertain to business or community interests as opposed\nto private affairs. Indeed, FOIA is not concerned with an individual's private affairs.\" City of\nChampaign, 2013 IL App (4th) 120662, § 31, 992 N.E.2d at 637 (internal quotation omitted).\nTherefore, the threshold determination of whether a communication is a \"public record\" for the\npurposes of FOIA is whether that communication pertains to \"public business.\" Only if this\n\n'5 ILCS 140/7(1)(c) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;\n102-558, effective August 20, 2021.\n\nMr. Gregory Pratt\nMr. Tom Skelton\nMay 5, 2023\nPage 4\n\nthreshold is met does the analysis proceed to whether the communication was \"(2) prepared by,\n(3) prepared for, (4) used by (5) received by, (6) possessed by, or (7) controlled by a public\nbody.\" City of Champaign, 2013 IL App (4th) 120662, 4 42, 992 N.E.2d at 639-40.\n\nIn its response to this office, the Mayor's Office asserted that the redacted portions\nof the disputed text messages are not public records subject to disclosure under FOIA because\nthe text messages \"relate to private affairs as opposed to governmental or community interests.\"*\n\nThis office's confidential review confirmed that the redacted information pertains\nto purely private affairs, such as condolences, personal greetings, and other private matters. The\nredacted information does not appear to relate to the officials' public duties nor to the transaction\nof City business. Because the redacted messages are not \"public records\" as defined by section\n2(c) of FOIA, this office concludes that the Mayor's Office's redactions did not violate FOIA.*\n\nThe Public Access Counselor has determined that the resolution of this matter\ndoes not require the issuance of a binding opinion. This matter is closed. If you have questions,\nmy e-mail address is Shannon.Barnaby@ilag. gov.\n\nVery truly yours,\n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n71689 f 2c proper mun\n\n*Letter from Tom Skelton, FOIA Officer, Office of the Mayor, to Shannon Barnaby, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (June 1, 2022), at [3].\n\n*Because this determination resolves this matter, this office need not address the applicability of\nsection 7(1)(c) of FOIA to the redactions.\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A mayor's text messages with public officials","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":985,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-06-23","case_number":null,"request_numbers":["71823","73490","73492"],"title":"DeKalb County Housing Authority directed to release personnel file footnotes, upheld driver's license redactions","filename":"71823 73490 73492, issued June 23, 2023.pdf","rel_path":null,"word_count":6042,"summary":"The requester sought personnel files for three employees from the DeKalb County Housing Authority, which the Authority denied citing various exemptions including privacy. The PAC determined that the Authority failed to demonstrate that the employees' middle initials were exempt from disclosure under section 7(1)(c).","plain_summary":"A requester asked the DeKalb County Housing Authority for personnel files of three employees, and later submitted requests for the same records for six other employees. The Housing Authority released some records but redacted many categories, including footnotes, employment applications, retirement investment elections, social security cards, driver's licenses, and middle initials. The Illinois Attorney General's Public Access Bureau reviewed the redactions and determined that the footnotes were not private information under FOIA and directed the Housing Authority to provide unredacted copies of those footnotes. The Bureau also found that driver's license numbers, birthdates, and signatures were properly redacted, but did not explicitly rule on the remaining contested categories such as middle initials, employment applications, resumes, references, and retirement investment elections.","holding":"The determination found that footnotes in the records were not exempt under section 7(1)(b) and directed the Housing Authority to release them, while upholding redactions of driver's license numbers, birthdates, and signatures; no final ruling was made on other contested categories.","legal_question":"Whether the disclosure of public employees' middle initials constitutes a clearly unwarranted invasion of personal privacy under FOIA section 7(1)(c).","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)","7.5(q)"],"public_body":"DeKalb County Housing Authority","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought personnel files for three employees of the DeKalb County Housing Authority.","ocr_status":"ok","ocr_quality":96,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_c/Information-that-bears-on-public-duties-of-public-officials-and-employees/71823%2073490%2073492%2C%20issued%20June%2023%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","privacy","FOIA exemption","public employee"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 23, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. David Siegel\nFOIA Officer\nDeKalb County Housing Authority\n310 North 6th Street\nDeKalb, Illinois 60115\nFOIA@dekcohousing.com\n\nRE: FOIA Request for Review – 2022 PAC 71823; 2022 PAC 73490; \n\n2022 PAC 73492\n\nDear\n\nand Mr. Siegel: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). We have consolidated the above-\nreferenced Requests for Review for purposes of this determination because the requested records\nare comparable, and the applicable FOIA exemptions are identical for them. \n\nOn March 21, 2022, \n\nsubmitted a FOIA request to the\n\nDeKalb County Housing Authority ( Housing Authority) seeking copies of the personnel\nthree employees, excluding any performance reports. On March 28, 2022, the Housing\nAuthority denied the request pursuant\nOn May 12, 2022, this office received\nchallenging the denial. On May 23, 2022, this office forwarded a copy of the Request for\n\nto sections 7(1)( a), 7(1)( b), 7(1)( c), and 7.5(q) of FOIA. 1\nRequest for Review (2022 PAC 71823) \n\nfiles of\n\n15 ILCS 140/7(1))(a), ( 1)(b), (1)(c) (West 2020), as amended by Public Acts 102-038, effective\n\nJune 25, 2021; 102-558, effective August 20, 2021; 5 ILCS 140/7.5(q) (West 2020), as amended by Public Acts\n102-036, effective June 25, 2021; 102-237, effective January 1, 2022; 102-292, effective January 1, 2022; 102-520, \neffective August 20, 2021; 102-559, effective August 20, 2021; 102-813, effective May 13, 2022. \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMr. David Siegel\nJune 23, 2023\nPage 2\n\nReview to the Housing Authority and asked it to provide unredacted copies of the records, \ntogether with a detailed explanation of the asserted exemptions. \n\nOn June 9, 2022, and June 17, 2022, \n\nsubmitted additional requests\nto the Housing Authority seeking the same records for six other employees. On July 18, 2022, \nthe Housing Authority provided responsive records but redacted certain information pursuant to\nsections 7(1)( a), 7(1)( b), and 7(1)( c) of FOIA. 2 The Housing Authority also issued an amended\nresponse to the March 21, 2022, request, releasing responsive records but redacting them\npursuant to the same exemptions. On September 15, 2022, \nReview (2022 PAC 73490 and 2022 PAC 73492) challenging the partial denial of his two June\nrequests; he also challenged the amended response to his March 21, 2022, request. \n\nsubmitted Requests for\n\nOn September 14, 2022, this office requested a written response to 2022 PAC\n\n71823 that addressed the contested redactions, as well as unredacted copies of the records. On\nSeptember 23, 2022, this office forwarded copies of the two new Requests for Review to the\nHousing Authority and requested the same materials. On October 24, 2022, and October 25, \n2022, this office received the requested materials. In its response, the Housing Authority\nwithdrew its assertion of section 7(1)(a). On October 27, 2022, this office forwarded a copy of\nthe Housing Authority' s responses to ; \n\nhe replied on November 7, 2023. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 ( West 2020); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that redacts\nrecords \" has the burden of proving by clear and convincing evidence\" that the information is\nexempt from disclosure. 5 ILCS 140/1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nIn his Requests for Review, \n\ncontended that particular portions of\n\nthe records he received were improperly redacted. The Housing Authority' s response to this\noffice stated that some of the contested redactions would be withdrawn. Specifically, the\nHousing Authority stated it would issue an amended response withdrawing the redaction of\n\n25 ILCS 140/7(1)(a), ( 1)(b), (1)(c) (West 2021 Supp.), as amended by Public Acts 102-694, \n\neffective January 7, 2022, revised February 3, 2022; 102-791, effective May 13, 2022; 102-1055, effective June 10, \n2022. \n\n\fMr. David Siegel\nJune 23, 2023\nPage 3\n\nFEINs, \" spot awards,\" and business information. 3 With respect to the remaining contested\nredactions, the Housing Authority maintained that it properly redacted the following: \n\nFootnotes in documents\nEmployment applications, resumes, and references\nEmployee retirement\ninvestment elections\nSocial security cards and driver' s licenses\nMiddle initials of employee names\n\nSection 7(1)( b) of FOIA\n\nSection 7(1)( b) of FOIA exempts from disclosure \"[ p] rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\" \nSection 2(c-5) of FOIA ( 5 ILCS 140/ 2(c-5) ( West 2020)) defines \" private information\" as: \n\nU]nique identifiers, including a person's social security number, \ndriver' s license number, employee identification number, biometric\nidentifiers, personal financial information, passwords or other\naccess codes, medical records, home or personal\nnumbers, and personal email addresses. Private information also\nincludes home address and personal\notherwise provided by law or when compiled without possibility of\nattribution to any person. \n\nlicense plates, except as\n\ntelephone\n\nThe Public Access Bureau has previously determined that business information is\n\nnot exempt from disclosure under section 7(1)(b) because it identifies businesses rather than\nindividuals. Ill. Att'y Gen. PAC Req. Rev. Ltr. 48986, issued July 1, 2020, at 4. Thus, business\naddresses, business telephone numbers, and other similar information do not fall within the scope\nof the exemption. Ill. Att'y Gen. PAC Req. Rev. Ltr. 22902, issued June 27, 2016, at 3; Ill. Att'y\nGen. PAC Req. Rev. Ltr. 23125, issued March 26, 2014, at 2. \n\nFootnotes in Documents\n\nIn its response to this office, the Housing Authority asserted that it properly\n\nredacted footnotes contained in the records pursuant\n\nto section 7(1)( b) because they revealed \" the\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 4. \n\n3Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\n\fMr. David Siegel\nJune 23, 2023\nPage 4\n\nlocations of the documents referred to in each document.\" 4 The Housing Authority\ninternal\nargued that those internal locations are akin to access codes and thus within the scope of the\nexemption. It argued: \" If the location of the document on the HACD server is known via a\ndocument, then the possibility exists of the use of this information to attempt to access the\nHACD server.\" 5\n\ndisagreed with that claim. He argued, in relevant part: \n\nTo log into an internal server or cloud server, you need to have a\nuser id and password. You cannot access a file unless you have\nbeen granted permission to access the file after being authenticated\nby logging into the system (internal server or cloud server such as\nMicrosoft OneDrive or Google Drive). If the file is on an internal\nserver behind a firewall, like I believe the housing authority uses, \nyou need to have an user id (access code) and password to get\nbehind the firewall into the organization’ s internal network.[6] \n\nBased on this office's review of a sampling of the unredacted records, the\nfootnotes do not contain information that would uniquely identify a person. Rather than\nrevealing any access codes for individual employees, the footnotes provide information about the\nrecordkeeping practices of the Housing Authority. The records do not appear to be accessible\nunless the Housing Authority authorizes access to its internal server, as\nnoted. \nThe Housing Authority also redacted passwords and user identification information for\nindividual employees listed in some of the forms. 7 Although passwords and user IDs are unique\nidentifiers within the scope of section 7(1)(b), the footnotes do not constitute \" private\ninformation\" that is exempt from disclosure under the exemption. \n\nThis office' s review also determined that the Housing Authority redacted driver' s\nlicense numbers, signatures, and birthdates contained in some of the contested records. Among\nthose records, the Housing Authority redacted driver' s license numbers and birthdates in the\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 4. \n\n4Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 4. \n\n5Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\n6Letter from\n\nto AAG Teresa Lim, PAC (November 7, 2022), at [ 4]. \n\n7E.g., page 2 of the Capps file provided by ; \n\npage 82 of the Perkins file provided by\n\n\fMr. David Siegel\nJune 23, 2023\nPage 5\n\nletters to the AHRMA8 and signatures in the \" Employee Statement of Understanding and\nCompliance with the Drug-Free Workplace Act of 1988\" forms.9 The Housing Authority also\nredacted signatures in certain other correspondence. 10 Because those details either constitute\nprivate information\" under section 7(1)(b) or would constitute a clearly unwarranted invasion of\npersonal privacy if disclosed under section 7(1)( c),11 the Housing Authority did not improperly\nredact that information. However, this office requests that the Housing Authority provide\n\nwith copies of the records that disclose the footnotes. \n\nAs noted above, the Housing Authority stated it would withdraw the redaction of\nbusiness information contained in some of the records, acknowledging that the information does\nnot fall within the scope of sections 7(1)( b) or 7(1)( c). The Housing Authority identified some\npages of the records that it would amend. This office notes that business e-mail addresses, \nbusiness telephone numbers, and other business contact details were redacted in other pages of\nthe records.12 Those redactions also do not fall within the scope of section 7(1)(b). Although the\nAuthority indicated it would disclose FEINs, it has the option of redacting them pursuant to\nsection 7(1)(kk) of FOIA.13\n\nAdditionally, the Housing Authority redacted copies of certificates of notary\n\npublic and certain details in other records. With respect to the certificates of notary public, the\nHousing Authority redacted, in relevant part, the commission beginning and ending dates, \ncommission number, and county. The Housing Authority did not explain how those details are\n\n8E.g., page 9 of Bright file, part 1, provided by . \n\n9E.g., page 12 of Bright file, part 1, provided by . \n\nby . \n\n10E. g., pages 1, 2 of Bright file, part 3, provided by ; \n\npage 51 of Perkins file provided\n\n11The Public Access Bureau has consistently determined that personal signatures and birthdates\n\nare exempt from disclosure pursuant to sections 7(1)(b) and 7(1)(c) of FOIA respectively. Ill. Att'y Gen. Pub. Acc. \nOp. No. 14-015, issued November 25, 2014, at 11 (signatures); Ill. Att'y Gen. Pub. Acc. Op. No. 16-009, issued\nNovember 7, 2016, at 12 (birthdates). \n\n1, provided by ); \nprovided by ). \n\n12E. g., pages 8, 10 of Bright file provided by Housing Authority (pages 10, 17 of Bright file, part\n\nPage 33 of Perkins file provided by Housing Authority (page 66 of Perkins file\n\n135 ILCS 140/7(1)(kk) (West 2021 Supp.), as amended by Public Acts 102-694, effective January\n7, 2022, revised February 3, 2022; 102-791, effective May 13, 2022; 102-1055, effective June 10, 2022 (exempting\nfrom disclosure \"[ t]he public body's credit card numbers, debit card numbers, bank account numbers, Federal\nEmployer Identification Number, security code numbers, passwords, and similar account information, the disclosure\nof which could result in identity theft or impression or defrauding of a governmental entity or a person.\"). \n\n\fMr. David Siegel\nJune 23, 2023\nPage 6\n\nexempt from disclosure under sections 7(1)( b) or 7(1)( c). Further, that public notary information\nmay be found on the Illinois Secretary of State website.14 As to the other records, the Housing\nAuthority did not explain the factual or legal bases for redacting certain details15 not otherwise\ndiscussed below. Accordingly, this office requests that the Housing Authority disclose the\ncontested parts of the notary public certificates and other contested details that are not\ndetermined to be exempt from disclosure in subsequent sections of this determination. \n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)( c) defines \" unwarranted invasion of personal privacy\" \nas \" the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject' s right to privacy outweighs any legitimate public interest in obtaining\nthe information. The disclosure of information that bears on the public duties of public\nemployees and officials shall not be considered an invasion of personal privacy.\" \n\nA public body' s assertion that the release of information would constitute a clearly\n\nunwarranted invasion of personal privacy is evaluated on a case- by- case basis. Chicago\nJourneymen Plumbers' Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192, \n196 ( 1st Dist. 2001). Illinois courts consider the following factors in determining whether\ndisclosure of information would constitute an unwarranted invasion of personal privacy: \"(1) the\nplaintiff' s interest in disclosure, ( 2) the public interest in disclosure, ( 3) the degree of invasion of\npersonal privacy, and (4) the availability of alternative means of obtaining the requested\ninformation.\" National Ass' n of Criminal Defense Lawyers v. Chicago Police Department, 399\nIll. App. 3d 1, 13 (1st Dist. 2010). The phrase \" clearly unwarranted invasion of personal\nprivacy\" evinces a strict standard to claim the exemption, and the burden is on the public body\nhaving charge of the record to prove that standard has been met. Schessler v. Department of\nConservation, 256 Ill. App. 3d 198, 202 ( 4th Dist. 1994). \n\nhttps://apps.ilsos.gov/notarysearch/ ( last visited June 23, 2023). \n\n14Office of the Illinois Secretary of State, Notary Public Search, \n\nfile provided by Housing Authority (page 5 of the Rodr file provided by ). \n\n15E. g., redacted part concerning insurance and benefits located near the bottom of page 4 of Rodr\n\n\fMr. David Siegel\nJune 23, 2023\nPage 7\n\nEmployment Applications, Resumes, and References\n\nThe Attorney General has previously issued a binding opinion concluding that\n\ninformation pertaining to a public employee's past employment and educational experience was\nimproperly withheld under section 7(1)( c) because the \" education, training, and experience that\n\npresumably were considered in determining [a public employee's] eligibility * * * ' bear on' \nhis ability to perform his public duties satisfactorily.\" Ill. Att'y Gen. Pub. Acc. Op. No. 14- 015, \nissued November 25, 2014, at 6; see also Core v. United States Postal Service, 730 F.2d 946, \n947- 48 ( 4th Cir. 1984) ( disclosure of successful applicants' work history would not constitute an\nunwarranted invasion of personal privacy because it \"is simply the type of information every\napplicant seeks to bring to the attention of a prospective employer.\"). \n\nThe Housing Authority acknowledged Binding Opinion 14- 015 but asserted it\n\nproperly redacted parts of the employees' resumes and application materials because \"[ a] \nreasonable person would conclude it would be objectionable to disclose a resume or application\nan employee submitted 14 years ago.\" 16 In particular, the Housing Authority contended that the\nreferences for the employees at issue may no longer remember the individuals and have no\nbearing on the employee's current public duties.17 It also asserted that the references provide\npersonal\ninformation that is exempt from disclosure under section 7(1)( b). The Housing\nAuthority similarly questioned the relevancy of an employee' s high school and other educational\nhistory to the individual's current public duties and contended that \"other means exist to get this\ninformation such as a yearbook.\" 18\n\nIn reply to that answer, \n\nargued that the information was still\n\nrelevant and explained that he sought \"to verify that special considerations were not given to\nfriends, and that employees were hired for merit and skills necessary to perform the duties of the\njob.\"19 He also noted that he could not look up some of the information in other sources without\nknowing, for instance, the school district that the individual had attended. \n\nBased on this office' s review, the Housing Authority redacted portions of past\n\nemployer information, educational and community service histories, certain application\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 7. \n\n16Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 8. \n\n17Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 8. \n\n18Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\n19Letter from\n\nto AAG Teresa Lim, PAC (November 7, 2022), at [9]. \n\n\fMr. David Siegel\nJune 23, 2023\nPage 8\n\nreferences. The Public Access Bureau has previously determined\n\nquestions, and professional\nthat the identities of current and past employers and the dates on which the applicants worked for\nthose employers do not fall within the scope of section 7(1)( c) because those details bear on the\napplicants' qualifications for public employment. Ill. Att'y Gen. PAC Req. Rev. Ltr. 39447, \nissued November 28, 2017, at 3-4. The Public Access Bureau has likewise determined that an\napplicant's educational history, references, and award and leadership information are not exempt\nunder section 7(1)( c), as that information also reflects on an individual' s qualifications. Ill. Att'y\nGen. PAC Req. Rev. Ltr. 39447, at 3-4. See also Ill. Att'y Gen. PAC Req. Rev. Ltr. 65940, \nissued September 2, 2021 ( employment history of successful employment applicant bears on his\nor her qualifications for the offered position, as would any details regarding special courses\ntaken, certifications received, and special skills or experiences that relate to the position); Ill. \nAtt'y Gen. PAC Req. Rev. Ltr. 49902, issued May 22, 2018 (educational history and application\nquestions regarding criminal history, legal history, and citizenship relevant to successful\napplicant's qualifications for public duty and character and fitness for position); Ill. Att'y Gen. \nPAC Req. Rev. Ltr. 33143, issued November 19, 2015 ( employment\nreferences not exempt\nunder section 7(1)(c) because there is a compelling public interest in disclosure of a public\nemployee' s credentials to enable the public to assess the employee' s qualifications for public\nduty). \n\nEven if the individuals at issue were long- time employees, there is a significant\n\npublic interest in the information that an applicant for public employment provided to a\nprospective public employer and that the employer considered in its hiring decision. An\nemployee's educational history and references show, for instance, that the individual possessed\nthe basic education and credentials required for the position at the time of hire, while responses\nto questions concerning an applicant's goals and objectives reflect on the individual's ability to\nfurther the public body' s mission. Disclosure of this information clearly outweighs the subject' s\nlimited right to privacy in such information. Ill. Att'y Gen. PAC Req. Rev. Ltr. 49902, issued\nMay 22, 2018, at 7 (noting that an employee' s interest in privacy was mitigated by the passage of\nmore than five years since the submission of the application, as well as by the fact that the\nemployee voluntarily disclosed the information in an application for public employment). \nAccordingly, the Housing Authority did not demonstrate by clear and convincing evidence that it\nproperly redacted portions of the resumes and other application materials pursuant\n7(1)(c) of FOIA. \n\nto section\n\nThis office requests that the Housing Authority disclose the full employment and\n\neducational histories, references, and other above- described information that do not fall within\nthe scope of section 7(1)(c). The Housing Authority may withhold any personal telephone\n\n\fMr. David Siegel\nJune 23, 2023\nPage 9\n\nnumbers or home addresses20 provided by the references pursuant to section 7(1)( b), but any\nbusiness contact information does not fall within the scope of that exemption. \n\nThe Housing Authority also redacted academic transcripts and records of courses\n\ntaken. 21 The Public Access Bureau has previously determined that, although relevant to an\nindividual's hiring, \"academic transcripts that pre-date an individual's employment with a public\nbody and include detailed information about courses taken and grades received that have no\ndirect relationship to the employee's public duties are highly personal in nature[,]\" and the\nindividual' s right to privacy outweighs any legitimate public interest in disclosure of this\ninformation. Ill. Att'y Gen. PAC Req. Rev. Ltr. 37877, issued May 9, 2018, at 5. By contrast, \nthere is a strong public interest in the disclosure of academic transcripts and records of courses\ntaken during an individual's employment and that are paid for by a public body because the\ninformation relates to the individual' s public duties and is required to be disclosed under section\n2.5 of FOIA.22 Accordingly, if the Housing Authority paid for any of the coursework reflected\nin the transcripts and records of courses taken, those records do not fall within the scope of\nsection 7(1)(c), and this office requests that the Housing Authority disclose the information. \n\nAdditionally, the Housing Authority redacted some salary history information. \n\nreflects payments of public funds, the Attorney\n\nBecause salary history for public employment\nGeneral has determined that such information is expressly subject to disclosure pursuant to\nsection 2.5 of FOIA. Ill. Att'y Gen. Pub. Acc. Op. No. 14-015, issued November 25, 2014, at 8. \nHowever, the salary history of an applicant' s private sector jobs does not concern the expenditure\nof public funds. The Public Access Bureau has thus determined that \"[ g]iven its apparently\nlimited relevance to hiring decisions, there is little public interest in obtaining information\nregarding individuals' private employment salaries, but the information is sensitive and highly\npersonal to the individual applicants.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 39447, issued\nNovember 28, 2017, at 6. In those circumstances, the individual's privacy interest outweighs the\nminimal public interest in that information, and the information falls within the scope of section\n7(1)(c). Ill. Att'y Gen. PAC Req. Rev. Ltr. 39447, at 6. Here, the Housing Authority did not\nimproperly redact the salary history disclosed in one e-mail23 because the salary history\ncorresponded with private sector jobs. If any of the remaining records contain salary histories\n\n20E. g., page 91 of Perkins file provided by . \n\nprovided by Housing Authority). \n\n21E. g., pages 36, 40 of Perkins file provided by (\n\npages 25, 26 of Perkins file\n\n22Section 2.5 of FOIA (5 ILCS 140/2.5 (West 2020)) provides that \"[ a]ll records relating to the\nobligation, receipt, and use of public funds of the State, units of local government, and school districts are public\nrecords subject to inspection and copying by the public.\" \n\n23Page 27 of Bright file, part 1, provided by . \n\n\fMr. David Siegel\nJune 23, 2023\nPage 10\n\ncorresponding with private sector jobs, the Housing Authority may also withhold that\ninformation, but any public sector salaries are not exempt under section 7(1)(c). \n\nEmployee Retirement Investment Elections\n\nThe Public Access Bureau has previously determined that information reflecting\n\nthe personal financial decisions of an individual and an individual' s elections on employee\nbenefits, such as insurance coverage, generally fall within the scope of section 7(1)(c) because\nthey reflect the discretionary decisions and other highly personal\nemployees. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 54786, issued December 6, 2021 (public\nbody did not improperly withhold information concerning individual employees' dependents and\nindividual contribution amounts to insurance plans pursuant to section 7(1)(c)); Ill. Att'y Gen. \nPAC Req. Rev. Ltr. 17922, issued June 26, 2012 ( amounts contributed by employees for\nparticular benefit plans that the employees opted to participate in and information concerning\nemployee benefits deductions exempt from disclosure pursuant to section 7(1)( c)). \n\ninformation of individual\n\nThe Housing Authority stated it had redacted information concerning \" participant\n\ndirection of investment to the Trustees of the HACD Retirement Plan.\" 24 The Housing Authority\nargued that this information constituted \" personal financial\nfrom disclosure under section 7(1)( b). It also asserted that the information fell within the scope\nof section 7(1)(c). \n\ninformation\" and thus was exempt\n\nBased on this office's review of a sampling of the records, the Housing Authority\ninvestment and benefit plans: ( 1) \n\nredacted generally three forms related to employee retirement\nChecklist for Retirement Program Enrollment,\" (2) \"Participant Direction of Investment,\" and\n3) \" Checklist for New Employees.\" With respect to the first form, the Housing Authority\ndisclosed some details (e.g., enrollment and processing dates and month of employee\ncontribution sheet) for a number of the employees, but not all of them. 25 It is unclear the reason\nfor this discrepancy. Because the contested parts of this form appear to have been disclosed for\nmost of the employees, the Housing Authority did not illustrate that the information is highly\npersonal, the disclosure of which would constitute a clearly unwarranted invasion of personal\nprivacy. Accordingly, the Housing Authority did not demonstrate by clear and convincing\nevidence that the contested redactions in the Checklist for Retirement Program Enrollment fall\nwithin the scope of section 7(1)( c). \n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 7. \n\n24Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\n25Compare page 20 of Bright file with page 14 of Price file provided by Housing Authority\n\nCompare page 35 of Bright file, part 1, with page 18 of the Price file provided by ). \n\n\fMr. David Siegel\nJune 23, 2023\nPage 11\n\nWith respect to the remaining two forms, this office' s review confirmed that the\n\nforms reveal the personal financial decisions and other personal details of the employees, which\nare unrelated to their public duties. The individuals' privacy interests in their elections on\ninvestments for retirement and insurance plans, including coverage for dependents, outweigh any\nlegitimate public interest in disclosure of this information. Accordingly, the Housing Authority\ndid not improperly redact in whole the Participant Direction of Investment and discrete details\nconcerning benefit elections and dependents in the Checklist for New Employees pursuant to\nsection 7(1)(c). \n\nThis office requests that the Housing Authority disclose the contested details in\n\nthe Checklist for Retirement Program Enrollment. \n\nSocial Security Cards and Driver' s Licenses\n\nThe Housing Authority redacted in their entirety the social security cards and\ndriver's licenses of the individuals at issue. The Housing Authority's response to this office\nasserted that section 7(1)( b) expressly exempts from disclosure social security numbers and\ndriver's license numbers, and \"[ c]learly each document is the social security number document or\ndriver' s license of the relevant employee.\" 26\nin those records. \n\ndisputed the redaction of the names\n\nThe Public Access Bureau has previously determined that \"[ d] isclosure of a social\n\nsecurity card, even with the social security number redacted, compromises the card holder's\nidentity for purposes of identity theft.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 30407, issued June 9, \n2015, at 4. Because release of a social security card would constitute a clearly unwarranted\ninvasion of personal privacy, this office has concluded that social security cards are exempt in\nwhole pursuant to section 7(1)(c). Ill. Att'y Gen. PAC Req. Rev. Ltr. 30407, at 5. Disclosure of\na person' s driver' s license, even if mostly redacted, similarly compromises the license holder' s\nidentity for purposes of identity theft. Driver's licenses contain not only a person's license\nnumber but other highly personal\nwhich would constitute a clearly unwarranted invasion of personal privacy if disclosed. \nAccordingly, the Housing Authority did not improperly redact the social security cards and\ndriver's licenses pursuant to section 7(1)(c). \n\ninformation, such as a person' s home address and birthdate, \n\n26Letter from\n\nto AAG Teresa Lim, PAC (November 7, 2022), at 7. \n\n\fMr. David Siegel\nJune 23, 2023\nPage 12\n\nMiddle Initials of Employee Names\n\nThe Housing Authority stated that it redacted the middle initials of the individuals\n\nat issue because of concerns of privacy and identity theft. In particular, the Housing Authority\nasserted that disclosure of the middle initials \" significantly increases the chance\" that someone' s\nidentity could be stolen.27 It contended that the middle initials are exempt from disclosure under\nthe balancing test of section 7(1)( c): \n\nThe middle initial of each employee is highly personal as it\nidentifies that specific person. Identification of that specific person\nis information that is relevant when considering the issue of\nidentity theft and what information is needed to commit identity\ntheft. A reasonable person would find the disclosure of the middle\ninitial of that person's name in this age of identity theft would\noutweigh the public interest in obtaining this information.[ 28] \n\nAdditionally, the Housing Authority contended that middle initials constitute a\n\nunique identifier\" exempt from disclosure under section 7(1)(b): \"With the advent of 1.4\nmillion cases of identity theft in 2021, privacy expectations today are clearly different\nLieber was decided. An individual' s middle initial is clearly a unique identifier of the\nindividual.\"29 In support of that claim, the Housing Authority cited Timpone v. Illinois Student\nAssistance Comm' n, 2019 IL App ( 1st) 181115, 147 N.E.3d 873 ( 2019), among other cases. The\nHousing Authority argued that \"Timpone held even though names were not expressly identified\nin Section 2 ( c-5), the examples cited in this section are not inclusive.\" 30 It contended that names\nmay constitute private information depending on the circumstances and that \"the request must be\nconsidered in context in determining whether the personal\ninformation requested is nonexempt\nbasic identification subject to disclosure or information of a confidential or private nature[.]\" 31\n\nthan when\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 5. \n\n27Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 6. \n\n28Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 5. \n\n29Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 5. \n\n30Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 5. \n\n31Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\n\fMr. David Siegel\nJune 23, 2023\nPage 13\n\nIn reply to that answer, \n\nmaintained that names are not exempt\n\nunder section 7(1)( b), and that a person' s middle initial is a part of the person' s name. He also\nargued that a person's full name \" is used for the duties of the public employment, and it cannot\nbe redacted under section 7(1)( c).\" 32\n\nHaving reviewed the Housing Authority' s response and cited case law, the\n\nHousing Authority did not demonstrate that the middle initial of a person's name constitutes a\nunique identifier\" within the scope of section 7(1)( b). The Attorney General has previously\nissued a binding opinion concluding that the names of students enrolled at a university did not\nconstitute \" private information\" under the 7(1)( b) exemption. In reaching that conclusion, this\noffice observed: \" Section 7(1)(b) exempts only private information, and nothing in that\ndefinition or in reading FOIA as a whole suggests that a person' s name, or basic identification, is\nprivate information.\" Ill. Att'y Gen. Pub. Acc. Op. No. 12-003, issued January 18, 2012, at 7. \n\nIn Timpone v. Illinois Student Assistance Comm'n, 2019 IL App (1st) 181115, \n\n41, 147 N.E.3d 873, 887 ( 2019), the Illinois Appellate Court concluded that names may be\n\nwithheld under section 7(1)(b) if their disclosure would reveal an individual's personal financial\ninformation. In that case, the Illinois Student Assistance Commission ( ISAC) denied a FOIA\nrequest seeking, in relevant part, the names of all students who received a Monetary Award\nProgram (MAP) grant in 2015, asserting that the information constituted private information. \nTimpone, 2019 IL App ( 1st) 181115, ¶ 7, 147 N.E.3d at 878. The court determined that the ruling\nin Lieber v. Board of Trustees of Southern Illinois University, 176 Il1. 2d 401, 414, 680 N.E.2d\n374, 380 ( 1997), which also considered the disclosure of names, was not dispositive because that\ncase involved different statutory language and circumstances. Timpone, 2019 IL App (1st) \n181115, ¶ 35, 147 N.E.3d at 885. The court instead found the exemption for \" personal financial\ninformation\" under section 2(c-5) to be most relevant. Timpone, 2019 IL App (1st) 181115, ¶26, \n147 N.E.3d at 884. Because ISAC posted \" detailed personal\napplicants and recipients\" on its website, the court determined that \"the further disclosure of the\nnames of MAP grant recipients would invade the privacy of those individuals.\" Timpone, 2019\nIL App (1st) 181115, ¶41, 147 N.E.3d at 887. Accordingly, the court concluded that the names\nof the 2015 MAP recipients were exempt from disclosure under section 7(1)( b). Timpone, 2019\nIL App (1st) 181115, ¶41, 147 N.E.3d at 887. \n\nincome information of MAP\n\nThe circumstances in this matter are distinguishable from the situation in\n\nTimpone. Here, the contested records do not contain personal financial\nexception of certain limited documents discussed above. A person's resume and employment\nfinances\napplication, for instance, do not reveal specific details about the individual' s personal\n\ninformation with the\n\n32Letter from\n\nto AAG Teresa Lim, PAC (November 7, 2022), at [8]. \n\n\fMr. David Siegel\nJune 23, 2023\nPage 14\n\nand are not otherwise replete with other unique identifiers, such as those enumerated in section\n2(c-5). The contested records instead mostly contain information that bear on the individual's\nqualifications and ability to perform the public duties assigned to a position. In contrast to\npersonal financial information, information pertaining to the performance of a public employee's\npublic duties are generally subject to disclosure under FOIA. See Ill. Att'y Gen. Pub. Acc. Op. \nNo. 14-015, issued November 25, 2014. The Housing Authority did not demonstrate that the\nmiddle initials in this context would reveal unique identifiers as defined in FOIA. Compare to\nTimpone, 2019 IL App (1st) 181115, ¶41, 147 N.E.3d at 887 (names of recipients of financial aid\nexempt under section 7(1)( b) because disclosure would reveal personal financial\nabout their incomes and family members' incomes posted on ISAC's website). Accordingly, the\nHousing Authority did not sustain its burden of showing by clear and convincing evidence that a\nperson's middle initial constitutes \"private information\" within the scope of section 7(1)(b). \n\ninformation\n\nThe Housing Authority also did not illustrate that a person's middle initial reveals\ninformation, the disclosure of which would cause a clearly unwarranted invasion\n\nhighly personal\nof personal privacy. The middle initials of elected officials' and public employees' names are\noften disclosed in documents and materials that are shared with the public. The Illinois General\nAssembly posts, for instance, the full names of all its members on its website, including the\nmembers' middle initials. 33 Although a middle initial reduces the number of people who share\nthe same name, the Housing Authority' s assertion that disclosure of a middle initial would\nsignificantly increase the risk of identity theft is speculative. Further, withholding a portion of a\nperson' s name would lead to absurd results, such as the public having no right to learn the full\nnames of government employees or elected officials. See Lieber, 176 Ill.2d at 412, 680 N.E.2d\nat 379. There is a legitimate public interest in knowing the complete and accurate names of\npublic employees and officials that outweighs the subjects' right to privacy in their middle\ninitials. Under these circumstances, the Housing Authority did not demonstrate by clear and\nconvincing evidence that the middle initials are exempt from disclosure pursuant to section\n7(1)( c). This office requests that the Housing Authority disclose the middle initials of the\nindividuals in the records. \n\n33Illinois General Assembly, Current House Members, 103rd General Assembly, \nhttps://www.ilga.gov/house/ ( last visited June 23, 2023); Illinois General Assembly, Current Senate Members, 103rd\nGeneral Assembly, https://www.ilga.gov/senate/ ( last visited June 23, 2023). \n\n\f\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Personnel files of three housing authority employees","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":986,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-03-17","case_number":null,"request_numbers":["71954"],"title":"City of Chicago improperly withheld Bench Book under 7(1)(f) and 7(1)(m)","filename":"71954, issued March 17, 2023.pdf","rel_path":null,"word_count":3012,"summary":"The requester sought records regarding the City of Chicago's enforcement of vehicle ticketing and impoundment ordinances, but the Department of Administrative Hearings withheld portions of an Administrative Law Judge Bench Book. The PAC determined the Department failed to justify the withholding of these records under FOIA exemptions.","plain_summary":"The ACLU requested records from the City of Chicago regarding vehicle ticketing and impoundment policies. The City refused to release parts of a 'Bench Book' used by administrative judges, claiming it was exempt from disclosure. The Attorney General's office reviewed the document and decided the City did not provide a valid legal reason to keep it secret, ordering the City to release the records.","holding":"The City of Chicago Department of Administrative Hearings improperly withheld portions of the Administrative Law Judge Bench Book under sections 7(1)(f) and 7(1)(m) of FOIA.","legal_question":"Whether the City of Chicago Department of Administrative Hearings properly withheld portions of an Administrative Law Judge Bench Book under the deliberative process (7(1)(f)) and attorney-client privilege (7(1)(m)) exemptions of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)","7(1)(m)"],"public_body":"City of Chicago Department of Administrative Hearings","requesting_party":"Roger Baldwin Foundation of ACLU, Inc.","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"administrative records","subject_description":"The request concerned records related to the City of Chicago's enforcement of ordinances regarding vehicle ticketing, immobilization, and impoundment.","ocr_status":"ok","ocr_quality":93.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_m/Attorney-client-privilege/71954%2C%20issued%20March%2017%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["FOIA","administrative hearings","exemption 7(1)(f)","exemption 7(1)(m)","public records"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMarch 17, 2023\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Anthony Rizzo\n\nFOIA Officer\n\nDepartment of Administrative Hearings\n\nCity of Chicago\n\n740 North Sedgwick Street\n\n[street address redacted for site publication -- see original PDF]\nAHfoia@cityofchicago.\n\norg\n\nRE: FOIA Request\n\nfor Review – 2022 PAC 71954\n\nDear\n\nand Mr. Rizzo: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the City of Chicago Department of Administrative\n\nHearings ( Department) \n\nimproperly denied portions of the records responsive to\n\nNovember 29, 2021, FOIA request. \n\nOn that date, \n\non behalf of the Roger Baldwin Foundation of ACLU, \n\nInc., submitted a FOIA request\n\nto the Department seeking copies of various records regarding the\n\nCity of Chicago' s enforcement of five ordinances concerning vehicle ticketing, immobilization, \n\nand impoundment. On December 14, 2021, the Department provided\n\nwith a copy\n\nof the Administrative Law Judge Bench Book ( Bench Book) with the first 36 pages withheld\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: (800) 964- 3013 • Fax: ( 312) 814- 3806\n\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: (877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Anthony Rizzo\n\nMarch 17, 2023\n\nPage 2\n\npursuant\n\nto section 7( 1)( f) of FOIA ( 5 ILCS 140/ 7( 1)( f) (West 2020), as amended by Public Acts\n\n102- 038, effective June 25, 2021; 102- 558, effective August 20, 2021). From December 27, \n\n2021, through March 23, 2022, \n\nand the Department exchanged correspondence\n\nregarding the alleged inadequacy of the Department' s response. On March 23, 2022, the\n\nDepartment\n\nissued a supplemental\n\nresponse to\n\nand provided copies of additional\n\nboilerplate forms that [ the] department\nhearing.\" 1 The Department also asserted that the withheld portion of the Bench Book is exempt\n\nissues for determinations of liability and notices of\n\nfrom disclosure pursuant\n\nto section 7(1)( m) of FOIA ( 5 ILCS 140/ 7(1)( m) ( West 2020), as\n\namended by Public Acts 102-038, effective June 25, 2021; 102-558, effective August 20, 2021). \n\nOn May 20, 2022, \n\nsubmitted the above- referenced Request for Review disputing\n\nthat the section 7(1)( f) and 7( 1)( m) exemptions are applicable to the first 36 pages of the Bench\n\nBook. \n\nOn May 25, 2022, this office forwarded a copy of\n\nRequest\n\nfor\n\nReview to the Department and asked it to provide copies of the withheld pages of the Bench\n\nBook, together with a detailed legal and factual explanation for the applicability of sections\n\n7(1)(f) and 7(1)(m). On June 15, 2022, the Department furnished those materials. On that same\n\ndate, this office forwarded a copy the Department' s response to\n\nhe replied on July\n\n7, 2022. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\n\nbe open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v. \n\nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\n\nproving by clear and convincing evidence\" that a record is exempt\n\nfrom disclosure. 5 ILCS\n\n140/ 1.2 ( West 2020). \n\nSection 7( 1)( f) of FOIA\n\nSection 7(1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nactions are formulated, except\n\nthat a specific record or relevant portion of a record shall not be\n\nexempt when the record is publicly cited and identified by the head of the public body.\" The\n\nsection 7(1)( f) exemption is equivalent\n\nin most respects to the deliberative process exemption in\n\nthe Federal FOIA ( 5 U.S.C. §552( b)(5) (2018)), which applies to \" inter- and intra- agency\n\npredecisional and deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247\n\n1Letter\n\nfrom Anthony Rizzo, FOIA Officer, Department of Administrative Hearings, to\n\nMarch 23, 2022), at 1. \n\n\fMr. Anthony Rizzo\n\nMarch 17, 2023\n\nPage 3\n\n1st Dist. 2003). The exemption is \" intended to protect\n\nthe communications\n\nprocess and\n\nencourage frank and open discussion among agency employees before a final decision is made.\" \n\nHarwood, 344 Ill. App. 3d at 248; see also Kalven v. City of Chicago, 2013 IL App (1st) 121846, \n\n24, 7 N.E.3d 741, 748 ( 2013), quoting Public Citizen, Inc. v. Office of Management & Budget, \n\n598 F.3d 865, 876 ( D.C. Cir. 2010) (\" Only those portions of a predecisional document\n\nthat\n\nreflect the give and take of the deliberative process may be withheld.\"). A public body that\n\nasserts the deliberative process exemption \" has the burden of establishing what deliberative\n\nprocess is involved, and the role played by the documents in issue in the course of that process.\" \n\nCoastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 868 (D.C. Cir 1980).\" \n\nFurther, the Attorney General has previously determined that established policies\n\nand training materials do not fall within the scope of section 7(1)( f). Ill. Att' y Gen. Pub. Acc. \n\nOp. No. 15- 015, issued December 29, 2015, at 7 (\"[ W] hen records are used for training purposes\n\nthey constitute final decisions rather than predecisional deliberative materials.\"); Stokes v. \n\nBrennan, 476 F.2d 699, 703 (5th Cir. 1973) (concluding that \" it would be a perversion of the Act\n\nto classify\" training materials used to train inspectors for the Occupational Safety and Health\n\nAdministration as exempt from disclosure under the deliberative process exemption in Federal\n\nFOIA, which \" was not defined as an exception to compelled disclosure in order to authorize an\n\nagency to throw a protective blanket over any type of information it might choose by the\n\nexpedient of casting it in the form of an internal memorandum.\"); American Immigration\n\nCouncil v. United States Department of Homeland Security, 905 F. Supp. 2d 206, 218 ( D.D.C. \n\n2012) ( because training materials reflected the agency' s established policy rather than its\n\ndeliberations, \n\nthe deliberative process exemption did not apply). \n\nTo be exempt from disclosure under section 7(1)(f), records \" must be both (1) \n\ninter or intra agency and ( 2) predecisional and deliberative.\" Fisher v. Office of the Illinois\n\nAttorney General, 195 N.E.3d 719, 726 ( 2021), appeal denied, 175 N.E.3d 142 ( Ill. 2021). \" In\n\norder to qualify for the deliberative process exemption, a document must be both predecisional\n\nin\n\nthe sense that it is actually antecedent\n\nto the adoption of an agency policy, and deliberative in the\n\nsense that it is actually related to the process by which policies are formulated.\" Chicago Tribune\n\nCo. v. Cook County Assessor' s Office, 109 N.E.3d 872, 880 ( 2018). \n\nIn its response to this office, the Department asserted that the Bench Book is pre-\n\ndecisional\n\nin that it is intended to assist Administrative Law Judges in reaching decisions in\n\nAdministrative Hearings. The Department argued that the Bench Book is thus part of the\n\ndecision- making process and asserted that \" the Bench Book is intended to provide ' frank\n\ndiscussion'\" \n\nto Administrative Law Judges in that process.\n\n2\n\nIn his reply, \n\nargued that\n\nSternecky, Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( June 15, 2022), at 5. \n\n2Letter\n\nfrom Anthony J. Rizzo Jr, FOIA Officer, Department of Administrative Hearings, to Jane\n\n\fMr. Anthony Rizzo\n\nMarch 17, 2023\n\nPage 4\n\nthe Bench Book is not preliminary and noted that the Department' s response also did not argue\n\nthat it is preliminary. \n\nThe forward of the Bench Book, shared by the Department\n\nin its response to this\n\noffice, states: \"'[\n\nt]he Bench Book covers all aspects of the administrative adjudicatory process\n\nand the common legal and situational\n\nissues that may arise in the proceedings.'\"\n\n3\n\nThe document\n\nprovides guidance to Administrative Law Judges in the conduct of an Administrative Hearing, \n\nincluding procedural matters and specific topics that may arise during a hearing. This office\n\nconcludes that this material is not pre-decisional or deliberative. While it is intended to provide\n\nguidance for Administrative Law Judges, it constitutes established policy and is not \" antecedent\n\nto the adoption of an agency policy.\" See Chicago Tribune Co., 109 N.E. 3d at 880. Rather than\n\nreflecting the give and take of a deliberative process, \n\nthe finalized and published document\n\nis a\n\none- way street. The Bench Book constitutes guidance akin to the training materials discussed\n\nabove. Because the Bench Book is not pre- decisional deliberative material, this office concludes\n\nthat the Department improperly withheld it pursuant to section 7(1)(f) of FOIA. \n\nSection 7(1)(m) of FOIA\n\nSection 7(1)(m) of FOIA exempts from disclosure: \n\nCommunications\n\nbetween a public body and an attorney or\n\nauditor representing the public body that would not be subject to\n\ndiscovery in litigation, and materials prepared or compiled by or\n\nfor a public body in anticipation of a criminal, civil or\n\nadministrative proceeding upon the request of an attorney advising\n\nthe public body, and materials prepared or compiled with respect\n\nto internal audits of public bodies. \n\nCommunications\n\nprotected by the attorney- client privilege are within the scope of\n\nsection 7(1)(m). People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 ( 1st Dist. 1997). A\n\nparty asserting that a confidential communication\n\nis protected by the attorney- client privilege\n\nmust show that: \"( 1) a statement originated in confidence that it would not be disclosed; ( 2) it\n\nwas made to an attorney acting in his legal capacity for the purpose of securing legal advice or\n\nservices; and ( 3) it remained confidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 ( 2d\n\nDist. 2006); see also Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 327 ( N.D. Cal. 1985) \n\nThe proponent of the privilege carries the burden of establishing all elements of the privilege, \n\nincluding confidentiality, which is not presumed\"). Moreover, \"[\n\nt]he privilege applies not only\n\nSternecky, Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( June 15, 2022), at 2. \n\n3Letter\n\nfrom Anthony J. Rizzo Jr, FOIA Officer, Department of Administrative Hearings, to Jane\n\n\fMr. Anthony Rizzo\n\nMarch 17, 2023\n\nPage 5\n\nto the communications of a client to his attorney, but also to the advice of an attorney to his\n\nclient.\" In re Marriage of Granger, 197 Ill. App. 3d 363, 374 ( 5th Dist. 1990); see also People\n\nv. Radojcic, 2013 IL 114197, ¶40, 998 N.E.2d 1212, 1221-22 (2013) (\"[ T]he modern view is that\n\nthe privilege is a two- way street, protecting both the client' s communications\n\nto the attorney and\n\nthe attorney' s advice to the client.\"). \" The privilege does not extend, however, beyond the\n\nsubstance of the client' s confidential communications\n\nto the attorney.\" In re Fischel, 557 F.2d\n\n209, 211-12 (9th Cir. 1977), citing Colton v. United States, 306 F.2d 633 (2d Cir. 1962), cert. \n\ndenied, 371 U.S. 951, 83 S. Ct. 505 ( 1963). This privilege does not extend to all\n\ncommunications from an attorney to a client, but only those where \" the 'primary' or 'predominant\n\npurpose' of the communication is to render or solicit legal advice.\" Towne Place Condominium\n\nAss' n v. Philadelphia Indemnity Insurance Co., 284 F. Supp. 3d 889, 894 ( N.D. Ill. 2018). \n\nA public body that withholds records under section 7( 1)( m) must provide a\n\nsupporting factual basis for the application of the exemption: \n\nI]n meeting its burden, the public body may not simply treat the\n\nwords \" attorney-client privilege\" or \"legal advice\" as some\n\ntalisman, the mere utterance of which magically casts a spell of\n\nsecrecy over the documents at issue. Rather, the public body can\n\nmeet\n\nits burden only by providing some objective indicia that the\n\nexemption is applicable under the circumstances. ( Emphasis in\n\noriginal.) Illinois Education Ass' n, 204 Ill. 2d at 470. \n\nThe attorney- client privilege applies to communications: \n\n1) Where legal advice of any kind is sought, ( 2) from a\n\nprofessional\n\nlegal advisor\n\nin his capacity as such, ( 3) the\n\ncommunications\n\nrelating to that purpose, ( 4) made in confidence, \n\n5) by the client, ( 6) are permanently protected, ( 7) from disclosure\n\nby himself or the legal advisor, ( 8) except the protection be\n\nwaived. Illinois Education Ass' n, 204 Ill. 2d at 467 ( 2003). \n\nIn its response to this office, the Department argued that the Bench Book is\n\nprivileged because it \"is ( 1) intended to provide legal advice to Departmental ALJs on several\n\nissues, ( 2) was drafted by a departmental attorney for that purpose, ( 3) the materials at issue were\n\nspecifically intended to give legal advice, ( 4) have been kept confidential by ( 5) the Department\n\nand are ( 6) continuously protected from disclosure by ( 7) Department personnel and ( 8) the\n\n\fMr. Anthony Rizzo\n\nMarch 17, 2023\n\nPage 6\n\nDepartment has not waived the privilege.\"\n\n4\n\nIn reply, \n\nargued that, rather than\n\nconfidential\n\nlegal advice, the Bench Book is a general guidance document. \n\nIn American Immigration Council, the court held that PowerPoint slides used to\n\ntrain agency attorneys to interact with private attorneys were not privileged because the agency\n\nhad not established a connection to confidential\n\ninformation obtained from a client. The court\n\nexplained: \n\nThe agency] offers no explanation of what confidential client\n\ncommunications might underlie these slides, and the slides\n\nthemselves do not hint at underpinning confidentialities. Nor\n\nshould they. The slides were used for general\n\ntrainings by\n\nagency] \n\nlawyers, and such generally applicable legal advice will\n\nrest on none of the factual particularities\n\nconveyed in a typical\n\nconfidential communication by a client. American Immigration\n\nCouncil, 905 F. Supp. 2d at 222- 23. \n\nSimilarly, in this matter the Department provided no objective indicia that the\n\nwithheld portions of the Bench Book convey legal advice based on underlying confidential\n\ncommunications. This office' s review of the Bench Book also finds no objective indicia that the\n\nBench Book constitutes legal advice that meets the criteria to apply the attorney- client\n\nexemption. As described above, the Bench Book conveys guidance to Administrative\n\nLaw\n\nJudges about\n\nthe processes and issues that may arise during an Administrative Hearing. Rather\n\nthan providing advice regarding underlying confidential\n\nfacts, the Bench Book provides\n\ngeneralized procedural and factual information that may be useful to Administrative Law Judges\n\nin potential\n\nfuture hearings. To the extent that the Bench Book summarizes cases or describes\n\nthe current state of the law, it does so based on previously concluded hearings and settled cases, \n\nrather than any underlying confidential\n\nfacts ascertained or shared by the Department. The\n\nattorney- client privilege extends to communications\n\nfrom an attorney to a client in order to\n\nprotect\n\nthe secrecy of underlying facts. See In re Fischel, 557 F.2d 209, 211- 12 ( 9th Cir. 1977). \n\nBecause the Bench Book is not based on confidential\n\nfacts conveyed by the Department as client\n\nto an attorney, and disclosure of the Bench Book will not reveal any privileged facts or\n\ncommunications, \n\nthis office concludes that the Department\n\nimproperly withheld it pursuant\n\nto\n\nsection 7(1)(m) of FOIA. \n\nSternecky, Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( June 15, 2022), at 4. \n\n4Letter\n\nfrom Anthony J. Rizzo Jr, FOIA Officer, Department of Administrative Hearings, to Jane\n\n\fMr. Anthony Rizzo\n\nMarch 17, 2023\n\nPage 7\n\nAttorney Work Product\n\nThe Public Access Bureau has previously determined that the section 7(1)(m) \n\nexemption also encompasses records excluded from discovery under the Illinois work product\n\ndoctrine. Ill. Att' y PAC Req. Rev. Ltr. 20541, issued January 10, 2013, at 4. The parameters of\n\nwork product\" are set forth in Illinois Supreme Court Rule 201( b)(2), which provides that\n\nmaterial prepared \" by or for a party in preparation for trial is subject to discovery only if it does\n\nnot contain or disclose the theories, mental\n\nimpressions, or litigation plans of the party' s\n\nattorney.\" A public body asserting that records are attorney work-product must demonstrate that\n\nthe records \"' reveal the shaping process by which the attorney has arranged the available\n\nevidence for use in trial as dictated by his training and experience[.]' [ Citation.]\" Monier v. \n\nChamberlain, 35 Ill. 2d 351, 359 ( 1966). \n\nTraining materials are distinguishable\n\nfrom work product even if the training\n\nmaterials were developed in anticipation of agency proceedings. American Immigration\n\nCouncil, 905 F. Supp. 2d at 222. Work product must be prepared in connection with litigation\n\narising from a particular transaction and involve \" assembling information, sifting through facts, \n\npreparing legal theories, or planning strategy\" for an agency case. American Immigration\n\nCouncil, 905 F. Supp. 2d at 222. Thus, guidance and training materials that are generally\n\napplicable or relevant\n\nto the type of cases a public body litigates are not attorney work product. \n\nThough the Department described the Bench Book as \" work product,\"\n\n5\n\nit did not\n\nadvance this argument, and the Department' s description of the document\n\nin its response\n\nindicates that it was not prepared for use in a particular\n\ntrial or hearing. This office' s review of\n\nthe record confirms this. \n\nFor the reasons stated above, the Department has not sustained its burden of\n\ndemonstrating by clear and convincing evidence that the Bench Book is exempt from disclosure\n\nunder section 7(1)( f) or 7( 1)( m). Therefore, this office requests that the Department disclose the\n\ncontested portion of the Bench Book to\n\nSternecky, Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( June 15, 2022), at 3. \n\n5Letter\n\nfrom Anthony J. Rizzo Jr, FOIA Officer, Department of Administrative Hearings, to Jane\n\n\fMr. Anthony Rizzo\n\nMarch 17, 2023\n\nPage 8\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\n\nany questions, please contact me benjamin.silver@ilag.gov or (773) 590-7878. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\n\nAssistant Attorney General\n\nPublic Access Bureau\n\n71954 f 1f improper 71m improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An administrative law judge bench book on vehicle enforcement","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":987,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-06-30","case_number":null,"request_numbers":["72083","72085"],"title":"Illinois Department on Aging properly denied records without written authorization","filename":"72083 72085, issued June 30, 2022.pdf","rel_path":null,"word_count":866,"summary":"The requester sought records concerning two individuals from the Illinois Department on Aging, which were denied due to the lack of required written authorization. The PAC determined that the Department properly denied the requests because the records are confidential under the Adult Protective Services Act.","plain_summary":"The requester sought Department of Aging records concerning two named individuals without submitting the written authorization, evidence of guardianship or agency, and sworn statement of purpose that the department's rules require before releasing confidential adult-protective-services records. The PAC determined that because the requester did not provide the required documentation, the department's denial complied with the confidentiality provisions of the Adult Protective Services Act. The department did not improperly deny the request.","holding":"The Illinois Department on Aging did not improperly deny the FOIA requests because the requester failed to provide the necessary written authorization required by law to access confidential records.","legal_question":"Whether the Illinois Department on Aging properly denied a FOIA request for confidential records under the Adult Protective Services Act when the requester failed to provide required written authorization.","disposition":"no_violation","primary_statute":["5 ILCS 140/7.5"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(y)"],"public_body":"Illinois Department on Aging","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought records concerning two individuals maintained by the Department on Aging under the Adult Protective Services Act.","ocr_status":"ok","ocr_quality":97.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_y/72083%2072085%2C%20issued%20June%2030%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["confidential records","Adult Protective Services Act","Department on Aging","written authorization"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 30, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Requests for Review – 2022 PAC 72083; 2022 PAC 72085\n\nDear\n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(c) ( West 2020)). For the reasons set forth below, the\nPublic Access Bureau concludes that no further inquiry is warranted. \n\nOn April 13, 2022, and April 14, 2022, you submitted FOIA requests to the\n\nIllinois Department on Aging ( Department) seeking records concerning two named individuals, \none of whom you indicated is your brother. On April 14, 2022, and April 15, 2022, the\nDepartment denied your requests pursuant to section 7.5(y) of FOIA. 1 In its denial letters, the\nDepartment noted that it requires a written authorization from the subject of the records or their\nauthorized agent for the release of the requested information. On June 10, 2022, this office\nreceived your completed Requests for Review contesting the Department' s denial. \n\nSection 7.5(y) of FOIA exempts from disclosure: \n\nConfidential\n\ninformation under the Adult Protective\n\nServices Act and its predecessor enabling statute, the Elder Abuse\nand Neglect Act, including information about the identity and\nadministrative finding against any caregiver of a verified and\nsubstantiated decision of abuse, neglect, or financial exploitation of\nan eligible adult maintained in the Registry established under\n\n15 ILCS 140/7.5(y) (West 2020), as amended by Public Acts 102- 036, effective June 25, 2021; \n102- 237, effective January 1, 2022; 102- 292, effective January 1, 2022; 102- 520, effective August 20, 2021; 102-\n559, effective August 20, 2021; 102- 813, effective May 13, 2022; 102- 1042, effective June 3, 2022. \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844-5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fJune 30, 2022\nPage 2\n\nSection 7.5 of the Adult Protective Services Act. (Emphasis\nadded.) \n\nSection 8 of the Adult Protective Services Act (320 ILCS 20/8 (West 2020), as\n\namended by Public Act 102- 244, effective January 1, 2022) states that \"[ a] ll records concerning\nreports of abuse, abandonment, neglect, financial exploitation, or self- neglect and all records\ngenerated as a result of such reports shall be confidential and shall not be disclosed except as\nspecifically authorized by this Act or other applicable law.\" Section 8 lists the categories of\nindividuals or entities permitted access to those records. Among the individuals eligible to\nreceive copies of the records is \"[ a] n eligible adult reported to be abused, abandoned, neglected, \nfinancially exploited, or self- neglected, or such adult' s authorized guardian or agent, unless such\nguardian or agent is the abuser or the alleged abuser[.]\" 320 ILCS 20/8(4) (West 2020). \n\nThe administrative rules implementing section 8 of the Adult Protective Services\n\nAct further specify that the records may be released to a legal guardian or agent \" who has current\nauthority to act on behalf of the eligible adult when access to those records is relevant to\nrepresenting the interests of the eligible adult, and a complete authorization for release of records\nis submitted, unless the guardian or agent is the substantiated abuser or is the alleged abuser in an\nopen case[.]\" 89 Ill. Admin. Code § 270.275(d)( 6) (2022), as amended at 42 Ill. Reg. 9226, \neffective July 1, 2018. ( Italics removed.) The rules further explain: \n\nAn authorization for release of records by the Department\n\nor the APS provider agencies must be legally sufficient and\ninclude: \n\n1) supporting documentation of the agency or guardianship\nevidencing current authority and the extent of the authority to act\non behalf of the eligible adult or his or her estate; and\n\n2) a sworn statement as to the purpose of the request and its\nrelevance to representing the interests of the eligible adult or his or\nher estate.[ 2] \n\nYour FOIA requests to the Department did not include the required written\n\nauthorization certifying that you are the named individuals' legal guardian or agent, the extent of\nyour authority to act on behalf of those individuals, and a sworn statement describing the purpose\nof your request and its relevance to the interests of the named individuals. Because the rules\nimplementing the Adult Protective Services Act prohibit disclosure of the responsive records\n\n289 Ill. Admin. Code § 270.275( e) ( 2022), as amended at 42 Ill. Reg. 9226, effective July 1, 2018. \n\n\fJune 30, 2022\nPage 3\n\nwithout the required written authorization, this office concludes that the Department did not\nimproperly deny your requests. \n\nIf you have any questions, you may contact me by e-mail at\n\nlaura.harter@ilag. gov. This letter serves to close these matters. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n72083 72085 f no fi war sa\n\ncc: \n\nVia electronic mail\nMs. Linda Ballard\nFOIA Officer\nOffice of General Counsel\nIllinois Department on Aging\nOne Natural Resources Way, Suite 100\nSpringfield, Illinois 62702\naging. foia@illinois. gov\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A requester asked the Illinois Department on Aging for records about two individuals, but the Department refused, stating that such records are confidential and require written permission from the subjects. The Attorney General's office agreed with the Department, noting that the requester did not provide the legal authorization or documentation required to access these protected files. Consequently, the PAC closed the case without further action.","card_headline":"Records on two individuals under the Adult Protective Services Act","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":988,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-04-25","case_number":null,"request_numbers":["72599"],"title":"City of The City's $20 fee for voluminous PDF records did not violate FOIA","filename":"72599, issued April 25, 2024.pdf","rel_path":null,"word_count":427,"summary":"The requester challenged the fees charged by the City for a voluminous FOIA request, and the PAC determined the fees were consistent with the statutory limits set forth in Section 6(a-5).","plain_summary":"The requester challenged a $20 fee a city charged in response to a request the city had already determined was voluminous under FOIA's fee provisions for large requests. The PAC determined that because the responsive records were maintained electronically in PDF format totaling no more than 80 megabytes, the fee schedule for voluminous electronic PDF requests permitted the city to charge up to $20 for that volume of data. The city's fee did not violate FOIA.","holding":"The City did not violate FOIA by charging a $20 fee for a voluminous request consisting of less than 80 megabytes of data in PDF format.","legal_question":"Whether a public body's fee assessment for a voluminous request for electronic records in PDF format complied with the fee schedules established in 5 ILCS 140/6(a-5).","disposition":"no_violation","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"The City","requesting_party":"Scott Zak","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The dispute concerned the appropriate fee calculation for a voluminous FOIA request for electronic records.","ocr_status":"ok","ocr_quality":99.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_a-5/72599%2C%20issued%20April%2025%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","voluminous request","electronic records","FOIA costs"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"\f\fMr. Scott Zak\nApril 25, 2024\nPage 3\n\nthe public body shall furnish it in the format in which it is\nmaintained by the public body, or in paper format at the option of\nthe requester. A public body may charge the requester for the\nactual cost of purchasing the recording medium, whether disc, \ndiskette, tape, or other medium. \n\nSection 6(a-5) of FOIA 10 further provides: \n\nIf a voluminous request is for electronic records and those\n\nrecords are not in a portable document format ( PDF), the public\nbody may charge up to $20 for not more than 2 megabytes of data, \nup to $40 for more than 2 but not more than 4 megabytes of data, \nand up to $100 for more than 4 megabytes of data. If a\nvoluminous request is for electronic records and those records\nare in a portable document format, the public body may\ncharge up to $20 for not more than 80 megabytes of data, up to\n40 for more than 80 megabytes but not more than 160 megabytes\nof data, and up to $100 for more than 160 megabytes of data. If\nthe responsive electronic records are in both a portable document\nformat and not in a portable document format, the public body may\nseparate the fees and charge the requester under both fee scales. \nEmphasis added.) \n\nrequest specifically sought copies of records \" in their native\n\nformat.\" 11 The City confirmed that the responsive records are stored electronically in a portable\ndocument format and would require the compilation of not more than 80 megabytes of data. The\nplain language of section 6(a-5) of FOIA permits a public body to charge up to $20.00 for\nrecords responsive to a voluminous request that consists of not more than 80 megabytes of data. \nBecause this office has previously determined that\nJune 7, 2022, FOIA request was\na voluminous request, and because section 6(a-5) expressly permits the charge assessed by the\nCity, the City's fees did not violate FOIA. \n\n105 ILCS 140/ 6(a-5) (West 2022). \n\n11E- mail from ] \n\nto [ Scott Zak] ( June 7, 2022). \n\n\fMr. Scott Zak\nApril 25, 2024\nPage 4\n\nThe Public Access Counselor has determined that the resolution of this matter\n\ndoes not require the issuance of a binding opinion. This matter is closed. If you have FOIA or\nOMA questions, you may contact me at the Chicago address on the bottom of the first page of\nthis letter. \n\nVery truly yours, \n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n72599 f 6a-5 fee proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A requester challenged the amount a city charged for providing electronic records under a 'voluminous' FOIA request. The Attorney General's office reviewed the law and found that the city's $20 fee was permitted under the specific fee schedule for electronic records. Consequently, the PAC closed the matter, finding no violation of the law.","card_headline":"Fee calculation for a voluminous electronic records request","full_text_pre_backfill":"the public body shall furnish it in the format in which it is\nmaintained by the public body, or in paper format at the option of\nthe requester. A public body may charge the requester for the\nactual cost of purchasing the recording medium, whether disc, \ndiskette, tape, or other medium. \n\nSection 6(a-5) of FOIA 10 further provides: \n\nIf a voluminous request is for electronic records and those\n\nrecords are not in a portable document format (PDF), the public\nbody may charge up to $20 for not more than 2 megabytes of data, \nup to $40 for more than 2 but not more than 4 megabytes of data, \nand up to $100 for more than 4 megabytes of data. If a\nvoluminous request is for electronic records and those records\nare in a portable document format, the public body may\ncharge up to $20 for not more than 80 megabytes of data, up to\n40 for more than 80 megabytes but not more than 160 megabytes\nof data, and up to $100 for more than 160 megabytes of data. If\nthe responsive electronic records are in both a portable document\nformat and not in a portable document format, the public body may\nseparate the fees and charge the requester under both fee scales. \nEmphasis added.) \n\nrequest specifically sought copies of records \" in their native\n\nformat.\" 11 The City confirmed that the responsive records are stored electronically in a portable\ndocument format and would require the compilation of not more than 80 megabytes of data. The\nplain language of section 6(a-5) of FOIA permits a public body to charge up to $20.00 for\nrecords responsive to a voluminous request that consists of not more than 80 megabytes of data. \nBecause this office has previously determined that\nJune 7, 2022, FOIA request was\na voluminous request, and because section 6(a-5) expressly permits the charge assessed by the\n\nThe Public Access Counselor has determined that the resolution of this matter\n\ndoes not require the issuance of a binding opinion. This matter is closed. If you have FOIA or\nOMA questions, you may contact me at the Chicago address on the bottom of the first page of\nthis letter. \n\nVery truly yours, \n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n72599 f 6a-5 fee proper mun","disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":989,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-10-05","case_number":null,"request_numbers":["72761"],"title":"Chicago Transportation improperly required FOIA requester to provide search parameters","filename":"72761, issued October 5, 2023.pdf","rel_path":null,"word_count":2165,"summary":"The requester sought communications between the Chicago Department of Transportation and 45th Ward aldermanic staff regarding maintenance agreements, but the Department claimed the request was unduly burdensome. The PAC determined the Department's search was inadequate and directed it to conduct a new, more comprehensive search.","plain_summary":"A person requested documents, including emails and text messages, from the Chicago Department of Transportation regarding maintenance agreements for plantings on Milwaukee Avenue. The Department initially said the request was unduly burdensome and asked the requester to narrow it, but later provided seven email exchanges after a search. The Illinois Attorney General's office found that the Department improperly required the requester to provide search parameters and cautioned the Department to stop that practice in the future. The determination did not order a new search or require the Department to provide additional records.","holding":"The Department's responses improperly required the requester to provide search parameters, and the Department is cautioned to refrain from such practices in the future.","legal_question":"Whether the Chicago Department of Transportation conducted an adequate search for records responsive to a FOIA request before claiming it was unduly burdensome under 5 ILCS 140/3(g).","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Department of Transportation","requesting_party":null,"pac_outcome":"Violation found; search deemed inadequate","pac_law_type":null,"subject_category":"FOIA search adequacy","subject_description":"The request sought communications between the Department of Transportation and aldermanic staff regarding maintenance agreements for plantings.","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_d/Completeness-of-Search/72761%2C%20issued%20October%205%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["unduly burdensome","search adequacy","FOIA request","city records"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nOctober 5, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Erica Schroeder\nFreedom of Information Officer\nChicago Department of Transportation\n2 North LaSalle Street, Suite 1110\nChicago, Illinois 60602\nerica. schroeder@cityofchicago. org\ncdotfoia@cityofchicago. org\n\nRE: FOIA Request for Review – 2022 PAC 72761\n\nDear\n\nand Ms. Schroeder: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)). \n\nOn that date, \n\nsubmitted a FOIA request to the Chicago\n\nDepartment of Transportation ( Department) seeking copies of documents, including e-mails and\ntext messages, sufficient to show the Department' s communications with 45th Ward aldermanic\nstaff concerning updated maintenance agreements for plantings on Milwaukee Avenue\nNorthwest Highway to Peterson). He included a timeframe of approximately three years and\neight keywords/ key phrases. \nDepartment with his request, stating that he had requested the maintenance agreements submitted\nto the Department by then- 45th Ward Alderman Arena in May 2019 and that the Department\nresponded that it could not locate those records but would work with the newly- elected\nAlderman Gardiner to secure the agreements. Later on June 23, 2022, the Department responded\nby stating the FOIA request was unduly burdensome under section 3(g) of FOIA ( 5 ILCS\n\nalso provided background information to the\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMs. Erica Schroeder\nOctober 5, 2023\nPage 2\n\n140/( 3)(g) (West 2022)) and asked\nto narrow the request by providing e-mail\naccounts to search, keywords, and a timeframe ( even though he had already provided two of\nthose three things). The Department also invited\nassistance with how to narrow his request. Later still on that same date, \nthe Department and provided the name of a Department employee— Mr. Leonard Aluise— and\ncurrent and past 45th Ward office staff members. On July 7, 2022, \ne-mailed the\nDepartment' s FOIA Office and requested \" a 'conference to narrow' to straighten out the hastily\nmade Department FOIA Office' s mistakes of the recent past.\" 1 On July 18, 2022, the\nDepartment responded by stating it did not possess any responsive maintenance agreements. The\nDepartment also stated that for the e-mail portion of the request, it needed\nidentify the e-mail addresses of the accounts to be searched. \n\nto reach out if he sought\n\ne-mailed\n\nto\n\nOn July 25, 2022, this office received\n\nRequest for Review\n\ncontesting the Department' s response. He noted that his request was not limited to e-mails and\nargued that the Department had an improper habit of requiring requesters to identify e-mail\naccounts to be searched. \n\nOn July 29, 2022, this office forwarded a copy of the Request for Review to the\nDepartment and asked it to provide to this office a detailed written answer to the allegations in\nthe Request for Review by describing any search it performed for the documents, including who\nwas consulted, which recordkeeping systems were searched, and the method( s) used to search. \nThis office also asked the Department\nmust identify specific e-mail accounts for the Department to process the FOIA request. On\nAugust 22, 2022, the Department responded by defending its practice of requiring requesters to\nidentify e-mail accounts to search, indicating that the city's e-mail search system does not allow\nlimiting a search to a department as a whole. The Department also stated that it overlooked\n\nto explain the legal basis for asserting that\n\ne-mail supplying the staff member' s name but would perform a search of that staff\n\nmember' s e-mails using the data range and keywords\nDepartment also reiterated that it had been unable to locate responsive documents regarding the\nupdated maintenance agreement at issue. \n\nhad supplied. The\n\nOn August 23, 2022, this office forwarded a copy of the Department' s August 22, \n\n2022, correspondence to\n\nwho responded by asserting: \n\nOnly CDOT would have the knowledge to determine who\nwas delegated to contact the 45th Ward Office regarding securing\nmaintenance agreements. * * * [ T]he onus is on the CDOT to find\nnot only these communications to the 45th Ward Office but also to\n\n1E- mail from\n\nto CDOT FOIA Officer [ Erica] Schroeder ( July 7, 2022). \n\n\fMs. Erica Schroeder\nOctober 5, 2023\nPage 3\n\nsearch the project files for the salient documents. I would suggest\ncontacting the CDOT Project Manager for the construction\ncontract that built the planting areas in question as a starting place. \nMy FOIA is not limited to an email search.[ 2] \n\nalso stated that he had since been informed that a former Department employee, \nwas involved in the design phase of constructing the planting areas; he\n\nsuggested that records could be sought from the design engineer who took over the former\nemployee' s files. \n\nOn September 2, 2022, the Department provided\n\nwith a\n\nsupplemental response consisting of copies of seven e-mail exchanges in which Department\nFOIA requests, and a letter describing its\nemployees discuss how to handle\nsearch for responsive records only as to e-mails. On September 6, 2022, \nthat response. \n\nreplied to\n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern\nIllinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 ( 2006). The adequacy of\na public body's search for responsive records is judged by a standard of reasonableness and\ndepends upon the particular facts of the case. Better Government Ass'n v. City of Chicago, 2020\nIL App (1st) 190038, ¶ 31, 169 N.E.3d 1066, 1076 ( 2020). \" Although a public body is not\nrequired to perform an exhaustive search of every possible location, the body must construe\nFOIA requests liberally and search those places that are ' reasonably likely to contain responsive\nrecords.'\" Better Government Ass'n, 2020 IL App ( 1st) 190038, ¶ 31, 169 N.E.3d at 1076\nquoting Judicial Watch, Inc. v. U.S. Dep't of Justice, 373 F. Supp. 3d 120, 126 ( D.D.C. 2019)). \nHowever, \"[ a] requester is entitled only to records that an agency has in fact chosen to create and\nretain.\" Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 ( D.C. Cir. 1982). \" At all\ntimes the burden is on the [ public body] to establish the adequacy of its search.\" Rugiero v. U.S. \nDep't of Justice, 257 F.3d 534, 547 ( 6th Cir. 2001). \n\nAs an initial matter, the Department' s June 23, 2022, and July 18, 2022, responses\n\nimproperly sought to require\nDepartment to conduct a search. The Public Access Counselor has issued a binding opinion\nconcluding: \n\nto provide several parameters in order for the\n\n2E- mail from\n\nto [ Matt] Goodman ( June 23, 2022). \n\n\fMs. Erica Schroeder\nOctober 5, 2023\nPage 4\n\nBecause a public body rather than a member of the public is\ntypically in a better position to know the names and e-mail\naddresses of public employees who would maintain records\npertaining to specific topics, a requester is not required to identify\nspecific employees or employee e-mail addresses in order to\nreasonably describe e-mails concerning a particular subject matter. \nThe failure to provide such information does not render a FOIA\nrequest unduly burdensome. Ill. Att'y Gen. Pub. Acc. Op. No. 23-\n007, issued May 26, 2023, at 11. \n\nCiting case law, the binding opinion also explained that \" FOIA generally does not require a\nrequester to provide keywords[,]\" and that \"[ p] ublic bodies are obligated to devise reasonable\nsearch terms.\" Ill. Att'y Gen. Pub. Acc. Op. No. 23-007, at n.12. Further, the Department' s June\nneeded to provide parameters that he had already\n23, 2022, response claimed that\nprovided. This office cautions the Department\nto refrain from requiring requesters to provide\nspecific search parameters in the future, and instead to formulate its own reasonable search\nparameters. \n\nThe Department asserted that, pursuant to\n\nRequest for Review, it\n\nsearched Mr. Aluise' s e-mail account for e-mails containing any of the keywords\nlisted over the timeframe he provided. According to the Department: \n\nThis search produced more than 10,100 items. In order to\nproduce these emails, each email would need to be reviewed and\ninformation exempt under FOIA would need to be redacted. One\nreason why the search result was so large is that some of the terms, \nsuch as \" Gardiner\" and \" 45th\" are commonly used in email\nsignatures of 45th Ward staff members. Other terms, like\nMilwaukee\", are also common. Therefore, this search pulled\nthousands of emails that would have no relation to\nFOIA request. It would be unduly burdensome to review more than\n10,000 emails. \n\nIn an effort to narrow the search and provide more relevant\n\nresults ( communication concerning maintenance agreements on\nMilwaukee Avenue), CDOT adjusted the search in the following\nways: \n\nSearched for emails of three relevant CDOT staffers whose\n\naccounts are reasonably likely to contain responsive records\n\n\fMs. Erica Schroeder\nOctober 5, 2023\nPage 5\n\nLeonard Aluise, Ben Reynoso, and David Smith) for the\nfollowing search terms: \" plantings\", \" Gardiner\", \" 45th\", \nMilwaukee\", \" curb extension\", AND \" maintenance agreement\".[ 3] \n\nThe Department stated that the only e-mails this search produced are the e-mails provided to\n\nin which employees discuss how to respond to his requests. Six of the e-mail threads\nare from April 2022, while the seventh is from August 2020. The Department also stated that its\nstaff also searched for relevant files and documents and found no records regarding\nmaintenance agreements for plantings on Milwaukee Avenue ( North Highway to Peterson).\" 4\n\nIn his reply, \n\ndisputed the adequacy of the search on the basis that\n\nthe records he received did not reflect any communication with Alderman Gardiner or his staff. \nHe argued that the Department\nto search the account of\n\nfailed to confer with him about narrowing his request and failed\n\nAlthough this office expressly asked the Department to address who was\n\nconsulted during its search for responsive records, which recordkeeping systems were searched, \nand the methods used to search, the Department addressed documents other than e-mails by\nmerely stating that its staff searched relevant files and documents; the Department did not\nidentify any staff members consulted, which recordkeeping systems were searched, or anything\nspecific about any search methods. It is not evident from the Department' s communications in\nthis matter how the Department maintains any file folders or otherwise maintains non- e-mail\ndocuments involving maintenance agreements of the kind at issue or involving 45th Ward\nmatters. \n\nAs to the e-mails, the information the Department provided indicates that the\n\nDepartment appropriately searched Mr. Aluise' s e-mail account for the relevant time period and\nappropriately identified two other employees whom the Department believed were reasonably\nlikely to have sent or received responsive e-mails. Additionally, the Department made use of the\nkeywords\nsupplied in formulating a focused search query that did not encompass\nunrelated matters. On the other hand, the Department did not indicate why it did not search the\naccount of\n23, 2022, correspondence. Similarly, the Department did not indicate why it did not use any of\n\nidentifying him as an involved party in his June\n\ndespite\n\n3Letter from Erica Schroeder, Director of Public Information, Chicago Department of\n\nTransportation, to Matthew G. Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois\nAttorney General ( September 1, 2022), at 1-2. \n\n4Letter from Erica Schroeder, Director of Public Information, Chicago Department of\n\nTransportation, to Matthew G. Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois\nAttorney General ( September 1, 2022), at 2. \n\n\fMs. Erica Schroeder\nOctober 5, 2023\nPage 6\n\nthe 45th Ward staff member information\nrequest when it conducted its search. \n\nprovided in response to the Department' s\n\nUnder these circumstances, the Public Access Bureau is unable to conclude that\n\nthe Department responded properly to\nDepartment to conduct a new search that includes\nstaff contact information, as well as communicating with the staff members who are reasonably\nlikely to have sent or received responsive correspondence. The Department should then disclose\nany responsive records it locates or, if it locates no other records, provide a description of its\nsearch containing the information asked about in this office' s July 29, 2022, inquiry letter. \n\nFOIA request. This office asks the\n\ne-mail account and 45th Ward\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n\n72761 f 3a search improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Communications about maintenance agreements for plantings","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":990,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-04-20","case_number":null,"request_numbers":["73240"],"title":"Illinois State Police properly denied FOIA for firearms restraining order data as LEADS protected","filename":"73240, issued April 20, 2023.pdf","rel_path":null,"word_count":1373,"summary":"A reporter requested a detailed spreadsheet of firearms restraining order data from the Illinois State Police, which the agency denied citing confidentiality restrictions. The PAC concluded that the ISP properly denied the request because the data is contained within the Law Enforcement Agencies Data System (LEADS), which is exempt from disclosure under FOIA.","plain_summary":"A reporter asked the Illinois State Police for specific details about firearms restraining orders. The police denied the request, explaining that this information is stored in a restricted law enforcement database that they are legally prohibited from sharing with the public. The Attorney General's office agreed with the police, finding that the law does not allow the release of this specific data.","holding":"The Illinois State Police did not violate FOIA by denying the request for detailed firearms restraining order data because such information is protected from disclosure as LEADS data.","legal_question":"Whether the Illinois State Police properly denied a FOIA request for detailed firearms restraining order data by invoking the exemption for information prohibited from disclosure by federal or state law (LEADS data).","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(a)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Illinois State Police","requesting_party":"Mr. Mick Dumke (ProPublica)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought a detailed spreadsheet of data regarding firearms restraining orders filed since 2019.","ocr_status":"ok","ocr_quality":95.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_a/73240%2C%20issued%20April%2020%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["firearms restraining order","LEADS","police records","FOIA exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 20, 2023\n\nVia electronic mail\nMr. Mick Dumke\nReporter\nProPublica\nmick.dumke@propublica. org\n\nVia electronic mail\nMs. Rhiann M. Martynowski\nFOIA Unit\nIllinois State Police\n[street address redacted for site publication -- see original PDF]\nisp.foia.officer@illinois. gov\n\nRE: FOIA Request for Review – 2022 PAC 73240; FOIA 22-2595\n\nDear Mr. Dumke and Ms. Martynowski: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the Illinois State Police ( ISP) did not violate FOIA by\ndenying Mr. Mick Dumke' s July 13, 2022, FOIA request. \n\nOn that date, Mr. Dumke, on behalf of ProPublica, submitted a FOIA request\n\nto ISP seeking an update to records ISP provided in response to FOIA request 21-0901. \nSpecifically, he sought an Excel spreadsheet displaying the following data for all firearms\nrestraining orders issued or filed since January 1, 2019, under the Firearms Restraining Order\nAct (430 ILCS 67/1, et seq. ( West 2020)): \n\nthe date or year\ncounty or court jurisdiction\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. Mick Dumke\nMs. Rhiann Martynowski\nApril 20, 2023\nPage 2\n\ntype of petitioner ( family member, law enforcement agency, \netc) \nname of petitioner if a law enforcement agency\nlength and type of order ( emergency, 6-month, etc) \nstatus of the order ( active, renewed, terminated, etc) \nage, gender, and race of the respondent/ recipient of the\norder[.][ 1] \n\nOn August 23, 2022, ISP denied Mr. Dumke' s request pursuant to section 7(1)(a) 2 of FOIA, on\nthe basis that the responsive information is maintained in the Law Enforcement Agency Data\nSystem ( LEADS), and that section 1240. 80(d) of title 20 of the Administrative Code3 prohibits\nISP from disclosing LEADS information. ISP's denial also cited sections 7.5(v)4 and 8.55 of\nFOIA. On August 30, 2022, Mr. Dumke filed this Request for Review challenging ISP's\ndenial. Mr. Dumke asserted that the responsive information does not come from the LEADS\ndatabase, but rather from court clerks. He noted that ISP provided similar information in\nresponse to his FOIA request in 2021. \n\nOn September 8, 2022, this office sent a copy of the Request for Review to ISP\n\nand asked it to provide un-redacted copies of the responsive records and a detailed explanation of\nthe legal and factual bases for its assertion of the above- referenced exemptions. On September\n19, 2022, this office received ISP' s response. On September 20, 2022, this office forwarded\nISP's written answer to Mr. Dumke; he replied the same day. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1.2 (West 2020). \n\nPolice ( July 13, 2022). \n\n1E- mail from Mick Dumke, Reporter, ProPublica, to David Catlin, FOIA Officer, Illinois State\n\n2022, revised February 3, 2022; 102-791, effective May 13, 2022; 102- 1055, effective June 10, 2022. \n\n25 ILCS 140/ 7(1)(a) ( West 2021 Supp.), as amended by Public Acts 102-694, effective January 7, \n\n320 Ill. Adm. Code § 1240.80(d) (2023), last amended at 23 Ill. Reg. 7521, effective June 18, 1999. \n\n45 ILCS 140/ 7.5(v) (West 2021 Supp.), as amended by Public Acts 102- 813, effective May 13, \n\n2022; 102- 1042, effective June 3, 2022. \n\n55 ILCS 140/ 8.5 (West 2020). \n\n\fMr. Mick Dumke\nMs. Rhiann Martynowski\nApril 20, 2023\nPage 3\n\nIn its response to this office, ISP explained that court clerks provide local law\nenforcement agencies with copies of court- issued firearms restraining orders. The local law\nenforcement agencies then enter the restraining order information into the LEADS database. ISP\nmaintained that it does not receive firearms restraining order information directly from the\ncourts; it accesses that information only through LEADS after it has been entered into the system\nby local law enforcement agencies, which retain the orders themselves. \n\nSection 55 of the Firearms Restraining Order Act (430 ILCS 67/55 (West 2020)) \n\ndescribes a \"[ d] ata maintenance by law enforcement agencies\" process that is consistent with\nISP's description. Specifically, section 55(a) provides: \n\nAll sheriffs shall furnish to the Illinois State Police, daily, \n\nin the form and detail the Illinois State Police requires, copies of\nany recorded firearms restraining orders issued by the court, and\nany foreign orders of protection filed by the clerk of the court, and\ntransmitted to the sheriff by the clerk of the court under Section 50. \nEach firearms restraining order shall be entered in the Law\nEnforcement Agencies Data System ( LEADS) on the same day it\nis issued by the court. If an emergency firearms restraining order\nwas issued in accordance with Section 35 of this Act, the order\nshall be entered in the Law Enforcement Agencies Data System\nLEADS) as soon as possible after receipt from the clerk. \n\nSection 7(1)(a) of FOIA exempts from inspection and copying \"[ i]nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" \n\nThe Civil Administrative Code of Illinois ( Civil Code) authorized ISP to establish\nLEADS for the purpose of \"mak[ ing] available to other law enforcement agencies for immediate\ndissemination data that can assist appropriate agencies * * * \npurposes.\" 20 ILCS 2605/ 2605- 375( a) ( West 2021 Supp). ISP has established an administrative\nrule implementing the Civil Code stating that \" LEADS data shall not be disseminated to any\nindividual or organization that is not legally authorized to have access to the information.\" 20\nIll. Adm. Code § 1240. 80(d) (2023), last amended at 23 Ill. Reg. 7521, effective June 18, 1999. \nLEADS data, which is prohibited from being disclosed to the public, includes information\ntransmitted through LEADS. Better Government Association v. Zaruba, 2014 IL App (2d) \n140071, ¶ 27, 21 N.E. 3d 516, 525 ( 2014) (\" The regulations make clear that the public is not\nentitled to view or possess data that is transmitted through, received through, or stored in\nLEADS.\"). Mr. Dumke, as a member of the media, does not meet the criteria for accessing\n\njustice and related\n\nfor criminal\n\n\fr. Mick Dumke\nMs. Rhiann Martynowski\nApril 20, 2023\nPage 4\n\nLEADS set forth in section 1240. 30(c) of title 20 of the Administrative Code ( 20 Ill. Adm. Code\n1240. 30(c) (2023), last amended at 23 Ill. Reg. 7521, effective June 18, 1999). \n\nIn his reply, Mr. Dumke questioned why ISP could post certain firearms\n\nrestraining order data on its website, but could not provide similar data to him. Section 85 of the\nFirearms Restraining Order Act requires that ISP \" shall submit a yearly report to the General\nAssembly or make available on its website the number of petitions entered into the Law\nEnforcement Agencies Data System.\" 430 ILCS 67/85 (West 2021 Supp.), as amended by Public\nAct 102-345, effective June 1, 2022. Accordingly, the law authorizes ISP to disclose the number\nof petitions entered into LEADS. It does not, however, authorize ISP to disclose the detailed\ninformation concerning firearms restraining orders that Mr. Dumke requested. \n\nBecause ISP's only access to firearms restraining order data is through LEADS\n\nand because it is specifically prohibited from disseminating LEADS data to unauthorized parties, \nthis office concludes that ISP did not improperly deny Mr. Dumke' s request pursuant to section\n7(1)(a) of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 843- 0564 or laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n73240 f 71a proper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Spreadsheet of firearms restraining order data","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":991,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-10-19","case_number":null,"request_numbers":["73336"],"title":"Mahomet Township Road District properly denied repeated FOIA request by coordinated group","filename":"73336, issued October 19, 2022.pdf","rel_path":null,"word_count":985,"summary":"The requester challenged the Mahomet Township Road District's denial of a FOIA request as an unduly burdensome repeat request under section 3(g). The PAC determined that the District properly applied the repeat request exemption and noted that it lacked authority to address the requester's allegations of ethical violations.","plain_summary":"The question was whether a public body properly denied a FOIA request as an unduly burdensome repeated request under 5 ILCS 140/3(g) where the request came from one of three individuals who routinely share and coordinate FOIA requests and responses. The Public Access Bureau held that the Request for Review was unfounded, concluding that the requester and two other individuals acted collectively as a 'group' and therefore qualified as a single 'person' under 5 ILCS 140/2(b), so the public body was not required to provide records it had already furnished to another member of that group. The reasoning is that under section 3(g), a repeated request from the same 'person'—which can include a group of individuals acting together to obtain and share information—for records already provided or properly denied is deemed unduly burdensome. The decision concerned a road district's response to a request for communications and prior FOIA records, and the Bureau also declined to address alleged ethical violations by a private attorney as outside its FOIA/OMA review authority.","holding":"Individuals who coordinate and share FOIA requests and responses with one another qualify collectively as a single 'person' under 5 ILCS 140/2(b), so a public body may properly deny a request from one of them as an unduly burdensome repeated request under 5 ILCS 140/3(g) if the group already received or was properly denied the same records.","legal_question":"Whether the Mahomet Township Road District properly denied a FOIA request as an unduly burdensome repeat request under 5 ILCS 140/3(g).","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(m)","3(g)"],"public_body":"Mahomet Township Road District","requesting_party":"Requester (name redacted in source document)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought various communications and documents related to legal invoices and attorney summaries.","ocr_status":"ok","ocr_quality":96.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_g/Repeated-requests/73336%2C%20issued%20October%2019%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["repeat request","unduly burdensome","FOIA denial","legal invoices"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nOctober 19, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review – 2022 PAC 73336\n\nDear\n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2020)). For the reasons set forth below, the\nPublic Access Bureau concludes that this Request for Review is unfounded. \n\nOn August 19, 2022, you submitted a FOIA request to the Mahomet Township\n\nRoad District (District) requesting \"any and all communications, documents, letters, text\nmessages, and emails documents, of any and all descriptions, related to Sorling Northrup and the\nattorney summary of Gregory Moredock dated July 18, 2022 as invoice #208603.\" 1 After\nextending the time to respond by five business days, on September 2, 2022, the District provided\nresponsive communications between the District and its attorney but redacted portions under\nsection 7(1)( m) of FOIA ( 5 ILCS 140/ 7(1)( m) ( West 2021 Supp.), as amended by Public Acts\n102-694, effective January 7, 2022, revised February 3, 2022; 102-791, effective May 13, 2022; \n102- 1055, effective June 10, 2022). The District denied the remaining responsive records, which\nconsisted of FOIA responses and records previously sent to you, Mr. Chad Coit, or Ms. Lisa\nSlade, as an unduly burdensome repeat request pursuant\n140/3(g) (West 2020)). Your Request for Review contests the District's denial based upon\nsection 3(g) of FOIA because Mr. Coit, Ms. Slade, and you are separate individuals. Your\nRequest for Review also asks the Public Access Bureau to review alleged ethical violations. \n\nto section 3(g) of FOIA ( 5 ILCS\n\n1Letter from\n\nto Mahomet Township Road District (August 19, 2022). \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n\fOctober 19, 2022\nPage 2\n\nAs an initial matter, you have asked this office to review alleged ethical violations\n\nby a private attorney, which are not subject to review by the Public Access Counselor. See 15\nILCS 205/ 7(c) ( West 2020) ( limiting the Public Access Counselor' s authority to reviewing\nalleged violations of FOIA and the Open Meetings Act (OMA) (5 ILCS 120/1 et seq. (West\n2020)). Therefore, this office will take no further action regarding that allegation. \n\nSection 3(g) of FOIA provides, in pertinent part that \"[ r]epeated requests from the\nsame person for the same records that are unchanged or identical to records previously provided\nor properly denied under this Act shall be deemed unduly burdensome under this provision.\" \nEmphasis added.) Under the plain language of section 3(g), a request is an unduly burdensome\nrepeated request if a public body has previously provided the same person with the responsive\nrecords or properly denied a prior, unchanged request. Section 2(b) of FOIA (5 ILCS 140/2(b) \nWest 2020)) defines \" person\" as \" any individual, corporation, partnership, firm, organization\nor association, acting individually or as a group.\" (Emphasis added.) FOIA does not define\ngroup,\" but Merriam- Webster' s Dictionary defines \" group\" as, among other things, \" a number\nof individuals assembled together or having some unifying relationship\" such as a study group.2\nis as an unduly\nThus, in order for this office to determine whether your August 19, 2022, request\nburdensome repeated request, it is necessary to assess whether you, Mr. Coit, and Ms. Slade\nwere acting as a group, and therefore, qualify collectively as a person under the statute. \n\nIn your Request for Review, you stated that you prepared your August 19, 2022, \nFOIA Request to the District based on the content of a response that Mahomet Township sent to\nMs. Slade. On September 14, 2022, an Assistant Attorney General ( AAG) in the Public Access\nBureau spoke by telephone with you.3 The AAG asked you how you obtained the records sent to\nMs. Slade. You responded that she shared it with you. You also informed the AAG that there\nare three people that share FOIA requests and responses (yourself, Mr. Coit, and Ms. Slade) and\nstated the three of you discuss which records to FOIA. Based upon that information, it appears\nthat you, Mr. Coit, and Ms. Slade act as a group for the purpose of obtaining and sharing\ninformation from the District, and possibly other public bodies. Therefore, you, Mr. Coit, and\nMs. Slade qualify collectively as a \" person\" under the definition of that term in FOIA. FOIA\ndoes not require the District to provide you with additional copies of records that it previously\nprovided to another member of your group. Thus, you have provided no information to this\noffice that the District improperly designated your August 19, 2022, FOIA request as a repeated\nrequest under section 3(g) of FOIA. \n\n2Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/group (last\n\nvisited September 19, 2022). \n\n3During that conversation, you confirmed to the AAG that your Request for Review (1) contested\nthe District's designation of you, Mr. Coit, and Ms. Slade as a group under FOIA; and (2) alleged ethical violations. \n\n\fOctober 19, 2022\nPage 3\n\nAccordingly, this office has determined that this matter is unfounded, and this file\n\nis closed. If you have any questions, please contact me at 312-814-5201 or at the Chicago\naddress listed on the bottom of the first page of this letter. \n\nVery truly yours, \n\nEDIE STEINBERG\nSenior Assistant Attorney General\nPublic Access Bureau\n\n73336 f unf mun\n\ncc: \n\ncc: \n\nVia electronic mail\nFOIA Officer\nMahomet Township Road District\n2270 CR 0E\nMahomet, Illinois 61853\nmahtwp1@yahoo. com\n\nVia electronic mail\nMr. Gregory E. Moredock\nSorling Northrup Attorneys\nOne North Old State Capitol Plaza\nSuite 200\nP.O. Box 5131\nSpringfield, Illinois 62705\ngemoredock@sorlinglaw.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Legal invoices and attorney summaries","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":992,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-05-02","case_number":null,"request_numbers":["73487"],"title":"Village of Caseyville improperly withheld employee emails under Section 7(1)","filename":"73487, issued May 2, 2023.pdf","rel_path":null,"word_count":1428,"summary":"The requester sought emails from two Village of Caseyville officials, and the PAC determined the Village failed to meet its burden of proving that the requested records were exempt from disclosure.","plain_summary":"A resident requested emails from two Village of Caseyville employees, but the Village failed to provide them, claiming they were exempt. The Attorney General's office reviewed the case and found that the Village did not provide enough evidence to justify keeping the emails secret. Consequently, the PAC directed the Village to release the requested records to the requester.","holding":"The Village of Caseyville improperly withheld the requested emails by failing to demonstrate that they were exempt from disclosure under FOIA.","legal_question":"Did the Village of Caseyville meet its burden of proof under section 7 of FOIA to withhold responsive emails?","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)"],"public_body":"Village of Caseyville","requesting_party":"EF","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"email records","subject_description":"The requester sought all sent, received, and deleted emails for the Village Superintendent and Zoning Administrator over a one-month period.","ocr_status":"ok","ocr_quality":92.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/9.5/9.5_c/73487%2C%20issued%20May%202%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["email records","burden of proof","FOIA request","Village of Caseyville"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 2, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Doug Stewart\n\nAttorney, Stewart Law Group\nP.O. Box 4291\n\n[street address redacted for site publication -- see original PDF]\ndstewart@stewartlawgroup.co\n\nRE: FOIA Request for Review — 2022 PAC 73487\n\nDear EF and Mr. Stewart:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(£) (West 2020)).\n\nOn June 27, 2022, submitted a FOIA request to the Village of\nCaseyville (Village) seeking copies of \"[all] sent, received[,] and deleted emails for\nSuperintendent, Brian Rader and Zoning Administrator, Phil Little for the time period of May\n15, 2022, to June 15, 2022.\"! On July 5, 2022, the Village informed [IF that it classified\nher FOIA request as voluminous and extended its time to respond by ten business days. On\nAugust 4, 2022, EF contacted the Village's counsel, Doug Stewart, regarding the status of\nthe Village's response to her FOIA request. In particular, stated that Mr. Stewart\nreported that the Village \"will be forwarding [the requested e-mails] per our agreement at 150 e-\nmails per week for the next weeks, and that [she] would start receiving them this week.\"? On\n\n'FOIA request submitted by J to [Village of Caseyville] (June 27, 2022).\n°E-mail from EE to Doug [Stewart] (August 4, 2022).\n500 South Second Street, Springfield, Illinois 62701 = (217) 782-1090 « TTY: (877) 844-5461 * Fax: (217) 782-7046\n\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 * TTY: (800) 964-3013 + Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 * Fax: (618) 529-6416\n\nMr. Doug Stewart\nMay 2, 2023\nPage 2\n\nAugust 8, 2022, J again reached out to Mr. Stewart regarding the status of the Village's\nresponse.\n\nOn August 22, 2022, EF submitted a preceding Request for Review, 2022\n\nPAC 73132, alleging that the Village did not respond to her FOIA request. On August 26, 2022,\nthis office sent a copy of the Request for Review to the Village and asked it to respond to J\n\nand provide a copy of its response to this office. On September 8, 2022, the Village\nprovided {MF with records.* Because that response resolved {J complaint that the\nVillage did not respond to her request, this office closed 2022 PAC 73132. That same day,\nHEE submitted a new Request for Review, 2022 PAC 73487, contesting the completeness of the\nVillage's response. In particular, MM alleged that the Village's response pertained to\nanother FOIA request, and she never received any of the requested e-mails.\n\nOn September 25, 2022, an Assistant Attorney General (AAG) in the Public\nAccess Bureau e-mailed Mr. Stewart a copy of the Request for Review and asked him to address\nthis discrepancy. The AAG also asked Mr. Stewart to provide a copy of the Village's response to\nal June 27, 2022, FOIA request. Mr. Stewart did not reply to the AAG's e-mail.\n\nTherefore, on October 17, 2022, this office sent a copy of the Request for Review\nto the Village and asked it to provide a formal written response addressing the allegations in the\nRequest for Review. This office also asked the Village to include in its response a detailed\ndescription of the measures taken to search for the records sought in her FOIA request.\nOn October 27, 2022, Mr. Stewart informed this office a that the responsive e-mails\nwere ready to be picked up at Village Hall. Mr. Stewart stated, however, that the provided\nrecords \"includes all emails (some with redactions) except those exempt from disclosure\npursuant to the act.\"* He further stated: \"By providing the requested responsive documents, I\nbelieve this matter is resolved.\"* In an e-mailed reply to Mr. Stewart, J asserted that the\nmatter was not resolved because the Village indicated it had withheld some e-mails.°\n\nOn December 7, 2022, the AAG spoke with J to discuss if she ever\nreceived a copy of the responsive records. [NP explained that she did not retrieve these\nrecords from Village Hall because she believed her Request for Review would be closed if she\n\n‘The Village redacted some information pursuant to section 7(1)(m) of FOIA (5 ILCS 140/7(1)(m)\n(West 2020), as amended by Public Act 102-038, effective June 25, 2021).\n\n‘E-mail from Doug Stewart, Stewart Law Group, to]end Christina Lucente-\nMcCullough] (October 28, 2023).\n\n5E-mail from Doug Stewart, Stewart Law Group, to [Jan Christina Lucente-\nMcCullough] (October 28, 2023).\n\n°E-mail from to Doug Stewart (October 28, 2022).\n\nMr. Doug Stewart\nMay 2, 2023\nPage 3\n\ndid so when she still challenged the withholding of any e-mails. On that same date, the AAG\nasked Mr. Stewart to provide this office with redacted and unredacted copies of the responsive\nrecords, as well as the Village's written response to this office's October 17, 2022, letter.\n\nOn January 3, 2023, the AAG again e-mailed Mr. Stewart for an update on the\nVillage's formal response. On January 4, 2023, Mr. Stewart informed the AAG that she should\nreceive the Village's response by January 6, 2023. Having received no response by that date, the\nAAG left voicemails for Mr. Stewart on January 9, 2023, and January 18, 2023, once more\ninquiring about the Village's response; he did not call back. This office also sent another letter to\nthe Village on January 31, 2023, seeking the same information.\n\nTo date, this office has received from the Village neither the requested records nor\nany other communication about this matter.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \"has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401,\n407 (1997).\n\nFurther, the procedures for a public body to respond to the Public Access\nCounselor in connection with a Request for Review of the denial of a FOIA request are clear.\nSection 9.5(c) of FOIA (5 ILCS 140/9.5(c) (West 2020)) unambiguously provides that \"[w]ithin\n7 business days after receipt of the request for review, the public body shall provide copies of\nrecords requested and shall otherwise fully cooperate with the Public Access Counselor.\"\n\nIt is undisputed that the Village did not cooperate with the Public Access Bureau\nas expressly required by section 9.5(c) of FOIA. The Village has provided this office with\nneither copies of the responsive records nor a written explanation supporting its partial denial of\nLn request. Indeed, the Village failed to identify in its October 27, 2022, e-mail to\nHE the specific exemptions that applied to the redacted or withheld e-mails and explain the\nfactual bases for the applicability of those exemptions, as required by section 9(b) of FOIA (5\nILCS 140/9(b) (West 2020)) (\"When a request for public records is denied on the grounds that\nthe records are exempt under Section 7 of this Act, the notice of denial shall specify the\nexemption claimed to authorize the denial and the specific reasons for the denial, including a\ndetailed factual basis and a citation to supporting legal authority.\"). Without any of the records\nto review or an explanation for the partial denial, this office concludes that the Village did not\n\n\nMr. Doug Stewart\nMay 2, 2023\nPage 4\n\nmeet its burden of demonstrating by clear and convincing evidence that any of the responsive e-\nmails are exempt from disclosure pursuant to an exemption under section 7 of FOIA.”\nAccordingly, this office requests that the Village provide [J with copies of all the e-mails\nresponsive to her June 27, 2022, request.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\nplease contact me at c.lucentemecullough@ilag.gov or at the Chicago address listed on the\nbottom of the first page of this letter.\n\nVery truly yours,\n\nCHRISTINA M. LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n73487 f95c improper mun\n\nte: Via electronic mail\nThe Honorable Cynthia Miller\nVillage Clerk\nVillage of Caseyville\n909 South Main Street\nCaseyville, Illinois 62232\ncmiller@caseyville.org\n\n75 ILCS 140/7 (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-\n558, effective August 20, 2021; 102-694, effective January 1, 2022; 102-791, effective May 13, 2022.\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village superintendent's and zoning administrator's emails","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":993,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-07-31","case_number":null,"request_numbers":["73556"],"title":"Hunt Lima Drainage District improperly withheld maintenance assessment rolls under 7(1)(c)","filename":"73556, issued July 31, 2023.pdf","rel_path":null,"word_count":1667,"summary":"The requester sought annual maintenance assessment rolls and collector's books from the Hunt Lima Drainage District, which the District denied citing privacy exemptions. The PAC determined that the District failed to demonstrate that the requested financial records were exempt from disclosure.","plain_summary":"A citizen requested financial records from the Hunt Lima Drainage District regarding maintenance taxes, but the District refused, citing privacy concerns. The Illinois Attorney General's Public Access Bureau reviewed the records and determined that the District improperly withheld the annual maintenance assessment rolls because they relate to public funds, not private personal income. However, the District may redact home addresses of individual property owners before releasing the records, and it must conduct a new search for any additional responsive records, such as collector's books, before issuing a supplemental response.","holding":"The Hunt Lima Drainage District improperly withheld the requested maintenance assessment rolls, but may redact home addresses of individual property owners and must conduct a new search for collector's books before releasing records.","legal_question":"Whether the Hunt Lima Drainage District properly invoked the FOIA exemption for private personal information to withhold maintenance assessment rolls and collector's books.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Hunt Lima Drainage District","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request concerned the disclosure of annual maintenance assessment rolls and collector's books maintained by a drainage district.","ocr_status":"ok","ocr_quality":94.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2.5/73556%2C%20issued%20July%2031%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["drainage district","assessment rolls","privacy exemption","public funds","tax records"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 31, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable Jon Hofmeister\nHunt Lima Drainage District\nBoard of Commissioners\n\n705 Lafayette Street\n\nWarsaw, Illinois 62379\njonhof&8@gmail.com\n\nRE: FOIA Request for Review — 2022 PAC 73556\n\nDear and Mr. Hofmeister:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the Hunt Lima Drainage District (District) improperly\nwithheld in their entireties records responsive to I February 22, 2022, FOIA\nrequest.\n\nOn that date, (J submitted a FOIA request to the District seeking, in\nrelevant part, copies of the annual maintenance assessment rolls and current collector's books for\n2020 and 2021. In an undated response that received on September 8, 2022, the\nDistrict asserted that \"these documents contain private personal information that is exempt[.]\"!\nOn September 18, 2022, the Public Access Bureau received this Request for Review contesting\nthe District's denial.\n\n‘Letter from Hunt Lima Drainage District Commissioners to [J (undated).\n\n500 South Second Street, Springfield, Illinois 62701 * (217) 782-1090 + TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 * TTY: (800) 964-3013 + Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 * Fax: (618) 529-6416\n\nThe Honorable Jon Hofmeister\nJuly 31, 2023\nPage 2\n\nThis office forwarded a copy of the Request for Review to the District and asked\nit to provide unredacted copies of the requested records for our confidential review, together with\na detailed written explanation of the factual and legal bases for the applicability of any asserted\nexemptions. On October 26, 2022, the District Board's Chairman Jonathan Hofmeister provided\nthis office with unredacted copies of a representative sampling of 2022 annual maintenance\nassessments for District landowners. Mr. Hofmeister also stated:\n\nI spoke with the other two commissioners about sending\nour own tax bills to represent the typical form that is sent to\nlandowners. There are four pages total.\n\nI also trust that the rules the district followed to deny the\nrelease of these documents to Mp will be provided by\n[District Legal Counsel John Hauk]. We still maintain that the\nnames and addresses of the landowners should be considered\nexempt from FOIA requests.”\n\nIn a November 2, 2022, response to this office from the District's legal counsel, the District\nasserted that \"the assessment 'bills' are exempted from disclosure pursuant to 5 ILCS 140/7 as\nthey contain private information, such as home addresses and personal financial information,\nwhich is included in the definition of 'private information’ found in 5 ILCS 140/ 2(c-5).\"*> This\noffice forwarded a copy of the District's response to [; on November 15, 2022, she\nreplied, asserting that the requested records constituted records of public funds and should be\nsubject to disclosure under FOIA.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that redacts a\nrecord \"has the burden of proving by clear and convincing evidence\" that the redacted\ninformation is exempt from disclosure. 5 ILCS 140/1.2 (West 2022). The exemptions from\ndisclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois\nUniversity, 176 Ill. 2d 401, 407 (1997).\n\n?E-mail from Jonathan Hofmeister to Christopher Boggs (October 26, 2022).\n\nE-mail from John N. Hauk, Attorney, Hauk & Owens, LLC, to [Christopher] Boggs (November\n2, 2022).\n\nThe Honorable Jon Hofmeister\nJuly 31, 2023\nPage 3\n\nBased on the District's claim that information within the requested records\nconstituted \"private\" information, the District appears to assert that all portions of the records are\nexempt from disclosure under section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2022)). That\nexemption applies to \"[p]rivate information, unless disclosure is required by another provision of\nthis Act, a State or federal law or a court order.\" Section 2(c-5) of FOIA (5 ILCS 140/2(c-5)\n(West 2022)) defines \"private information\" as:\n\nunique identifiers, including a person's social security number,\ndriver's license number, employee identification number, biometric\nidentifiers, personal financial information, passwords or other\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person. (Emphasis added.)\n\nFurthermore, section 2.5 of FOIA (5 ILCS 140/2.5 (West 2022)) provides that \"[a}ll records\nrelating to the obligation, receipt, and use of public funds of the State, units of local government,\nand school districts are public records subject to inspection and copying by the public.\" This\noffice has reviewed the records at issue, which consist of the 2022 annual assessments or\n\"maintenance tax\" levied by the District on landowners within the District. Thus, the requested\nrecords clearly relate to the District's receipt of public funds.\n\nIn its responses to this office, the District's Board and legal counsel contended\nthat landowners! names and addresses, together with their personal financial information, are\nexempt from disclosure. In Binding Opinion 18-002, Attorney General Madigan determined that\na customer name listed on a water bill issued by a public body did not fall within the definition\nof \"private information\" in section 2(c-5), and therefore was not exempt from disclosure pursuant\nto section 7(1)(b) of FOIA. Ill. Att'y Gen. Pub. Acc. Op. No. 18-002, issued February 14, 2018,\nat 5. In that opinion, Attorney General Madigan looked to the plain language of sections 2(c-5)\nand 7(1)(b), and relied on a prior binding opinion which held that \"names are not specifically\nincluded in the definition of private information,’ and a name is not ordinarily sufficiently unique\nto identify a specific individual because many persons have the same name.\" II]. Att'y Gen. Pub.\nAcc. Op. No. 18-002, issued February 14, 2018, at 5 (quoting Ill. Att'y Gen. Pub. Acc. Op. No.\n12-003, issued January 18, 2012, at 7). Attorney General Madigan also determined in that\nopinion that, because bills for water services are expressly subject to disclosure under section\n2.5, the customer names and service addresses on those bills were not \"personal financial\ninformation\" as that phrase is used in section 2(c-5).\n\nThe Honorable Jon Hofmeister\nJuly 31, 2023\nPage 4\n\nLikewise, the annual assessments directly relate to the District's receipt of public\nfunds to be used for levee maintenance. Such records are expressly subject to disclosure under\nsection 2.5. Further, the District has provided no explanation concerning how the amount owed\nby each landowner constitutes \"personal financial information\" under section 2(c-5) of FOIA.\nBecause the annual assessments in question reflect the anticipated receipt of funds by the District\nand because the District has not demonstrated that section 7(1)(b) is applicable to the requested\nrecords, this office concludes that the District improperly withheld the annual assessments in\ntheir entireties.1 In accordance with that determination, this office requests that the District\nprovide Ms. Roskamp with copies of the records at issue, including the responsive annual\nassessments for other District landowners. \"Home\" addresses of property owners may be\nredacted pursuant to section 7(1)(b) of FOIA. Ill. Att'y Gen. PAC Req. Rev. Ltr. 51203, issued\nAugust 2, 2018 (home address of utility bill that displays name of utility customer exempt as\nprivate information). Addresses of properties owned by companies and/or incorporated farming\noperations, however, are business addresses that are not within the scope of the exemption. Ill.\nAtt'y Gen. PAC Req. Rev. Ltr. 48986, issued July 1, 2020, at 4 (information that identifies\nbusinesses rather than individuals not exempt from disclosure under section 7(1)(b) of FOIA).\n\nFinally, it is unclear, based on the District's response to this office, the extent to\nwhich additional responsive financial records exist. For example, although the District provided\nthis office with a representative sampling of the requested annual assessments, it is unclear\nwhether the District maintains \"collector's books\" as identified in JJ request.°\nAccordingly, this office requests that the District conduct a new search for records and issue a\nsupplemental response to {. cither disclosing copies of the non-exempt portions of\nthe records it locates or, if no responsive records are located, describing the specific measures\nthat were taken to locate records.\n\n4In Timpone v. Illinois Student Assistance Comm'n, 2019 IL App (Ist) 181115, 147 N.E.3d 873\n(2019), the Illinois Appellate Court held that names may be withheld under section 7(1)(b) when disclosure could be\nmatched to information posted on a State agency's website about the income earned by students and spouses or\nparents of students who received or applied for financial aid grants. The court explained that \"the context of the\ninformation disclosure is significant[,]\" and that the names were exempt under section 7(1)(b) because they would\ninvade those individuals' privacy in light of the \"detailed personal income information\" posted on the agency's\nwebsite. Timpone, 2019 IL App (Ist) 181115, 4940-41, 147 N.E.3d at 887. Because that personal income\ninformation did not document the receipt or expenditure of public funds, it is readily distinguishable from the\nrecords about the District's assessment of maintenance taxes at issue in this matter.\n\n*For example, numerous references to \"collector's books\" throughout the Illinois Drainage Code\n(70 ILCS 605// et seg. (West 2022)) appear to indicate that those records are customarily maintained at the county\nlevel.\n\nThe Honorable Jon Hofmeister\nJuly 31, 2023\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at (217) 785-7438.\n\nVery truly yours,\n\nCHRISTOPHER R. BOGGS\nDeputy Public Access Counselor\nPublic Access Bureau\n\n73556 f 71b proper improper reg spd\n\ncc: Via electronic mail\nMr. John N. Hauk\nAttorney\nHauk & Owens, LLC\n811 Maine Street\nQuincy, Illinois 62301\njhauk@haukandowens.com\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A drainage district's maintenance assessment rolls and collector's books","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":994,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-12-22","case_number":null,"request_numbers":["73794"],"title":"Rochester School District improperly withheld student grievance records under 7(1)(n)","filename":"73794, issued December 22, 2022.pdf","rel_path":null,"word_count":1718,"summary":"A parent requested records regarding a grievance and investigation into her son's medical homebound instruction, which the school district denied under section 7(1)(n). The PAC determined the district improperly withheld the records and requested their release.","plain_summary":"A parent asked a school district for records related to an investigation into her son's homebound education services. The district refused to provide the documents, claiming they were exempt from disclosure. The Attorney General's office reviewed the case and concluded the district was wrong to withhold the records and should provide them to the parent.","holding":"The Rochester Community Unit School District 3A improperly withheld records responsive to the requester's FOIA request.","legal_question":"Whether the school district properly invoked section 7(1)(n) of FOIA to withhold records related to a grievance and investigation concerning a student's medical homebound instruction.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(n)"],"public_body":"Rochester Community Unit School District 3A","requesting_party":"a parent","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"student records","subject_description":"The request sought records concerning a grievance and investigation into the provision of medical homebound instruction for a student.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_n/73794%2C%20issued%20December%2022%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["school records","student grievance","homebound instruction","FOIA denial"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 22, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Dan W. Cox\nSuperintendent\nRochester CUSD No. 3A\n[street address redacted for site publication -- see original PDF]\ndcox@rochester3a. net\n\nRE: FOIA Request for Review – 2022 PAC 73794\n\nDear\n\nand Mr. Cox: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the Rochester Community Unit School District 3A ( School\nSeptember 13, 2022, FOIA\nDistrict) improperly withheld records responsive to\nrequest. \n\nOn that date, \n\nsubmitted a FOIA request to the School District seeking\n\nrecords pertaining to the investigation of a complaint she filed related to her son's medical\nhomebound instruction. Specifically, she sought copies of: (1) the formal grievance report, ( 2) \nthe investigation materials, and (3) \"information of what Rochester has documented with regard\nto providing academic and educational services to [ her son] while on medical homebound.\" 1 On\n\n1E- mail from\n\nto Dan Cox (September 13, 2022). \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Dan W. Cox\nDecember 22, 2022\nPage 2\n\nSeptember 20, 2022, the School District denied the first two parts of the request pursuant to\nsection 7(1)( n) of FOIA2 and asserted that it did not have records responsive to the third part. \n\nOn October 6, 2022, this office received\n\nRequest for Review\n\ncontending that the 7(1)(n) exemption did not apply because she did not seek information\nconcerning employee disciplinary issues but rather information about the investigation into and\noutcome of her complaint. \ninformation responsive to part three of her request. Specifically, she argued that the School\nDistrict is required to keep track of when, where, and what instructional services were provided\nto her son in order to receive a reimbursement\nfrom the Illinois State Board of Education for the\nservices. \n\nalso contended that the School District should have\n\nOn October 14, 2022, this office forwarded a copy of the Request for Review to\n\nthe School District and asked it to provide copies of the withheld records, together with a\ndetailed explanation of the factual and legal bases for the applicability of the asserted exemption; \nthis office also asked for a description of its search related to part three of the request. On\nOctober 24, 2022, this office received the requested materials. On October 26, 2022, this office\nforwarded a copy of the School District' s response to\nreply. \n\nshe did not submit a written\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nSection 7(1)(n) of FOIA exempts from inspection and copying \"[ r]ecords relating\n\nto a public body' s adjudication of employee grievances or disciplinary cases; however, this\nexemption shall not extend to the final outcome of cases in which discipline is imposed.\" \nEmphasis added.) Black' s Law Dictionary defines the word \" adjudication\" as \"[ t]he legal\nprocess of resolving a dispute; the process of judicially deciding a case.\" Black's Law Dictionary\n47 ( 9th ed. 2009). Black' s Law Dictionary further defines an \" adjudication hearing\" as an\na]gency proceeding in which a person's rights and duties are decided after notice and an\n\n2022; 102-1055, effective June 10, 2022. \n\n25 ILCS 140/7(1)(n) (West 2021 Supp.), as amended by Public Acts 102 -791, effective May 13, \n\n\fMr. Dan W. Cox\nDecember 22, 2022\nPage 3\n\nopportunity to be heard.\" Black's Law Dictionary 788 (9th ed. 2009). In Kalven v. City of\nChicago, 2014 IL App ( 1st) 121846, ¶ 13, 7 N.E.3d 741, 745 ( 2014), the Illinois Appellate Court\nsimilarly construed an \" adjudication\" for purposes of section 7(1)(n) as a \" formalized legal\nprocess that results in a final and enforceable decision.\" \n\nIn Peoria Journal Star v. City of Peoria, 2016 IL App ( 3d) 140838, ¶¶ 14- 16, 52\n\nN.E.3d 711, 714 (2016), the Illinois Appellate Court distinguished between records that relate to\ninvestigations of complaints against employees and records that relate to the adjudication of\nemployee discipline or grievances. In that case, the court explained: \" A complaint or grievance\nis part of an investigatory process that is separate and distinct from a disciplinary adjudication\ninternal citation.] A complaint or grievance initiates an investigative process; any disciplinary\nadjudication that may take place as a result of the investigation comes later.\" Peoria Journal\nStar, 2016 IL App (3d) 140838, ¶14, 52 N.E.3d at 714. The court held that records documenting\ninvestigations do not fall within the scope of section 7(1)( n) of FOIA. Peoria Journal Star, 2016\nIL App (3d) 140838, ¶¶14-16, 52 N.E.3d at 714. See also Kalven, 2014 IL App (1st) 121846, \n13, 7 N.E.3d at 745 ( scope of section 7(1)( n) is limited to records generated during an\nadjudication and does not encompass records of the underlying investigation). \n\nIn its response to this office, the School District asserted that it had interpreted\n\ncomplaint as alleging misconduct against certain School District employees, \n\nspecifically \"that particular employees failed to provide homebound instruction to her son.\" 3\nAccordingly, the School District conducted an investigation into the allegations against the\nemployees. The School District explained that the investigation determined that the complaint\nwas unfounded, and thus no disciplinary actions were taken. The School District argued that\nthe underlying report and evidence\" related to the complaint fell within the scope of section\n7(1)( n) because it involved a grievance against its employees. 4\n\nBased on this office' s review of the School District' s response and withheld\n\nrecords, the records were not generated in connection with a formalized legal proceeding that\ncould constitute an \" adjudication\" of an employee grievance or disciplinary case. The grievance\nreport and accompanying materials reflect that the School District interviewed teachers, gathered\ninformation related to homebound instruction for\nson, and documented the outcome of\nits findings in a report. Even if this investigation of the grievance could be construed as an\ninvestigation of an employee disciplinary case, records pertaining to the investigation are\ndistinguishable from records of an adjudication. Written statements and other evidence gathered\n\n3A, to Teresa Lim, Assistant Attorney General, Public Access Bureau (October 24, 2022). \n\n3Letter from Dan W. Cox, Superintendent of Schools, Rochester Community Unit School District\n\n3A, to Teresa Lim, Assistant Attorney General, Public Access Bureau (October 24, 2022). \n\n4Letter from Dan W. Cox, Superintendent of Schools, Rochester Community Unit School District\n\n\fMr. Dan W. Cox\nDecember 22, 2022\nPage 4\n\nduring an investigation, as well as memoranda explaining the outcome of the investigation, \ngenerally do not fall within the scope of section 7(1)( n) because investigations and adjudications\nare separate processes. Ill. Att'y Gen. Pub. Acc. Op. No. 21-010, at 7-8, issued October 12, 2021\nrecords pertaining to alleged employee misconduct, including an incident report by\ncomplainant, response of the accused, and memoranda documenting results of investigation, not\nexempt under section 7(1)( n)). If the investigation had substantiated the complaint, it possibly\ncould have led to an adjudication of an employee disciplinary case. Instead, the investigation\nconcluded that the complaint was unfounded. Because these investigatory records precede any\npotential disciplinary adjudication, the School District improperly withheld the records\nresponsive to parts 1 and 2 of the request pursuant\n\nto section 7(1)( n) of FOIA. \n\nAs noted above, part 3 of\n\nsought \" what Rochester has documented with\n\nfurther stated: \" I would like the specific day( s) and time( s) said\n\nregard to providing academic and educational services to [her son] while on medical\nhomebound.\" 5\nacademic instruction was provided, who provided it, where they provided it, and what subject\nmatter and specific lesson content that was covered.\" 6 Under FOIA, \"[ a] ll records in the custody\nor possession of a public body are presumed to be open to inspection or copying.\" 5 ILCS\n140/ 1.2 (West 2020). However, \"[ a] request to inspect or copy must reasonably identify a public\nrecord and not general data, information, or statistics.\" Chicago Tribune Co. v. Department of\nFinancial and Professional Regulation, 2014 IL App 4th 130427, ¶ 34, 8 N.E.3d 11, 19 ( 2014). \nFurther, a public body is not required to answer questions or create new records in response to a\nFOIA request. Kenyon v. Garrels, 184 Ill. App. 3d 28, 32 ( 4th Dist. 1989). Rather than\nreasonably describing records, \nreceived homebound instruction. The School District asserted it does not possess responsive\nrecords, and FOIA does not require it to compile the dates, instructors, and other specified details\nin response to the request. This office nonetheless notes that the records responsive to parts 1\nand 2 contain information related to the provision of homebound instruction. \n\nposed questions about when, where, and how her son\n\n5E- mail from\n\nto Dan Cox (September 13, 2022). \n\n6E- mail from\n\nto Dan Cox (September 13, 2022). \n\n\fMr. Dan W. Cox\nDecember 22, 2022\nPage 5\n\nIn accordance with the conclusions expressed in this determination, this office\nwith copies of the records responsive to the\n\nrequests that the School District provide\nfirst two parts of her request. The Public Access Counselor has determined that resolution of this\nmatter does not require the issuance of a binding opinion. This letter shall serve to close this\nmatter. If you have any questions, please contact me at the Chicago address listed on the first\npage of this letter. \n\nVery truly yours, \n\nTERESA LIM\nAssistant Attorney General\nPublic Access Bureau\n\n73794 f 71n improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Records on a student's medical homebound instruction grievance","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":995,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-03-08","case_number":null,"request_numbers":["74214"],"title":"Chicago Police Department improperly denied FOIA request as unduly burdensome","filename":"74214, issued March 8, 2023.pdf","rel_path":null,"word_count":3113,"summary":"The requester sought emails from the Chicago Police Department regarding traffic stops, which the Department denied as unduly burdensome. The PAC determined that the Department failed to provide clear and convincing evidence that the request was unduly burdensome and ordered the Department to produce the records.","plain_summary":"A requester asked the Chicago Police Department for emails about traffic stops, but the Department refused, claiming it would be too much work to find them. The Attorney General's office reviewed the case and decided the Department improperly denied the request as unduly burdensome, partly because it did not respond on time. The source does not state that the Department must now search for and provide the requested emails.","holding":"The Chicago Police Department improperly denied the request as unduly burdensome.","legal_question":"Whether the Chicago Police Department met its burden of proving that a FOIA request was unduly burdensome under section 3(g) of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Police Department","requesting_party":"Ms. Amy Thompson","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"unduly burdensome","subject_description":"The request sought emails between high-ranking Chicago Police Department officials regarding traffic stops over a three-month period.","ocr_status":"ok","ocr_quality":96.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_g/Strong-public-interest/74214%2C%20issued%20March%208%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["unduly burdensome","police records","email request","FOIA denial"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 8, 2023\n\nVia electronic mail\nMs. Amy Thompson\nStaff Counsel\nBusiness and Professional People for the Public Interest\n[street address redacted for site publication -- see original PDF]\nathompson@bpichicago. org\n\nVia electronic mail\nMr. Robert A. Cannatello, Jr. \nSenior Attorney\nLegal Affairs Division – Unit 114\nChicago Police Department\n3510 South Michigan Avenue\nChicago, Illinois 60653\npacola@chicagopolice.org\n\nRE: FOIA Request for Review – 2022 PAC 74214; CPD FOIA No. P785027\n\nDear Ms. Thompson and Mr. Cannatello: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the Chicago Police Department (CPD) improperly denied\nMs. Amy Thompson' s September 23, 2022, FOIA request as unduly burdensome. \n\nOn that date, Ms. Thompson submitted a FOIA request ( CPD FOIA No. \n\nP785027) to CPD seeking copies of all e-mails between the Superintendent of Police, Bureau of\nPatrol Chief, Area 4 Deputy Chief, District 10 Commander, District 11 Commander, and District\n15 Commander regarding traffic stops for the months of August, September, and October 2020. \nto section 3(e) of FOIA ( 5 ILCS\nThe same day, CPD extended its time for a response pursuant\n140/3(e) ( West 2020)). On October 13, 2022, CPD responded by stating that it had previously\nrun an e- mail search for the same records as part of another request, CPD FOIA No. P739126. \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Amy Thompson\nMr. Robert A. Cannatello, Jr. \nMarch 8, 2023\nPage 2\n\nCPD referred Ms. Thompson to the portion of its response to that matter in which it asserted that\nit had uncovered more than 500 responsive e- mails and therefore denied the request as still\nunduly burdensome pursuant to section 3(g) of FOIA (5 ILCS 140/3(g) (West 2020)). CPD\nstated it was closing P785027 \" as a duplicate of P739126[.]\" 1\n\nOn November 7, 2022, this office received Ms. Thompson' s Request for Review\n\nchallenging CPD's claim that compliance with her September 23, 2022, request would be unduly\nburdensome. Ms. Thompson explained that she had submitted a two- part request in P739126, \nwhich CPD denied as still unduly burdensome after she narrowed the request. One of the items\nin the narrowed request sought the same e- mails at issue. Ms. Thompson contended that her\npresent request was not a duplicate of P739126 because she had dropped the other item. She also\nargued that there is a substantial public interest in the subject of traffic stops, and that her request\nwas targeted: \" Our request asks for the precise information we seek – we want to see how traffic\nstops are communicated about from top CPD officials to district commanders to better\nunderstand how and why these neighborhoods experience the number of stops that they do.\" 2\n\nOn November 18, 2022, this office forwarded a copy of the Request for Review to\n\nCPD and asked it to provide a written response addressing the factual and legal bases for the\napplicability of section 3(g) to Ms. Thompson's September 23, 2022, request, as well as copies of\nCPD' s communications with Ms. Thompson related to P739126. On November 30, 2022, this\noffice received the requested materials. On December 7, 2022, this office forwarded a copy of\nCPD' s response to Ms. Thompson; she replied on December 15, 2022. \n\nDETERMINATION\n\nIt is a fundamental obligation of government to operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS\n140/ 1 ( West 2020). Section 3(d) of FOIA ( 5 ILCS 140/ 3(d) ( West 2020)) provides, in pertinent\npart, that: \n\nEach public body shall, promptly, either comply with or\ndeny a request for public records within 5 business days after its\nreceipt of the request, unless the time for response is properly\nextended under subsection ( e) of this Section. * * * Failure to\ncomply with a written request, extend the time for response, or\ndeny a request within 5 business days after its receipt shall be\n\n1E- mail from G. Rubenstein, FOIA Officer, to [Amy Thompson] ( October 13, 2022). \n\nAmy Thompson (November 7, 2022). \n\n2Attachment to FOIA – Request for Review by Public Access Counselor (PAC) form submitted by\n\n\fMs. Amy Thompson\nMr. Robert A. Cannatello, Jr. \nMarch 8, 2023\nPage 3\n\nconsidered a denial of the request. A public body that fails to\nrespond to a request within the requisite periods in this Section\nbut thereafter provides the requester with copies of the\nrequested public records may not impose a fee for such copies. \nA public body that fails to respond to a request received may\nnot treat the request as unduly burdensome under subsection\ng). (Emphasis added.) \n\nAs noted above, Ms. Thompson submitted her request on September 23, 2022, \n\nand later that day, CPD extended its time to respond by an additional\nto section 3(e) of FOIA. Therefore, CPD had until October 7, 2022, to respond to the request. \nCPD issued a final response, however, on October 13, 2022. Because CPD did not respond to\nthe request in a timely manner in accordance with section 3(d) of FOIA, CPD waived the\nopportunity to treat the request as unduly burdensome. Ill. Att' y Gen. Pub. Acc. Op. No. 14- 007, \nissued August 14, 2014, at 8 (public body that failed to issue timely response and failed to\ncomply with the requisite procedures in section 3(g) improperly denied request as unduly\nburdensome). \n\nfive business days pursuant\n\nEven if the response was timely, CPD must also show by clear and convincing\n\nevidence that: ( 1) compliance with the request would be unduly burdensome, and that the\nburden on the public body outweighs the public interest in the information or (2) the request\nconstitutes an unduly burdensome repeated request. Specifically, section 3(g) of FOIA provides: \n\nRequests calling for all records falling within a category\n\nshall be complied with unless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information. Before invoking\nthis exemption, the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions. If any public body responds\nto a categorical\nburden its operation and the conditions described above are met, it\nshall do so in writing, specifying the reasons why it would be\nunduly burdensome and the extent to which compliance will so\nburden the operations of the public body. Such a response shall be\ntreated as a denial of the request for information. \n\nrequest by stating that compliance would unduly\n\nRepeated requests from the same person for the same\nrecords that are unchanged or identical to records previously\n\n\fMs. Amy Thompson\nMr. Robert A. Cannatello, Jr. \nMarch 8, 2023\nPage 4\n\nprovided or properly denied under this Act shall be deemed unduly\nburdensome under this provision. \n\nUnder the plain language of section 3(g), a public body may only deny a request as an unduly\nburdensome repeated request if it has previously provided the requester with the responsive\nrecords or properly denied a prior, unchanged request. In this matter, CPD appears to have\ntreated the September 23, 2022, request as an unduly burdensome repeated request, asserting that\nP785027 was a \" duplicate\" of P739126. 3 Assuming for argument' s sake that P785027 was\nunchanged from P739126, this office will review whether the request for the e-mails at issue was\nproperly denied, that is whether the request was unduly burdensome. \n\nA request that is overly broad and requires the public body to locate, review, \nredact and arrange for inspection a vast quantity of material that is largely unnecessary to the\nrequester' s] purpose constitutes an undue burden.\" National Ass' n of Criminal Defense Lawyers\nv. Chicago Police Department, 399 Ill. App. 3d 1, 17 (1st Dist. 2010). However, a request for a\nsubstantial volume of records is not unduly burdensome when there is a compelling public\ninterest in disclosure that outweighs the public body's burden. National Ass'n of Criminal\nDefense Lawyers, 399 Ill. App. 3d at 17; see also Bowie v. Evanston Comm' y Consolidated Sch. \nDist. 65, 168 Ill. App. 3d 101, 112 (1st Dist. 1988) (\"[ T]hat defendants will have to expend\nvaluable labor and computer time to comply with plaintiffs' request does not impose a burden on\ndefendants outweighing the public interest in the information.\"). \n\nSection 3(g) does not define what constitutes an unduly burdensome request, \n\nother than that it is a categorical\nrequest for records in which the burden on the public body of\nproducing the records would outweigh the public interest in obtaining the information. Thus, \nsection 3(g) necessarily involves a case- by-case analysis in which the public body must\ndemonstrate the extent of the burden of compliance on its operations, and that the burden\noutweighs the public interest in disclosure. See Sargent Shriver National Center on Poverty\nLaw, Inc. v. Board of Education of City of Chicago, 2018 IL App (1st) 171846, ¶38, 122 N.E.3d\n729, 738 ( 2018) (\" What constitutes a clear and convincing showing of undue burden will likely\nvary from case to case, depending on the broadness of the request, the level of detail provided in\nthe public body' s response, and the nature of the parties' exchange.\"). \n\nIn its response to this office, CPD explained that the September 23, 2022, request\n\nstems from a series of four (4) FOIA requests made by Ms. Thompson from the period of\nMarch 2022 through September 2022[,]\" and that it had responded to each of them by \" indicating\nthat her [request] was unduly burdensome\" and providing opportunities for Ms. Thompson to\n\n3E- mail from G. Rubenstein, FOIA Officer, to [Amy Thompson] ( October 13, 2022). \n\n\fMs. Amy Thompson\nMr. Robert A. Cannatello, Jr. \nMarch 8, 2023\nPage 5\n\nnarrow them.4 CPD acknowledged that the September 23, 2022, request removed one of the\nitems sought in P739126, but it argued that eliminating that item did not alleviate the burden\nbecause the remaining part still yielded more than 500 pages of responsive e-mails. According\nto CPD, it \"would take a FOIA Officer approximately 20.8 hours to review [ the responsive\ndocuments], not including time spent on document retrieval and all other tasks.\" 5 CPD\ncontended that compiling and reviewing the records for potential redactions would put a\nsubstantial strain on the operations of its FOIA unit, as the unit had received more than 18,000\nrequests in the past year and \" would lose the manpower of one trained FOIA Officer for nearly a\nweek in order to comply with Ms. Thompson's speciously broad request.\" 6 CPD also argued that\nthe request was broad in that it did not provide the names of specific individuals, therefore\nrequiring its FOIA officers to spend time identifying individuals who held the requested title\npositions. \n\nIn reply to that answer, Ms. Thompson pointed out that in P739126, \n\nthe FOIA Officer had already determined precisely the six individuals holding the specified\ntitled positions during the three- month period[.]\" 7 Thus, CPD already had names of the relevant\nindividuals. Ms. Thompson disputed CPD's claim that her request was overly broad, reiterating\nthat her request was targeted to her stated interest. She asserted, in relevant part: \n\ninterest in understanding when and\n\nThe public has a substantial\nwhy CPD administrators direct traffic stops be made, because of\nescalating pervasiveness of traffic stops in recent years and the\nracial disparities exhibited among those stops. This request seeks\ninformation specifically tailored to that interest. The request has\nbeen narrowed to a three-month period in 2020 during which there\nwas a spike in CPD traffic stops. It has been narrowed to the six\nindividuals who would be communicating about traffic stops in\n\n4Letter from Robert A. Cannatello, Jr., Senior Attorney, Legal Affairs Division – Unit 114, \n\nChicago Police Department, to Teresa Lim, Supervising Attorney, Public Access Bureau, Office of the Attorney\nGeneral (November 30, 2022), at [1]. \n\n5Letter from Robert A. Cannatello, Jr., Senior Attorney, Legal Affairs Division – Unit 114, \n\nChicago Police Department, to Teresa Lim, Supervising Attorney, Public Access Bureau, Office of the Attorney\nGeneral (November 30, 2022), at [2]. \n\n6Letter from Robert A. Cannatello, Jr., Senior Attorney, Legal Affairs Division – Unit 114, \n\nChicago Police Department, to Teresa Lim, Supervising Attorney, Public Access Bureau, Office of the Attorney\nGeneral (November 30, 2022), at [ 3]. \n\n7Letter from Amy Thompson, Staff Counsel, Criminal Legal Systems and Police Accountability, \nBPI, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (December\n15, 2022), at [ 2]. \n\n\fMs. Amy Thompson\nMr. Robert A. Cannatello, Jr. \nMarch 8, 2023\nPage 6\n\nthree of the police districts that typically conduct the highest\nnumber of traffic stops. It has been narrowed to only include\nemails regarding traffic stops, providing the precise search subject\nfor the FOIA Officer.[ 8] \n\nMs. Thompson further argued that \" processing FOIA requests is part of the CPD FOIA Office' s\nnormal operations, and the 20.8 hours of one FOIA Officer’ s time at issue is not so burdensome\nthat it would obstruct the other\" FOIA officers from responding to other requests. 9 She\nmaintained that the public interest in the information outweighed the burden of compliance. \n\nHaving reviewed the information submitted by the parties, this office is unable to\n\nconclude that the burden of compiling and reviewing the responsive e- mails outweighed the\npublic interest in the requested information. CPD contended, in part, that the request was overly\nbroad because it did not provide the names of any particular individuals. Yet, as Ms. Thompson\nnoted, CPD had already determined the names of the individuals who would possess responsive\ne-mails. Even if the names had not been previously determined, CPD did not demonstrate that it\nwould be an undue burden to identify the relevant persons who served in the six specific\nleadership positions, such as the commanders of particular districts. See also Ill. Att' y Gen. PAC\nReq. Rev. Ltr. 72542, issued August 23, 2022, at 5 (\"A requester is not required to identify\nspecific employees or e- mail accounts in order to reasonably describe communications\nconcerning a particular subject matter.\"). Additionally, CPD did not describe the types of\ninformation likely contained in the e- mails that would require a significant amount of staff time\nto inspect and redact. Ms. Thompson explained she was interested in any instructions provided\nto the commanders regarding when to conduct traffic stops. While some exemptions could\npotentially apply to certain communications, CPD did not illustrate that most of the e-mails\ncontain the type of information that would require a time- consuming review. \n\nFurther, the expending of valuable staff work time alone does not render a request\n\nunduly burdensome. National Ass'n, 399 Ill. App.3d at 17 (production of records related to a\nspecific study not an undue burden because there was a compelling public interest in disclosure, \neven if compliance with the request would require several weeks of full-time work by employees\nof the public body). See also Ill. Att' y Gen. PAC Req. Rev. Ltr. 45458, issued March 9, 2017\npublic body improperly denied as unduly burdensome a request for copies of all\n\n8Letter from Amy Thompson, Staff Counsel, Criminal Legal Systems and Police Accountability, \nBPI, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (December\n15, 2022), at [ 2]. \n\n9Letter from Amy Thompson, Staff Counsel, Criminal Legal Systems and Police Accountability, \nBPI, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (December\n15, 2022), at [ 4]. \n\n\fs. Amy Thompson\nMr. Robert A. Cannatello, Jr. \nMarch 8, 2023\nPage 7\n\ncommunications pertaining to the impact of a legislative bill because there was a compelling\npublic interest in the topic); Ill. Att'y Gen. PAC Req. Rev. Ltr. 39384, issued March 30, 2016\npublic body failed to demonstrate that compiling and producing 317 responsive e-mails would\nunduly burden its operations). Here, the request concerned a specific, targeted topic–– traffic\nstops in three districts during the months of August, September, and October 2020. Ms. \nThompson explained that those three districts typically have a high number of traffic stops, and\nthat there was a spike in traffic stops during those three months. There is a compelling public\ninterest in information that sheds light on when and why traffic stops appear to be higher in\ncertain neighborhoods. The scope of the request was reasonably tailored to the purpose of\nunderstanding how CPD' s administrators have addressed traffic stops in those areas by seeking\nonly e-mails related to traffic stops between six CPD officials and commanders who oversee the\nthree districts, limited to three particularly active months. This office recognizes that compiling\nand reviewing the responsive-mails would not be an insignificant task, but the information\nprovided by CPD is insufficient\ncompliance outweighs the public interest in disclosure of the records. Accordingly, this office\nconcludes that CPD improperly denied the request for the e- mails at issue as unduly burdensome. \n\nto make a \" clear and convincing\" showing that the burden of\n\nThis office requests that CPD search for and compile the e-mails responsive to\n\nMs. Thompson's September 23, 2022, request and furnish her with copies of those records, \nsubject only to permissible exemptions under section 7 of FOIA. 10 If CPD redacts information\nor withholds any of the records, it should issue a notice of denial that meets the requirements of\nsection 9(a) of FOIA ( 5 ILCS 140/ 9(a) ( West 2020)). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\nSupervising Attorney\nPublic Access Bureau\n\n74214 f 3g und burden improper pd\n\n105 ILCS 140/7 (West 2021 Supp.), as amended by Public Acts 102 -752, effective January 1, \n\n2023; 102-753, effective January 1, 2023; 102-776, effective January 1, 2023; 102-791, effective May 13, 2022; \n102-1055, effective June 10, 2022. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Emails between police officials about traffic stops","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":996,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-02-06","case_number":null,"request_numbers":["74512"],"title":"City of Bloomington did not violate FOIA by redacting body camera audio","filename":"74512, issued February 6, 2023.pdf","rel_path":null,"word_count":1904,"summary":"The requester challenged the City of Bloomington's redaction of body camera footage related to an incident at a YMCA. The PAC determined that the City properly redacted the audio to protect the identities of complainants under FOIA exemptions.","plain_summary":"A citizen requested body camera footage from a police incident at a YMCA, but the City redacted parts of the audio. The Attorney General's office reviewed the request and found that the City was legally allowed to hide those portions to protect the privacy of the people speaking to the police. This means the City followed the law and does not have to release the redacted audio.","holding":"The City of Bloomington did not improperly redact the body camera footage.","legal_question":"Whether the City of Bloomington properly redacted audio from body camera footage pursuant to FOIA exemptions 7(1)(c), 7(1)(d)(iv), and 7.5(cc).","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(d)(iv)","7.5(cc)"],"public_body":"City of Bloomington","requesting_party":"Anonymous requester","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought body camera footage and 911 recordings regarding an incident involving her at a YMCA.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_cc/Definition-of-subject-of-encounter/74512%2C%20issued%20February%206%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["body camera","police records","redaction","privacy","FOIA exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nFebruary 6, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Jeffrey R. Jurgens\nCorporation Counsel\nCity of Bloomington\n115 East Washington Street, Suite 403\nBloomington, Illinois 61701\njjurgens@cityblm.org\n\nRE: FOIA Request for Review – 2022 PAC 74512; City No. 1737-2022\n\nDear\n\nand Mr. Jurgens: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the City of Bloomington (City) did not improperly redact\nthe body camera footage responsive to\nrequest. \n\nNovember 23, 2022, FOIA\n\nOn that date, \n\nsubmitted a FOIA request to the City seeking copies\n\nof a 911 call recording and body camera recordings concerning an incident involving her at a\nYMCA. On December 2, 2022, the City responded, providing her with copies of responsive\nrecords but redacting certain information pursuant\nDecember 8, 2022, \n\nto sections 7(1)( c) and 7.5(cc) of FOIA. 1 On\nsubmitted a Request for Review contesting the partial denial\n\n15 ILCS 140/7(1)(c) (West 2021 Supp.), as amended by Public Acts 102-791, effective May 13, \n2022; 102-1055, effective June 10, 2022; 5 ILCS 140/7.5(cc) (West 2021 Supp.), as amended by Public Acts 102 -\n813, effective May 13, 2022; 102-1042, effective June 3, 2022. \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMr. Jeffrey R. Jurgens\nFebruary 6, 2023\nPage 2\n\nof the body camera footage as to the redaction of some of the audio. She explained that the\nincident involved the YMCA calling the police over her dispute with the front desk staff member\nabout whether she had properly checked in. \n\nOn December 15, 2022, this office forwarded a copy of the Request for Review to\nthe City and asked it to provide this office with an unredacted copy of the body camera recording\nfor our confidential review, together with a detailed explanation of the factual and legal bases for\nredacting audio from the recording. On December 30, 2022, this office received the requested\nmaterials. On January 4, 2023, \n\nsubmitted a reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nAs an initial matter, the Public Access Counselor's authority to resolve disputes is\n\nlimited to alleged violations of FOIA and the Open Meetings Act ( 5 ILCS 120/ 1 et seq. ( West\n2020)). 15 ILCS 205/7(c)(3) (West 2020). FOIA governs the disclosure of existing public\nrecords; it does not govern other matters such as the actions of YMCA staff members or\nallegations of defamation. Accordingly, this determination letter is limited to analyzing whether\nFOIA permitted the City to redact portions of the audio of the body camera recording. \n\nSection 7.5(cc) of FOIA exempts from disclosure \"[ r]ecordings made under the\nLaw Enforcement Officer-Worn Body Camera Act, except to the extent authorized under that\nAct.\" Section 10- 20( b) of the Law Enforcement Officer- Worn Body Camera Act ( Body Camera\nAct)2 provides, in relevant part: \n\nRecordings made with the use of an officer-worn body\n\ncamera are not subject to disclosure under the Freedom of\nInformation Act, except that: \n\n1) if the subject of the encounter has a reasonable\n\nexpectation of privacy, at the time of the recording, any\n\n250 ILCS 706/10-20(b) (West 2021 Supp.). \n\n\fMr. Jeffrey R. Jurgens\nFebruary 6, 2023\nPage 3\n\nrecording which is flagged, due to the filing of a complaint, \ndischarge of a firearm, use of force, arrest or detention, or\nresulting death or bodily harm, shall be disclosed in\naccordance with the Freedom of Information Act if: \n\nA) the subject of the encounter captured on\n\nthe recording is a victim or witness; and\n\nB) the law enforcement agency obtains\nwritten permission of the subject or the subject' s\nlegal representative; \n\n2) except as provided in paragraph (1) of this\n\nsubsection ( b), any recording which is flagged due to the\nfiling of a complaint, discharge of a firearm, use of force, \narrest or detention, or resulting death or bodily harm shall\nbe disclosed in accordance with the Freedom of\nInformation Act; and\n\n3) upon request, the law enforcement agency shall\n\ndisclose, in accordance with the Freedom of Information\nAct, the recording to the subject of the encounter captured\non the recording or to the subject's attorney, or the officer\nor his or her legal representative. \n\nAny recording disclosed under the Freedom of Information\nAct shall be redacted to remove identification of any person that\nappears on the recording and is not the officer, a subject of the\nencounter, or directly involved in the encounter. Nothing in this\nsubsection ( b) shall require the disclosure of any recording or\nportion of any recording which would be exempt from\ndisclosure under the Freedom of Information Act. (Emphasis\nadded.) \n\nUnder the plain language of section 10-20(b) of the Body Camera Act, even when body camera\nfootage is potentially subject to disclosure under FOIA because the requester is the subject of the\nencounter under section 10-20(b)(3), a public body still may rely on any applicable FOIA\nexemptions to redact or withhold the footage. \n\n\fMr. Jeffrey R. Jurgens\nFebruary 6, 2023\nPage 4\n\nIn its response to this office, the City asserted that it redacted the portions of the\n\nbody camera recording depicting the YMCA staff members because they are not the officer, a\nsubject of the encounter, or directly involved in the encounter, per the language of section 10-\n20( b) as quoted above. The City stated: \" It is our understanding, from talking with the City of\nBloomington Police Department, that the body camera video was not flagged per the Act, and\nonly portions of the video that the requester was not on were blurred and muted.\" 3 In her reply, \nquestioned how it could be that the staff members with whom she interacted were\nsent this office an e-\n\nnot directly involved in the encounter. On January 10, 2023, \nmail stating that she knows the name of the front desk employee who was involved in the\nincident, and that she recalled him and the facility manager. \n\nThis office has compared the redacted body camera recording that the City\n\nwith the full version. In the redacted version, the video is completely\n\nprovided to\nmuted and somewhat blurred as the police officer drives to the YMCA, enters the building and\ninteracts with the front desk employee for approximately 40 seconds as they walk towards the\nthe audio turns on\nlocker room. When the body camera comes within view of\nand her image is not blurred, though everything around her remains somewhat blurred. The\naudio captures the things said by\nand the facility manager or director, until\nare gathered, the police officer explains that the incident does not sound criminal\ninstead is a matter of whether the YMCA wishes for\nresult of the check- in dispute; the building manager or director confirms that the YMCA does\nwant her to do so. After\ndiscuss the matter with the police officer for approximately one minute before the video ends. \n\nthe police officer, the front desk staff member, \nleaves. While all of those individuals\nin nature, but\n\nexits the frame, the two staff members continue to\n\nto leave for the day as a\n\nEven assuming that the two YMCA staff members whose images are blurred and\n\nwords are muted in the redacted recording were \"directly involved in the encounter\" under\nsection 10- 20( b) of the Body Camera Act, the redacted audio is nonetheless exempt from\ndisclosure. Section 7(1)(d)(iv) of FOIA4 exempts from disclosure information that would\nunavoidably disclose the identity of a confidential source, confidential\ninformation furnished\nonly by the confidential source, or persons who file complaints with or provide information to\nadministrative, investigative, law enforcement, or penal agencies.\" This exemption allows law\nenforcement agencies to withhold the identities of persons who provide them with information. \nSee Chicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 200- 01\n1st Dist. 2004) (names and addresses of beat meeting participants properly redacted because\n\nDeputy Bureau Chief, Office of the Attorney General, Public Access Bureau (December 21, 2022), at 1. \n\n3Letter from Jeffrey R. Jurgens, Corporation Counsel, City of Bloomington, to Joshua M. Jones, \n\n13, 2022; 102-1055, effective June 10, 2022. \n\n45 ILCS 140/7(1)(d)(iv) (West 2021 Supp.), as amended by Public Acts 102 -791, effective May\n\n\fMr. Jeffrey R. Jurgens\nFebruary 6, 2023\nPage 5\n\nthey provided information to police department); see also, for example, Ill. Att'y Gen. PAC Req. \nRev. Ltr. 56481, issued January 25, 2019 ( identities of individuals who complained to police\nabout a person exempt from disclosure). Further, the contents of such statements to the police\nmay be withheld if disclosure \" would necessarily result in the disclosure of the identity of the\nsource\" of information and, therefore, \"redaction * * * cannot be meaningfully accomplished.\" \nCopley Press, Inc. v. City of Springfield, 266 Ill. App 3d 421, 426 ( 4th Dist. 1994). The section\n7(1)(d)(iv) exemption applies even if the person who submits the FOIA request is aware of the\nidentity of a complainant. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 23372, issued\nAugust 21, 2013, at 2. The Public Access Bureau has previously determined that body camera\nrecordings depicting individuals who provided information to law enforcement about an incident\nwere exempt from disclosure under section 7(1)(d)(iv) where redactions not suffice to conceal\ntheir identities. Ill. Att' y Gen. PAC Req. Rev. Ltr. 74075, issued January 17, 2023. \n\nIn this instance, the City redacted the audio of the recording only when the two\nwas\n\ncomplainants were speaking with just the police officer, rather than when\npresent. Disclosing the audio of these segments would unavoidably identify the complainants as\nhaving made these statements, as their identities are evident from their staff positions and\n\npersonal knowledge. Although\n\nargues that she has the right to know\n\nwhat was said about her, FOIA does not require such disclosure; section 7(1)(d)(iv) exists to\npermit withholding such information, even when the incident at issue is relatively minor in\nnature. Thus, under these circumstances, the City did not improperly redact the audio of the\nto section 7(1)( d)( iv) of FOIA. \nbody camera footage pursuant\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\nany questions, please contact me at joshua. jones@ilag. gov. \n\nVery truly yours, \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n74512 f 71div proper 75cc proper pd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Body-camera footage and 911 recordings of a YMCA incident","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":997,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-02-06","case_number":null,"request_numbers":["74691"],"title":"Rantoul Police Department properly redacted witness contact info and birth dates from crash report","filename":"74691, issued February 6, 2023.pdf","rel_path":null,"word_count":1052,"summary":"The requester challenged the Rantoul Police Department's redaction of witness information in a crash report, and the PAC determined that while some redactions were improper, no further action was necessary as the file was closed.","plain_summary":"A requester asked the Rantoul Police Department for a crash report, but the Department redacted witness contact information and birth dates. The Illinois Attorney General's Public Access Bureau found that the Department did not violate FOIA by redacting that information, because FOIA only requires disclosure of witness names, and the other details are exempt. The Bureau also noted that the Department redacted descriptive information (like height and eye color) and requested that the Department follow guidance to disclose such non-private details in future responses, but took no further action in this case.","holding":"The PAC determined that the Department did not violate FOIA by redacting witness contact information and birth dates, and concluded that no further action was warranted; it did not rule that the redaction of descriptive information was improper, but only requested future compliance with guidance.","legal_question":"Whether the Rantoul Police Department properly redacted witness descriptive information and contact details from a crash report under FOIA.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(d)(iv)"],"public_body":"Rantoul Police Department","requesting_party":"Ms. Deanna Wolff","pac_outcome":"Closed no further action","pac_law_type":null,"subject_category":"police records","subject_description":"The redaction of witness personal and descriptive information in a police crash report.","ocr_status":"ok","ocr_quality":94.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_iv/74691%2C%20issued%20February%206%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","crash report","redaction","witness information","personal information"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nFebruary 6, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\nMs. Deanna Wolff\nKanoski Bresney\n[street address redacted for site publication -- see original PDF]\ndeanna@kanoski.com\n\nRE: FOIA Request for Review – 2022 PAC 74691\n\nDear Ms. Wolff: \n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(c) ( West 2020)). For the reasons set forth below, the\nPublic Access Bureau has determined that no further action is warranted in this matter. \n\nOn November 30, 2022, you submitted a FOIA request to the Rantoul Police\n\nDepartment ( Department) seeking various records related to crash report number 22- 09584. On\nDecember 12, 2022, the Department provided you with responsive records with portions\nredacted. The Department did not identify a legal basis for those redactions under section 7 of\nFOIA (5 ILCS 140/7 (West 2021 Supp.), as amended by Public Acts 102-694, effective January\n7, 2022, revised February 3, 2022; 102- 791, effective May 13, 2022; 102- 1055, effective June\n10, 2022). On December 16, 2022, this office received your Request for Review contesting the\nDepartment' s redaction of witness names and contact information. \n\nSection 7(1)( d)( iv) of FOIA ( 5 ILCS 140/ 7(1)( d)( iv) (West 2021 Supp.), as\n\namended by Public Acts 102-694, effective January 7, 2022, revised February 3, 2022; 102-791, \neffective May 13, 2022; 102- 1055, effective June 10, 2022) exempts from disclosure: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Deanna Wolff\nFebruary 6, 2023\nPage 2\n\niv) unavoidably disclose the identity of a\n\nconfidential source, confidential information furnished only\nby the confidential source, or persons who file complaints\nwith or provide information to administrative, investigative, \nlaw enforcement, or penal agencies; except that the\nidentities of witnesses to traffic accidents, traffic\naccident reports, and rescue reports shall be provided\nby agencies of local government, except when disclosure\nwould interfere with an active criminal\ninvestigation\nconducted by the agency that is the recipient of the\nrequest[.] ( Emphasis added.) \n\nThe Public Access Bureau has previously determined that \" identity\" in section 7(1)( d)( iv) refers\nto a witness' name exclusively, not his or her address, phone number, or other personal contact\ninformation. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 11566, issued February 18, 2011, at 3. \n\nThis office' s review of the redacted records finds that the Department provided\n\nthe names of witnesses, but redacted other personal contact and identifying information. \n\nThough the Department failed to cite a statutory exemption for its redactions, \nsection 7(1)( b) of FOIA ( 5 ILCS 140/ 7(1)( b) ( West 2021 Supp.), as amended by Public Acts\n102-694, effective January 7, 2022, revised February 3, 2022; 102-791, effective May 13, 2022; \n102- 1055, effective June 10, 2022) exempts from disclosure \" private information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order\nSection 2(c-5) of FOIA ( 5 ILCS 140/ 2(c-5) ( West 2020)) defines \" private information\" as: \n\nU] nique identifiers, including a person' s social security number, \ndriver's license number, employee identification number, \nbiometric identifiers, personal financial\nor other access codes, medical records, home or personal\ntelephone numbers, and personal email addresses. Private\ninformation also includes home address and personal license\nplates, except as otherwise provided by law or when compiled\nwithout possibility of attribution to any person. (Emphasis added.) \n\ninformation, passwords\n\nAdditionally, the Attorney General has determined that dates of birth are exempt\n\nfrom disclosure under section 7(1)( c) of FOIA1 ( 5 ILCS 140/ 7(1)( c) ( West 2021 Supp.), as\namended by Public Acts 102-694, effective January 7, 2022, revised February 3, 2022; 102-791, \n\nunwarranted invasion of personal privacy. \n\n1Section 7(1)(c) exempts personal information, the disclosure of which would constitute a clearly\n\n\fs. Deanna Wolff\nFebruary 6, 2023\nPage 3\n\neffective May 13, 2022; 102- 1055, effective June 10, 2022). See Ill. Att'y Gen. Pub. Acc. Op. \nNo. 16-009, issued November 7, 2016, at 12. \n\nBecause section 7(1)(d)(iv) of FOIA requires the Department to provide only the\nnames of witnesses to traffic accidents, the Department did not violate FOIA by redacting from\nthe records you requested contact information and birth dates that are exempt from disclosure\npursuant\naction is warranted in this matter. \n\nto section 7(1)( b) or 7(1)( c) of FOIA. Accordingly, this office concludes that no further\n\nThe Office of the Public Access Counselor, however, is also charged with\n\nproviding advice and education to both the public and public officials. See 15 ILCS 205/ 7(a), \nb), (c) (West 2020). In that capacity, this office notes that the Department also redacted\ndescriptive information about witnesses, including sex, height, weight, hair color, and eye color. \nThis office has previously determined that this information is not highly personal in nature and\nthat disclosure of this information would not be objectionable to a reasonable person. 2 See, e.g., \nIll. Att'y Gen. PAC Req. Rev. Ltr. 39699, issued July 10, 2018, at 4. This office requests that the\nDepartment\n\nto adhere to this guidance in responding to future FOIA requests. \n\nThis letter serves to close this file. If you have questions, please contact me at the\n\nChicago address on the bottom of the first page of this letter. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n74691 f no fi war pd\n\ncc: \n\nVia electronic mail\nMs. Terri Neil\nDeputy FOIA Officer\nRantoul Police Department\n109 East Grove Avenue\nRantoul, Illinois 61866\npolice@myrantoul.com\n\n2However, the Public Access Bureau has consistently determined that an individual's race is highly\n\npersonal information that may be redacted pursuant to section 7(1)(c) of FOIA. See, e.g., Ill. Att'y Gen. PAC Req. \nRev. Ltr. 18274, issued March 27, 2012. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Redacted witness information in a police crash report","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":998,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-01-05","case_number":null,"request_numbers":["74771"],"title":"Village of Wayne did not violate FOIA by refusing to provide electronic copies of paper records","filename":"74771, issued January 5, 2023.pdf","rel_path":null,"word_count":560,"summary":"The requester sought electronic copies of election packets, but the Village of Wayne denied the request because the records are only maintained in paper format. The PAC determined the Village acted properly because FOIA does not require a public body to convert paper records into an electronic format.","plain_summary":"A citizen asked the Village of Wayne for electronic copies of election documents. The Village refused, stating they only keep these records on paper. The Attorney General's office agreed with the Village, explaining that FOIA only requires public bodies to provide electronic copies if the records are already kept in an electronic format.","holding":"The Village of Wayne did not violate FOIA by refusing to provide electronic copies of records that are maintained solely in paper format.","legal_question":"Whether a public body is required under FOIA to provide electronic copies of records that are maintained solely in paper format.","disposition":"no_violation","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Wayne","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"electronic records","subject_description":"The requester sought electronic copies of election packets filed with the Village Clerk.","ocr_status":"ok","ocr_quality":95.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_a/74771%2C%20issued%20January%205%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["electronic format","paper records","election packets","FOIA request"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJanuary 5, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review – 2022 PAC 74771\n\nDear\n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(c) ( West 2020)). For the reasons stated below, the\nPublic Access Bureau has determined that your Request for Review is unfounded. \n\nOn December 12, 2022, you submitted a FOIA request to the Village of Wayne\nVillage) seeking electronic copies of all election packets filed with the Clerk on that date. On\nDecember 14, 2022, the Village denied your request for electronic copies, but stated that, \nconsistent with section 10- 7 of the Illinois Election Code ( 10 ILCS 5/10- 7 (West 2020)), the\npackets are available for public inspection. On December 22, 2022, the Public Access Bureau\nreceived your Request for Review contesting the Village' s response. \n\nSection 6(a) of FOIA ( 5 ILCS 140/ 6(a) ( West 2020)) provides, in relevant part: \n\nWhen a person requests a copy of a record maintained in\n\nan electronic format, the public body shall furnish it in the\nelectronic format specified by the requester, if feasible. If it is not\nfeasible to furnish the public records in the specified electronic\nformat, then the public body shall furnish it in the format in which\nit is maintained by the public body, or in paper format at the option\nof the requester. ( Emphasis added.) \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529 -6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fJanuary 5, 2023\nPage 2\n\nConstruing the plain language of this provision, the Public Access Bureau has previously\ndetermined that it \"requires a public body to provide records in electronic format if the public\nbody maintains those records in electronic format. * * * [ S] ection 6(a) does not require a public\nbody to furnish in electronic format records maintained solely in paper format, even if the public\nbody has the resources to reproduce those records in PDF.\" ( Emphasis in original.). Ill. Att' y\nGen. PAC Req. Rev. Ltr. 28697, issued April 18, 2014, at 2. \n\nOn January 5, 2023, the Village Clerk confirmed in a telephone conversation with\nan Assistant Attorney General\nin the Public Access Bureau that the Village maintains the records\nyou are seeking only in paper format. Because the Village does not maintain these records in an\nelectronic format, the Village was not required to provide you with electronic copies. \nAccordingly, this office has determined that this Request for Review is unfounded. You may\nwish to inspect the records at the Clerk' s Office or request copies of the records in paper format. \n\nThis file is closed. If you have any questions, you may contact me at ( 773) 590-\n\n7878 or benjamin.silver@ilag.gov. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n74771 f unf mun\n\ncc: \n\nVia electronic mail\nMs. Gina Panek\nDeputy Clerk\nVillage of Wayne\n5N430 Railroad Street\nWayne, Illinois 60184\ndep.clerk@villageofwayne.org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Election packets filed with a village clerk","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":999,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2025-03-27","case_number":null,"request_numbers":["75318"],"title":"City of Elmhurst properly withheld juvenile police records under 7.5(bb)","filename":"75318, issued March 27, 2025.pdf","rel_path":null,"word_count":807,"summary":"The requester sought a police incident report involving her son, which the City of Elmhurst denied citing the Juvenile Court Act. The PAC determined that the City properly withheld the records because the Juvenile Court Act prohibits the disclosure of juvenile law enforcement records to a victim's parent when the perpetrator is also a minor.","plain_summary":"A mother requested a police report regarding an incident involving her son, but the City denied the request because the records involved juvenile suspects. The Attorney General's office agreed with the City, explaining that state law strictly protects the confidentiality of juvenile police records, even from the parents of victims. Consequently, the City was legally required to withhold the information.","holding":"The City of Elmhurst did not improperly deny the FOIA request.","legal_question":"Whether the City of Elmhurst properly withheld a juvenile law enforcement record under section 7.5(bb) of FOIA and the Juvenile Court Act.","disposition":"no_violation","primary_statute":["5 ILCS 140/7.5(bb)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(bb)"],"public_body":"City of Elmhurst","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought a police incident report involving a juvenile.","ocr_status":"ok","ocr_quality":95.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_bb/75318%2C%20issued%20March%2027%2C%202025.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["juvenile records","police report","privacy","FOIA exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"March 27, 2025\n\nVia electronic mail\n\nVia electronic mail\nMs. Amanda Melone\nDeputy City Clerk\nCity of Elmhurst\n209 North York Street\nElmhurst, Illinois 60126\nFOIA@elmhurst. org\n\nRE: FOIA Request for Review – 2023 PAC 75318\n\nDear\n\nand Ms. Melone: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2023 Supp.)). For the reasons stated below, \nthe Public Access Bureau concludes that the City of Elmhurst (City) did not improperly deny\n\nFOIA request. \n\nsubmitted a FOIA request to the City\nseeking a copy of report number ELPC2204120. On November 30, 2022, the City denied\n\nOn November 21, 2022, \n\nrequest\n\nin its entirety pursuant\n\n2022). In her Request for Review, \ninvolved her son. \n\nto section 7.5(bb) of FOIA ( 5 ILCS 140/ 7.5(bb) ( West\ncontested the denial because the incident\n\nOn February 27, 2023, this office forwarded a copy of the Request for Review to\nthe City and asked it to provide to this office for our confidential review copies of the withheld\n\n\fMs. Amanda Melone\nMarch 27, 2025\nPage 2\n\nrecords along with a detailed written explanation of the factual and legal bases for withholding\nthose records pursuant\nwithheld incident report for this office's confidential review, and furnished a written response, \nwhich noted that\nforwarded a copy of the City's written response to\n\nto section 7.5(bb) of FOIA. On March 8, 2023, the City provided the\n\nis the mother of the juvenile victim. Subsequently, this office\n\nshe did not reply. \n\nSection 7.5(bb) of FOIA exempts from disclosure: \"[ i]nformation which is or was\n\nprohibited from disclosure by the Juvenile Court Act of 1987 [( JCA)].\" Section 1-7(A) of the\nJCA (705 ILCS 405/1-7(A) (West 2022) provides: \n\nAll juvenile law enforcement records which have not been\n\nexpunged are confidential and may never be disclosed to the\ngeneral public or otherwise made widely available. Juvenile law\nenforcement\nrecords may be obtained only under this Section and\nSection 1-8 and Part 9 of Article V of this Act, when their use is\nneeded for good cause and with an order from the juvenile court, \nas required by those not authorized to retain them. Inspection, \ncopying, and disclosure of juvenile law enforcement\nrecords\nmaintained by law enforcement agencies or records of municipal\nordinance violations maintained by any State, local, or municipal\nagency that relate to a minor who has been investigated, \narrested, or taken into custody before his or her 18th birthday\nshall be restricted to the following[.] (Emphasis added.) \n\nThe class of persons who are permitted access to those records are then enumerated, and while a\nminor who is the subject of the investigation, arrest, or custodial detention along with that\nminor's parents are among the statutorily authorized parties who may receive the records, the\nexceptions to this confidentiality provision do not include the minor victim of a crime or the\nminor victim's parents.1 Accordingly, the JCA does not authorize a minor who is an alleged\nvictim, or the alleged victim' s parents, to receive juvenile law enforcement\nrecords when the\nsuspect or perpetrator is also a minor. \n\nThis office's confidential review of the withheld records confirms that incident\nchild is\n\nreport number ELPC2204120 is a juvenile law enforcement\nlisted as the victim in the report, and that another minor is included in the report as the subject of\n\nrecord, that\n\n1See NBC Subsidiary (WMAQ-TV) LLC v. Chicago Police Department, 2019 IL App (1st) 181426\n\ndeciding that the JCA \"governs the confidentiality of law enforcement records that focus on a minor as the subject\nof an investigation, arrest, or custodial detention.\"). See also Ill. Att'y Gen. PAC Req. Rev. Ltr. 74728, issued\nJanuary 25, 2023, at 2 (the JCA does not authorize a minor victim, or the victim's parents, to receive juvenile law\nenforcement records when the suspect or perpetrator is also a juvenile); Ill. Att'y Gen. PAC Req. Rev. Ltr. 84341, \nissued January 3, 2025, at 2 (records that relate to minors who have been investigated, arrested, or taken into custody\nare confidential and cannot be disclosed to a parent of a victim without an order from the juvenile court). \n\n\fMs. Amanda Melone\nMarch 27, 2025\nPage 3\n\nthe investigation and arrest. Because the JCA specifically prohibits the City from disclosing the\nreport to the parent of the victim where the suspect or perpetrator is also a minor, the City did not\nimproperly withhold the report in response to\n\nFOIA request. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. Please contact me at ( 312) \n814-5201 or at the Chicago address on the first page of this letter if you have questions. \n\nVery truly yours, \n\nEDIE STEINBERG\nSenior Assistant Attorney General\nPublic Access Bureau\n\n75318 f 75bb proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A police incident report involving a juvenile","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":1000,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-10-04","case_number":null,"request_numbers":["75330"],"title":"City of Bloomington improperly redacted body camera footage under 7(1)(c) and 7.5(cc)","filename":"75330, issued October 4, 2023.pdf","rel_path":null,"word_count":2243,"summary":"The requester challenged the City of Bloomington's extensive blurring of body camera footage, and the PAC determined the City improperly redacted the records.","plain_summary":"A citizen requested body camera footage from a police encounter, but the City of Bloomington blurred out much of the video, claiming privacy exemptions. The Attorney General's office reviewed the footage and decided the City went too far, as the video showed a public interaction that did not involve highly personal or private behavior. The City was told that it could not legally hide the identity of the person involved in that specific encounter.","holding":"The City of Bloomington improperly redacted body camera footage by blurring the identity of an individual who interacted with officers during a public encounter.","legal_question":"Whether the City of Bloomington properly applied FOIA exemptions 7(1)(c) and 7.5(cc) to justify extensive blurring of police body camera footage.","disposition":"violation_found","primary_statute":["5 ILCS 140/7","50 ILCS 706/10-20"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7.5(cc)"],"public_body":"City of Bloomington","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought unredacted body camera footage of a police encounter that occurred on a public street.","ocr_status":"ok","ocr_quality":97.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_cc/Flagged-reasonable-expectation-of-privacy/75330%2C%20issued%20October%204%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["body camera","police records","redaction","privacy"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nOctober 4, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Jeffrey R. Jurgens\nCorporation Counsel\nCity of Bloomington\n115 East Washington Street, Suite 403\nBloomington, Illinois 61701\nlegal@cityblm.org\n\nRE: FOIA Request for Review – 2022 PAC 75330\n\nDear\n\nand Mr. Jurgens: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)). For the reasons stated below, the\nPublic Access Counselor concludes that the City of Bloomington (City) improperly redacted\nrecords responsive to\n\nNovember 27, 2022, FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the City seeking body\ncamera footage from two specified officers in connection with an incident that occurred on\nSeptember 11, 2022. On December 5, 2022, the City provided body camera recordings with\nportions redacted pursuant to sections 7(1)(c) and 7.5(cc) of FOIA (5 ILCS 140/7(1)(c) (West\n2022); 5 ILCS 140/ 7.5(cc) ( West 2022)). On February 2, 2023, this office received\nRequest for Review contesting the City's redaction of portions of the body camera recordings. \n\nstated objection was that the recordings he received were extensively blurred. \n\nOn February 14, 2023, the Public Access Bureau forwarded a copy of the Request\n\nfor Review to the City and requested both unredacted and redacted copies of the recordings for\nthis office's confidential review, along with a detailed explanation of the factual and legal bases\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMr. Jeffrey R. Jurgens\nOctober 4, 2023\nPage 2\n\nfor the asserted exemptions. On February 27, 2023, the City responded. On March 8, 2023, this\noffice forwarded the City's response to\n\nhe did not reply. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" 5 ILCS 140/ 1.2 ( West 2022); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 ( 1997). \n\nSection 7.5(cc) of FOIA exempts from disclosure \"[ r]ecordings made under the\nLaw Enforcement Officer-Worn Body Camera Act, except to the extent authorized under that\nAct.\" Section 10- 20( b) of the Law Enforcement Officer- Worn Body Camera Act ( Body Camera\nAct)1 provides, in relevant part: \n\nRecordings made with the use of an officer-worn body\n\ncamera are not subject to disclosure under the Freedom of\nInformation Act, except that: \n\n1) if the subject of the encounter has a\nreasonable expectation of privacy, at the time of the\nrecording, any recording which is flagged, due to the\nfiling of a complaint, discharge of a firearm, use of force, \narrest or detention, or resulting death or bodily harm, shall\nbe disclosed in accordance with the Freedom of\nInformation Act if: \n\nA) the subject of the encounter captured on\n\nthe recording is a victim or witness; and\n\nB) the law enforcement agency obtains\nwritten permission of the subject or the subject' s\nlegal representative; \n\n2) except as provided in paragraph (1) of this\nsubsection ( b), any recording which is flagged due to the\nfiling of a complaint, discharge of a firearm, use of force, \n\n150 ILCS 706/10-20(b) (West 2022). \n\n\fMr. Jeffrey R. Jurgens\nOctober 4, 2023\nPage 3\n\narrest or detention, or resulting death or bodily harm shall\nbe disclosed in accordance with the Freedom of\nInformation Act; and\n\n3) upon request, the law enforcement agency shall\n\ndisclose, in accordance with the Freedom of Information\nAct, the recording to the subject of the encounter captured\non the recording or to the subject's attorney, or the officer\nor his or her legal representative. ( Emphasis added.) \n\nThus, sections 10- 20( b)( 1) and 10- 20( b)( 2) generally require the disclosure of flagged\nrecordings, but the consent of the subject of the underlying encounter is also required if the\nsubject had a reasonable expectation of privacy at the time of the recording. \n\nSection 10- 20( b) further provides, in pertinent part: \n\nAny recording disclosed under the Freedom of Information\nAct shall be redacted to remove identification of any person\nthat appears on the recording and is not the officer, a\nsubject of the encounter, or directly involved in the\nencounter. Nothing in this subsection (b) shall require\nthe disclosure of any recording or portion of any\nrecording which would be exempt from disclosure\nunder the Freedom of Information Act. (Emphasis\nadded.) \n\nThe plain language of this section authorizes public bodies to redact portions of recordings that\nare exempt from disclosure under the various exemptions in FOIA other than section 7.5(cc) \neven if they are not prohibited from being disclosed by the Body Camera Act or section. \n\nIn its response to this office, the City acknowledged that it had blurred the images\nthe identities of persons in the videos who are not the subjects of the\n\nin the recordings to conceal\nencounter. The City further argued that it needed to blur even the subject(s) of the encounter\nwas a subject. The City also offered to provide a\nbecause it could not confirm that\nrevised copy of the recordings if\npresents identification to verify and match his\nidentity to the video. The City did not dispute\nand Request for Review that these recordings are flagged due to the filing of a complaint. \n\ncontention in both his FOIA request\n\nSection 10-20(b)(1) of the Body Camera Act only prohibits disclosure of a\n\nflagged recording without the consent of the subject if the subject \" has a reasonable expectation\n\n\fMr. Jeffrey R. Jurgens\nOctober 4, 2023\nPage 4\n\nof privacy, at the time of the recording[.]\" This office has previously determined that a subject\nhas a reasonable expectation of privacy in his own home. See Ill. Att'y Gen. PAC Req. Rev. Ltr. \n60599, issued January 10, 2020. There is a lesser expectation of privacy in public settings. See\nIll. Att'y Gen. PAC Req. Rev. Ltr. 42379, issued September 6, 2016, at 4 (sheriff's office\nimproperly denied a video of a hallway inside a courthouse under the exemption in section\n7(1)(c) of FOIA,2 for information that would constitute an unwarranted invasion of personal\nprivacy if disclosed, noting that \"[ i]ndeed, there is no indication that a member of the public who\nwas present at the time of the recordings could not have viewed and recorded the same\nactivities\"); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 34486, issued July 2, 2015, at 5 (school\ndistrict did not meet its burden of showing that video of the outside of a school after school hours\nwas exempt under section 7(1)( c) when no evidence suggested that area was not fully visible to\nthe public). \n\nThe recordings responsive to\n\nFOIA request occurred on a busy public\n\nstreet. The subject of the recording was not detained or incapacitated. Instead, he was\nvoluntarily present and engaged in an extended interaction with police as bystanders walked by, \neven after police repeatedly ordered him to leave the area. Under these circumstances, the\nsubject of the recording does not have a reasonable expectation of privacy at the time of the\nencounter. Accordingly, section 10- 20( b)( 1) of the Body Camera Act is not applicable to the\nrecording at issue in this matter; instead, the recording is subject to disclosure under section 10-\n20(b)(2) of the Body Camera Act. \n\nThe City argued that it blurred the video to avoid facial recognition of all\n\nindividuals present on the video, as required by section 10- 20( b) of the Body Camera Act, \nquoted above. The City highlighted the portion of that provision that requires a public body to\nredact a recording \" to remove identification of any person that appears on the recording and is\nnot the officer, a subject of the encounter, or directly involved in the encounter[,]\" and argued: \n\nIn the instant case, the subjects of the encounter did not\n\nidentify themselves and the City accordingly had no way of\nverifying whether the individual that made the request is actually a\nsubject of the encounter. As a result, in accordance with Section\n10-20(b), the City blurred the images of those clips, while leaving\nthe audio. 3\n\n25 ILCS 140/7(1)(c) (West 2022). \n\n3Letter from Jeffrey. R. Jurgens, Corporation Counsel, City of Bloomington, Illinois, to Benjamin\nSilver, Assistant Attorney General, Office of the Attorney General, Public Access Bureau, at 2 (February 27, 2023). \n\n\fMr. Jeffrey R. Jurgens\nOctober 4, 2023\nPage 5\n\nThe Public Access Bureau has previously determined that \" the subject of the\n\nencounter\" for purposes of the Body Camera Act means a person who appeared in the recording\nand \" interacted with a law enforcement officer in the course of a law enforcement activity.\" 4 Ill. \nAtt'y Gen. PAC Req. Rev. Ltr. 48793, issued August 31, 2017, at 4 (concluding that police\nofficer who was discussed in, but not depicted in, body camera recordings was not authorized to\nreceive copies of the recordings under section 10-20(b)(3) of the Body Camera Act). \n\nBased on this office's review of the video, more than one individual engaged in\ninteractions with the officers during the encounter; each of these individuals is either \" a subject\nof the encounter, or directly involved in the encounter.\" In contrast, the individuals in the\nbackground of the recording that do not speak with the officers are neither subjects of the\nencounter nor directly involved in the encounter. Contrary to the City's reading, section 10-20(b) \nneither requires the City to blur any subjects' faces, nor does it permit the City to do so. This is\nthe case regardless of whether the requester is one of the subjects of the encounter captured on\nthe recording. A public body may redact a recording subject to disclosure under 10- 20( b)( 2) \nonly to remove the identities of individuals who appear on the recording and are not the officer, a\nsubject of the encounter, or directly involved in the encounter, or if any portion of the recording\nis exempt from disclosure under FOIA. \n\nSection 7(1)( d)( iv) of FOIA5 exempts from disclosure: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\niv) unavoidably disclose the identity of a\n\nconfidential source, confidential\nby the confidential source, or persons who file complaints\nwith or provide information to administrative, investigative, \nlaw enforcement, or penal agencies; except that the\n\ninformation furnished only\n\n4The Body Camera Act defines \" law enforcement-related encounters or activities\" as any\n\ninstance in which the officer is enforcing the laws of the municipality, county, or State. * * * [ but] does\nnot include when the officer is completing paperwork alone, is participating in training in a classroom setting, or is\nonly in the presence of another law enforcement officer.\" 50 ILCS 706/10-10 (West 2022). \n\n55 ILCS 140/7(1)(d)(iv) (West 2022). \n\n\fMr. Jeffrey R. Jurgens\nOctober 4, 2023\nPage 6\n\nidentities of witnesses to traffic accidents, traffic accident\nreports, and rescue reports shall be provided by agencies of\nlocal government, except when disclosure would interfere\nwith an active criminal investigation conducted by the\nagency that is the recipient of the request[.] \n\nOne of the individuals whose image was blurred in the redacted recordings is an individual who\nprovided information to police, apparently in connection with a complaint against the requester. \nBecause disclosure of the image would unavoidably identify that individual, it is permissible for\nthe City to blur that person's image pursuant to section 7(1)(d)(iv) of FOIA.6\n\nIn accordance with the conclusions expressed above, this office requests that the\nwith copies of the video recordings responsive to his request subject only\n\nCity furnish\nto permissible redactions pursuant to section 7(1)(d)(iv) of FOIA and also \"to remove\nidentification of any person that appears on the recording and is not the officer, a subject of the\nencounter, or directly involved in the encounter.\" 50 ILCS 706/10-20(b) (West 2022). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at benjamin. silver@ilag. gov or ( 773) 590- 7878. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n75330 f 75cc improper mun\n\n6In its response to the FOIA request, the City explained that it redacted the recording in reliance on\n\nsection 7(1)(c) of FOIA; the City did not renew the argument in its response to this office. Regardless, because the\nrecording documents an encounter on a public street that became the subject of a complaint against the officers\ninvolved, and the recording does not display any highly personal behavior or activities, section 7(1)(c) does not\npermit the City to blur the identity of the individual who interacted with officers throughout the majority of the\nencounter. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police body-camera footage of a public encounter","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":1001,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-05-25","case_number":null,"request_numbers":["75440"],"title":"City of Chicago Planning improperly redacted LaSalle Street Reimagined proposal summary under 7(1)(c)","filename":"75440, issued May 25, 2023.pdf","rel_path":null,"word_count":1392,"summary":"The requester sought a summary of responses to an Invitation for Proposals for the LaSalle Street Reimagined initiative, which the City of Chicago Department of Planning and Development redacted. The PAC determined the Department failed to provide clear and convincing evidence that the redacted information was exempt from disclosure.","plain_summary":"A requester asked the City of Chicago for a summary of proposals submitted for the 'LaSalle Street Reimagined' project. The City provided the document but blacked out parts of it, claiming they were exempt from public view. The Attorney General's office reviewed the request and decided the City did not prove the redactions were legal, ordering them to release the unredacted document.","holding":"The City of Chicago Department of Planning and Development improperly redacted information from the requested record.","legal_question":"Whether the Department of Planning and Development met its burden of proving by clear and convincing evidence that the redacted information in the proposal summary was exempt from disclosure under FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"City of Chicago Department of Planning and Development","requesting_party":"Elliott Mallen (Unite Here Local 1)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request concerned a summary of responses to an Invitation for Proposals for the LaSalle Street Reimagined initiative.","ocr_status":"ok","ocr_quality":92.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/9/75440%2C%20issued%20May%2025%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["redaction","proposal","city planning","FOIA request"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 25, 2023\n\nVia electronic mail\nElliott Mallen\nResearch Director\nUnite Here Local 1\n[street address redacted for site publication -- see original PDF]\nemallen@unitehere1. org\n\nVia electronic mail\nMs. LaShonda Morgan\nFOIA Officer\nDepartment of Planning and Development\nCity of Chicago\n121 North LaSalle Street, Room 1000\nChicago, Illinois 60602\nDPDFOIA@cityofchicago. org\n\nRE: FOIA Request for Review: 2023 PAC 75440; FOIA O036175- 010323\n\nDear Elliott Mallen and Ms. Morgan: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA). 1 For the reasons explained below, the Public Access Bureau concludes\nthat the City of Chicago' s Department of Planning and Development ( Department) improperly\ndenied Elliott Mallen' s January 3, 2023, FOIA request. \n\nOn that date, Elliott Mallen, on behalf of Unite Here Local 1, submitted a FOIA\n\nrequest to the Department seeking copies of \"the summary of responses to the Invitation for\nProposals issued for the City of Chicago' s LaSalle Street Reimagined initiative, referenced in the\n\n15 ILCS 140/ 9.5(f) (West 2020). \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fElliott Mallen\nMs. LaShonda Morgan\nMay 25, 2023\nPage 2\n\nChicago Sun Times on Dec. 28, 2022 and Crain' s Chicago Business on Jan. 3, 2023.\" 2 On\nJanuary 19, 2023, the Department provided a list that included the names of six properties and\nthe entities that responded with bids for proposed improvements to those properties. The\nDepartment partially denied the request by redacting one \" business that dropped off 208 South\nLaSalle.\" 3 On January 24, 2023, Elliott Mallen asked the Department\nidentify the exemption in FOIA that applied to the redacted information; it appears the\nDepartment did not respond. On February 9, 2023, this office received Elliott Mallen' s Request\nfor Review disputing the redaction. \n\nto clarify its response and\n\nOn February 17, 2023, the Public Access Bureau forwarded a copy of the Request\n\nfor Review to the Department and asked it to provide unredacted copies of the withheld record\nfor our confidential review along with a detailed explanation of the legal and factual bases to\nsupport its redaction. The Department did not respond to the Public Access Bureau. On March\n7, 2023, this office forwarded a second copy of the Request for Review to the Department and\nagain requested that it respond to Elliott Mallen' s Request for Review. Again, the Department\ndid not respond. On March 31, 2023, an Assistant Attorney General called the Department' s\nFOIA Officer and left a message requesting a call back. To date, this office has not received any\nresponse from the Department. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 4 FOIA\nprovides that \"[ e] ach public body shall make available to any person for inspection or copying all\npublic records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" 5\n\nSection 9.5(c) of FOIA\n\nThe procedures for a public body to respond to the Public Access Counselor in\n\nconnection with a Request for Review of the denial of a FOIA request are clear. Section 9.5(c) \nof FOIA unambiguously provides that \"[ w]ithin 7 business days after receipt of the request for\n\n2FOIA request O036175- 010323. \n\nDevelopment\n\nto Elliot Mallen ( January 19, 2023) at 2. \n\n3Letter from LaShonda Morgan, FOIA Officer, [ City of Chicago] Department of Planning and\n\n45 ILCS 140/ 1.2 (West 2020). \n\n55 ILCS 140/ 3(a) ( West 2020). \n\n\fElliott Mallen\nMs. LaShonda Morgan\nMay 25, 2023\nPage 3\n\nreview, the public body shall provide copies of records requested and shall otherwise fully\ncooperate with the Public Access Counselor.\" 6 ( Emphasis added.) It is undisputed that the\nDepartment did not provide the Public Access Bureau with the requested records as expressly\nrequired by section 9.5(c) of FOIA. This mandate could not be more clearly stated. The\nDepartment' s failure to provide our office with copies of the records responsive to Elliott\nMallen' s FOIA request for our confidential review violated the requirements of FOIA. The\nDepartment should be mindful of its obligation to fully cooperate with this office in all future\nRequests for Review. \n\nSection 9(a) of FOIA\n\nSection 9(a) of FOIA 7 provides: \n\nEach public body denying a request for public records shall\n\nnotify the requester in writing of the decision to deny the request, \nthe reasons for the denial, including a detailed factual basis for\nthe application of any exemption claimed, and the names and\ntitles or positions of each person responsible for the denial. \nEmphasis added.) \n\nThe Department' s response to Elliott Mallen does not provide a basis for the\n\npartial denial other than to state that \"[ t]he area that is deleted is a business that dropped off 208\nSouth LaSalle.\" 8 The Department' s response is vague and the Department has not responded to\nthis office' s requests for clarification. Nevertheless, this office construes the Department' s\nresponse as asserting that the entry for 208 South LaSalle is not responsive to the request because\nthe developer listed was no longer participating in the LaSalle Street Reimagined Initiative. \n\nGenerally, FOIA does not require disclosure of information that was not\n\nrequested. Ill. Att'y Gen. Pub. Acc. Op. No. 12-009, issued May 25, 2012, at 4 (\" FOIA does not\nrequire the disclosure of clearly nonresponsive information within documents simply because\nsome portion of [the] document is responsive to a request for specific information.\"). However, \npublic bodies \" should err on the side of liberally construing what material falls within the scope\nof the request.\" Dunaway v. Webster, 519 F. Supp. 1059, 1083 ( N.D.Cal. 1981). Ambiguities\nshould be resolved in favor of disclosure. See, e.g., LaCedra v. Executive Office for U.S. \n\n65 ILCS 140/ 9.5(c) (West 2020). \n\n75 ILCS 140/ 9(a) ( West 2020). \n\nDevelopment\n\nto Elliot Mallen ( January 19, 2023) at 2. \n\n8Letter from LaShonda Morgan, FOIA Officer, [ City of Chicago] Department of Planning and\n\n\fElliott Mallen\nMs. LaShonda Morgan\nMay 25, 2023\nPage 4\n\nAttorneys, 317 F.3d 345, 348 ( D.C. Cir. 2003) ( rejecting public body's narrow construction of\nlanguage used in request). \n\nThe Department has not demonstrated that the entry for 208 South LaSalle was\n\nnot responsive to Elliott Mallen' s request. The articles referenced in Elliott Mallen' s FOIA\nrequest stated that the redevelopment plans involved seven properties, including two submissions\nfor 208 South LaSalle. 9 The record provided in response to the FOIA request only listed six\nproperties and omitted any reference to 208 South LaSalle. Elliott Mallen' s request specifically\nsought the copy of the summaries as referenced in the articles. Therefore, even if a business\nsubsequently withdrew a response to the Invitation for Proposals, the summary that included 208\nSouth LaSalle was nevertheless responsive to the FOIA request. Accordingly, this office is\nunable to conclude that the Department has demonstrated by clear and convincing evidence that\nthe redacted information is exempt from disclosure. This office requests that the Department\nprovide Elliott Mallen with a copy of the unredacted record responsive to the request. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nquestions, please contact me at victoria. frazier@ilag. gov. \n\nVery truly yours, \n\nVICTORIA FRAZIER\nAssistant Attorney General\nPublic Access Bureau\n\n75440 f 9a improper 95c improper mun\n\n9David Roeder, Developers propose $ 1 billion in work to help La Salle Street, Chicago Sun Times, \n\nDec. 5, 2022), https:// chicago. suntimes. com/2022/ 12/28/23528757/ lasalle- street- chicago -financial- district-\nrejuvenate- housing- residential; Danny Ecker, Developers pitch $1.2 billion of LaSalle Street residential\nconversations, Crain' s Chicago Business, ( Jan. 3, 2023), https:// www. chicagobusiness. com/ commercial- real-\nestate/ developers- pitch- 12-billion- lasalle- street- residential- conversions. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A summary of responses to an Invitation for Proposals","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":1002,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-11-13","case_number":null,"request_numbers":["75666"],"title":"Illinois Lottery found no FOIA violation for reasonable search of contractor-held records","filename":"75666, issued November 13, 2023.pdf","rel_path":null,"word_count":1239,"summary":"The requester sought records regarding 2012 lottery prize payments and submission procedures, and the PAC determined that the Illinois Department of the Lottery conducted a reasonable search for those records.","plain_summary":"A requester asked the Illinois Lottery for records from 2012 regarding prize payments and ticket submission processes. The Lottery could not find all the requested documents because they were held by a former private contractor, but the Attorney General's office found that the Lottery made a reasonable effort to locate the information. Consequently, the case was closed with no finding of a violation.","holding":"The Illinois Department of the Lottery did not violate FOIA because it performed a reasonable search and made a good-faith effort to obtain records from a third-party contractor.","legal_question":"Whether the Illinois Department of the Lottery conducted an adequate and reasonable search for records responsive to a FOIA request under section 3 of the Act.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Illinois Department of the Lottery","requesting_party":"Mr. Jeffrey Pyle","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"reasonable search","subject_description":"The requester sought records related to lottery prize payments and ticket submission procedures from 2012.","ocr_status":"ok","ocr_quality":95,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_2/75666%2C%20issued%20November%2013%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["reasonable search","lottery records","third-party records","FOIA compliance"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 13, 2023\n\nVia electronic mail\nMr. Jeffrey Pyle\nPrince Lobel Tye LLP\nOne International Place, Suite 3700\nBoston, Massachusetts 02110\njpyle@princelobel. com\n\nVia electronic mail\nMs. Katherine C. Tower\nIllinois Department of the Lottery\n[street address redacted for site publication -- see original PDF]\nKatherine. Tower@illinois. gov\n\nRE: FOIA Request for Review – 2023 PAC 75666; FOIA 22-144\n\nDear Mr. Pyle and Ms. Tower: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the searches performed by the Illinois Department of the\nLottery ( Lottery) to locate records responsive to Mr. Jeffrey Pyle's December 21, 2022, FOIA\nrequest were reasonable. \n\nOn that date, Mr. Pyle, on behalf of his law firm, submitted a FOIA request to the\n\nLottery seeking: \n\n1. All records relating to any Lottery prize paid to [a named\n\nindividual], or in the name of [a named individual], during\nthe year 2012. \n\n2. Documents sufficient to show the process by which Lottery\n\nplayers submitted winning tickets in 2012. \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: ( 312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529- 6416\n\n\fMr. Jeffrey Pyle\nMs. Katherine C. Tower\nNovember 13, 2023\nPage 2\n\n3. Documents sufficient to identify any and all processes or\nprocedures that were used by the Lottery and/ or any\ncontractor of the Lottery in 2012 to verify the identity of a\nperson claiming a prize of $1 million or more. \n\n4. Documents sufficient to identify any and all processes or\nprocedures used to verify the payee' s identity and address\nin the case of any prize paid to [ a named individual] in\n2012.[ 1] \n\nOn December 31, 2022, the Lottery informed Mr. Pyle that it did not possess any records\nresponsive to the first part of his request. The Lottery recommended that he contact a private\nentity, Northstar Lottery Group, to request those records. It also provided a narrative answer to\nparts 2-4 of Mr. Pyle's request. On February 27, 2023, this office received Mr. Pyle's Request\nfor Review challenging the Lottery' s response. Mr. Pyle alleged that because the records may be\nin the possession of Northstar, a Lottery contractor, the Lottery must obtain those records to\nproperly respond to his request. \n\nOn March 14, 2023, the Public Access Bureau forwarded a copy of the Request\n\nfor Review to the Lottery and asked it for a written response. This office requested that the\nLottery address the applicability of section 7(2) of FOIA 2 to responsive records in the possession\nof Northstar, the Lottery' s contractor in 2012. On March 16, 2023, the Lottery provided a\nwritten response. On March 17, 2023, this office forwarded the Lottery' s response to Mr. Pyle; \nhe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1.2 (West 2022). \n\nSection 7(2) of FOIA provides: \n\nA public record that is not in the possession of a public\n\nbody but is in the possession of a party with whom the agency has\ncontracted to perform a governmental\n\nfunction on behalf of the\n\n1E- mail from Jeffrey J. Pyle, Prince Lobel Tye LLP, to FOIA Officer, Office of the General\n\nCounsel, Illinois Lottery ( December 21, 2022). \n\n25 ILCS 140/ 7(2) (West 2022). \n\n\fMr. Jeffrey Pyle\nMs. Katherine C. Tower\nNovember 13, 2023\nPage 3\n\npublic body, and that directly relates to the governmental\nfunction\nand is not otherwise exempt under this Act, shall be considered a\npublic record of the public body, for purposes of this Act. \n\nUnder this provision, public records in the possession of a contractor that directly relate to a\ngovernmental\nfunction that the contractor has contracted to perform for the public body are\nconsidered to be records of the public body. Further, a public body has a duty to request any\nresponsive records related to the governmental\nand to provide the requester with copies of them unless they fall within one or more of FOIA' s\nexemptions. See Ill. Att'y Gen. Pub. Acc. Op. No. 20-006, issued July 27, 2020, at 7. \n\nfunction in the physical custody of the third party\n\nIn its response to this office, the Lottery explained that Northstar was its private\n\nmanager during the time period specified in the FOIA request, but its management agreement\nwith Northstar ended in January 2017. In October 2017, Camelot became the Lottery' s private\nmanager. The Lottery confirmed that it and Camelot conducted searches of their records, but did\nnot locate responsive documents. The Lottery explained that it retained no control over\nNorthstar' s records after the contract ended and \" the Survival Clause contained in the Letter of\nAgreement between the Lottery and Northstar require[ d] that the parties continue to be bound by\nthe Private Management Agreement, including [ section] 9.3.5 FOIA Required Disclosures\" only\nuntil 2017. 3 The Lottery explained that it has nevertheless attempted to contact Northstar in\nconnection with the firm's FOIA request, but has not been able to reach Northstar by phone. The\nLottery also e-mailed executives and a general account for International Game Technology\nIGT), a Northstar affiliate, seeking the records specified by Mr. Pyle. The Lottery stated that\nIGT was not able to locate responsive records. \n\nBased on this office's review, the Lottery has taken reasonable measures to obtain\n\nresponsive records, if any, in its former contractor' s possession. The Lottery acknowledges its\nobligations under section 7(2) of FOIA to obtain responsive records from its contractors, but its\nefforts to comply with section 7(2) have been hampered by the termination of its agreement with\nNorthstar and the passage of time. The Lottery has taken reasonable steps to contact Northstar, \nand it does not appear to have any viable means to compel a response at this time. It also is\nunclear whether Northstar still retains the records Mr. Pyle is seeking from 2012. Because the\nLottery demonstrated that it made a good faith effort to obtain any responsive records from\nNorthstar and because it appears that any additional efforts would be futile, this office is unable\nto conclude that the Lottery' s response to Mr. Pyle's request violated section 7(2) of FOIA. \n\nBureau Chief, Public Access Bureau, Office of the Attorney General ( March 16, 2023), at [ 1]. \n\n3Letter from Katherine C. Tower, Illinois Department of the Lottery, to Laura S. Harter, Deputy\n\n\fr. Jeffrey Pyle\nMs. Katherine C. Tower\nNovember 13, 2023\nPage 4\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 843- 0564 or laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n75666 f 72 proper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Lottery prize payment records and ticket submission procedures","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":1003,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2025-03-19","case_number":null,"request_numbers":["75894"],"title":"University of Illinois improperly denied FOIA request for Big Ten media contract","filename":"75894, issued March 19, 2025.pdf","rel_path":null,"word_count":3624,"summary":"Mr. LeRoy requested a copy of the 'Big Ten media rights deal' from the University of Illinois, which the University denied claiming it possessed no responsive records. The PAC determined the University improperly denied the request because the contract constitutes a public record under FOIA as it relates to the transaction of public business.","plain_summary":"A professor requested the Big Ten media rights contract from the University of Illinois. The University said it didn't have the contract because the Conference holds the rights. The Public Access Bureau concluded that the University improperly denied the request, and analyzed whether the contract is a public record under a law that makes records held by contractors subject to FOIA. The provided source text does not state whether the Bureau ordered the University to obtain the document from the Conference.","holding":"The University of Illinois improperly denied Michael LeRoy's FOIA request for the Big Ten media rights contract.","legal_question":"Whether a contract held by a third-party entity (the Big Ten Conference) on behalf of a public body (the University) constitutes a public record subject to disclosure under FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"University of Illinois at Urbana-Champaign","requesting_party":"Mr. Michael H. LeRoy","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"public records","subject_description":"The request sought the Big Ten media rights agreement, which the University claimed it did not possess.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_2/75894%2C%20issued%20March%2019%2C%202025.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public records","university","contract","FOIA request"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"March 19, 2025\n\nVia electronic mail\nMr. Michael H. LeRoy\nProfessor\nUniversity of Illinois Urbana- Champaign\nSchool of Labor & Employment Relations and College of Law\n[street address redacted for site publication -- see original PDF]\nmhl@illinois. edu\n\nVia electronic mail\nMs. Adrienne Nazon\nVice President, External Relations and Communications\n\nand Chief Records Officer\nUniversity of Illinois System\n108 Henry Administration Building, MC370\n506 South Wright Street\nUrbana, Illinois 61801\nFOIA- OUR@mx. uillinois. edu\n\nRE: FOIA Request for Review – 2023 PAC 75894; University No. 23-331\n\nDear Mr. LeRoy and Ms. Nazon: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2023 Supp.)). For the reasons that follow, the\nPublic Access Bureau concludes that the University of Illinois at Urbana- Champaign\nUniversity) improperly denied Mr. Michael LeRoy' s March 8, 2023, FOIA request. \n\nOn that date, Mr. LeRoy submitted a FOIA request to the University seeking a\ncopy of \"the contract that is popularly known as the 'Big Ten media rights deal[,]'\" and related\n\n\fMr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 2\n\nrecords. 1 On March 15, 2023, the University responded, stating that it searched but located no\nresponsive records. The University indicated that the reason it possessed no responsive records\nis that \" each Big Ten institution has given television rights to the Big Ten Conference. \nAgreements are between the Conference and each respective television partner.\" 2 On March 17, \n2023, Mr. LeRoy submitted the above- referenced Request for Review contesting the University' s\nresponse as to the Big Ten media rights deal. He explained in detail the reasons why he believed\nthe University possesses that contract directly or indirectly, including that University\nadministrators such as Athletic Director Josh Whitman must have reviewed the agreement based\non statements in the news media and the fiscal implications of the deal for the University. \n\nOn March 24, 2023, this office forwarded a copy of the Request for Review to the\n\nUniversity and asked it to provide a detailed description of the measures taken to search for\nresponsive records, including a description of the specific extranets or other shared\nrecordkeeping systems that were searched, the method of that search, and the individuals who\nwere consulted. This office also requested a detailed description of the relationship between the\nUniversity and the Big Ten Conference ( Conference) in relation to the negotiation and execution\nof any contract for media rights, and a copy of any foundational record( s) evincing the terms of\nthe University' s delegation of rights to the Conference and any mutual obligations. \n\nOn April 4, 2023, the University responded by submitting two versions of its\n\nanswer: a complete version for this office's confidential review and a redacted version to\nforward to Mr. LeRoy. In its non- confidential answer, the University stated that its FOIA Office\npersonnel had consulted with the University' s Division of Intercollegiate Athletics ( DIA) \nAssociate Athletic Director for Media Relations, Kent Brown, who reported that the University\ndid not possess the media rights deal and subsequently received confirmation of the same from\nDIA Chief Operating Officer Roger Denny and Athletic Director Whitman. \n\nOn April 6, 2023, this office forwarded a copy of the University' s redacted answer\n\nto Mr. LeRoy; on that same date, Mr. LeRoy submitted a reply. Mr. LeRoy argued that the\nmedia rights deal meets the definition of \"public record\" in FOIA 3 because it pertains to the\ntransaction of public business and was prepared, in part, for the University' s benefit. \n\nOn April 12, 2023, this office sent a follow- up e-mail to the University and asked\n\nit to address whether the University had entered into any type of contract with the Conference, \ntogether with an explanation of the relationship between the University and the Conference and\n\nof Law, University of Illinois at Urbana- Champaign, to University of Illinois FOIA ( March 8, 2023). \n\n1E- mail from Michael H. LeRoy, Professor, School of Labor & Employment Relations & College\n\n2E- mail from Kirsten Ruby, Director, External Relations and Communications and Chief Records\n\nOfficer, to Michael H. LeRoy ( March 15, 2023). \n\n35 ILCS 140/2(c) (West 2022). \n\n\fMr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 3\n\nthe applicability of section 7(2) of FOIA. 4 On April 27, 2023, the University provided a\nsupplemental written response. On May 10, 2023, this office forwarded a copy of the\nUniversity' s response to Mr. LeRoy; on the same date, Mr. LeRoy submitted a reply addressing\nthe applicability of section 7(2) of FOIA. \n\nOn October 30, 2023, the University unexpectedly provided this office and Mr. \n\nLeRoy with a copy of an April 16, 2015, amended assignment of rights agreement ( Assignment) \nbetween the University and the Conference. 5 Among other things, the Assignment provides the\nConference with sole authority to negotiate and execute agreements concerning the telecast and\ndistribution rights to the University' s varsity athletic games, contests, and related events. 6 The\nUniversity stated that it had recently discovered this document, which it had previously denied\npossessing, while cleaning out the office of an unspecified former University employee. On\nDecember 27, 2023, Mr. LeRoy submitted a supplemental answer continuing to contest the\nUniversity' s claim that the media rights deal is not a public record of the University. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2022); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 ( 2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1.2 (West 2022). \n\nThe adequacy of a public body' s search for responsive records is judged by a\n\nstandard of reasonableness and depends upon the particular facts of the case. Better Government\nAss'n v. City of Chicago, 2020 IL App (1st) 190038, ¶ 31. \" Although a public body is not\nrequired to perform an exhaustive search of every possible location, the body must construe\nFOIA requests liberally and search those places that are 'reasonably likely to contain responsive\nrecords.'\" Better Government Ass'n, 2020 IL App ( 1st) 190038, ¶ 31 (quoting Judicial Watch, \nInc. v. U.S. Department of Justice, 373 F. Supp. 3d 120, 126 ( D.D.C. 2019)). \n\nIn its non- confidential answers in this matter and in the information it submitted\nconfidentially, the University described measures it took to search the records in its possession\nfor the Big Ten media rights deal and other related records. In particular, the University\nexplained that it conferred with Athletic Director Whitman and DIA Chief Operating Officer\n\n45 ILCS 140/7(2) (West 2023 Supp.). \n\nand University of Illinois ( April 16, 2015). \n\n5Amended and Restated Assignment of Rights Agreement between The Big Ten Conference, Inc. \n\nand University of Illinois, §§ 1, 2(a) ( April 16, 2015). \n\n6Amended and Restated Assignment of Rights Agreement between The Big Ten Conference, Inc. \n\n\fMr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 4\n\nDenny, who are the personnel most likely to have knowledge of the University' s possession of\nthe Big Ten media rights deal, and they confirmed that the University did not have that record in\nits possession. Although, as discussed further below, Mr. LeRoy strenuously disputes the\nUniversity' s claim that it does not possess the media rights deal via section 7(2) of FOIA, this\noffice has not received information from which it could conclude that the University failed to\nadequately search the records in its physical custody. \n\nThe remaining question is whether any media rights contract the Conference\n\nentered into for the University' s benefit, that is not in the University' s physical custody, is\nconsidered the University' s public record for purposes of FOIA. \n\nSection 7(2) of FOIA\n\nSection 7(2) of FOIA provides: \n\nA public record that is not in the possession of a public\n\nbody but is in the possession of a party with whom the agency has\nfunction on behalf of the\ncontracted to perform a governmental\npublic body, and that directly relates to the governmental\nfunction and is not otherwise exempt under this Act, shall be\nconsidered a public record of the public body, for purposes of this\nAct. (Emphasis added.) \n\nTherefore, the applicability of section 7(2) in this matter depends on whether: ( 1) the University\nhas contracted the Conference to perform a \" governmental\nagreement at issue \" directly relates\" to a governmental\n\nfunction\"; and ( 2) whether the\n\nfunction. \n\nThe Illinois Supreme Court has construed the term \" governmental\npurposes of section 7(2) in accordance with the Black' s Law Dictionary definition of that term: \n\nfunction\" for\n\na government agency' s conduct that is expressly or impliedly mandated or authorized by\n\nconstitution, statute, or other law and that is carried out for the benefit of the general public.\"' \nBetter Government Ass'n v. Illinois High School Ass'n, 2017 IL 121124, ¶ 63 (quoting Black' s\nLaw Dictionary 812 ( 10th ed. 2014)). The Illinois Supreme Court explained that \" section 7(2) \nwas the legislature' s response to 'the privatization of government responsibilities and its impact\non the right of public information access and transparency' and that this section ' ensures that\ngovernmental entities must not be permitted to avoid their disclosure obligations by contractually\ndelegating their responsibility to a private entity.'\" Rushton v. Department of Corrections, 2019\nIL 124552, ¶ 28 (quoting Better Government Ass'n, 2017 IL 121124, ¶ 62). \n\nThe University' s non- confidential response described its relationship with the\n\nConference: \n\n\fMr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 5\n\nThe] University granted its rights to monetize any display of\nsports- related competition to the Conference decades ago. This is\nthe case for conferences across the country. In each conference, the\nmember- institutions grant their conference media rights to\nnegotiate with broadcasting companies. Logistically, a system\nwhere each and every university and college across the country\nnegotiates their own media contracts would quickly become\nunmanageable. Correspondingly, the Conference enters into deals\nand media rights agreements in furtherance of a revenue- sharing\npool.[ 7] \n\nThe University also provided Mr. LeRoy and this office with a copy of the Assignment\nconfirming that it had in fact contracted with the Conference. This office' s review of the\nAssignment between the two entities reflects that the University has transferred to the\nConference \" the right, title and interest that the [ University], directly or indirectly, has or may\nhereafter acquire to telecast or distribute, live or delayed, throughout the universe\" 8 all varsity\nathletic games, matches, contests, or events, among other things. 9 Additionally, the Conference\nagreed to negotiate and enter into agreements to telecast or distribute games and ancillary\nprogramming, and to distribute to the University revenue derived from those agreements. 10\nNews media reports indicate that the Big 10 generated almost $ 880 million in revenue in fiscal\nyear 2023, and distributed more than $ 60 million to the University. 11\n\nBoth the plain language of section 7(2) of FOIA and Illinois Appellate Court\n\nopinions interpreting that provision support the conclusion that the Conference was contracted to\nperform a governmental\ndeal. As referenced above, \"[ g] overnmental\nconduct that is expressly or impliedly mandated or authorized by constitution, statute, or other\n\nfunction on behalf of the University in carrying out the media rights\nfunction\" is defined as \"[ a] government agency' s\n\n7Letter from Kristen Ruby, Director of External Relations and Communications and Chief Records\nOfficer, University of Illinois System, to Matthew G. Goodman, Assistant Attorney General, Public Access Bureau, \nOffice of the Illinois Attorney General ( April 4, 2023, at 2-3). \n\nand University of Illinois, § 2 (April 16, 2015). \n\n8Amended and Restated Assignment of Rights Agreement between The Big Ten Conference, Inc. \n\nand University of Illinois, § 2(a) ( April 16, 2015). \n\n9Amended and Restated Assignment of Rights Agreement between The Big Ten Conference, Inc. \n\nand University of Illinois, § 8 (April 16, 2015). \n\n10Amended and Restated Assignment of Rights Agreement between The Big Ten Conference, Inc. \n\n11Steve Berkowitz, Big Ten outpaced SEC with $880 million in revenue for 2023 fiscal year with\n\nmost schools getting $ 60.5 million, USA Today, ( May 21, 2024), \nhttps:// www. usatoday. com/ story/ sports/ college/ 2024/ 05/20/big- ten- sec- revenue- 2023- fiscal- year/ 73772300007/. \n\n\fMr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 6\n\nlaw and that is carried out for the benefit of the general public.\" ( Emphasis added.) Black' s\nLaw Dictionary 840 ( 11th ed. 2019). Section 1 of the Televised University Athletics Act 12\ngrants the governing boards or administration of State- supported universities the authority to\ncontract for the highest and best offers for television rights agreements for intercollegiate\nathletics games and contests that are not under contract for exclusive showing on a national\ntelevision network. The Assignment\nengage in conduct on behalf of the University that is expressly authorized by law. The\nAssignment also reflects that negotiating and entering into telecast and distribution rights\nagreements is not a corporate or business undertaking merely for the University' s corporate\nbenefit, but an act involving a recreational benefit for the general public of making University\nathletic contests of interest to the public widely viewable while also remitting large sums of\nmoney to the public body. \n\nis a contract that plainly grants the Conference the right to\n\nFurther, the University' s response to this office acknowledged that it entered into\nthe agreement to simplify the process of negotiating media contracts. In College of DuPage, the\ncourt held that a foundation conducting fundraising activities for the college was performing a\nfunction for the college for purposes of section 7(2) of FOIA. In so concluding, \ngovernmental\nthe court emphasized that \"[ i]f the Foundation did not undertake these responsibilities, the\nCollege would necessarily do so itself[.]\" College of DuPage, 2017 IL App (2d) 160274, ¶ 50. \nAnd, in Metropolitan Pier, the court noted that if the Metropolitan Pier and Exposition Authority\nMPEA)— a public body created to develop Navy Pier— had itself entered into the leases and\nother agreements sought by the FOIA requester, MPEA would have had a duty to disclose them; \nthe fact that the leases and other agreements were entered into by the non- profit entity MPEA\nhad contracted with to operate Navy Pier for the benefit of the public did not remove MPEA\nfrom responsibility for those records under FOIA. Metropolitan Pier, 2020 IL App (1st) 190697, \n23, 27. Similarly, if the University had not assigned to the Conference its right to telecast or\n\ndistribute its sporting events, the University undoubtedly would have sought to monetize such\nrights itself, and any such media rights agreement would plainly be subject to disclosure pursuant\nto FOIA. See 5 ILCS 140/ 2.5 (West 2022) (\" All records relating to the obligation, receipt, and\nuse of public funds of the State, units of local government, and school districts are public records\nsubject to inspection and copying by the public.\"). \n\nHaving concluded that the University has contracted the Conference to perform a\nfunction\", it next must be determined whether the agreement at issue \" directly\n\nfunction. A public body that contracts with another entity to perform\nfunction on its behalf has a duty to request and obtain any responsive record that\n\ngovernmental\nrelates\" to a governmental\na governmental\ndirectly relates\" to the governmental\nentity, and to provide the requester with a copy of the record unless it falls within one or more of\nFOIA's exemptions. See Ill. Att'y Gen. Pub. Acc. Op. No. 20-006, issued July 27, 2020, at 7\nconcluding that policies and data pertaining to head injuries in possession of the healthcare\n\nfunction which is in the physical custody of the other\n\n12110 ILCS 75/1 (West 2022). \n\n\fMr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 7\n\nvendor for the Illinois Department of Corrections ( IDOC) were public records of IDOC because\nfunction of providing medical care to inmates). FOIA\nthey directly related to the governmental\ndoes not define the term \" directly relates.\" The Illinois Appellate Court has explained that \"[ t]his\nrequirement makes clear the legislature' s intention that the general public may not access all of a\nthird party' s records merely because it has contracted with a public body to perform a\ngovernmental\nCollege of DuPage, 2017 IL App (2d) 160274, ¶ 53. Still, \"the term ' directly relates' must be\nliberally construed in light of FOIA' s purpose.\" Rushton, 2019 IL App ( 4th) 180206, ¶ 30. \n\nfunction. FOIA is not concerned with private affairs.\" Chicago Tribune v. \n\nRecords that reflect the governmental\n\nfunction an entity has been contracted to\nfunction and\n\nperform and that shed light on its performance directly relate to the governmental\ntherefore are subject to disclosure under section 7(2) of FOIA. College of DuPage, 2017 IL App\n2d) 160274, ¶ 55 (affirming trial court decision that a federal grand jury subpoena in a\nfoundation' s possession directly related to the governmental\ncontracted to perform for college of managing all of college' s private donations because college\nnever asserted that the subpoena concerned matters other than those donation management\nobligations). In Rushton, the Illinois Appellate Court concluded that a settlement agreement\nbetween IDOC' s contractor for inmate medical care and the estate of a prisoner who allegedly\ndied from inadequate medical care directly related to a governmental\nfunction because prisons\nare charged with ensuring inmates receive adequate medical care and the settlement agreement\narose out of such medical care. Rushton, 2019 IL App (4th) 180206, ¶¶ 31- 33. \n\nfunction that the foundation was\n\nAlthough the Conference' s media rights contract has not been provided for this\n\noffice's confidential review, it necessarily directly relates to the governmental\nnegotiating and entering into agreements for television rights to University athletic games and\nevents. Section 7(2) applies to records in the possession of a third party \" that are truly related to\nits exercise of a government function and not those records that are only incidentally or\ntangentially related to the contract.\" Rushton, 2019 IL 124552, ¶ 29. The media rights\nagreement cannot be \" only incidentally or tangentially related to the contract\" between the\nUniversity and the Conference given that the Assignment grants the Conference the right to\nnegotiate and enter into telecast and distribution agreements pertaining to the University' s\nsporting events. \n\nfunction of\n\nIn its April 27, 2023, response to this office concerning section 7(2) of FOIA, the\n\nUniversity stated: \n\nPresumably, the need to consider the applicability of\nSection 7(2) is to determine whether the University is obligated to\nattempt to retrieve any responsive records from the Big Ten. As a\nmatter of good faith, and in the spirit of transparency, the\nUniversity has taken it upon itself to request the Media Rights Deal\nfrom the Big Ten once again. The University was again\n\n\fMr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 8\n\ndenied. Please note, this action is not intended to be interpreted as\nany explicit or implicit acceptance of the applicability of Section\n7(2) here. \n\nThe University recently experienced a similar situation, \n\nwhere the University did not possess requested records. An\noutside organization was asked to provide the University with the\nrequested records to produce to the requestor, but the organization\ndeclined. Under these circumstances, the University was found to\nhave appropriately searched for and requested records. \nCitation.][ 13] \n\nThe University relied upon determination letter Ill. Att'y Gen. PAC Req. Rev. Ltr. 74112, issued\nMarch 21, 2023, to support its argument that it had satisfied its obligations under FOIA when it\nrequested the media rights contract from the Conference but was denied. The University' s\nreliance, however, is misplaced because the records that were the subject of that determination\nletter, which were in the possession of an academic honor society, were not considered the\nUniversity' s public records under section 7(2) of FOIA. Ill. Att'y Gen. PAC Req. Rev. Ltr. \n74112, at n.3. (\" Because the Society is not performing a governmental\nUniversity, the Society' s records relating to the University are not the University' s public\nrecords.\"). In this matter, the media rights contract is considered the University' s public record\nbecause it directly relates to a governmental\nperform on behalf of the University. \n\nfunction that the Conference was contracted to\n\nfunction on behalf of the\n\nFor the reasons expressed above, the Public Access Bureau concludes that the\n\nUniversity improperly denied Mr. LeRoy' s FOIA request. This office requests that the\nUniversity take additional measures to obtain the media rights agreement from the Conference\nand provide a copy to Mr. LeRoy. In particular, the University should alert the Conference to the\nrequirements of section 7(2) of FOIA, and provide the Conference with a copy of this\ndetermination detailing the University' s disclosure obligations. Going forward, the University\nshould ensure that any contract it enters into with a third party to perform a governmental\nfunction includes a mechanism for the University to obtain its own public records from the\ncontractor. \n\nOfficer, to [ Matt] Goodman, Assistant Attorney General, Public Access Bureau ( April 27, 2023), at 2. \n\n13Letter from Kirsten Ruby, Director of External Relations and Communication and Chief Records\n\n\fr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 9\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. Please\ncontact me at matthew. goodman@ilag. gov if you have questions or would like to discuss this\nmatter. Thank you. \n\nVery truly yours, \n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n\n75894 f 72 improper univ\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A university's media rights contract with a conference","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":1004,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-07-20","case_number":null,"request_numbers":["76410"],"title":"Village of Hillside improperly charged FOIA fees for non-responsive records","filename":"76410, issued July 20, 2023.pdf","rel_path":null,"word_count":1997,"summary":"The requester challenged a $52.50 fee charged by the Village of Hillside for records related to a specific property. The PAC determined that the Village improperly assessed fees for records that were not responsive to the original request.","plain_summary":"A citizen requested government documents regarding a specific property, and the Village of Hillside charged a fee to provide them. The Attorney General's office found that the Village incorrectly charged the requester for documents that were not actually part of the original request. The matter was closed after the PAC provided this guidance to the parties.","holding":"The Village of Hillside improperly assessed a fee for records provided in response to a FOIA request that were not responsive to the request.","legal_question":"Whether a public body may charge a fee for records provided in response to a FOIA request that are not responsive to the scope of that request.","disposition":"violation_found","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Hillside","requesting_party":"Anonymous (redacted in source)","pac_outcome":"Improperly assessed fees","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought various government records concerning a specific property address in Hillside, Illinois.","ocr_status":"ok","ocr_quality":95.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_b/76410%2C%20issued%20July%2020%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","FOIA request","responsive records","public records"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 20, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Patrick E. Deady\nSchoenberg Finkel Beederman Bell Glazer, LLC\n300 South Wacker Drive, Suite 1500\nChicago, Illinois 60606\npatrick. deady@sfbbg. com\n\nRE: FOIA Request for Review – 2023 PAC 76410\n\nDear\n\nand Mr. Deady: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the Village of Hillside ( Village) improperly assessed a fee\nfor a portion of records it provided in response to\nMarch 31, 2023, FOIA\nrequest which were not responsive to that request. \n\nOn that date, \n\nsubmitted a FOIA request to the Village \"[ s] eeking\n\ncopies of Hillside government written documents and written communications including but not\nlimited to emails, building permits, building inspections, business licenses, zoning documents\nand all other subjects for the period of January 1, 2005 to present day for the property at 4329\nButterfield Rd. Hillside, IL 60162.\" 1 ( Emphasis added.) He did not specify a format in which he\nwished to obtain the records. On April 27, 2023, the Village assessed\nfee to obtain the records he was seeking, which\nVillage provided\nApril 28, 2023, \n\nwith records in paper format as well as on a compact disc. On\n\nsubmitted the above- referenced Request for Review contesting\n\npaid. On April 28, 2023, the\n\na $52.50\n\n1FOIA request from\n\nto Village of Hillside (March 31, 2023). \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMr. Patrick E. Deady\nJuly 20, 2023\nPage 2\n\nthe fee assessed by the Village. He alleged that most of the records provided by the Village were\nnot responsive to his FOIA request. \n\nOn May 9, 2023, this office forwarded a copy of the Request for Review to the\nVillage and asked it to provide a detailed explanation of the legal and factual bases for the fee\nassessed in response to\nexplanation of how each record is responsive to\nVillage responded. On that same date, this office forwarded the Village's response to\n\nFOIA request, copies of the responsive records, and an\nrequest. On May 17, 2023, the\n\nOn June 1, 2023, he replied. \n\nDETERMINATION\n\nSection 6 of FOIA ( 5 ILCS 140/ 6 ( West 2022)) provides the authority for a public\n\nbody to charge fees for certain records. Section 6(b) of FOIA (5 ILCS 140/6(b) (West 2022)) \nprovides, in pertinent part: \n\nExcept when a fee is otherwise fixed by statute, each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \nby any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black\nand white, letter or legal sized copies requested by a requester. \nThe fee for black and white, letter or legal sized copies shall\nnot exceed 15 cents per page. ( Emphasis added.) \n\nIn its response to this office, the Village noted that\n\nrequest did\n\nnot request copies of records in electronic format. The Village stated that, because some of the\nprovided records were also provided to\ncounted only 400 of the 489 pages of provided records to calculate the fee. The Village therefore\ndid not charge\nfor the first 50 pages, but charged him 15 cents per page for the\nremaining 350 pages for a total of $52.50.2\ncontends that many of the records\nprovided by the Village were not responsive to his request and, therefore, the fee assessed for\nthose records is improper. \n\npursuant to previous FOIA requests, it\n\nIn light of the \"policy embodied in the FOIA requiring disclosure of information\nin government documents unless it falls within the reach of one of the specified exemptions, the\n\n2In his reply, \n\nnoted that the paper records and records provided on a compact disc\n\nwere not identical and provided arguments regarding the records in both formats. However, the Village only\nassessed a fee for the paper records, so this office's review is limited to whether those records were responsive to\n\nrequest. \n\n\fMr. Patrick E. Deady\nJuly 20, 2023\nPage 3\n\nagency should err on the side of liberally construing what material falls within the scope of the\nrequest.\" Dunaway v. Webster, 519 F. Supp. 1059, 1083 (N.D. Cal. 1981); see also, e.g., People\nfor the Ethical Treatment of Animals v. National\nCir. 2014) (\" Agencies have 'a duty to construe a FOIA request liberally.'\" (quoting Nation\nMagazine v. U.S. Customs Service, 71 F.3d 885, 890 ( D.C. Cir. 1995))). Ambiguities should be\nresolved in favor of disclosure. LaCedra v. Executive Office for U.S. Attorneys, 317 F.3d 345, \n348 ( D.C. Cir. 2003) ( rejecting public body' s narrow construction of language used in request). \n\nInstitutes of Health, 745 F.3d 535, 541 ( D.C. \n\nrequest is the property of a longstanding\n\nIn its response, the Village argued that all of the provided records were responsive\nrequest given the time period covered and the broad scope of subject matter. \n\nto\nIt stated that the address specified in\nbusiness in the Village that has been involved in various Village processes as the business\nexpanded. The Village noted that, while the specified property is mentioned in only limited\nportions of some responsive documents, each of those documents are maintained by the Village\nas a single record. These records include agenda packets for meetings of the Village Board of\nTrustees in which the specified property was addressed along with numerous other topics, as\nwell as a road construction project application under the Illinois Transportation Enhancement\nProgram that includes a notice sent to the property in question and involves work on the frontage\nof this property. The Village asserted that its \" FOIA Officer attempted to be circumspect and\nsearched for only those Village records that referred to the specific address in the request, 4329\nButterfield Road, not Hillside Lumber more generally.\" 3\n\nIn his reply, \n\nargued in detail as to why he believed specific\n\nrecords, including the agenda packets and road construction application, were not responsive to\nhis request. He argued that they have nothing to do with his FOIA request, \" which was specific\nto the PROPERTY at 4329 Butterfield Rd. in Hillside.\" 4\nof these records, such as FOIA requests that\nto do with the Hillside government' s records for the 4329 Butterfield Rd. property.\" 5\n\npreviously submitted \"have nothing\n\nfurther argued that some\n\nFOIA defines \" public records\" as all records \" pertaining to the transaction of\n\npublic business, regardless of physical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or under the control of any\n\n3Letter from Patrick E. Deady, Village Attorney, Village of Hillside, to Benjamin J. Silver, \n\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (May 17, 2023), \nat 4. \n\nBureau] ( June 1, 2023). \n\n4E- mail from\n\nto Benjamin Silver, [Assistant Attorney General], [ Public Access\n\nBureau] ( June 1, 2023). \n\n5E- mail from\n\nto Benjamin Silver, [Assistant Attorney General], [ Public Access\n\n\fMr. Patrick E. Deady\nJuly 20, 2023\nPage 4\n\npublic body.\" ( Emphasis added.) 5 ILCS 140/ 2(c) ( West 2022). This definition includes\ndocuments submitted to as well as created by the Village as part of a governmental process. \n\nWhile many of the records that the Village provided to\n\ndo not\n\npertain exclusively to the specified property, the records are nonetheless responsive to the\nwording of the request when it is liberally construed as FOIA requires. \nthat the Village should have provided \" specific information from the Hillside government\nsolely to the PROPERTY at 4329 Butterfield Rd. in Hillside for the time period requested.\" 6\nHowever, the wording of the request more broadly sought \" Hillside government written\ndocuments and written communications including but not limited to emails, building permits, \nbuilding inspections, business licenses, zoning documents and all other subjects for the period\nof January 1, 2005 to present day for the property at 4329 Butterfield Rd.\" (Emphasis added.) \nMost of the records do refer to 4329 Butterfield Road and are records maintained by the Village\ngovernment. Given the Village's obligation to liberally construe the FOIA request, this office is\nunable to conclude those documents are not responsive to the request even though many of them\ndo not exclusively concern 4329 Butterfield Road and contain a multitude of additional\nmay not find useful. \ninformation that\n\nargued\n\nrelated\n\nHowever, a portion of the records consist of documents that do not relate to the\n\nproperty at 4329 Butterfield Road. Though the Village argues that it stores agenda packets as a\nsingle document, the agenda packets consist of numerous individual records; only a small portion\nof those records relate to the property at 4329 Butterfield Road. Those discrete records are\nreadily segregable from unrelated records and do not constitute a single record for purposes of\nFOIA simply because the Village aggregated all of the individual records in agenda packets. \nAdditionally, approximately five pages of the records described by the Village as \" Permits and\nZoning permit copies\" appear to relate to properties owned by the owners of 4329 Butterfield\nRoad but not to that property itself. These records also are not responsive to\nrequest for \" Hillside government written documents and written communications * * * \nproperty at 4329 Butterfield Rd. Hillside, IL 60162.\" Therefore, the Public Access Bureau\nconcludes that the Village assessed an improper fee in response to\nMarch 31, \n2023, FOIA request by including the unresponsive portions of the agenda packets and permit\ncopies in calculating its fee for responsive records. Accordingly, this office requests that the\nVillage reassess the fee without including those pages and refund the difference to\n\nfor the\n\nThe Public Access Bureau is also charged with providing advice and education to\n\nthe public and public bodies. 15 ILCS 205/7(a), ( c) (West 2020). To that end, \n\nBureau] ( June 1, 2023). \n\n6E- mail from\n\nto Benjamin Silver, [Assistant Attorney General, Public Access\n\n\fMr. Patrick E. Deady\nJuly 20, 2023\nPage 5\n\nmay wish to specify in future FOIA requests the format in which he wishes to receive records. If\na requester requests a record in electronic format and the public body maintains the record\nelectronically, \" the public body shall furnish it in the electronic format specified by the requester, \nif feasible. If it is not feasible to furnish the public records in the specified electronic format, \nthen the public body shall furnish it in the format in which it is maintained by the public body, or\nin paper format at the option of the requester.\" 5 ILCS 140/6(a) ( West 2022). However, \"[ t]he\nplain language of section 6(a) [ only] requires a public body to provide records in electronic\nformat if the public body maintains those records in electronic format. * * * [ S]ection 6(a) does\nnot require a public body to furnish in electronic format records maintained solely in paper\nformat, even if the public body has the resources to reproduce those records in PDF.\" (Emphasis\nin original.). Ill. Att'y Gen. PAC Req. Rev. Ltr. 28697, issued April 18, 2014, at 2. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at benjamin. silver@ilag. gov or (773) 590- 7878. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n76410 f 6b fee proper improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Records concerning a specific property address","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":1005,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-07-12","case_number":null,"request_numbers":["76415"],"title":"IDFPR properly denied disciplinary case records under section 7(1)(a)","filename":"76415, issued July 12, 2023.pdf","rel_path":null,"word_count":1490,"summary":"The requester sought records related to two specific IDFPR disciplinary cases, which the Department denied citing statutory confidentiality provisions. The PAC determined that the Department properly withheld the records under section 7(1)(a) of FOIA.","plain_summary":"A requester asked the Illinois Department of Financial and Professional Regulation (IDFPR) for records regarding two specific disciplinary cases. The IDFPR refused to provide the records, arguing that state law requires them to keep those specific investigation files confidential. The Attorney General's office agreed with the agency, finding that the records were legally exempt from disclosure.","holding":"The Illinois Department of Financial and Professional Regulation did not violate FOIA by denying the request for records protected from disclosure by other state statutes.","legal_question":"Whether the Department properly denied a FOIA request for disciplinary case records pursuant to section 7(1)(a) of FOIA and specific confidentiality provisions in the Department of Professional Regulation Law.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(a)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Illinois Department of Financial and Professional Regulation","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(a)","subject_description":"The request concerned records pertaining to specific disciplinary case files maintained by the IDFPR.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_a/76415%2C%20issued%20July%2012%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["IDFPR","disciplinary records","confidentiality","FOIA exemption"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 12, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Kathleen Anderson\nFOIA Officer\nIllinois Department of Financial and Professional Regulation\n555 West Monroe Street, Suite 500\nChicago, Illinois 60661\nFPR.FOIA@illinois.gov\n\nRE: FOIA Request for Review – 2023 PAC 76415\n\nDear\n\nand Ms. Anderson: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the Illinois Department of Financial and\nProfessional Regulation ( Department) to\nviolate the requirements of FOIA. \n\nApril 9, 2023, FOIA request did not\n\nOn that date, \n\nsubmitted a FOIA request to the Department seeking\n\ncopies of all records pertaining to Case No. 2018- 09135 and 2018- 12570. On April 11, 2023, \nthe Department denied\nrequest pursuant to section 7(1)(a) of FOIA.1 In connection\nwith section 7(1)( a) of FOIA, the Department cited section 1326. 220( b) of the Illinois\nAdministrative Code (2 Ill. Admin. Code 1326.220(b) (West 2022)) and section 2105-117 of the\nDepartment of Professional Regulation Law ( 20 ILCS 2105/ 2105- 117 ( West 2022)). On April\n28, 2023, \n\nsubmitted the above-referenced Request for Review disputing the\n\n2022, revised February 3, 2022; 102-791, effective May 13, 2022; 102-1055, effective June 10, 2022). \n\n15 ILCS 140/7(1)(a) ( West 2021 Supp.), as amended by Public Acts 102 -694, effective January 7, \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416\n\n\fMs. Kathleen Anderson\nJuly 12, 2023\nPage 2\n\nDepartment's response. In particular, \nwhatever record IDFPR has of the discipline that was imposed[.]\" 2\n\nargued she \" should at minimum be able to get\n\nOn May 24, 2023, this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide unredacted copies of the withheld records for our\nconfidential review, and a detailed explanation of the factual and legal bases for the applicability\nof the asserted exemptions. On June 5, 2023, the Department provided this office with the\nrequested materials, submitted confidentially. 3 On June 6, 2023, the Department also provided\nthis office with an addendum letter and a copy of the closing letter it sent to\nFebruary 11, 2021. In this closing letter, the Department\ninformed\ninvestigation and did not impose any public disciplinary actions.4\n\nthat it closed its\n\non\n\nOn June 14, 2023, this office informed\n\nthat the Department had chosen\n\nto keep its response confidential, but she could still submit a reply. On June 22, 2023, \nsubmitted her reply along with supporting documentation. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2022); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/1.2 (West 2022). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nSection 7(1)(a) of FOIA\n\nSection 7(1)(a) of FOIA exempts from disclosure \"[ i]nformation specifically\n\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\" Section 2105-117 of the Department of Professional Regulation Law contains the\nfollowing confidentiality provision: \n\nGeneral (April 28, 2023). \n\n2E- mail from\n\nto Leah Bartelt, Public Access Counselor, Office of the Attorney\n\n35 ILCS 140/9.5(d) (West 2022) (\" The Public Access Counselor shall forward a copy of the\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy.\"). \n\nFinancial and Professional Regulation, to\n\nFebruary 11, 2021). \n\n4Letter from Enforcement Unit, Division of Professional Regulation, Illinois Department of\n\n\fMs. Kathleen Anderson\nJuly 12, 2023\nPage 3\n\nAll information collected by the Department in the course\n\nof an examination or investigation of a licensee, registrant, or\napplicant, including, but not limited to, any complaint against a\nlicensee or registrant filed with the Department and information\ncollected to investigate any such complaint, shall be maintained\nfor the confidential use of the Department and shall not be\ndisclosed. The Department may not disclose the information to\nanyone other than law enforcement officials, other regulatory\nagencies that have an appropriate regulatory interest as determined\nby the Director, or a party presenting a lawful subpoena to the\nDepartment * * * A formal complaint filed against a licensee or\nregistrant by the Department or any order issued by the\nDepartment against a licensee, registrant, or applicant shall be a\npublic record, except as otherwise prohibited by law. ( Emphasis\nadded). \n\nSection 1326.220(b) of the Illinois Administrative Code provides: \n\nIn response to a request submitted pursuant to FOIA, the\n\nDepartment will not disclose certain records as provided in this\nSection. Records covered under this Section include, but are not\nlimited to: \n\nb) Division of Professional Regulation and Division of\nReal Estate: \n\n1) Complaints received by the Department against\nlicensees or unlicensed persons or entities, \nexcept as provided by statute. \n\n3) Investigative files maintained by the Division. \n\nEmphasis added). \n\nIn its confidential\n\nresponse to this office, the Department asserted that it properly\nwithheld investigation materials and other records responsive to\nrequest pursuant to\nthese confidentiality provisions. In support of its assertions, the Department provided additional\ndetails about the nature of the two specified complaints (2018-09135 and 2018-12570) and\n\n\fMs. Kathleen Anderson\nJuly 12, 2023\nPage 4\n\nexplained that it merged these complaints into one investigation. The Department also\nconfirmed that this investigation was closed with no final disciplinary issued. \n\nIn her reply, \n\nstated that in \" February 2021 the case was completed and\n\nIDFPR issued a disciplinary action report to Cermak Health Services Pharmacy.\" 5 She reiterated\nthat she should have received, at a minimum, a copy of the disciplinary action report and a brief\ndescription of the final action taken in either case. In support of her assertions, \nprovided examples of the Department' s brief explanations of disciplinary actions taken in other\nmatters, which were posted on the Department's website.6\n\nHaving reviewed the information submitted by the parties, it appears no\n\nRequest for Review. Although\n\ndisciplinary orders were issued by the Department against Cermak Health Services Pharmacy or\nbelieved that a\nthe individual identified in\ndisciplinary action report was issued to the pharmacy, apparently based on an internal e- mail\nimplementing a policy change, the Department's monthly disciplinary report for February 2021\ndoes not list any disciplinary or enforcement actions against the specified pharmacy or\nindividual.7 The Department provided additional details in its confidential response to confirm\nthat no formal discipline was imposed in connection with the case files at issue. The Public\nAccess Bureau has previously reviewed the above-described confidentiality provisions of the\nDepartment of Professional Regulation Law and Illinois Administrative Code and concluded that\nthe Department is prohibited from disclosing any materials maintained in its investigative case\nfiles, except for formal complaints and disciplinary orders issued by the Department against a\nlicensee. Ill. Att'y Gen. PAC Req. Rev. Ltr. 74715, issued January 18, 2023; Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 58592, issued June 26, 2019. The existence of an internal policy change related to\na complaint or complaints does not provide evidence that the Department issued a formal\ncomplaint or disciplinary order. Because there is no indication that formal complaints or orders\nwere entered in connection with the specified case files, the Department is prohibited from\ndisclosing any information related to its investigation of the specified pharmacy and individual\nor the results of that investigation. Accordingly, the Department did not improperly deny the\nrequest under section 7(1)( a) of FOIA. \n\nPublic Access Bureau (June 22, 2023), at 1. \n\n5Letter from\n\nto [Christina] M. Lucente-McCullough, Assistant Attorney General, \n\n6Letter from\n\nto [Christina] M. Lucente-McCullough, Assistant Attorney General, \n\nPublic Access Bureau (June 22, 2023), at 2 -4. See IDFPR Consolidated Reports, available at\nhttps:// idfpr.illinois.gov/news/disciplines/discreports.html. \n\nhttps:// idfpr.illinois.gov/content/dam/soi/en/web/idfpr/forms/discpln/2021-02enf.pdf. \n\n7Illinois Department of Financial and Professional Regulation News, February 2021 , available at\n\n\fMs. Kathleen Anderson\nJuly 12, 2023\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at c.lucentemccullough@ilag.gov or the Chicago address\nlisted on the first page of this letter. \n\nVery truly yours, \n\nCHRISTINA LUCENTE- MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n76415 f 71a proper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Disciplinary case files of a state regulatory agency","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":1006,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-11-21","case_number":null,"request_numbers":["76460"],"title":"City of Urbana failed to prove 7(1)(c) exemption for police chief candidate's resume","filename":"76460, issued November 21, 2023.pdf","rel_path":null,"word_count":2444,"summary":"The requester challenged the City of Urbana's denial of records regarding a police chief finalist, and the PAC determined the City failed to justify withholding certain application materials and email chains under FOIA exemptions.","plain_summary":"A requester asked for records related to a police chief candidate, including a letter of interest and resume, but the City of Urbana withheld them citing a privacy exemption. The Attorney General's office reviewed the case and determined that the City did not provide clear and convincing evidence that the privacy rights of the candidate outweighed the public interest in disclosure. The determination concludes that the exemption was not proven, but does not explicitly order the release of the records.","holding":"The City of Urbana failed to demonstrate by clear and convincing evidence that the section 7(1)(c) exemption applies to the applicant's letter of interest and resume; no further order or remedy is stated in the determination.","legal_question":"Whether the City of Urbana properly invoked FOIA exemptions 7(1)(b), 7(1)(c), and 7(1)(f) to withhold records related to a police chief candidate's application and selection process.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(f)"],"public_body":"City of Urbana","requesting_party":"CheckCU.org","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The records concern the application materials and selection process for a police chief finalist.","ocr_status":"llm_reocr","ocr_quality":94.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_c/Compelling-public-interest-in-disclosure/76460%2C%20issued%20November%2021%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police chief","personnel records","privacy exemption","FOIA request"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAMERAOUL\n\nATIORNEY GENERAL\n\nNovember 21, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Ross McNeil\n\nFOIA Officer\n\nCity ofUrbana\n\n400 South Vine Street\n\nUrbana, Illinoi s 61801\n\nremcneil @urbanaillinois. us\n\nRE: FOIA Request for Review - 2023 PAC 76460\n\nDear-\n\nand Mr. McNeil: \n\nThis determination is issued pursuant to section 9.S(t) ofthe Freedom of\n\nInfom1ation Act (FOIA) (5 ILCS 140/9.S(t) (West 2022)). \n\nOn April 4, 2023 , \n\nsubmitted a FOIA request to the City\n\nofUrbana ( City) seeking copies of \"[a] ll records related to the recent announcement of Larry\n\nBoone as Police Chief Finalist[,]\" \n\nincluding: ( 1) any job descriptions\n\nand requirements, ( 2) \n\nrecords submitted by Mr. Boone as part of his application, and (3) records furnished by any other\nparty related to Mr. Boone's candidacy. 1 On April 20, 2023, the City provided a job description\n\nfo r the Chief of Police and a document prepared by Polihire, a firm hired by the City to assist in\n\nidentifying candidates for the position. The City withheld the remaining responsive records\npursuant to sections 7(l)(b), 7(l)(c), and 7(l)(t) ofFOIA. 2 On May 2, 2023, this office received\n\nRequest for Review challenging the partial denial. -\n\nasserted that the\n\nE-mail from CheckCU. org to Ross McN eil ( April 4 , 2023). \n\n2\n\n5 ILCS 140/ 7(1 )( b), ( I )(c), ( l)(f) (West 2021 Supp.), as amended by Public Acts I 02 -752 , \n\neffective January I , 2023; I02- 753, effective January 1, 2023; 102 -776, effective January 1, 2023; I 02- 79 l , \n\neffective May 13 , 2022; 102- 1055, effective June 10 , 2022. \n\n500 South Second Street, Springfield, lllinois 62701 • ( 21 7) 782-1 090 • TTY : (877) 844- 5461 • fax: (217) 782- 7046\n\nI00 West Randolph Street, Chicago, Illinoi s 6060 I • (312) 8 14- 3000 • TTY : (800) 964- 30 13 • Fax: ( 312) 814- 3806\n\n60 I South Uni vers ity Ave .• Carbondale. Illinois 6290 I • (618) 529- 6400 • TTY: (877) 675 -9339 • Fax ( 618) 529- 6416\n\n\fMr. Ross McNeil\n\nNovember 21 , 2 0 23\n\nPage2\n\nCity di d not provide any records related to Mr. Boone' s candidacy, particularly any records that\n\nwere gathered by Polihire during the search process. Those records would be r es ponsive to parts\n\ntwo and three of his request. \n\nOn May 11, 2023, this office forwarded a copy o f the Request for Review to the\n\nCity and asked it to provide copies of the withheld records, together with a detailed explanation\n\nof the factual and legal bases for the applicability of the asserted exemptions. On June 5 , 2023, \n\nth is office received the requested materials. On June 7, 2023, this office forwarded a copy of the\n\nCity' s response to -\n\nhe did not submit a rep ly. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 ( West 2022); see also Southern Illinoisan v. \n\nfllinois Departm en t of Public Health , 218 Ill. 2d 390, 4 15 ( 2006). A public body th at w ithholds\n\nrecords \" has the burden o f proving by clear and convincing evidence\" \n\nthat the records are exemp t\n\nfrom di sclosure. 5 ILCS 140/ 1.2 ( West 2022). The exemptions from disclosure are to be\n\nnarrow ly construed. Lieber v. Board a/Trustees ofSouthern Illinois University, 176 Ill. 2d 401, \n\n407 ( 1997). \n\nSection 7( 1)( c) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records, \n\nthe disclosure of which would constitute a clearly unwarranted\n\ninvas ion of personal privacy.\" Section 7( 1)( c) d efi n es \" unwarranted invasion o f p ersonal\n\nprivacy\" as the \" disclosu re of information that is h ighly personal or obj ectionable to a reasonable\n\nperson and in which the s ubject' s r ight to privacy outweighs any legiti mate public interest in\n\nobtaini ng the information. \n\nThe disclosure of informati on that bears on the public duties of\n\npublic employees and officials s ha ll not be conside red an invas ion of personal privacy.\" \n\nPolice Chief Finalis t' s Application M a teria ls\n\nIn bis Request\n\nfor Rev iew, -\n\nargued that the City im p roperly denied h is\n\nrequest\n\nfo r records p ertaining to M r. Boone' s candidacy because Mr. Boone was publicly\n\nidentified as the finalist\n\nfor the poli ce chief position a nd already a public figure. He further\n\nargued that there is a legitimate public interes t in dis closure o f information concerning the City' s\n\ntop pick for a high- level job. He asserted, in relevant part: \" Larry Boone bas been a publ ic\n\nofficial\n\nfo r most, if not a ll , of his career. He h as applied to a position of substan tial public\n\ninterest, his identity has been announced, and he has been declared the sole finalist\n\nfor the\n\nposition of Police Chief. \"\n\n3\n\n10 Public Access Counselor Bartelt ( May 2 , 2023 ). \n\n\fMr. Ross McNeil\n\nNovember 21, 2 0 23\n\nPage3\n\nIn its response to th is office, the City acknowledged it had publicly identified Mr. \n\nBoone as a police chief finalist after its April 3, 2023, Committee of the Whole meeting, but\n\nmaintained it properly withhe ld Mr. Boone' s application material s because it had not yet made a\n\nfi nal hiring decision. The City asserted that its announcement \"\n\nindicated that additional\n\ninterviews with the appli cant were ongoing[,]\"\n\n4\n\nand an official\n\njob offer had not been extended to\n\nMr. Boone. The City contended it could still elect not to offer him the job or Mr. Boone could\n\nwithdraw hi s name from consideration or decl ine the job if an offer was later made. The City\n\nnoted that in previous determinations, \n\nthe Public Access Bureau h as conclud ed that pending or\n\nunsuccessfu l applications fo r public e mployment are exempt\n\nfrom disclosure pursuant\n\nto section\n\n7 ( 1 )( c ). Those determinations, however, are dis t inguishable from this matter. \n\nT he Public Access Bureau' s previous determinations\n\nconcerned pending or\n\nunsuccessfu l applicants who had not already been publicly identified as seeking public\n\nemployment. The rationale for those determinations is that disclosure of information that\n\nidentifies individual s who un successfull y sou ght or currently are seeking a new job may\n\nnegative ly impact\n\ntheir current employment, w hich could chill them from applying in the first\n\nplace and hamper a public body from attracting qualified app li cants for open pos iti ons. Ill. Att' y\n\nGen. PAC Req. Rev. Ltr. 5258 1, issue d February 21, 2021. This office also reas one d that\n\ndi sclosure of in formation identifying individual s w ho unsuccessfully sought a position could\n\ncause embarrassment\n\nand dis su ade applicants from apply ing in the future. \n\nIll. Att' y Gen. PAC\n\nReq. Rev. Ltr. 59938, issued October 21, 2019. Those privacy concerns are not present\n\nin this\n\nmatter because the City publicly identified Mr. Boone as a finalist\n\nfor police chief before-\n\ns ubmitte d his request. \n\nA public body' s contention that the re lease of information would constitute an\n\nunwarranted invasion of personal privacy is evaluated on a case- by- case basis . Chicago\n\nJourneymen Plumbers' L ocal Un io n 130, UA. v. D epartment of Public Health, 327 Ill. App. 3d\n\n192, 196 ( I st Dist. 200 l ). The phrase \" clearly unwaITanted invasion of personal privacy\" \n\nevinces a strict standard to claim the exemption, and the burden is on the government agency\n\nhaving charge of the r ecord to prove that standard has been met. Schessler v. Department of\n\nConservation, 256 Ill. App. 3d 198, 202 ( 4th Dist. 1994). \n\nIllinois courts consider the fo ll owing\n\nfac tors in determining whether di sclosure of information would co ns titute an unwarranted\n\ninvas ion of personal privacy: \"( 1) the plainti ffs interest\n\nin di sclosure, ( 2) the public interest\n\nin\n\ndisclosure, ( 3) the degree of invasion of personal privacy, and ( 4) the availability of al ternative\n\nmeans of obtainin g the requested in formation.\" National Ass' n of Criminal D efense Lawyers v. \n\nChicago Police D epartment, 399 Ill . App. 3d l, 13 ( l st Dist. 2010). \n\nPu bli c Access Bureau, Office of the Attorney General ( June 5, 2023), a t 2. \n\n4Letter from Ross McNeil , FOIA Officer, City of Urbana, to Teresa Li m, Supervis in g Attorney, \n\n\fMr. Ross McNeil\n\nNovember 21 , 2023\n\nPage4\n\nApplying the first and second factors of the balancing test to Mr. Boone' s\n\napplication materials, \n\ninterest in disclosure is as a member of the public seeking to\n\nlearn more about th e City's top choice for police chief. \n\ninterest in disclosure is\n\naligned with the public' s interest\n\nin obtaining information concern in g Mr. Boone' s qualificatio ns\n\nfor the position. There is a compelling public interest\n\nin information that sheds light on the ne xt\n\npotential police chief, who will have significant leadership authority and responsibilities as the\n\nhead of the City' s law enforcement branch. \n\nApplying the third factor, the City emphasized that Mr. Boone had not yet been\n\noffer the job and thus \" at this time the applicant is still afforded the privacy of a pending\n\napp licant. \"\n\n5\n\nMr. Boone' s app li cation materials included a letter of interest and resume. Th e City\n\nargued it \"properly balanced the pu blic's right to know wi th the privacy ofa non-employee by\n\nproviding significant information about both the hiring process and the fina l candidate while\n\npreserving the applicant' s privacy to the extent possib le. \"\n\n6\n\nLastl y, applyin g the fourth fac tor, the City argued that there are alternative means\n\nto obtain relevant\n\ninformation about Mr. Boone' s work hi story. \n\nIn particular, the C ity noted that\n\ncould s ubmit a FOIA request\n\nto Mr. Boone' s current or previous public employers\n\nand seek records related to his work experi ences. \n\nTaking all these factors into account along with the sp ecific contents of the\n\nrecords, the City did not demonstrate that disclosure ofMr. Boone's application materials would\n\nconstitute a clearly unwarranted invasion of personal privacy. Although the C ity had not yet\n\nextended a job offer, Mr. Boone was not a mere pending applicant. The City had taken a step\n\nfurther by selecting and publicly identifying him as its top contender\n\nfor Chief of Police. The\n\nCity publicly announced this selection and subsequently arranged a meeting for memb ers ofthe\n\npubl ic to meet him in p er son. Th ere is a significant publi c interest\n\nin information concernin g the\n\nCity' s next potential police chief. That indiv idual would be expected to assume substantial\n\nresponsibilities overseeing the City's public safety and serve as a public figure for the police\n\ndepartment. Although Mr. Boone' s app li cation materials contain personal\n\ninformation\n\nconcerni n g his background, \n\nthe information is presented in a favorable manner and does not\n\nappear to contai n embarrass in g or detail ed information about highly personal matters, such as\n\npersonal relationships or medical condition s . Instead, the information generally illustrates Mr. \n\nBoone' s experience and qualifications\n\nto handle the public duties of a police chief. While . \n\nPublic Access Bureau, Office of the Attorney General ( June 5, 2023), at 2 . \n\n5Letter from Ross McNeil, FOIA Officer, City of Urbana, \n\nto Teresa Lim, Supervising Attorney, \n\nPublic Access Bureau, Office of the Attorney General ( June 5, 2023), at 5 . \n\n6Letter from Ross McNeil, FO IA Officer, City of Urbana, to Teresa Lim , Supervising Attorney, \n\n\fNovember 21 , 2023\n\nPage 5\n\ncould request\n\ninformation from other governmental entities that previously employed\n\nMr. Boone, there is no indication that there are any alternative means to obtain the application\n\nmaterials he submitted to the City. Under these circu mstances, the City did not demonstrate by\n\nclear and convincing evidence that the privacy rights of Mr. Boone outweigh the legitimate\n\npublic interest\n\nin disclosure of his application materials. According ly, this office concludes that\n\nthe City did not sustain its burden of showing that Mr. Boone's application materials fall within\n\nthe scope of section 7(1)(c). \n\nRecords Concerning Selection and In tervi ew Process\n\nThe City asserted it did not possess records responsive to part three of. \n\nrequest at the time ofhis submission. The City explained that neither the City nor\n\nPolihire received any records from references or other third parties on behalf ofMr. Boone. The\n\nCity further asserted that a number of records related to Mr. Boone's candidacy \" were created\n\nafter the date of the FO[ A request[.]'\n\n0\n\nAdditionally, \n\nthe City stated it withheld \" trans itory email\n\ncommunications between Polihire and the City regarding the hiring process and which also\ninclude attachments regarding the applicants. 11 8 The City contended that those e-mails were not\n\nresponsive to the request and, even if they were, fell w ithin the scope of section 7( 1)( c). The\n\nCity provided thi s office with copies of these records to illustrate its ongoing selection and\n\ninterview process . \n\nThis office's review of the records confirmed that a portion ofthe City's records\n\npertaining to Mr. Boone's candidacy and interview process were prepared after the submission of\n\nreq uest. Records that do not exist at the time of a request are not responsive to the\n\nrequest. Walker v. Bruscato, 20 19 IL App ( 2d) 170775 145 (\"A request\n\nfor records not yet\n\ncreated is invalid.\"); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 25707, issued August 30, 2013, \n\nat 2. (\" public body is not obligated to respond to a FOIA request by furnishing records created\n\nafter the submission of a request; such records are outs ide the scope of the request.\"). \n\nAccordingly, the City did not improperly withhold those records. \n\nThe \" transitory emai l commun ications,\" however, are dated before the sub m ission\n\nofthe request. Although these e-mails do not focus solely on Mr. Boone and also contain\n\ninformation regarding other candidates, the e-mails nonetheless pertain to the City's selection of\n\nMr. Boone out of the applicant pool and thus are responsive to the request. Based on this office's\n\nreview, two of the e -mails show Polihire transmitting candidate information to the City. The\n\n7Letter from Ross McNeil, FOIA Officer, City of Urbana, to Teresa Lim, Supervising Attorney, \n\nPublic Access Bureau, Office of the Attorney General ( June 5, 2023), at 4. \n\nPublic Acces s Bureau, Office of the Attorney General ( June 5, 2023), at 4 . \n\n8Letter from Ross McNeil, FOTA Officer, City of Urbana, to Teresa Lim, Supervising Attorney, \n\n\fNovember 21, 2023\n\nPage6\n\ncandidates included Mr. Boone and certain other individuals. With the exception of one e-mail\n\nattachment containing Mr. Boone's application, the remaining parts of those two e-mails pertain\n\nto the other candidates . Disclosure of information concerning those unsuccessful candidates, \n\nincluding their applications, would constitute an unwarranted invasion of personal privacy. As\n\ndiscussed above, disclosure of records identifying unsuccessful applicants could cause\n\nembarrassment, interfere with the applicants' existing employment, and hamper public bodies\n\nfrom attractin g qualified applicants for open positions. With respect to the remaining two e-\n\nmails, this office' s review determined that they do not disclose details of any of the candidates' \n\napplications or personally- identifying information; they also do not reveal any deliberations\n\nregarding them. instead, the e-mails contain general status updates about the selection process . \n\nThe City did not demonstrate that these commun ications are highly personal\n\nin nature or that\n\ntheir disclosure wou ld constitute a clearly unwarranted invasion of personal privacy. \n\nAccordingly, this office concludes that the City did not show by clear and convincing evidence\n\nthat those two transitory e- mails are exempt from disclosure pursuant to section 7(1 )( c ). \n\nThis office requests that the City provide- with a copy ofMr. Boone's\n\napplication materials, subject to permissible redactions under section 7(l)(b) ofFOIA. 9 This\n\noffice also requests that th e C ity provide copies of the last two e- mail chains that were provided\n\nfor this office's confidential review. The City may redact parts of the e-mail chains that do not\n\npertain to the police chief se lection process . \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address li sted on the first page of this letter. \n\n7 6460 f 7 1c proper improper mun\n\nSupervising Attorney\n\nPublic Access Bureau\n\n95 ILCS 140/ 7 (1 )( b) ( Wes t 2022), as amended by Public Act I 03- 154, effective June 30 , 2023 ; \n\nI 03 - 462 , effective August 4, 2023. \n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAMERAOUL\n\nATIORNEY GENERAL\n\nNovember 21, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Ross McNeil\n\nFOIA Officer\n\nCity ofUrbana\n\n400 South Vine Street\n\nUrbana, Illinoi s 61801\n\nremcneil @urbanaillinois. us\n\nRE: FOIA Request for Review - 2023 PAC 76460\n\nDear-\n\nand Mr. McNeil: \n\nThis determination is issued pursuant to section 9.S(t) ofthe Freedom of\n\nInfom1ation Act (FOIA) (5 ILCS 140/9.S(t) (West 2022)). \n\nOn April 4, 2023, \n\nsubmitted a FOIA request to the City\n\nofUrbana (City) seeking copies of \"[a] ll records related to the recent announcement of Larry\n\nBoone as Police Chief Finalist[,]\" \n\nincluding: (1) any job descriptions\n\nand requirements, (2) \n\nrecords submitted by Mr. Boone as part of his application, and (3) records furnished by any other\nparty related to Mr. Boone's candidacy. 1 On April 20, 2023, the City provided a job description\n\nfo r the Chief of Police and a document prepared by Polihire, a firm hired by the City to assist in\n\nidentifying candidates for the position. The City withheld the remaining responsive records\npursuant to sections 7(l)(b), 7(l)(c), and 7(l)(t) ofFOIA. 2 On May 2, 2023, this office received\n\nRequest for Review challenging the partial denial. -\n\nasserted that the\n\nE-mail from CheckCU. org to Ross McN eil (April 4, 2023). \n\n2\n\n5 ILCS 140/ 7(1)(b), (I)(c), (l)(f) (West 2021 Supp.), as amended by Public Acts I 02 -752, \n\neffective January I, 2023; I02- 753, effective January 1, 2023; 102 -776, effective January 1, 2023; I 02- 79 l, \n\neffective May 13, 2022; 102- 1055, effective June 10, 2022. \n\ncould request\n\ninformation from other governmental entities that previously employed\n\nMr. Boone, there is no indication that there are any alternative means to obtain the application\n\nmaterials he submitted to the City. Under these circu mstances, the City did not demonstrate by\n\nclear and convincing evidence that the privacy rights of Mr. Boone outweigh the legitimate\n\npublic interest\n\nin disclosure of his application materials. According ly, this office concludes that\n\nthe City did not sustain its burden of showing that Mr. Boone's application materials fall within\n\nthe scope of section 7(1)(c). \n\nRecords Concerning Selection and In tervi ew Process\n\nThe City asserted it did not possess records responsive to part three of. \n\nrequest at the time ofhis submission. The City explained that neither the City nor\n\nPolihire received any records from references or other third parties on behalf ofMr. Boone. The\n\nCity further asserted that a number of records related to Mr. Boone's candidacy \" were created\n\nafter the date of the FO[ A request[.]'\n\n0\n\nAdditionally, \n\nthe City stated it withheld \" trans itory email\n\ncommunications between Polihire and the City regarding the hiring process and which also\ninclude attachments regarding the applicants. 11 8 The City contended that those e-mails were not\n\nresponsive to the request and, even if they were, fell w ithin the scope of section 7(1)(c). The\n\nCity provided thi s office with copies of these records to illustrate its ongoing selection and\n\ninterview process. \n\nThis office's review of the records confirmed that a portion ofthe City's records\n\npertaining to Mr. Boone's candidacy and interview process were prepared after the submission of\n\nreq uest. Records that do not exist at the time of a request are not responsive to the\n\nrequest. Walker v. Bruscato, 20 19 IL App (2d) 170775 145 (\"A request\n\nfor records not yet\n\ncreated is invalid.\"); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 25707, issued August 30, 2013, \n\nat 2. (\" public body is not obligated to respond to a FOIA request by furnishing records created\n\nafter the submission of a request; such records are outs ide the scope of the request.\"). \n\nAccordingly, the City did not improperly withhold those records. \n\nThe \" transitory emai l commun ications,\" however, are dated before the sub m ission\n\nofthe request. Although these e-mails do not focus solely on Mr. Boone and also contain\n\ninformation regarding other candidates, the e-mails nonetheless pertain to the City's selection of\n\nMr. Boone out of the applicant pool and thus are responsive to the request. Based on this office's\n\nreview, two of the e -mails show Polihire transmitting candidate information to the City. The\n\n7Letter from Ross McNeil, FOIA Officer, City of Urbana, to Teresa Lim, Supervising Attorney, \n\nPublic Access Bureau, Office of the Attorney General (June 5, 2023), at 4. \n\nPublic Acces s Bureau, Office of the Attorney General (June 5, 2023), at 4. \n\n8Letter from Ross McNeil, FOTA Officer, City of Urbana, to Teresa Lim, Supervising Attorney, \n\nNovember 21, 2023\n\nPage6\n\ncandidates included Mr. Boone and certain other individuals. With the exception of one e-mail\n\nattachment containing Mr. Boone's application, the remaining parts of those two e-mails pertain\n\nto the other candidates. Disclosure of information concerning those unsuccessful candidates, \n\nincluding their applications, would constitute an unwarranted invasion of personal privacy. As\n\ndiscussed above, disclosure of records identifying unsuccessful applicants could cause\n\nembarrassment, interfere with the applicants' existing employment, and hamper public bodies\n\nfrom attractin g qualified applicants for open positions. With respect to the remaining two e-\n\nmails, this office's review determined that they do not disclose details of any of the candidates' \n\napplications or personally- identifying information; they also do not reveal any deliberations\n\nregarding them. instead, the e-mails contain general status updates about the selection process. \n\nThe City did not demonstrate that these commun ications are highly personal\n\nin nature or that\n\ntheir disclosure wou ld constitute a clearly unwarranted invasion of personal privacy. \n\nAccordingly, this office concludes that the City did not show by clear and convincing evidence\n\nthat those two transitory e- mails are exempt from disclosure pursuant to section 7(1)(c). \n\nThis office requests that the City provide- with a copy ofMr. Boone's\n\napplication materials, subject to permissible redactions under section 7(l)(b) ofFOIA. 9 This\n\noffice also requests that th e C ity provide copies of the last two e- mail chains that were provided\n\nfor this office's confidential review. The City may redact parts of the e-mail chains that do not\n\npertain to the police chief se lection process. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address li sted on the first page of this letter. \n\n7 6460 f 7 1c proper improper mun\n\nSupervising Attorney\n\nPublic Access Bureau\n\n95 ILCS 140/ 7 (1)(b) (Wes t 2022), as amended by Public Act I 03- 154, effective June 30, 2023; \n\nI 03 - 462, effective August 4, 2023.","plain_summary_pre_resummarize":null,"card_headline":"Application materials for a police chief finalist","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":1007,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-07-19","case_number":null,"request_numbers":["76546"],"title":"IDFPR improperly withheld email under cannabis regulation exemption without narrow tailoring","filename":"76546, issued 071923.pdf","rel_path":null,"word_count":1602,"summary":"The requester sought an email between an IDFPR official and two individuals, which the Department withheld citing the Cannabis Regulation and Tax Act; the PAC determined the Department improperly withheld the email and requested a more limited redaction.","plain_summary":"A citizen requested an email from the Illinois Department of Financial & Professional Regulation (IDFPR), but the agency refused to release it, claiming the information was protected by cannabis-related laws. The Attorney General's office reviewed the email and found that the agency was too broad in its denial. The PAC instructed the agency to release the email with only specific, limited redactions rather than withholding the entire document.","holding":"The Illinois Department of Financial & Professional Regulation improperly withheld the requested email by failing to narrowly tailor its redactions to only the information protected by the Cannabis Regulation and Tax Act.","legal_question":"Whether the IDFPR properly applied the exemption in section 7(1)(a) of FOIA, in conjunction with section 55-30(b) of the Cannabis Regulation and Tax Act, to withhold the entirety of an email.","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(a)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Illinois Department of Financial & Professional Regulation","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"cannabis regulation","subject_description":"The request concerned an email between the Department's Deputy Director of Cannabis Control and two other individuals regarding cannabis licensing or regulatory matters.","ocr_status":"ok","ocr_quality":96.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_rr/76546%2C%20issued%20071923.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["cannabis","IDFPR","email records","redaction","FOIA denial"],"truncated_suspect":0,"site_category":"Other","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 19, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Kathleen Anderson\nFOIA Officer\nIllinois Department of Financial & Professional Regulation\n555 West Monroe Street, Suite 500\nChicago, Illinois 60661\nFPR. FOIA@Illinois. gov\n\nRE: FOIA Request for Review – 2023 PAC 76546\n\nDear\n\nand Ms. Anderson: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons explained below, the\nPublic Access Bureau concludes that the Illinois Department of Financial & Professional\nRegulation (\" Department\" or \"IDFPR\") improperly denied certain information responsive to\n\nMay 2, 2023, FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the Department seeking a\n\ncopy of a specific e-mail between Mr. Vaughn Bentley, the Department's Deputy Director of\nCannabis Control, and two named persons. On May 9, 2023, the Department denied the body of\nthe e-mail, citing section 55-30(b) of the Cannabis Regulation and Tax Act (CRTA).1 The\n\n1410 ILCS 705/55-30(b) (West 2022). \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMs. Kathleen Anderson\nJuly 19, 2023\nPage 2\n\nimplicitly premised the denial on section 7(1)( a) of FOIA, 2 which exempts from\n\nDepartment\ndisclosure \"[ i]nformation specifically prohibited from disclosure by federal or State law or rules\nand regulations implementing federal or State law.\" On that same date, this office received\n\nRequest for Review contesting the denial. He argued that the language of section 55-\n\n30( b) of the CRTA does not apply to the particular record he seeks. \n\nOn May 12, 2023, this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide an unredacted copy of the e-mail at issue for this office's\nreview, together with a detailed explanation of the legal and factual bases for the\nconfidential\napplicability of the asserted exemption. On May 19, 2023, the Department furnished those\nmaterials. Later on that same date, \n\nsubmitted a reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2022). \n\nSection 7(1)( a) of FOIA\n\nSection 7(1)( a) exempts from disclosure \"[ i]nformation specifically prohibited\nfrom disclosure by federal or State law or rules and regulations implementing federal or State\nlaw.\" Under this provision, \" an exemption restricting the expansive nature of the FOIA' s\ndisclosure provisions must be explicitly stated - that is, such a proposed disclosure must be\nspecifically prohibited.\" ( Emphasis in original.) Better Government Ass' n v. Blagojevich, 386\nIll. App. 3d 808, 815-16 (4th Dist. 2008). \n\nIn its answer to this office, the Department maintained that its denial was proper\n\nunder section 55- 30( b) of the CRTA, which provides, in relevant part: \n\nb) The following information received and records kept by * * * \nthe Department of Financial and Professional Regulation for\npurposes of administering this Article are subject to all\napplicable federal privacy laws, are confidential and exempt\nfrom disclosure under the Freedom of Information Act, except\nas provided in this Act, and not subject to disclosure to any\nindividual or public or private entity * * *: \n\n25 ILCS 140/7(1)(a) ( West 2022). \n\n\fMs. Kathleen Anderson\nJuly 19, 2023\nPage 3\n\n1) Applications and renewals, their contents, and\n\nsupporting information submitted by or on behalf of\ndispensing organizations, cannabis business\nestablishments, or Community College Cannabis\nVocational Program licensees, in compliance with this\nArticle, including their physical addresses; however, \nthis does not preclude the release of ownership\ninformation about cannabis business establishment\nlicenses, or information submitted with an application\nrequired to be disclosed pursuant to subsection (f); \n\n2) Any plans, procedures, policies, or other records\n\nrelating to cannabis business establishment security; \nand\n\n3) Information otherwise exempt from disclosure by State\n\nor federal\n\nlaw. \n\nThe preceding subsection of the statute, 3 however, specifies that: \n\nInformation provided by the cannabis business\n\nestablishment licensees or applicants to * * * the Department of\nFinancial and Professional Regulation * * * shall be limited to\ninformation necessary for the purposes of administering this Act. \nThe information is subject to the provisions and limitations\ncontained in the Freedom of Information Act and may be disclosed\nin accordance with Section 55- 65.[4] \n\nThe Department maintained that it properly denied the requested e- mail because: \n\nThe email in question is unequivocally related to a cannabis\n\napplication. There are questions and comments throughout the\nemail, all of which refer to the application. Because of the\nconfidentiality clauses of both FOIA and CRTA this email should\nto protect the private conversation between the\nremain confidential\n\n3410 ILCS 705/55-30(a) ( West 2022). \n\nfinancial institutions. \n\n4Subsection 55-65 (410 ILCS 705/55-65 (West 2022)) concerns the provision of information to\n\n\fMs. Kathleen Anderson\nJuly 19, 2023\nPage 4\n\nIDFPR Deputy Director/ attorney and the cannabis dispensary\napplicants.[5] \n\nIn reply, addressing the language of section 55-30(b)(1), \n\nargued that: \n\nThere can be no dispute that the email in question FROM the\nDeputy Director, Vaughn Bentley, was not \" submitted by or on\nbehalf of dispensing organizations, cannabis business\nestablishments, or Community College Cannabis Vocational\nProgram licensees[.]\" The provision is not intended nor written to\ncloak communications FROM public officials. The Department has\na public duty to administer applicant licensing and the public has\nthe duty to see that it is performed in the public interest. \nEmphasis in original.)[6] \n\nSection 55-30(b)(1) of the CRTA expressly prohibits disclosure of not just\n\napplications and renewals, but \" their contents, and supporting information.\" The Illinois\nSupreme Court has advised that when interpreting a statute, \"[ e]ach word, clause and sentence of\nthe statute, if possible, must be given reasonable meaning and not rendered superfluous.\" In re\nDetention of Lieberman, 201 Ill.2d 300, 308 ( 2002). Accordingly, the Public Access Bureau has\ndetermined that the statutory language \" their contents, and supporting information\" must mean\nmore than the applications and renewals themselves; at a minimum, it necessarily extends to\ninformation derived from an application that is recorded in other documents, regardless of\nformat. 7\n\nThis office' s review of the withheld e- mail confirmed that it concerns an\n\napplication under the CRTA and discusses the contents of the application. The e-mail is not, \nhowever, an application or renewal, nor does it solely consist of the contents of an application or\nrenewal or supporting information submitted by or on behalf of dispensing organizations or\ncannabis business establishments. Section 7(1) of FOIA8 provides that: \n\nPublic Access Bureau, Illinois Attorney General's Office (May 19, 2023), at 2. \n\n5Letter from Kathleen Anderson, FOIA Officer, IDFPR, to Joshua Jones, Deputy Bureau Chief, \n\n6E- mail from\n\nRiver North Citizens, to [Joshua] Jones ( May 19, 2023). \n\n7Ill. Att'y Gen. PAC Req. Rev. Ltr. 62084, issued March 31, 2020, at 5 (ownership information\n\nderived from an application or an amendment to application materials was exempt under section 7(1)(a) even if\ncompiled into a spreadsheet or database). \n\n85 ILCS 140/7(1) (West 2022). \n\n\fMs. Kathleen Anderson\nJuly 19, 2023\nPage 5\n\nWhen a request is made to inspect or copy a public record that\ncontains information that is exempt from disclosure under this\nSection, but also contains information that is not exempt from\ndisclosure, the public body may elect to redact the information that\nis exempt. The public body shall make the remaining information\navailable for inspection and copying. \n\nIn this instance, the Department did not demonstrate that this provision is inapplicable because it\ndid not prove by clear and convincing evidence that the letter it sent to the two named\nindividuals is exempt from disclosure in its entirety. The Department asserts that the record as a\nwhole is \" unequivocally related to a cannabis application.\" Regardless, the General Assembly\ncould have specified in section 55-30(b)(1) of the CRTA that agency communications about or\nrelated to applications are exempt from disclosure in their entireties, but it did not choose to do\nso. A reviewing body \"may not read into a statute limitations or conditions not explicitly set\nforth in the plain statutory language.\" In re Estate of Shelton, 2017 IL 121199, ¶ 43, 89 N.E.3d\n391, 402 (2017). Under these circumstances, the Department has not provided the Public Access\nBureau with a legal basis from which it could conclude that the Department may withhold the\nfull substantive content of the message pursuant to FOIA. To remedy its improper denial, this\noffice asks the Department\nredaction of the discrete information that would unavoidably reveal the contents of applications, \nrenewals, or supporting information submitted by or on behalf of the applicant. In particular, the\nmiddle paragraph depicts application contents, with the exception of the second clause, while the\nfirst and third paragraphs largely set forth information concerning the Department's procedures\nand expectations. \n\nto disclose a copy of the e- mail to\n\nsubject to the\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter closes this matter. If you have any\nquestions, please contact me at joshua. jones@ilag. gov. \n\nVery truly yours, \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n76546 f 71a proper improper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An email about cannabis licensing between a department's deputy director and two others","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":1008,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-05-06","case_number":null,"request_numbers":["76612"],"title":"Illinois State Police improperly required form and fees for body camera footage","filename":"76612, issued May 6, 2024.pdf","rel_path":null,"word_count":3117,"summary":"The requester sought squad car and body camera footage from the Illinois State Police (ISP), which the ISP delayed by placing the request on a waitlist, requiring a specific form, and charging fees. The PAC determined that the ISP improperly required a form and assessed improper fees, but found the redactions to the provided audio were appropriate.","plain_summary":"A citizen requested squad camera and body worn camera footage of a traffic stop from the Illinois State Police. The police placed the request on a waitlist, required the requester to fill out a form, and assessed fees to provide the footage. The Public Access Bureau of the Illinois Attorney General's office concluded that the police improperly required the form and fees, and that FOIA does not permit charging fees for the video recordings.","holding":"The Illinois State Police improperly required the requester to complete a form and pay fees to obtain body and squad camera footage.","legal_question":"Whether a public body may require a requester to complete a specific form and pay fees beyond the cost of the recording medium for body and squad camera footage.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)"],"public_body":"Illinois State Police","requesting_party":"Anonymous requester","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought dashcam and body-worn camera footage related to a traffic stop.","ocr_status":"ok","ocr_quality":97.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_c/76612%2C%20issued%20May%206%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","body camera","fees","FOIA request form"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"May 6, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Amelia Finch\nTechnical Advisor III\nIllinois State Police\nLegal Office\n801 South Seventh Street, Suite 1000- S\nSpringfield, Illinois 62703\nISP. FOIA. Officer@illinois. gov\n\nRE: FOIA Request for Review – 2023 PAC 76612\n\nDear\n\nand Ms. Finch: \n\nThis determination letter is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069, \neffective January 1, 2024). For the reasons stated below, the Public Access Bureau concludes\nthat the Illinois State Police (ISP) improperly required\nto fill out a form to\nobtain squad camera and body worn camera footage and improperly assessed fees to provide the\nfootage. This office further concludes that ISP did not improperly redact the audio recording\nprovided to\n\nOn April 7, 2023, \n\nsubmitted a FOIA request to ISP seeking\n\nDashcam, bodycam, and interior of patrol vehicle video which depict me or my vehicle\" \n\n\fMs. Amelia Finch\nMay 6, 2024\nPage 2\n\npertaining to a traffic stop.1 After extending the time to respond by five business days, on April\n21, 2023, ISP provided a responsive audio record subject to redactions under sections 7(1)( a), \n7(1)(b), and 7(1)(c) of FOIA.2 That same day, ISP informed\nresponsive to his request, but placed his request for the video recordings on hold because he is on\na waitlist. ISP also informed\nthat once his request came up on its waitlist, it would\nthat\nsend him a request form and require payment. On June 12, 2023, ISP informed\nit located video that may be responsive to his FOIA request, and that if he still wished to receive\nthe video recordings, consisting of a disk containing the recording from the squad camera and\nanother disk containing body worn camera footage, he was required to fill out a form and pay\nISP $ 100. 00 for each disk pursuant\nthe Administrative Code.3\nreviewed or redacted until after payment\ncontests the redactions of the audio recording and the denial of the video recording. \n\nto the fee schedule set forth in section 1298. 40 of title 20 of\n\nthat the video recordings would not be\n\nis received. In his Request for Review, \n\nthat it found video\n\nISP also informed\n\nAfter an Assistant Attorney General (AAG) in the Public Access Bureau's efforts\n\nto mediate this matter were unsuccessful, on July 12, 2023, this office forwarded a copy of\n\nRequest for Review to ISP and asked it to provide for our confidential review\nunredacted copies of the audio recording and the withheld squad camera footage and body worn\ncamera footage, along with a detailed written explanation of the factual and legal bases for\nredacting and withholding those records. This office also asked ISP to address the factual and\nlegal basis for requiring\ncamera and body worn camera recordings, and for requiring\nbefore providing the two video recordings. On July 21, 2023, ISP responded. \nreply. \n\nto fill out a standardized form to obtain the requested squad\n\nto pay ISP $ 200. 00\n\ndid not\n\nDETERMINATION\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with this Act.\" 5 ILCS\n140/ 1 ( West 2022). Under section 1.2 of FOIA, 4 \"[ a] ll records in the custody or possession of a\npublic body are presumed to be open to inspection or copying.\" FOIA requires that \"[ e] ach\npublic body shall make available to any person for inspection or copying all public records, \n\nInformation Act Video Request Form (April 7, 2023). \n\n1E- mail from\n\nto Illinois State Police, on Illinois State Police Freedom of\n\n25 ILCS 140/7(1)(a), 1(b), 1(c) (West 2022). \n\n320 Ill. Adm. Code § 1298.40 (West 2022), last amended at 42 Ill. Reg. 19238, effective October\n\n10, 2018. \n\n45 ILCS 140/1.2 (West 2022). \n\n\fMs. Amelia Finch\nMay 6, 2024\nPage 3\n\nexcept as otherwise provided in Sections 7 and 8.5 of this Act.\"5 FOIA shall be \" liberally\nconstrue[ d] * * * \ncitizen.\" Sage Information Services. v. Humm, 2012 IL App (5th) 110580, ¶ 19. \n\nin favor of ease of access to public records on the part of any interested\n\nThe Audio Recording\n\ncontested the redaction of the audio recording that ISP provided to\n\nhim. In its response, ISP explained that it had redacted one license plate number from the\nrecording pursuant to section 7(1)(b) of FOIA. Section 7(1)(b) of FOIA exempts from disclosure\np] rivate information, unless disclosure is required by another provision of this Act, a State or\nfederal law or a court order.\" Section 2(c-5) of FOIA6 defines \"private information\" as \" unique\nidentifiers, including a person' s * * * home address and personal\nhas listened to the audio recording and concludes that the redacted license plate number is\nexempt under FOIA. Accordingly, ISP did not violate FOIA by redacting the license plate\nnumber in the audio clip. \n\nlicense plates[.]\" This office\n\nThe Squad Camera and Body Worn Camera Footage\n\nSection 3(d) of FOIA7 provides that \"[ e]ach public body shall, promptly, either\ncomply with or deny a request for public records within 5 business days after its receipt of the\nrequest, unless the time for response is properly extended under subsection (e) of this Section.\" \nSection 3(e) of FOIA8 provides that \"[ t]he time for response under this Section may be extended\nby the public body for not more than 5 business days from the original due date\" for any of seven\nenumerated reasons. FOIA permits an extension for more than five business days only if the\nrequester and the public body \"agree in writing to\" the extension. 5 ILCS 140/3(e) ( West 2022). \nSection 3(f) of FOIA9 further provides: \n\nWhen additional\n\ntime is required [ under section 3(e)], the\n\npublic body shall, within 5 business days after receipt of the\nrequest, notify the person making the request of the reasons for the\nextension and the date by which the response will be forthcoming. \nFailure to respond within the time permitted for extension shall be\nconsidered a denial of the request. A public body that fails to\n\n55 ILCS 140/3(a) ( West 2022). \n\n65 ILCS 140/2(c-5) (West 2022). \n\n75 ILCS 140/3(d) (West 2022). \n\n85 ILCS 140/3(e) ( West 2022). \n\n95 ILCS 140/3(f) (West 2022). \n\n\fMs. Amelia Finch\nMay 6, 2024\nPage 4\n\nrespond to a request within the time permitted for extension\nbut thereafter provides the requester with copies of the\nrequested public records may not impose a fee for those copies. \nEmphasis added.) \n\nAfter extending the time to respond to\n\nFOIA request, on April\n\n21, 2023, ISP sent correspondence to\ninforming him that it found responsive squad\ncar and body camera video but placed his request for the video recordings on hold because he is\nrequest for the squad car\non a waitlist. That correspondence neither complied with\nor body camera video by providing him the responsive records, nor properly denied his request\nfor those records. Instead, the correspondence amounted to an indefinite extension that is not\nauthorized by any provision of FOIA. \n\nISP' s response to this office emphasized that it \"receives an average of 550 FOIA\n\nrequests each month. ISP does not maintain the resources to compile, review, redact and\nsubsequently produce every record responsive to every FOIA request in 10 business days. ISP\nsends requesters detailed communications to keep them apprised of the status of their request if it\nis not handled completely within the 10 days\" 10 The Public Access Bureau recognizes that\nresponding to large numbers of FOIA requests, especially for records such as recordings that\nmay be lengthy and require careful review for information that is subject to redaction under\nFOIA, may make substantial demands on a public body's resources. Nevertheless, section 1 of\nFOIA provides: \" The General Assembly declares that providing records in compliance with the\nrequirements of this Act is a primary duty of public bodies to the people of this State, and this\nAct should be construed to this end, fiscal obligations notwithstanding.\" More importantly, \nsection 3(f) of FOIA expressly precludes public bodies from assessing copies of fees for records\nif they fail to provide records within the time permitted for extensions under the Act. Because\nISP extended the time to respond to\nfailed to comply with the request, properly deny the request, or obtain\nconsent to a longer extension, this office concludes that FOIA does not permit ISP to charge\n\nrequest by five business days but subsequently\n\nwritten\n\nfees for copies of the video recordings. \n\nEven if ISP did issue a timely substantive response to\n\nrequest, FOIA\n\nprecludes ISP from charging $200.00 for the two video recordings. That charge derives from\nsection 1298. 40( c) of the Administrative Code, 11 which fixes a fee of $100 for each video\nrecording that is more than 160 megabytes. Section 6(a) of FOIA12 provides: \n\nEdie Steinberg, Senior Assistant Attorney General, Public Access Bureau (July 21, 2023), at 3. \n\n10Letter from Amelia Finch, Technical Advisor III, Office of the Director, Illinois State Police, to\n\n1120 Ill. Adm. Code § 1298.40(c) (West 2022), last amended at 42 Ill. Reg. 19238, effective\n\nOctober 10, 2018. \n\n125 ILCS 140/6(a) ( West 2022). \n\n\fMs. Amelia Finch\nMay 6, 2024\nPage 5\n\nWhen a person requests a copy of a record maintained\nin an electronic format, the public body shall furnish it in the\nelectronic format specified by the requester, if feasible. If it is\nnot feasible to furnish the public records in the specified electronic\nformat, then the public body shall furnish it in the format in which\nit is maintained by the public body, or in paper format at the option\nof the requester. A public body may charge the requester for the\nactual cost of purchasing the recording medium, whether disc, \ndiskette, tape, or other medium. * * * Except to the extent that\nthe General Assembly expressly provides, statutory fees\napplicable to copies of public records when furnished in a\npaper format shall not be applicable to those records when\nfurnished in an electronic format. (Emphasis added.) \n\nSection 6(b) of FOIA13 provides, in pertinent part: \n\nExcept when a fee is otherwise fixed by statute, each\n\npublic body may charge fees reasonably calculated to reimburse its\nactual cost for reproducing and certifying public records and for\nthe use, by any person, of the equipment of the public body to copy\nrecords. * * * In calculating its actual cost for reproducing records\nor for the use of the equipment of the public body to reproduce\nrecords, a public body shall not include the costs of any search for\nand review of the records or other personnel costs associated with\nreproducing the records, except for commercial requests as\nprovided in subsection ( f) of this Section. \n\nBased upon these provisions, the Illinois Appellate Court held that \" FOIA does\nnot allow a fee in excess of the cost of the electronic medium for the reproduction of electronic\nrecords unless another statute expressly provides that the fees for producing paper records also\napply to electronic copies.\" ( Emphasis added.) Sage Information Services, 2012 IL App (5th) \n110580, ¶ 18. In concluding that fees for an electronic copy of a real property assessment record\nwas limited to cost of the recording medium under section 6(a) of FOIA rather than the\nsubstantially greater fees for paper records set forth in the Property Tax Code, the court\nexplained: \n\n135 ILCS 140/6(b) (West 2022). \n\n\fMs. Amelia Finch\nMay 6, 2024\nPage 6\n\nW]e are guided by the expressed legislative intent and the public\npolicy sought to be effected by the FOIA. Section 1 of the FOIA\nstates that restraints on access to information are not to be\npermitted except as very limited exceptions and that the FOIA\nshould be construed in accordance with this principle. 5 ILCS\n140/ 1 ( West 2010). A substantial\naccess to information in contravention of the expressed\nlegislative intent. Section 1 also makes clear that providing public\nrecords to citizens is a primary duty of public bodies and that the\nFOIA should be construed to this end, fiscal obligations\nnotwithstanding. 5 ILCS 140/1 (West 2010). It is our duty to\nliberally construe the FOIA in favor of ease of access to public\nrecords on the part of any interested citizen. We have done so here. \nEmphasis added.) \n\nfee constitutes a restraint on\n\nSee also Sage Information Services v. Suhr, 2014 IL App ( 2d) 130708, ¶ 20 ( section 6(a) of\nFOIA is unambiguous and does not allow exceptions to the cost-only rule for electronic records\nunless fees fixed by another statute expressly state that they apply to other records). \n\nISP argues that it is allowed to charge fees for electronic video recordings based\n\non section 2605-10(b) of the Illinois State Police Law,14 which provides that ISP \" shall have the\npowers and duties set forth in the following Sections[,]\" and section 2605- 15 of the Illinois State\nPolice Law,15 which allows ISP \"[ t]o promulgate rules and regulations necessary for the\nadministration and enforcement of its powers and duties, wherever granted and imposed, \npursuant to the Illinois Administrative Procedure Act.\" ISP maintains that these statutes\nauthorize it to require individuals who submit a FOIA request to pay fees to obtain imaging\nproducts such as squad car and body camera videos, as set forth in sections 1298.10 through\n1298. 40 of title 20 of the Illinois Administrative Code. 16 According to ISP, \"[ i]f the General\nAssembly did not intend to grant ISP the authority to charge fees for imaging products via FOIA, \nit would have been clear in the Illinois State Police Law where such authority is granted.\" 17\n\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n\n1420 ILCS 2605/2605-10 (West 2022). \n\n1520 ILCS 2605/2605-15 (West 2022). \n\nReg. 19238, effective October 10, 2018. \n\n1620 Ill. Adm. Code §§ 1298.10, 1298.20, 1298.30, 1298.40 (West 2022), last amended at 42 Ill. \n\nEdie Steinberg, Senior Assistant Attorney General, Public Access Bureau (July 21, 2023), at 3. \n\n17Letter from Amelia Finch, Technical Advisor III, Illinois State Police, Office of the Director, to\n\n\fMs. Amelia Finch\nMay 6, 2024\nPage 7\n\n2006). \"The most reliable indicator of legislative intent is the statutory language, given its plain\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56. Where the language of a statute is clear and unambiguous, a reviewing body\nmay not depart from the plain language by reading into the statute exceptions, limitations, or\nconditions that the legislature did not express.\" Hayashi v. Illinois Department of Financial & \nProfessional Regulation, 2014 IL 116023, ¶ 16. \n\nSection 6(a) and 6(b) of FOIA plainly state that the fee provisions of FOIA apply\n\nto requests for public records unless a different fee is fixed by another statute and the General\nAssembly expressly states that the fee applies to electronic records. If the General Assembly had\nintended to authorize State agencies to use administrative rules as well as statutes to establish\nfees that supersede FOIA, it would have specifically referred to administrative rules as it has in\ncrafting provisions such as section 7(1)(a) of FOIA,18 which exempts from disclosure\n\ni]nformation specifically prohibited from disclosure by federal or State law or rules and\n\nregulations implementing federal or State law.\" To the extent that section 2605-15 of the Illinois\nState Police Law could be construed as conflicting with FOIA, it is a general grant of authority to\npromulgate rules and regulations that does not contain any reference to fees for public records. \nIn contrast, section 6(b) of FOIA specifically relates to such fees and therefore takes precedence. \nPeople v. Villarreal, 152 Ill. 2d 368, 379 (1992) (\" It is a fundamental rule of statutory\nconstruction that where there exists a general statutory provision and a specific statutory\nprovision, either in the same or another act, which both relate to the same subject, the specific\nprovision controls and should be applied.\"). \n\nCharging fees in excess of the cost of the recording medium for imaging products\n\npursuant to administrative rules cannot be reconciled with the plain language of FOIA and\nconstitutes a restraint on access to information that contradicts the intent of the Act. This office\nhas consistently determined, and has previously notified ISP, that FOIA does not permit it to\ncharge requesters fees based on a fee schedule in the Administrative Code. See Ill. Att'y Gen. \nPAC Req. Rev. Ltr. 31244, issued February 21, 2018 (requesting ISP to reimburse a requester\nthe fee paid for a DVD); Ill. Att'y Gen. PAC Req. Rev. Ltr. 39015, issued January 6, 2016\ndetermining that ISP improperly charged a requester for a copy of a CD beyond the cost for the\nrecording medium); Ill. Att'y Gen. PAC Req. Rev. Ltr. 17989, issued February 5, 2014 ( same). \nLikewise, in the present matter, this office concludes that ISP violated FOIA by improperly\ncharging\n200. 00 for the two recordings based on fees fixed by its administrative\nrule. \n\nIn addition, section 3(c) of FOIA (5 ILCS 140/3(c) (West 2022)) provides, in part, \n\nthat \"[ a] public body may not require that a request be submitted on a standard form[.]\" \n\n185 ILCS 140/7(1)(a) ( West 2022), as amended by Public Acts 103-154, effective June 30, 2023; \n\n103-423, effective January 1, 2024; 103-462, effective August 4, 2023; 103-446, effective August 4, 2023; 103-540, \neffective January 1, 2024; 103-554, effective January 1, 2024. \n\n\fMs. Amelia Finch\nMay 6, 2024\nPage 8\n\nAccordingly, ISP also violated FOIA by requiring\ncar and body camera videos. \n\nto fill out a form to obtain squad\n\nIn accordance with the conclusions set out above, this office requests that ISP\n\nwith copies of the squad car and body camera videos responsive to his FOIA\n\nprovide\nrequest, without charging fees or requiring a form to be filled out, subject only to permissible\nredactions under section 7 of FOIA if it has not done so already. If\nISP for the requested records, this office requests that ISP reimburse\npaid for the recordings. This office also requests that in the future ISP refrain from assessing\nfees beyond the cost of the recording medium for video recordings requested under FOIA. \n\nhas already paid\nfor all amounts\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at 312- 814- 5201 or at edie. steinberg@ilag. gov. \n\nVery truly yours, \n\nEDIE STEINBERG\nSenior Assistant Attorney General\nPublic Access Bureau\n\n76612 3c improper 6a improper 71b proper pd sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police dashcam and body-camera footage of a traffic stop","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":1009,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-04-09","case_number":null,"request_numbers":["76890"],"title":"Village of Glenview did not violate FOIA in withholding pro forma document under 7(1)(r)","filename":"76890, issued April 9, 2024.pdf","rel_path":null,"word_count":2018,"summary":"The requester sought a pro forma financial document submitted by a private hospitality group to the Village of Glenview, and the PAC determined the Village properly withheld the record under FOIA's trade secret exemption.","plain_summary":"A requester asked the Village of Glenview for a pro forma document that Ballyhoo Hospitality had prepared in connection with a request for a 15-year loan repayment period. The Village denied the request, citing an exemption for records related to real estate sale negotiations. The Public Access Counselor concluded that the Village did not violate FOIA because the document related to a real estate sale that had not yet been completed, and the exemption applied regardless of the financial incentives involved.","holding":"The Village of Glenview did not violate FOIA by denying the request for the pro forma document pursuant to section 7(1)(r).","legal_question":"Whether the Village of Glenview properly applied the section 7(1)(r) exemption to withhold a pro forma financial document submitted by a private entity.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(r)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(r)"],"public_body":"Village of Glenview","requesting_party":"Mr. William J. Seitz","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(r)","subject_description":"The request concerned a financial pro forma document submitted by a private hospitality company to a municipality in connection with a loan repayment request.","ocr_status":"ok","ocr_quality":94.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_r/76890%2C%20issued%20April%209%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["trade secrets","financial records","exemption 7(1)(r)","Village of Glenview"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERA\n\nApril 9, 2024\n\nVia electronic mail\n\nMr. William J. Seitz\n\nThe Law Offices of William J. Seitz\n[street address redacted for site publication -- see original PDF]\nwseitz@seitzattorney.com\n\nVia electronic mail\n\nMs. Julie A. Tappendorf\n\nPartner\n\nAncel Glink\n\n140 South Dearborn Street, 6th Floor\nChicago, Illinois 60603\njtappendorf@ancelglink.com\n\nRE: FOIA Request for Review — 2023 PAC 76890\n\nDear Mr. Seitz and Ms. Tappendorf:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069,\neffective January 1, 2024). For the reasons stated below, the Public Access Counselor concludes\nthat the Village of Glenview (Village) did not improperly deny Mr. William J. Seitz's March 21,\n\n2023, FOIA request.\n\nOn that date, Mr. Seitz submitted a FOIA request to the Village seeking a copy of\n\"[t]he Proforma developed by Ballyhoo Hospitality in requesting a 15-year loan repayment\nperiod from the Village.\"! On April 4, 2023, the Village denied the request in its entirety\n\n‘Written Request for Inspection or Copying of Public Records from William J. Seitz to Village of\n\nGlenview (March 21, 2023).\n\n500 South 2nd Street 115 South LaSalle Street\nSpringfield, Illinois 62701 Chicago, Hlinois 60603\n(217) 782-1090 + Fax: (217) 782-7046 (312) 814-3000 « Fax: (312) 814-3806\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service\n\nwww IllinoisAttomeyGeneral.gov\n\n1745 Innovation Dnve, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 + Fax: (618) 529-6416\n\nMr. William J. Seitz\n\nMs. Julie A. Tappendorf\nApril 9, 2024\n\nPage 2\n\npursuant to section 7(1)(r) of FOIA.2 On June 2, 2023, Mr. Seitz submitted a Request for\nReview contesting the denial of the request. He explained that \"[t]his FOIA Request for Review\nrelates to a 'Purchase and Sale Agreement' between the Village of Glenview and Ballyhoo\nHospitality, LLC. (‘Ballyhoo'), in which the Village would sell 6,000 square feet of land owned\nby the Village of Glenview to Ballyhoo for $10.\"3 Mr. Seitz claimed:\n\nThis is clearly not a market value price.\n\nThis FOIA relates to other commitments of public money\ninto this private project.\n\nThat is because the Village is not simply selling the land\nfor $10 (purchase price of $210,000 being reduced to $10 at\nClosing).\n\nAttaching a \"Redevelopment Agreement\", as an exhibit to a\n\"Purchase and Sale Agreement\" to sell the real estate, the Village\nis giving Ballyhoo a \"Restaurant Grant\" of 1,750,000 and a\n\"Restaurant Loan\" of $2,250,000 @ 2% over 15 years.\n\nThat is $4,000,000 of public money that is beyond the sale\nof the property. (Emphasis in original.)@]\n\nMr. Seitz thus argued that section 7(1)(r) did not apply because \"[t]he exemption relates to ‘real\nestate sale negotiations’. This is a loan and a grant, not a real estate sale for $10.\" (Emphasis in\noriginal.)° He also argued that the pro forma cannot be withheld because it was already\ndisclosed to a third-party consultant—Mallon and Associates, Inc. (Mallon)—whose \"public\ncontract does not include real estate negotiations.\"®\n\n25 ILCS 140/7(1)(x) (West 2022).\n\nLetter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Leah Bartelt, Public\nAccess Counselor, Office of the Attorney General (June 2, 2023), at 2.\n\n4Letter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Leah Bartelt, Public\nAccess Counselor, Office of the Attomey General (June 2, 2023), at 2.\n\n‘Letter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Leah Bartelt, Public\nAccess Counselor, Office of the Attorney General (June 2, 2023), at 4.\n\n‘Letter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Leah Bartelt, Public\nAccess Counselor, Office of the Attorney General (June 2, 2023), at 4.\n\nOffice of the Illinois Attorney General\n\nMr. William J. Seitz\n\nMs. Julie A. Tappendorf\nApril 9, 2024\n\nPage 3\n\nOn June 8, 2023, the Public Access Bureau forwarded a copy of the Request for\nReview to the Village and requested an unredacted copy of the withheld record for this office's\nconfidential review, together with a detailed explanation of the legal and factual bases for the\napplicability of section 7(1)(r). As part of its response, this office asked the Village to address\nthe allegations that the matter concerns a loan rather than a sale and that the Village waived the\nexemption by disclosing the record to one or more other third parties that were not acting as\nconsultants with respect to any real estate purchase negotiations. On June 19, 2023, the Village\nprovided those materials, including a complete version of its written answer for this office's\nconfidential review, anda version with its entire argument redacted for purposes of forwarding\nto Mr. Seitz. On June 30, 2023, Mr. Seitz replied to that response.\n\nDETERMINATION\n\nUnder FOIA, all public records in the possession or custody of a public body are\n\"presumed to be open to inspection or copying.\" 5 ILCS 140/1.2 (West 2022); see also Southern\nIllinoisan vy. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body\n\"has the burden of proving by clear and convincing evidence\" that a record is exempt from\ndisclosure. 5 ILCS 140/1.2 (West 2022).\n\nSection 7(1)(r) exempts from disclosure:\n\nThe records, documents, and information relating to real\nestate purchase negotiations until those negotiations have been\ncompleted or otherwise terminated. With regard to a parcel\ninvolved in a pending or actually and reasonably contemplated\neminent domain proceeding under the Eminent Domain Act,\nrecords, documents, and information relating to that parcel shall be\nexempt except as may be allowed under discovery rules adopted by\nthe Illinois Supreme Court. The records, documents and\ninformation relating to a real estate sale shall be exempt until a\nsale is consummated. (Emphasis added.)\n\nIn response to Mr. Seitz's Request for Review, the Village defended its denial\nunder section 7(1)(r) of FOIA. The Village noted that Mr. Seitz did not dispute that the sale had\nnot been completed, and stated that it \"only withheld the Proforma because it is clearly exempt\nfrom disclosure under section 7(1)(r) of FOIA as a record or document that related to a real\nestate sale that has not yet closed.\"’ Because the remainder of the Village's explanation was\nsubmitted under a claim of confidentiality, however, this office is not at liberty reveal the\nVillage's other substantive claims.\n\n‘Letter from Julie A. Tappendorf, Ancel Glink, to Joshua Jones, Assistant Attorney General\nPublic Access Bureau (June 19, 2023), at 3.\n\nOffice of the Illinois Attorney General\n\nMr. William J. Seitz\n\nMs. Julie A. Tappendorf\nApril 9, 2024\n\nPage 4\n\nIn his reply, Mr. Seitz reiterated his assertions that section 7(1)(r) is inapplicable\nbecause his request does not concern an actual real estate sale:\n\nWhat the Village is characterizing as being a \"Purchase and\nSale Agreement\" is really a $4 million upfront public contribution\nbeing made to a private investment on public land. $1.75M\neconomic development grant and $2.25M loan to be paid back at\n2% interest over 15 years.\n\nThe real estate sale contemplated here is fora sale price of\n$10, clearly not a market transaction.\n\nEconomic development activities, not the sale of public real\nestate, are the records, documents, or information that the Village\nis seeking to shield from public access. (Emphasis in original.)!*!\n\nThis office's review of the withheld record confirmed that it is a record relating to\na real estate sale that had not been consummated. It is undisputed that the pro forma was\ngenerated pursuant to Village considerations concerning the sale of the land and potential\neconomic incentives. Although Mr. Seitz highlighted that $10 is not the market value price of\nthe land, the plain language of section 7(1)(r) is not limited to market value sales. In drafting\nsection 7(1)(r), the General Assembly did not distinguish records, documents, and information\nconcerning pure sales of public property at market prices from sales of public property that are\nstructured with financial incentives in excess of the purchase price component. \"It is well settled\nthat a court\"—and therefore a reviewing body such as the Public Access Bureau—\"may not\ndepart from the plain language of a statute by reading into it exceptions, limitations, or\nconditions that the legislature did not express.\" Gurba v. Community High School District No.\n155,2015 IL 118332,4 16. Accordingly, this office cannot overlook the real estate sale aspect\nof the Purchase and Sale Agreement Mr. Seitz furnished to this office, which provides, in\nrelevant part: \"The purchase price for the Property shall be Two Hundred Ten Thousand and\nNo/100 ($210,000.00) Dollars (‘Purchase Price'), as adjusted by the Purchase Price Incentive *\n* * Purchaser shall pay the Purchase Price, if any, in full at Closing * * * by transfer of\nimmediately available funds, and subject to adjustments and proration as described in this\nAgreement.\" (Emphasis in original.)? Correspondingly, the \"Redevelopment Agreement Terms\"\n\n‘Letter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Joshua Jones, Deputy\nBureau Chief, Public Access Bureau, Office of the Attorney General (June 30, 2023), at 4.\n\n°*Purchaseand Sale Agreement, Ballyhoo Hospitality, LLC — Village of Glenview, §3, March 21,\n2023.\n\nOffice of the Illinois Attorney General\n\nMr. William J. Seitz\n\nMs. Julie A. Tappendorf\nApril 9, 2024\n\nPage 5\n\nexhibit states that the \"[s]eller will reduce the Purchase Price from $210,000.00 to $10 at closing\n(‘Purchase Price Incentive').\"!° Mr. Seitz has not cited legal authority for the proposition that\nthe language \"real estate sale,\" as used in section 7(1)(m), does not apply when the price ofa real\nestate transaction is offset by financial incentives. Regardless of what else it entails, the\nPurchase and Sale Agreement concerns the Village's prospective sale of real estate to a\npurchaser, and thus the pro forma falls within the scope of section 7(1)(r).\n\nThe evidence does not suggest that the Village waived the applicability of the\nexemption by sharing the pro forma with Mallon. Ina previous Request for Review (2023 PAC\n75181), Mr. Seitz provided this office with a copy of the Village's consulting contract with\nMallon, in which Mallon agreed to perform \"professional development advisory and business\nrecruiting services and work for Village.\"!! It is evident that the Village shared the pro forma\nwith Mallon in Mallon's capacity as downtown economic development consultant for the\nVillage. The Village's sharing of a downtown economic development record such as the pro\nforma with Mallon does not waive the applicability of section 7(1)(r) because FOIA's waiver\nprinciple protects against giving preferential treatment to some similarly situated-parties over\nothers, not sharing information with a consultant serving the public body's interests. See Lieber\nv. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 412-13 (1997) (\"If the\naddress lists can be disclosed to campus ministries and the local newspaper, the University has\nno valid basis for withholding them from\" the requester, a campus housing provider); see also\nChicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 201-03\n(2004) (disclosure of names and addresses of beat meeting participants to a professor at a public\npolicy research organization for a study on community policing did not waive the applicable\nexemptions as to all other parties because the information was provided in confidence for\nconsulting purposes).\n\nFor the reasons explained above, the Public Access Bureau concludes that the\nVillage did not violate FOIA by denying Mr. Seitz's FOIA request pursuant to the section 7(1)(r)\nexemption.\n\n'Purchaseand Sale Agreement, Ballyhoo Hospitality, LLC — Village of Glenview, Exhibit B:\nRedevelopment Agreement Terms, March 21, 2023.\n\n\"'Independent Contractor Agreement for Professional and Other Services, Village of Glenview —\nMallon and Associates, Inc., June 15,2022.\n\nOffice of the Illinois Attorney General\n\nMr. William J. Seitz\nMs. Julie A. Tappendorf\nApril 9, 2024\n\nPage 6\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\nplease contact me at joshua.jones@ilag.gov or (773) 590-7951.\n\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n76890 f 711 proper mun\n\nOffice of the Illinois Attorney General\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A private hospitality company's financial pro forma","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":1010,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-07-03","case_number":null,"request_numbers":["76927"],"title":"PAC closes case after requester filed FOIA complaint against City of Chicago too early","filename":"76927, issued July 3, 2023.pdf","rel_path":null,"word_count":642,"summary":"The requester alleged the City of Chicago Mayor's Office failed to timely respond to a FOIA request, but the PAC determined the request for review was filed prematurely because the City's response deadline had not yet passed.","plain_summary":"A requester complained to the Attorney General that the City of Chicago was late in responding to a FOIA request. The Attorney General found that the City had correctly calculated its legal deadline, including a holiday, and that the requester had filed the complaint too early. Because the City still had time to respond when the complaint was filed, the PAC closed the case without taking further action.","holding":"The PAC determined that no further action is warranted because the requester filed the Request for Review before the public body's statutory deadline to respond had expired.","legal_question":"Whether a public body's response to a FOIA request was untimely under 5 ILCS 140/3(d) and (e) when the requester filed a Request for Review before the statutory response deadline had passed.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Chicago Office of the Mayor","requesting_party":null,"pac_outcome":"Closed - premature filing","pac_law_type":null,"subject_category":"FOIA response deadline","subject_description":"The request sought records concerning the removal of homeless individuals from O'Hare Airport.","ocr_status":"ok","ocr_quality":92.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/9.5/9.5_a/Request-Denied/76927%2C%20issued%20July%203%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["FOIA deadline","response time","premature request","business days"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 3, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review – 2023 PAC 76927\n\nDear\n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2020)). For the reasons set forth below, the\nPublic Access Bureau concludes that no further action is warranted in this matter. \n\nOn May 28, 2023, you submitted a FOIA request to the City of Chicago Office of\nthe Mayor (Mayor's Office) seeking records related to the removal of homeless individuals from\nO'Hare Airport. On June 6, 2023, the Mayor' s Office extended its time to respond to your\nrequest by five business days pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) ( West 2020)). \nOn June 13, 2023, you submitted a Request for Review alleging that the Mayor' s Office\nbelatedly requested an extension and had not otherwise responded to your FOIA request. \n\nUnder section 9.5(a) of FOIA (5 ILCS 140/9.5(a) ( West 2020)), only \"[ a] person\n\nwhose request to inspect or copy a public record is denied by a public body * * * may file a\nrequest for review with the Public Access Counselor * * * not later than 60 days after the date\nof the final denial.\" ( Emphasis added.) Section 3(d) of FOIA ( 5 ILCS 140/ 3(d) ( West 2020)) \nprovides that \"[ e]ach public body shall, promptly, either comply with or deny a request for public\nrecords within 5 business days after its receipt of the request, unless the time for response is\nproperly extended under subsection (e) of this Section.\" ( Emphasis added.) Section 3(e) of\nFOIA ( 5 ILCS 140/ 3(e) ( West 2020)) permits a public body to extend the time for responding to\na request by five business days under certain enumerated circumstances. \"[ T] he plain language\nof FOIA gives a public body in receipt of a records request the unilateral ability to extend its own\nresponse deadline by five days.\" Sargent Shriver National Center on Poverty Law, Inc. v. The\n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fJuly 3, 2023\nPage 2\n\nBoard of Education of the City of Chicago, 2018 IL App (1st) 171846, ¶25, 122 N.E.3d 729, 735\n2018). \n\nYou submitted your FOIA request on May 28, 2023, which was a Sunday. The\nnext day, May 29, 2023, was the Memorial Day holiday, and the Mayor's Office was closed.1\nThus, the City received your request on May 30, 2023, which set the fifth business day after\nreceipt to June 6, 2023. The Mayor's Office properly extended its time to respond to your\nrequest by five business days on June 6, 2023. Following this extension, the Mayor' s Office was\nrequired to respond by the end of the day on June 13, 2023. Because you submitted your\nRequest for Review on the morning of June 13, 2023, this Request for Review is premature. \nAccordingly, we have determined that no further inquiry is warranted. \n\nThis letter closes this file. If you have any questions, please contact me at\n\nbenjamin. silver@ilag. gov. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n76927 f no fi war mun\n\ncc: \n\nVia electronic mail\nMr. Tom Skelton\nFOIA Officer\nOffice of the Mayor\nCity of Chicago\n121 North LaSalle Street, Suite 500\nChicago, Illinois 60601\nthomas. skelton@cityofchicago. org\n\nhttps://www.chicago.gov/city/en/narr/misc/city-holidays.html (last visited June 30, 2023). \n\n1See City Holidays (Offices Closed), City of Chicago, available at\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Records on removal of homeless individuals from O'Hare Airport","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null},{"id":1011,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-02-13","case_number":null,"request_numbers":["76974"],"title":"Cook County Pension Fund properly applied 7(1)(f) to redact Real Estate Strategic Plan","filename":"76974, issued February 13, 2024.pdf","rel_path":null,"word_count":2726,"summary":"The requester sought records from the Cook County Pension Fund, which redacted portions of a Real Estate Strategic Plan. The PAC determined that the Fund's redactions under section 7(1)(f) were appropriate.","plain_summary":"A reporter requested documents from the Cook County Pension Fund, but the Fund blacked out certain parts of a real estate plan. The Attorney General's office reviewed the request and decided the Fund was legally allowed to keep those parts private. This means the requester will not receive the redacted information.","holding":"The Cook County Pension Fund did not improperly redact the requested records.","legal_question":"Whether the Cook County Pension Fund properly applied the section 7(1)(f) exemption to redact portions of a Real Estate Strategic Plan.","disposition":"no_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Cook County Pension Fund","requesting_party":"Mr. Gar Chung (Financial Investment News)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"The request concerned the disclosure of a Real Estate Strategic Plan and the propriety of redactions made by the pension fund.","ocr_status":"ok","ocr_quality":96.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Communications-with-third-parties/Consultants-for-public-body/76974%2C%20issued%20February%2013%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["pension fund","redaction","real estate plan","preliminary draft"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAI\n\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 13, 2024\n\nVia electronic mail\n\nMr. Gar Chung\n\nFinancial Investment News\n\n15 West 26th Street, 4th Floor\nNew York, New York 10010\ngchung@fin-news.com\n\nVia electronic mail\n\nMs. Margaret M. Fahrenbach\n\nLegal Advisor\n\nCook County Pension Fund\n\n[street address redacted for site publication -- see original PDF]\nmfahrenbach@countypension.com\n\nRE: FOIA Request for Review — 2023 PAC 76974\n\nDear Mr. Chung and Ms. Fahrenbach:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069,\neffective January 1, 2024). For the reasons stated below, the Public Access Bureau concludes\n\n1745 Innovation Drive, Suite C\nCarbondale, Ilinois 62903\n\n$00 South 2nd Street 115 South LaSalle Street\nSpringfield, [linois 62701 Chicago, Illinois 60603\n(217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 * Fax: (312) 814-3806 (618) 529-6400 + Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service\n\nwww IllinoisAttomeyGeneral. gov\n\nMr. Gar Chung\n\nMs. Margaret M. Fahrenbach\nFebruary 13, 2024\n\nPage 2\n\nthat the Cook County Pension Fund (Fund) did not improperly redact certain portions of a record\nresponsive to Mr. Gar Chung's May 25, 2023, FOIA request.\n\nOn that date, Mr. Chung submitted a FOIA request to the Fund on behalf of\nFinancial Investment News seeking electronic copies of six records. On June 16, 2023, the Fund\nprovided Mr. Chung with redacted copies of certain records and stated that some unidentified\nrecords were exempt or not subject to disclosure pursuant to sections 7(1)(f) and 7(1)(g) of\nFOIA.! On June 26, 2023, Mr. Chung submitted the above-referenced Request for Review\ndisputing the Fund's denial of his request. On June 27, 2023, in e-mail correspondence with an\nAssistant Attorney General (AAG) from the Public Access Bureau, Mr. Chung clarified that he\nwas seeking review of only the Real Estate Strategic Plan from the May 23, 2023, Investment\nCommittee meeting. Mr. Chung contended:\n\nI requested an investment report from the fund's consultant\nCallan that was presented and discussed in an open forum, in this\ncase at their investment committee meeting in May.\n\nThe report I received was heavily redacted, and fund\nexplained that it was \"because they contain recommendations in\nwhich opinions were expressed regarding action that might be\nconsidered.\"\n\nI believe they are wrong since this report was openly and\npublicly discussed at their meeting that was open to the public.!?!\n\nOn that same date, this office sent a copy of the Request for Review to the Fund\nand asked for an unredacted copy of the Real Estate Strategic Plan for our confidential review,\ntogether with a detailed explanation of the factual and legal bases for the applicability of the\nasserted exemptions. This office also asked the Fund to address the extent to which the record\nwas publicly cited and identified by the head of the public body at a meeting.\n\nOn July 7, 2023, the Fund provided this office with an unredacted copy of the\nReal Estate Strategic Plan and its written response. On July 10, 2023, this office forwarded a\ncopy of the Fund's written response to Mr. Chung; he submitted a reply that same morning. On\nAugust 25, 2023, the Fund provided the AAG with a copy of the approved meeting minutes for\nthe Investment Committee's May 23, 2023, meeting.\n\n15 ILCS 140/7(1)(£), (1)(g) (West 2022).\n\nE-mail from Gar Chung, Financial Investment News, to Public Access Counselor (June 16,\n2023).\n\nOffice of the Illinois Attorney General\n\nMr. Gar Chung\n\nMs. Margaret M. Fahrenbach\nFebruary 13, 2024\n\nPage 3\n\nDETERMINATION\n\n\"All public records in the custody or possession of a public body are presumed to\nbe open to inspection and copying.\" 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). Any public body that asserts\nthat a record is exempt from disclosure \"has the burden of proving by clear and convincing\nevidence\" that a record is exempt from disclosure. 5 ILCS 140/1.2 (West 2022). The\nexemptions from disclosure are to be narrowly construed. See Lieber v. Board of Trustees of\nSouthern Illinois University, 176 Ill. 2d 401, 407 (1997).\n\nIn its response to this office, the Fund asserted that the records were exempt\npursuant to section 7(1)(f) of FOIA only. Section 7(1)(f) exempts from disclosure \"[p]reliminary\ndrafts, notes, recommendations, memoranda and other records in which opinions are expressed,\nor policies or actions are formulated, except that a specific record or relevant portion of a record\nshall not be exempt when the record is publicly cited and identified by the head of the public\nbody.\" The section 7(1)(f) exemption is \"intended to protect the communications process and\nencourage frank and open discussion among agency employees before a final decision is made.\"\nHarwood v. McDonough, 344 Ill. App. 3d 242, 248 (2003). Section 7(1)(f) can apply to\nconsultant reports when the consultant represents the interest of the public body, rather than any\ninterest of its own. Harwood, 344 Ill. App. 3d at 248.\n\nIn its response to this office, the Fund maintained that its partial denial was proper\nbecause:\n\nThe Record was prepared by Callan, LLC, the Fund's\nInvestment Consultant, and was made available to the trustees at\nthe time of the Investment Committee meeting on May 23, 2023.\nThe information redacted from the Record were recommendations\nand opinions from the Investment Consultant to the trustees\nregarding possible real estate investments and strategies, which are\nexempt from disclosure pursuant to Section 7(1)(f) of the Act, 5\nILCS 140/7(1)(f). Upon review of the redacted materials, the Fund\nagrees that objections to certain redactions made on page 17 and\npages 19-20 are valid because the Investment Committee discussed\nthe proposed commitments for 2023 and recommended that the\nRetirement Board adopt some of the recommendations made by\nthe Investment Consultant. The Fund has provided alternative\nredactions for page 17 and pages 19-20 as Exhibit A to this\nresponse.\n\nOffice of the Illinois Attorney General\n\nMr. Gar Chung\n\nMs. Margaret M. Fahrenbach\nFebruary 13, 2024\n\nPage 4\n\nOtherwise, the Investment Committee did not discuss or\ntake any action regarding the recommendations made in the\nRecord during the meeting. The Executive Director of the Fund,\nMr. Brent Lewandowski is the head of the public body and he has\nnot publicly cited or identified the Record.!°!\n\nIn reply, Mr. Chung argued that \"the investment committee did discuss the\nrecommendation in open session, and therefore the document shouldn't be redacted.\"*\n\nThe approved minutes from the Investment Committee meeting held on May 23,\n2023, state, in relevant part, as follows:\n\n2. Real Estate Strategic Plan and Performance Review\n\nMs. Barbara Bernard of Callan LLC stated that, in general,\nreal estate investments had negative appreciation values and that\ninterest rates were up. The office property segment of this asset\nclass was particularly challenged. She presented a summary of the\nallocations for the County Fund's real estate portfolio and the\ninvestment positions as of December 31, 2022, for Core, Non-Core\nand REIT investments. The total real estate portfolio exceeds the\n9% target for this asset class, but is within the policy range. The\nportfolio is in line with the stated limits for Core, Non-Core and\nREIT investment target allocations. The Core investments and\nnon-Core investments out-performed their benchmarks over the\ntrailing one, three, five and ten years. The REITs collectively\nunderperformed the benchmark by -280 basis points in the last\nyear, but out-performed the benchmark across the three year period\nby 73 basis points and outperformed the benchmark for the five\nyear period by 50 basis points. It was discussed that the REITS\ncould be used as a source for funding possible RFPs for Core\ninvestments and Non-Core Investments.\n\nIt was moved by Trustee Reed and seconded by Trustee\nPray, that the Committee recommend that the Board approve the\nrelease of a Request for Proposal (\"RFP\") for investment in a Core\nreal estate fund for the County Fund with a mandate of an\n\n5Letter from Margaret M. Fahrenbach, Legal Department, to Katie Goldsmith, Assistant Attorney\nGeneral, Public Access Bureau (July 7, 2023), at 1.\n\n4E-mail from Gar Chung to [Katie] Goldsmith (July 10, 2023).\n\nOffice of the Illinois Attorney General\n\nMr. Gar Chung\n\nMs. Margaret M. Fahrenbach\nFebruary 13, 2024\n\nPage 5\n\nestimated $110M as presented and recommended by the Fund's\nInvestment Consultant, Callan LLC.!*!\n\nThe minutes also reflect a subsequent roll call vote for approval of a release of an RFP for\ninvestment in a Non-Core real estate fund for an estimated sixty million dollars.° The minutes\nthen state that the Callan, LLC (Callan) representative presented a summary of the real estate\nportfolio for the Forest Fund and indicate that a brief discussion was had before the Investment\nCommittee began to discuss a different topic.”\n\nThis office's review and comparison of the redacted and unredacted Real Estate\nStrategic Plan confirms that the redacted portions reveal opinions and recommendations of\nCallan related to real estate investments and strategies considered by the Investment Committee\nduring its meeting. Although the Fund did not directly create the record, it is nevertheless an\ninter-agency record of the Fund because Callan prepared it as a consultant rather than for its own\nindependent interests. The meeting minutes reflect that the Investment Committee considered\nthe Real Estate Strategic Plan as part of the broad decision-making process concerning future\ninvestments at the meeting. Therefore, because the Real Estate Strategic Plan contains opinions\nand recommendations upon which the Investment Committee relied to formulate decisions, the\nredacted portions constitute \"predecisional or deliberative material\" that fall within the scope of\nsection 7(1)(f) of FOIA.\n\nMr. Chung contends that the Fund waived the ability to withhold the Real Estate\nStrategic Plan under section 7(1)(f) because the Investment Committee discussed the record at a\npublic meeting. As explained above, a public body waives the applicability of section 7(1)(f) ifa\nrecord or portion of a record is \"publicly cited and identified by the head of the public body.\"*® In\nDumke vy. City of Chicago, 2013 IL App (1st) 121668, the Illinois Appellate Court considered\nwhether a public statement by the mayor of the City of Chicago \"publicly cited and identified\" a\nrecord for purposes of section 7(1)(f). The plaintiff alleged that then-Mayor Richard Daley\n\n‘Investment Committee, Retirement Board of the County Employees' and Officers’ Annuity and\nBenefit Fund of Cook County and Ex Officio for the Forest Preserve District Employees' Annuity and Benefit Fund\nof Cook County, May 23, 2023, Minutes 1-2.\n\n‘Investment Committee, Retirement Board of the County Employees' and Officers’ Annuity and\nBenefit Fund of Cook County and Ex Officio for the Forest Preserve District Employees' Annuity and Benefit Fund\nof Cook County, May 23, 2023, Minutes 2.\n\n7Investment Committee, Retirement Board of the County Employees' and Officers’ Annuity and\nBenefit Fund of Cook County and Ex Officio for the Forest Preserve District Employees’ Annuity and Benefit Fund\nof Cook County, May 23, 2023, Minutes 2.\n\n‘FOIA defines \"head of the public body\" as \"the president, mayor, chairman, presiding officer,\ndirector, superintendent, manager, supervisor or individual otherwise holding primary executive and administrative\nauthority for the public body, or such person's duly authorized designee.\" 5 ILCS 140/2(e) (West 2022).\n\nOffice of the Illinois Attorney General\n\nMr. Gar Chung\n\nMs. Margaret M. Fahrenbach\nFebruary 13, 2024\n\nPage 6\n\nwaived the section 7(1)(f) exemption with respect to a study prepared for the Chicago Police\nDepartment by an outside consulting firm when he referred to the study during a press\nconference and in an ensuing press release. Dumke, 2013 IL App (Ist) 121668, §] 16-17. At the\noutset, the court noted that \"[s]ection 7(1)(f) does not provide any guidance on how much or how\nlittle needs to be said or done to constitute an effective waiver. The parties have not advanced or\npresented any legislative history or citation to any legal authority, nor has our research found\nany, that assists us in determining what minimum conduct amounts to public citation and\nidentification.\" Dumke, 2013 IL App (1st) 121668, § 18. In the absence of authority, the court\nturned to the plain language of section 7(1)(f) and found it to be unambiguous:\n\nBoth \"cite\" and \"identify\" have a plain and ordinary meaning, as\nwell as a common understanding. \"Cite\" is defined as, \"[t]o\nmention or bring forward as support, illustration, or proof.\"\n[Citation.] \"Identify\" means to \"1 a: to cause to be or become\nidentical b: to conceive as united (as in spirit, outlook, or principle)\n